author: EVANDER, J.

text:
    Montrell L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2789.
    District Court of Appeal of Florida, Fifth District.
    Jan. 21, 2011.

      Aaron D. Delgado, of Damore, Delgado, Romanik & Rawlins, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Johnson appeals from his conviction for aggravated battery with a firearm. We affirm his conviction without discussion. However, we find that the trial court erred in imposing a mandatory minimum sentence of twenty-five years pursuant to section 775.087(2)(a)3., Florida Statutes (2007), where the jury failed to make a specific finding that the victim suffered “great bodily harm” as the result of Johnson’s discharge of a firearm.

At trial, the State presented eyewitness testimony that Johnson shot the victim in the leg after the two had engaged in an altercation outside a nightclub. In addition to finding Johnson guilty of aggravated battery with a firearm, the jury made special findings that: 1) Johnson possessed a firearm; 2) Johnson discharged a firearm; and 3) Johnson discharged a firearm and, as a result, caused great bodily harm and/or permanent disability and/or permanent disfigurement to the victim.

At the original sentencing hearing, the trial court pronounced a twenty-five year incarcerative sentence, stating:

Okay. Mr. Johnson, the minimum sentence that the court can impose in your case is 25 years incarceration. And I don’t wish to sentence you to anything greater than that.
Accordingly, Mr. Johnson, you’ll be adjudicated guilty, sentenced to 25 years incarceration with the Department of Corrections....

The trial court’s subsequent written order reflected the twenty-five year sentence, but further provided that Johnson would serve a twenty year mandatory minimum term and that he would not be eligible for statutory gain time.

Johnson then filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In his motion, Johnson challenged the imposition of the mandatory minimum term. The trial court denied the motion, found that as a result of a clerical error the written judgment incorrectly referenced a twenty year mandatory minimum term, and entered an amended judgment reflecting that Johnson would be required to serve twenty-five years in prison without eligibility for statutory gain time.

On appeal, Johnson challenges the mandatory minimum part of his sentence on three different grounds. First, he contends that because the trial court failed to orally pronounce the mandatory minimum term at the original sentencing hearing, it was precluded by double jeopardy principles from subsequently doing so. Second, Johnson argues that the mandatory minimum term is illegal because the state failed to allege, and the jury failed to make a finding, that Johnson actually possessed or actually discharged a firearm. Third, Johnson claims that the jury’s finding that the discharge of the firearm had “caused great bodily harm and/or permanent disability and/or permanent disfigurement” did not permit an enhancement of the mandatory minimum term from twenty years to twenty-five years because the enhancement statute makes no reference to “permanent disability” or “permanent disfigurement.” We reject Johnson’s first two arguments, but find merit to his third claim.

Pursuant to section 775.087(2)(a)l.g., Florida Statutes (2007), any person who is convicted of an aggravated battery and “during the commission of the offense, such person actually possessed a ‘firearm’ ... shall be sentenced to a minimum term of imprisonment of 10 years.... ” The minimum sentence is increased to twenty years if, during the course of the commission of the crime, the offender discharged the firearm, section 775.087(2)(a)2., and to twenty-five years if, as the result of the discharge of the firearm, “death or great bodily harm was inflicted upon any person.” § 775.087(2)(a)3.

Section 775.087(2)(b) provides that the imposition of the minimum sentence called for by the above-referenced subsections is mandatory and that a defendant sentenced thereunder is not eligible for statutory gain-time or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under section 947.149, prior to serving the minimum sentence.

Johnson first argues that double jeopardy principles precluded the trial court from imposing the mandatory minimum term after he had already begun serving his sentence when this part of his sentence had not been orally pronounced at the original sentencing hearing. We disagree. As we recently held in Dunbar v. State, 46 So.3d 81, 82 (Fla. 5th DCA 2010), the imposition of a mandatory minimum sentence under section 775.087(2) is a non-discretionary duty of a trial court where the record reflects that the defendant ’ qualifies for mandatory minimum sentencing. When an oral sentence does not include the applicable mandatory minimum sentence, it is an illegal sentence and, accordingly, subject to correction. Id. at 83. We further noted that it does not offend double jeopardy principles to resen-tence a defendant to a harsher term when the original sentence was invalid. Id.; see also State v. Scanes, 973 So.2d 659 (Fla. 3d DCA 2008); State v. Couch, 896 So.2d 799 (Fla. 1st DCA 2005); State v. Strazdins, 890 So.2d 334 (Fla. 2d DCA 2004); Allen v. State, 853 So.2d 533 (Fla. 5th DCA 2003). We also reject Johnson’s suggestion that the state waived the mandatory minimum sentence. At the original sentencing hearing, the prosecutor requested the trial court sentence Johnson in accordance with the statute. The failure to call the trial court’s attention to its omission of the mandatory minimum provision during oral pronouncement of sentence does not reflect an intentional waiver. State v. Vanderhoff, 14 So.3d 1185, 1189 (Fla. 5th DCA 2009).

Johnson next argues that the mandatory minimum portion of his sentence was illegal because the information failed to allege, and the jury failed to make a finding, that the defendant actually possessed or actually discharged a firearm. Johnson suggests that the jury could have concluded that someone else shot the victim and that he was only in constructive, not actual, possession of a firearm. We reject this argument. The information alleged that Johnson, “while in possession of a firearm, did actually and intentionally touch or strike [the victim] and in doing so, discharged a handgun.... ” The jury found Johnson guilty of aggravated battery with a firearm “as charged in the information.” Johnson was the only person charged in the case and the “principal” instruction was not given, nor sought. The State did not make any allegations, present any evidence, or argue that anyone other than Johnson was the shooter. The only reasonable conclusion that can be reached from the jury’s verdict and special findings is that the jury found Johnson was in actual possession of the firearm and he actually discharged same. See Allen v. State, 799 So.2d 284, 285 (Fla. 5th DCA 2001) (“Appellant also contends that since there was no specific jury finding that appellant actually possessed a firearm during the carjacking, the mandatory minimum sentence cannot stand. We disagree. Here, there was only one perpetrator involved in the carjacking. Use of the firearm was made an element of the offense. By finding appellant guilty as charged, the jury necessarily found that a firearm was used and that appellant used it.”)

Johnson’s final argument is that the trial court erred in enhancing his mandatory minimum sentence from twenty years to twenty-five years because the special interrogatory submitted to the jury referenced the terms “permanent disability” and “permanent disfigurement” which are not set forth in section 775.087(2)(a)3. The State argues that any error in including these extra terms was harmless, contending that all permanent disabilities and permanent disfigurements constitute “great bodily harm.” We reject the State’s argument. An examination of section 784.045(l)(a) leads to the conclusion that the Legislature has determined that not all permanent disabilities and permanent disfigurements constitute great bodily harm. That statute provides:

A person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement....

(Emphasis added). The use of the conjunction “or” strongly suggests that the Legislature did not find “great bodily harm” to necessarily include all permanent disabilities or disfigurements. Additionally, if all permanent disabilities and permanent disfigurements fell within the definition of “great bodily harm,” it would have been unnecessary for the Legislature to have included these terms in section 784.045(l)(a). Statutes should be construed so as to give effect to all words in the statute, rather than to render them meaningless surplusage. Weeks v. Fla. Birth-Related Neurological, 977 So.2d 616, 619 (Fla. 5th DCA 2008). Because not all permanent disabilities and permanent disfigurements fall within the definition of “great bodily harm,” we cannot conclude that the jury found that Johnson’s discharge of a firearm caused great bodily harm. Tucker v. State, 726 So.2d 768 (Fla.1999) (enhancement of sentence under section 775.087(1) must be supported by jury finding).

AFFIRMED, in part; REVERSED, in part; REMANDED for Resentencing.

LAWSON and JACOBUS, JJ., concur.

      . Fla. Std. Jury Instr. (Crim.) 3.5(a) Principals.

      . A example of an injury that a jury could reasonably find constituted permanent disfigurement, but not great bodily harm, would be a small scar. See, e.g., Gillman v. Gillman, 319 So.2d 165 (Fla. 1st DCA 1975) (holding that 4.5 centimeter permanent scar on plaintiff’s forehead could be "permanent disfigurement” within meaning of Florida Automobile Reparations Reform Act); see also Cohen v. Pollack, 674 So.2d 805 (Fla. 3d DCA 1996) (whether facial scar is disfigurement is jury question).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    K.N.W., a child, Petitioner, v. Stepheny DURHAM, Superintendent of the Duval Regional Juvenile Detention Center and State of Florida, Respondents. A.F.R., a child, Petitioner, v. Stepheny Durham, Superintendent of the Duval Regional Juvenile Detention Center and State of Florida, Respondents.
    Nos. 1D10-6664, 1D10-6673.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.
    Matt Shirk, Public Defender, Fourth Judicial Circuit, and Robert W. Mason, Assistant Public Defender, Jacksonville, for Petitioners.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

Contending that they were unlawfully ordered to secure detention pending their adjudicatory hearings in juvenile delinquency matters, K.N.W. and A.F.R. separately petitioned for habeas corpus relief. We earlier denied their petitions by unpublished order, and now consolidate their cases for purposes of this opinion explaining the basis for our rulings.

After being arrested, petitioners appeared before the circuit court for detention hearings. Detention risk assessment instruments were prepared for each, but neither reached the 12-point threshold necessary to qualify for secure detention. The circuit court nonetheless ordered that both petitioners be held in secure detention, briefly stating on the record its reasons for doing so. In each case, defense counsel “objeet[ed] for the record,” but did not state any specific objection to the circuit court’s ruling. Petitioners then sought relief from this court, arguing that their detention was illegal because the circuit court failed to comply with section 985.255(3)(b), which requires the court to “state, in writing, clear and convincing reasons” for ordering a detention placement more restrictive than that indicated by the risk assessment instrument. Both petitioners further argued that even if the reasons orally pronounced had been reduced to writing, they were insufficient to justify secure detention.

In T.L.W. v. Soud, 645 So.2d 1101 (Fla. 1st DCA 1994), we announced that before seeking relief in this court by petition for writ of habeas corpus, a juvenile challenging his or her secure detention is required to first present arguments in favor of release to the trial court. We explained that doing so serves the dual purpose of permitting the trial court to first consider the claims for relief while also providing this court with a record of the parties’ arguments and the trial court’s disposition thereof. We further noted that although the rush of trial court proceedings may preclude counsel from adequately articulating arguments of this nature during the detention hearing, Florida Rule of Juvenile Procedure 8.130 authorizes further trial court consideration through a motion for rehearing, and we expressly approved the use of such a motion to permit the trial court to first consider a claim that secure detention is contrary to law.

In these cases, defense counsel’s general objections did not alert the trial court to the need for written departure orders, and the absence of such orders is clearly a matter that could have been remedied through either a timely objection or a motion for rehearing. Likewise, the objections interposed by counsel did not articulate any argument supporting the conclusion that the orally pronounced reasons of the trial court, even if reduced to writing, were insufficient to justify secure detention. The absence of specific objections of this sort deprived the trial court of the opportunity to correct any error or procedural deficiency, and as well prevented the creation of an adequate record for this court’s review.

Accordingly, we take this opportunity to reiterate and reinforce the exhaustion requirement recognized in T.L.W. We deem it appropriate to add that although T.L.W. imposes this requirement on counsel for the juvenile as a precondition to seeking habeas relief in this court, counsel for the state also has a duty to ensure that detention decisions comport with the law. As this court and others have repeatedly observed, the power to order detention for those charged with or found to have committed a delinquent act is entirely statutory in nature, and strict compliance with the applicable statutes is therefore required. See, e.g., W.C. v. Smith, 898 So.2d 1187 (Fla. 1st DCA 2005). The obligation to ensure that this power is properly exercised rests with the trial court, but as officers of the court, counsel for both parties have a duty, where warranted, to call the trial court’s attention to the requirements of the statutes governing juvenile detention.

WOLF, KAHN, and THOMAS, JJ., concur.


author: CORTINAS, J.

text:
    ARKITEKNIC, INC. d/b/a Arki Construction Corporation, a Florida Corporation, Appellant, v. UNITED GLASS LAMINATING, INC., Appellee.
    No. 3D10-898.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 2011.

      Patrick J. Goggins, for appellant.
    Miller Kagan Rodriguez & Silver and Jeffrey D. Swartz, Coral Gables, for appel-lee.
    Before CORTIÑAS and SALTER, JJ., and SCHWARTZ, Senior Judge.
   CORTINAS, J.

We reverse the trial court’s final default judgment and order striking pleadings as a sanction for failure to comply with certain disclosure deadlines. “Because dismissal is the ultimate sanction in the adversarial system, it should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). To ensure that the sanction of dismissal is prudently applied, trial courts must first make certain preliminary findings of fact. Alvarado v. Snow White & the Seven Dwarfs, Inc., 8 So.3d 388 (Fla. 3d DCA 2009); Tianvan v. AVCO Corp., 898 So.2d 1208, 1209 (Fla. 4th DCA 2005). These findings must address:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration.

Kozel, 629 So.2d at 818.

Here, the trial court did not make the preliminary findings of fact concerning each of the Kozel factors. Accordingly, we reverse the final default judgment and order striking pleadings and remand to the trial court to consider all six Kozel factors. If, after considering the six factors, the trial court determines that no less severe sanction is appropriate, and again dismisses the case with prejudice, the trial court shall include in its order of dismissal findings of fact and conclusions of law with respect to each of the Kozel factors. See Smith v. City of Panama, 951 So.2d 959, 962 (Fla. 1st DCA 2007).

Reversed and remanded.


text:
    Bobby JONES a/k/a Robert Jones, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3321.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 2011.
    Bobby Jones a/k/a Robert Jones, in proper person.
    Pamela Jo Bondi, Attorney General.
    Before CORTINAS, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

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

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

Reversed and remanded for further proceedings.


text:
    J.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1406.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 2011.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before WELLS, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See State v. Zaldivar, 34 So.3d 76 (Fla. 3d DCA 2010); Prestley v. State, 896 So.2d 862, 864 (Fla. 5th DCA 2005) (“Occupants of a private vehicle are traveling together by choice and thus may be assumed to have some personal or business association with one another. Knowledge or suspicion that one of the occupants has been involved in criminal activity occurring within the car, or involving the car itself, serves as a basis for a reasonable suspicion that the other occupants may be participants in that activity. Therefore, we conclude that since the officers had a reasonable suspicion that the car was stolen, they had a basis for stopping and questioning the passengers in the vehicle, including the Juvenile.”).


text:
    The STATE of Florida, Appellant, v. Rodney BENNETT, Appellee.
    No. 3D10-983.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 2011.

      Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellant.
    Grey and Mourin and Juan Mourin, Miami, for appellee.
    Before SUAREZ, CORTINAS and LAGOA, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

The motion for rehearing is granted and this Court’s opinion filed on December 8, 2010 is hereby withdrawn. Based on the authority of State v. Cable, 51 So.3d 434 (Fla.2010), we grant the appellee’s motion for rehearing, and we affirm the lower court’s order granting the appellee’s motion to suppress.

Affirmed.


author: ROTHENBERG, J.

text:
    MORTON’S OF CHICAGO/NORTH MIAMI BEACH, LLC, Appellant, v. Enrique BERMUDEZ and Doris Bermudez, Appellees.
    No. 3D10-1271.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 2011.
    Hicks, Porter, Ebenfeld & Stein and Dinah S. Stein, Mark Hicks and Shannon Kain, Miami; Weinberg, Wheeler, Hud-gins, Gunn & Dial and Todd R. Ehrenreich and Seth Alhadeff, Miami, for appellant.
    The Haggard Law Firm and James C. Blecke, Coral Gables; Alan Goldfarb, Miami, for appellees.
    Before CORTINAS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

The defendant, Morton’s of Chicago/North Miami Beach, LLC (“Morton’s”), appeals from an order granting a new trial to the plaintiffs, Enrique Bermudez (“Dr. Bermudez”) and Doris Bermudez (collectively, “the plaintiffs”), following the jury’s verdict finding Morton’s not liable for Dr. Bermudez’s fall at Morton’s premises, a restaurant. The trial court granted the new trial based on its rulings on motions in limine which precluded the plaintiffs’ experts, Robin Hale (“Mr. Hale”), an architect, and Dr. Michael Maddox (“Dr. Maddox”), a human factors expert, from testifying that Morton’s violated provisions of the Uniform Fire Code and Life Safety Code (“Life Safety Code”) and the Americans with Disabilities Act (“ADA”). As we conclude that based on the evidence presented at trial, the particular provisions of the ADA and Life Safety Code were totally irrelevant, we reverse and remand with instructions to reinstate the jury’s verdict.

After Dr. Bermudez’s fall, the plaintiffs retained two experts: Mr. Hale and Dr. Maddox, who visited Morton’s and observed what they believed to be violations of certain provisions of the Life Safety Code and the ADA. Prior to trial, the trial court granted a motion in limine precluding Mr. Hale from testifying as to whether the temporary deviations he observed during his visit to Morton’s along the aisle where Dr. Bermudez had fallen, violated the Life Safety Code. Some of the temporary deviations he observed were patrons seated at tables who had pushed their seats out, and wine chillers and presentation tables which had been placed next to some of the tables. He claimed these temporary conditions constituted violations because they reduced the width of the aisle to under forty-four inches as required by the Life Safety Code. In addition, the trial court precluded Dr. Maddox from testifying that based on his interpretation of the ADA, Morton’s violated the ADA by allowing booth legs at the restaurant to protrude past the table tops by one to three inches.

At trial, the uncontroverted evidence was that Dr. Bermudez, who is eighty-four years old, fell on September 20, 2008, at approximately 6:45 p.m., as he was walking down the main aisle of the restaurant between tables 31 and 41. The area of the main aisle where Dr. Bermudez fell is comprised of both tables and booths, with booths on the right side, numbered as 20, 30, and 40, and tables on the left side, numbered as 21, 31, and 41. When Dr. Bermudez fell, there were only twenty-three to twenty-five patrons at the restaurant, which seats 212 persons, and of these six tables and booths, only booth number 40, which is located after tables 31 and 41, was occupied. Booth 40, the only table occupied along the aisle Dr. Bermudez walked down, was, however, not implicated. There were no wine chillers or presentation tables in the aisle.

The only eyewitness to the fall testified that Dr. Bermudez walked with an unsteady gait and shaky hands. While walking down the aisle, Dr. Bermudez used a chair at table 21, which is located on the left side of the aisle and away from the booths, to steady himself. As he approached table 31, he reached for another chair, and then fell to the ground between tables 31 and 41, with the chair landing on him. Although Dr. Bermudez initially told the paramedics that tended to him at Morton’s that he tripped on the carpet, and later told emergency personnel at the hospital that he tripped on a chair, he testified at trial that he fell after his foot hit something hard, but he could not identify what his foot hit. Although Mr. Hale and Dr. Maddox testified that they observed temporary deviations which they believed constituted a violation of the Life Safety Code or the ADA when they visited Morton’s on a night subsequent to Dr. Bermudez’s fall, the uncontroverted evidence at trial was that the area of the aisle where Dr. Ber-mudez fell was clear of any temporary deviations — in other words, no patrons had pushed out their chairs, and there were no wine chillers, presentation tables, etc. in the aisle where Dr. Bermudez fell.

Based on the facts of this case, as well as the law, we conclude that the trial court’s initial analysis and pretrial rulings excluding the testimony were correct, and its subsequent change in position was error. Thus, we conclude that the trial court abused its discretion by granting a new trial. First, the premise relied on by Dr. Maddox, that the booth leg protruded past the table top by one to three inches, and was thus an ADA violation, was proven to be false. Booth 30 was produced at trial and measured, and the plaintiffs’ experts admitted that the booth leg did not protrude past the table top as they initially opined. Second, the uncontroverted evidence showed that the alleged code violations were not present when Dr. Bermudez fell. Thus, the proffered testimony of Mr. Hale and Dr. Maddox — that Morton’s violated provisions of the Life Safety Code and the ADA on a date subsequent to the date of Dr. Bermudez’s fall — had no bearing on this case. It is undisputed that there were no “temporary deviations” in the aisle when Dr. Bermudez fell or that the aisle was less than forty-four inches wide.

Lastly, we note that, although the trial court ruled that Dr. Maddox and Mr. Hale were not to testify that based on their observations they believed Morton’s violated certain provisions of the ADA and the Life Safety Code, the plaintiffs’ experts did testify as to their observations during their visits at Morton’s and the requirements provided by the ADA and the Life Safety Code, and they did render opinions as to what violations they believed existed. For example, the experts testified that, pursuant to the Life Safety Code, the aisle must be at least forty-four inches wide; temporary deviations (wine chillers, presentation tables, etc.) decrease the width of the aisle; the encroachment of more than one quarter of an inch for booth legs constitutes a “tripping hazard”; and although they initially testified that the booth legs at Morton’s encroached between one to three inches, they admitted at trial they were incorrect. Further, photographs of the restaurant taken months after Dr. Bermudez fell, which depict items encroaching into the aisle (wine chillers, presentation tables, chairs, etc.), were introduced into evidence, although it is undisputed that on the night that Dr. Bermu-dez fell, these items were not present in the area of the aisle where Dr. Bermudez fell. Therefore, even if the trial court improperly limited Dr. Maddox’s and Mr. Hale’s testimony, which we conclude the trial court did not, the error would be harmless because the plaintiffs cannot demonstrate substantial prejudice. See Midtown Enters., Inc. v. Local Contractors, Inc., 785 So.2d 578 (Fla. 3d DCA 2001). Accordingly, we reverse and remand with instructions to reinstate the jury’s verdict of no liability.

Based on our resolution, we find it unnecessary to address Morton’s remaining arguments on appeal.

Reversed and remanded.


author: GRIFFIN, J.

text:
    GENERATION INVESTMENTS, LLC, Appellant, v. AL-JUMAA, INC., et al., Appellees.
    No. 5D09-2933.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    John M. Iriye and Don L. Brown, of Smith Brown, PL, Maitland, for Appellant.
    Herman J. Russomanno and Herman J. Russomanno, III, of Russomanno & Bor-rello, P.A., Miami, for Appellee, Al-Jumaa, Inc.
    James E. Shepherd and Stacy Ford, of Pohl & Short, P.A., Winter Park, for Ap-pellee, Formosa Gardens Master Property Owner’s Assn, Inc. and George Chen.
   GRIFFIN, J.

Generation Investments, LLC [“Generation”], appeals the trial court’s order denying in part, and granting in part, Generation’s motion for relief from judgment as well as the amended final judgment granting injunctive relief in favor of Formosa Gardens Master Property Owners’ Association, Inc, [“the Association”], George Chen [“Chen”], and Al-Jumaa, Inc. [“Al-Jumaa”], [collectively “Respondents”]. Generation contends that it was error to enter the injunction because Generation was an indispensable party to the action, but was not joined as a party. Respondents have filed a motion to dismiss, contending that Generation lacks standing to appeal because it was not a party to the action below. We elect to treat the notice of appeal as a petition for writ of certiora-ri. An appellate court has certiorari jurisdiction where a nonparty seeks relief from an order and its nonparty status would otherwise deprive the nonparty of an adequate remedy by direct appeal. See Dep’t of Corr. v. Grubbs, 884 So.2d 1147, 1147 (Fla. 2d DCA 2004).

In January 2009, Formosa and Chen filed a complaint against Al-Jumaa for injunctive relief, seeking to enforce covenants and restrictions contained in a Master Declaration. Formosa and Chen requested that the trial court enter an injunction:

1. Requiring the Defendant to repaint the exterior of the building and return the condition of the exterior of the building to its originally approved condition or to a condition that is approved by the Association;
2. Requiring the Defendant to remove any signs and to enjoin Defendant from placing new signs, balloons, or other advertisements on the Property in the future without first obtaining approval of the Association;
3. Requiring the Defendant to maintain the landscaping of the Property in good repair and in a safe, clean, wholesome and attractive manner, and to perform such maintenance on a weekly basis;
4. Requiring the Defendant to maintain its garbage and trash containers in a walled off area so that they are not visible from any adjoining property or right-of-ways.
5. Requiring the Defendant to stop conducting any timeshare sales or promotions to occur from or at the Property-

On June 23, 2009, the trial court entered a final judgment granting injunctive relief in which it ordered in pertinent part:

a.Defendant, Al-Jumaa, and any person claiming possession or use of the Property by or through Defendant, are hereby permanently enjoined from allowing any timeshare sales to occur from or at the Property. Defendant shall take such reasonable measures as may be necessary to enforce this injunction on any tenants or other persons occupying the Property. The Court reserves jurisdiction to enforce the injunction entered herein by issuing an appropriate order, after reasonable notice of the violation and an opportunity to be heal’d, against any person who violates the injunction and by issuing an order directing the Sheriff of Osceola County to close or shut down any business operations in violation of this injunction.
b. Defendant, Al-Jumaa, and any person claiming possession or use of the Property by or through Defendant, are hereby ordered to remove any signs, flags, banners, or balloons from the Property that have not been approved by the Association and are enjoined from installing any new signs, flags, banners or balloons unless they are approved by the Association....
c. Defendant, A1 Jumaa, and any person claiming possession or use of the Property by or through Defendant, are hereby ordered to repaint the building in manner that is approved by the Association on or before June 29, 2009. Defendant shall take such reasonable measures as may be necessary to enforce this injunction on any tenants or other persons occupying the Property. Defendant, A1 Jumaa, and any person claiming possession or use of the Property by or through Defendant, are required to obtain written approval of the new paint scheme, colors and design from the Association prior to beginning any work....

On July 13, 2009, Generation filed a motion for relief from this judgment, seeking to have the trial court enter an order setting it aside or, alternatively, clarifying that the final judgment may not be enforced against it. Generation alleged in part:

2. Generation is a tenant on the property. On July 6, 2009, Plaintiffs sent a letter to Generation, a copy of which is marked “Exhibit A” and attached hereto. Based on the Final Judgment, Plaintiffs have threatened: to have this Court hold Generation in contempt and to fine Generation if Generation does not comply with the demands in the letter; to have the sheriff shut down Generation[’]s business; to forcibly remove items from Generation[’]s property; to paint over Generation[’]s advertisements.
3. The instant action is not the first time that Plaintiff, George Chen (Chen), has attempted to obtain an injunction regarding the property. In CI-05-OC-2060, Plaintiffs filed suit against several people, including, Generation. The basis for the 2005 suit was the same as the instant matter. Plaintiffs sought to enforce the same restrictive covenants regarding the use of the property. Generation could not be subject to the restrictive covenants because it was in possession of the land under a lease that predated the restrictive covenants. Chen voluntarily dismissed his case after learning that he could not enforce the restrictive covenants against Generation.
4. Prior to Plaintiffs filing the instant case, they had been advised that Generation occupied the property and that Generation held the property under a lease that predated the restrictive covenants. Plaintiffs filed this action without joining Generation, without informing the court that Generation occupied the property, and failed to disclose that ... Generation held the property under a lease that predated the restrictive covenants.
5. A court may relieve a party from the effect of a final judgment because of fraud by the adverse party. Rule 1.540(b)(3), Fla.R.Civ.P.
6. A court may relieve a party from the effect of a final judgment if the final judgment is void. Rule 1.540(b)(4), Fla. R.Civ.P.
10. Plaintiff has used this Court to enforce a restrictive covenant that it knew was unenforceable against Generation. Plaintiff knew that Generation has rights under a lease that predate the restrictive covenants, but chose not to make Generation a party. Plaintiff knowingly withheld information from this Court and requested a Final Judgment that contained express reference to Generation’s rights as a tenant.

The trial court conducted a hearing on Generation’s motion, at which counsel for Formosa and Chen acknowledged that Generation was purposely not named in the complaint:

The reason for that in the complaint is the declaration is enforceable against the owner. It’s the owner’s responsibility to comply with the terms of the declaration, including the signage, including the changes to the exterior of the building, and including the time-share restrictions ....
So the decision not to name the tenants was done purposely because I don’t think that an association or George Chen should be required to specifically name the tenant who might be occupying the property at that time to obtain an enforceable judgment. He gets a judgment against the owner.

The trial court ruled:

1. The Motion is GRANTED in part. The Court shall enter an Amended Final Judgment Granting Injunctive Relief clarifying that the injunction being entered by this Court is against the Defendant, AL-JUMAA, Inc., not against the tenants who may be occupying the property.
2. The Motion is DENIED in all other respects.

The record reveals that Generation, as the tenant of the property, painted the building, displayed signs, flags, banners, and balloons on the property, and sold timeshares from the property. Al-Jumaa, as the owner of the property, is required under the injunction to repaint the building, to stop the sale of tiraeshares from the property, and to remove the signs, flags, banner, and balloons from the property. Because the injunction requires Al-Jumaa to take steps to change the way in which the property is being used, and Generation is the entity using the property in a way that will be altered by the injunction, the injunction cannot be carried out without affecting Generation’s use of the property.

Generation relies on several authorities, including Alger v. Peters, 88 So.2d 903 (Fla.1956), Sheoah Highlands, Inc. v. Daugherty, 837 So.2d 579 (Fla. 5th DCA 2003) and Stevens v. Tarpon Bay Moorings Homeowners Ass’n Inc., 15 So.3d 753 (Fla. 4th DCA 2009), for the proposition that the impact of the injunction makes them an indispensible party to the action.

In Alger, six tenants appealed a contempt order that had been entered against them. 88 So.2d at 905. One of the tenants’ contentions addressed by the Florida Supreme Court was whether an injunction decree “was absolutely void for the asserted reason that [the tenants] were ‘indispensable’ parties to the original case and that the court could not proceed to a valid final decree in the absence of indispensable parties.” Id. at 908. The Florida Supreme Court found that the tenants “were not indispensable to an ultimate adjudication of the relative rights” of the parties to the original cause of action, namely the property ownerflessor and lessee, but that the rights of the tenants could not be determined unless they were joined and as to them the decree was ineffective and of no force. Id. The Alger court further explained:

While it is true that an injunction decree may affect a particular res and to that extent may in some measure assume the proportion of a decree in rem that thereafter ‘runs with the land’, we do not consider such an application of the decree before us as being justifiable insofar as the particular leases of these [tenants] are concerned. In the case at bar the rights of the [tenants] came into being before the decree was entered. If the leases to them had been executed after the decree, then they would have acquired their property rights subject to the limitations of the decree. The latter, however, was not the case. Their rights were fixed and established before the decree was entered and they could not be deprived of them by the entry of a decree in a cause to which they were not parties. On the proper interpretation of Equity Rule 72 see Barron and Holtzoff, Federal Practice and Procedure, Sec. 1511; and Moore’s Federal Practice, Sec. 71.04.

Id. at 906-07 (emphasis in original).

In Sheoah, this Court addressed the issue of indispensable parties in relation to entry of an injunction:

A court is without jurisdiction to issue an injunction which would interfere with the rights of those who are not parties to the action. An injunction can lie only when its scope is limited in effect to the rights of parties before the court. Street v. Sugerman, 177 So.2d 526 (Fla. 3d DCA 1965); Fontainebleau Hotel Corp. v. City of Miami Beach, 172 So.2d 255 (Fla. 3d DCA 1965). “The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of a suit, must be made parties either as complainants or defendants so that a com-píete decree may be made binding upon all parties.” Oakland Props. Corp. v. Hogan, 96 Fla. 40, 117 So. 846, 848 (1928) (emphasis added). See Robinson v. Howe, 35 Fla. 73, 17 So. 368, 370 (1895); Brady v. Myers, 413 So.2d 466, 467 (Fla. 4th DCA 1982).

837 So.2d at 583. In Sheoah, we found that the trial court had erred by entering an injunction that required a condominium’s governing association to remove enclosures that had been built by two unit-owners who were not parties to the litigation:

Here, Daugherty sued the Association and the members of the board of the Association in their representative capacities. He did not sue the members of the board in their individual capacities or those who own the enclosures; yet, the relief awarded by the trial court requires the Association to remove the enclosures at units 40-25 and 40-29, the property of persons not parties to the suit. Although the injunctive relief awarded in the trial court’s amended final judgment is directed only to the Association, it cannot be said that the removal of the enclosures by Association would not affect and interfere with the rights of the owners of these units. Because the injunction affects the rights of persons not before the court, it was error for the trial court to order the removal of the enclosures in the amended final judgment. On remand, the trial court should direct the Association to enforce the provisions of the declaration of condominium and to take all appropriate action to remove the enclosures adjacent to units 40-25 and 40-29, as Daugherty requested in his amended complaint.

Id. at 583 (footnote omitted).

Recently, in Stevens, the Fourth District Court of Appeal found that other owners in a community of related homes were indispensable parties to an action wherein the trial court ordered the homeowners association to assign ten feet of canal dock space to each of two plaintiffs who were also owners in the community. 15 So.3d at 754. The Fourth District explained:

All of that dock space had already been given to other owners, who paid construction costs for their interest, or as guest space open to all owners in the Community. Thus, in order to assign the 10-feet spaces to plaintiffs, the Association was required to take space paid for and given exclusively to other owners and award it to plaintiffs. Obviously, this cannot be carried out without affecting the interests of these other owners in the community. By any measure the other owners are indispen-sible parties, as the court described that term in Cummings.

Id. at 754-55.

Because we conclude Generation was an indispensable party to the action, we vacate the order.

Order VACATED.

ORFINGER and TORPY, JJ., concur.

      . In Alger, the Florida Supreme Court refers to South Dade Farms, Inc. v. Peters, 88 So.2d 891 (Fla.1956) for purposes of "presenting] the factual basis for th[e] opinion.” 88 So.2d at 905.

      . Fla. Dep't of Revenue v. Cummings, 930 So.2d 604, 607 (Fla.2006).


text:
    Luis Esteban COLON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3131.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Luis Esteban Colon [“Colon”] appeals his convictions of two separate counts of leaving the scene of an accident involving death and three separate counts of leaving the scene of an accident involving injury, based on a claim of double jeopardy. Colon additionally contends that his sentence must be vacated because the trial court impermissibly considered his protestation of innocence in determining his sentence.

Colon was charged by information with two counts of vehicular homicide enhanced to first-degree felonies for failure to render aid, two counts of leaving the scene of an accident with death, and three counts of leaving the scene of an accident with injuries. These charges were brought as a result of an automobile accident that occurred on October 5, 2005.

The jury found Colon guilty as charged, and the trial court adjudicated Colon guilty of all seven counts. At sentencing, Colon testified on his own behalf. While Colon was testifying, the trial court asked him about his continued protestations that he was not driving the car. While announcing the statutory maximum sentences of thirty years for the two vehicular homicide counts, to be served consecutively, the trial court said:

As to Count 1 and 2, based upon the totality of the circumstances, Mr. Colon’s continued denial of the fact that he is responsible for this accident, he is a danger to society, Mr. Hobson. Put him in an automobile and he is a guided missile. And there is just no excuse. I mean, he wasn’t under the influence of any drugs or alcohol that day. He was just under the influence of doing whatever the hell he wanted to do, irrespective of all those other people on the highway.

Colon was also sentenced to concurrent five year terms for the three leaving the scene of an accident with injury counts. Finally, Colon was sentenced to ten-year terms for the two counts of leaving the scene of an accident with death. The prosecutor informed the court that it would violate double jeopardy to impose sentences for the two counts of leaving the scene of an accident with death when they were charged in the alternative to the vehicular homicide counts. The trial court adjudicated him on the two counts and sentenced him to time served.

Colon appealed and his appellate counsel filed a Rule of Criminal Procedure 3.800(b)(2) motion to correct illegal sentence, claiming several double jeopardy violations. The trial court did not rule on the motion.

On appeal, Colon asserts two separate double jeopardy violations. First, he argues that a conviction for vehicular homicide failure to render aid or give information and a conviction for leaving the scene of an accident with death for the same victim violates double jeopardy. Second he contends that a defendant can be charged with only one count of leaving the scene of an accident involving death or injury when only one accident occurs. The State disputes Colon’s first point, but agrees with the second. See Yeye v. State, 37 So.3d 324, 326 (Fla. 4th DCA 2010). See also Hoag v. State, 511 So.2d 401, 402 (Fla. 5th DCA 1987). Hence, the State urges that the judgment and sentence should reflect convictions for two counts of vehicular homicide and one count of leaving the scene of an accident with death, thereby eliminating the other four counts of leaving the scene.

Colon is correct that the elements of leaving the scene of an accident with death in counts three and four are subsumed in the elements of vehicular homicide in counts one and two. See Hunt v. State, 769 So.2d 1109, 1111 (Fla. 2d DCA 2000) (citing Pierce v. State, 744 So.2d 1193, 1196 (Fla. 4th DCA 1999); Wright v. State, 573 So.2d 998, 1001 (Fla. 1st DCA 1991)).

The State contends that Colon’s dual convictions for vehicular homicide and one count of leaving the scene of an accident with death no longer violate double jeopardy based on the Florida Supreme Court’s decision in Valdes v. State, 3 So.3d 1067 (Fla.2009). We disagree.

In a recent opinion, Ivey v. State, 47 So.3d 908 (Fla. 3d DCA 2010), the Third District Court of Appeal considered Valdes in the context of dual convictions of DUI manslaughter, enhanced from a second-degree felony to a first-degree felony because Ivey left the scene of a fatal accident, and a separate conviction for leaving the scene of a fatal accident. The court concluded this dual penalty for the same conduct violated double jeopardy.

In sum, Colon’s two convictions for vehicular homicide and one conviction for leaving the scene of an accident with injuries are affirmed. The remaining convictions are vacated.

Finally, we agree with Colon that he is entitled to a new sentencing hearing because of the trial court’s express reliance on Colon’s refusal to admit his culpability. Hannum v. State, 13 So.3d 132 (Fla. 2d DCA 2009); Bracero v. State, 10 So.3d 664 (Fla. 2d DCA 2009); Soto v. State, 874 So.2d 1215 (Fla. 3d DCA 2004); K.N.M. v. State, 793 So.2d 1195 (Fla. 5th DCA 2001). A sentencing court has wide discretion regarding the factors it may consider when imposing a sentence, but “it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt.” Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004).

Here, the trial judge’s questions to Colon, and then his remarks immediately before imposing two maximum consecutive sentences, suggest that the court considered this impermissible factor in arriving at the sentences. Even though the trial court articulated other reasons for imposing the maximum sentences, reconsideration of the sentences without this factor is required.

AFFIRMED in part; REVERSED in part; and REMANDED.

COHEN and JACOBUS, JJ, concur.

      . Colon was driving erratically at a high rate of speed on Goldenrod Road when he lost control of the car and collided with another car. His two best friends, who were passengers in his car, were killed in the collision and the driver of the other vehicle was severely injured along with two other passengers.

      . Under section 316.193(3)(c)3.b., the penalty is enhanced to a first-degree felony if at the time of the crash the person knew the crash occurred and failed to give information and render aid as required by section 316.062.


text:
    Jeffrey HIRSCHKORN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-4226.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    Jeffrey Hirschkorn, East Palatka, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner timely filed a notice of appeal with the lower tribunal seeking to appeal the judgment and sentence entered in Seminole County case numbers 10-CF-2051-A, 10-CF-253-A, 10-CF-2705-A, 10-CF-2762-A, 10-CF-4055-A, 10-CF-2763-A, 10-CF-1767-A, 10-CF-3342-A and 10-CF-2132-A, but the appeal was never processed and forwarded to this Court for filing. Petitioner is entitled to have his appeal proceed as if timely filed.

A copy of this opinion shall be filed with the trial court, which is directed to process and forward the record on appeal.

PETITION GRANTED.

PALMER, TORPY and JACOBUS, JJ., concur.


text:
    Joshua MESHELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4004.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    Joshua Meshell, Panama City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the summary denial of his rule 3.800 motion, which disputes the trial court’s imposition of numerous items of costs and alleges conflict between the court’s oral pronouncement and its written sentence. The trial court denied the motion without giving any reasons or attaching portions of the record to refute the allegations. The State concedes that the form of the trial court’s order is erroneous. With the limited record we have, we are unable to sort through Appellant’s various claims. On remand, the trial court shall either grant the relief or attach portions of the record that refute the claims.

REVERSED AND REMANDED.

ORFINGER, TORPY and EVANDER, JJ., concur.


text:
    Carstarvos WOODS Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3672.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    Carstarvos Woods, Ft. Lauderdale, pro se.
    No Appearance for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

This Court issued a Spencer show cause order directing the Appellant, Carstarvos Woods, to demonstrate why he should not be barred from filing further pro se challenges to his convictions and sentences in this case. We did so after affirming the denial of Woods’ successive pro se motion for postconviction relief — his sixth such motion since he was convicted eighteen years ago and his second since he was barred from further pro se filings by the trial court. We find Woods’ response to our show cause order to be unpersuasive and conclude he is abusing the judicial process.

Therefore, we now prohibit Woods from filing with this Court any more pro se pleadings concerning Hernando County, Fifth Judicial Circuit Court, case numbers 91-001-CF and 91-8B0-CF. The Clerk of this Court is directed not to accept any further pro se filings from Woods concerning these cases. Any additional pleadings or motions in this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing with The Florida Bar. See Johnson v. State, 652 So.2d 980, 980 (Fla. 5th DCA 1995) (prohibiting petitioner from filing further pro se pleadings after thirteen challenges to conviction and sentence); Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2010); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

GRIFFIN, EVANDER and JACOBUS, JJ., concur.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


text:
    Rodney J. BODDICE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3480.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    Rodney J. Boddice, Bowling Green, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Boddice appeals from the summary denial of his motion for post-conviction relief. We affirm as to each of the issues raised by Boddice, save one. In his motion, Bod-dice alleged that he did not receive sufficient jail credit for time served after his violation of probation arrest. The trial court failed to address this issue. On remand, it is directed to do so.

AFFIRMED, in part; REVERSED, in part; REMANDED.

GRIFFIN, EVANDER and JACOBUS, JJ., concur.


author: COHEN, J.

text:
    Michael E. OLIVE, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2102.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    Michael E. Olive, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Appellant challenges the trial court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and its order denying his motion for rehearing. The trial court correctly denied relief on Appellant’s argument that his sentence exceeded the statutory maximum. See Monroe v. State, 36 So.3d 930 (Fla. 4th DCA 2010) (holding sentence of thirty-five years in prison with ten years’ probation for second-degree murder is within the statutory maximum under 1997 statutes). Accordingly, we affirm the trial court’s ruling on this ground.

The trial court erred, however, by summarily denying Appellant’s claim that his sentence exceeded the sentencing guidelines in effect prior to the Criminal Punishment Code’s effective date. Taking judicial notice of this court’s records of Appellant’s direct appeal, we conclude that Appellant has stated a facially sufficient claim for relief. Therefore, the trial court was required to attach supporting documents to its order that summarily denied his claim for relief. See Friss v. State, 881 So.2d 38 (Fla. 5th DCA 2004).

Accordingly, we reverse and remand to the trial court to attach additional portions of the record, including the sentencing guidelines scoresheet, which conclusively refute Appellant’s claim, or to resentence Appellant in accordance with the standards set forth in Brooks v. State, 969 So.2d 238 (Fla.2007).

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

MONACO, C.J., and SAWAYA, J., concur.


author: SAWAYA, J.

text:
    Christopher L. BINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1812.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.

      Christopher L. Binney, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

Appellant Christopher L. Binney (“Bin-ney”) was convicted of aggravated battery causing great bodily harm, enhanced to a first-degree felony by the use of a firearm. He was sentenced in accordance with his plea to fifteen years in prison as a prison releasee reoffender. On April 1, 2010, he filed a motion pursuant to Florida Rule of Criminal Procedure 3.850, enumerating seven grounds for relief. The lower court summarily denied the motion. Of the numerous assertions of error raised by Bin-ney, we believe that four warrant reversal and remand for further proceedings.

First, Binney contends that he does not qualify for sentencing as a prison release reoffender (“PRR”) and his sentence is therefore illegal. We reverse the order denying relief and remand for attachment of those portions of the record that conclusively establish that Binney qualifies for PRR sentencing or for resentencing to remove the PRR designation. Williamson v. State, 988 So.2d 1240, 1242 (Fla. 5th DCA 2008).

Second, Binney contends that he received ineffective assistance ■ of counsel because of trial counsel’s failure to inform him that the State’s “key” eyewitness, James Merrill, Jr., had testified at his deposition that he had not, in fact, witnessed the attack that formed the basis of Binney’s charges. Third, Binney claims that his plea was obtained by the production of a “falsified” scoresheet, which indicated that he could receive forty years in the Department of Corrections were he to go to trial. As to these two claims, we reverse the order denying relief and remand this case to the trial court for an evidentiary hearing or the attachment of documents that conclusively refute these claims.

Fourth, Binney claims that his trial counsel was ineffective for failure to advise him of an insanity defense. This claim is facially insufficient because Binney failed to allege that he was actually insane when the offense was committed and failed to attach corroborating evidence. See Luckey v. State, 979 So.2d 353 (Fla. 5th DCA 2008); Gillis v. State, 807 So.2d 204 (Fla. 5th DCA 2002); Baker v. State, 404 So.2d 1151 (Fla. 5th DCA 1981). It is not apparent that these defects cannot be corrected, however, so Binney is entitled to the opportunity to replead this claim. See Luckey, 979 So.2d at 355 (citing Spera v. State, 971 So.2d 754 (Fla.2007)).

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

MONACO, C.J. and LAWSON, J., concur.


author: MORRIS, Judge.

text:
    James WIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4515.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2011.
    James Wiggs, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

James Wiggs appeals the nonsummary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. On appeal, he contends his counsel was ineffective for failing to recognize that the State had no other evidence beyond his confession to prove the crime of throwing a deadly missile. Wiggs asserts that the State would have been unable to prove the corpus delicti of the crime and that if he had been made aware of this fact, he would not have pleaded guilty to the charge. However, Wiggs did not raise this issue in his 3.850 motion, and consequently, counsel was not asked about this claim at the evidentiary hearing. Wiggs may not a raise a postconviction claim for the first time on appeal, see Franqui v. State, 965 So.2d 22, 32 (Fla.2007), and we therefore decline to address this issue. We affirm all other issues without comment.

ALTENBERND and KELLY, JJ„ Concur.


text:
    Willems CALIXTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1035.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Willems Calixte, Crestview, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). It raises an issue not cognizable on a motion to correct an illegal sentence, because he is attacking the judgment, not the sentence. See Anderson v. State, 758 So.2d 1156 (Fla. 4th DCA 2000). Treated as a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, the motion is untimely, and even considering the substance, his claim is meritless. He contends that the judge, state attorney, and sheriff acted without jurisdiction because they did not have on file a required oath of office. Such a challenge must be timely, and must be brought by a direct quo warranto proceeding. See Johnson v. Office of State Attorney, 987 So.2d 206 (Fla. 5th DCA 2008). To the extent that he claims that the information was not properly signed or verified, his claims do not raise a ground for postcon-viction relief. See Logan v. State, 1 So.3d 1253 (Fla. 4th DCA 2009).

Affirmed.

WARNER, STEVENSON and GERBER, JJ., concur.


text:
    ORLANDO REGIONAL HEALTHCARE SYSTEM, INC., etc., Petitioner, v. Sarah GWYN and Brian Gwyn, etc., Respondents.
    No. 5D10-2781.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.

      Bradley P. Blystone of Marshall, Denne-hey, Warner, Coleman & Goggin, Orlando, for Petitioner.
    J. Scott Murphy, of Allen & Murphy, P.A., Orlando, for Respondents.
   EVANDER, J.

Orlando Regional Healthcare System, Inc. (“Orlando Regional”), seeks certiorari review of an order denying its motion for summary judgment. Because the trial court denied a claim for statutory immunity from suit under Florida’s Birth-Related Neurological Injury Compensation Act (“NICA”), certiorari jurisdiction is appropriate. See Pediatrix Med. Grp. of Fla., Inc. v. Falconer, 31 So.3d 310 (Fla. 4th DCA 2010); Orlando Reg’l Healthcare Sys., Inc. v. Alexander, 932 So.2d 598 (Fla. 5th DCA 2006). We conclude that the trial court properly denied Orlando Regional’s motion for summary judgment and, accordingly, deny the petition.

Sarah and Bryan Gwyn, individually and as parents and natural guardians of Daniel Gwyn, a minor, brought a medical malpractice action against Orlando Regional, Dr. Michael Stroup, and Michael Stroup, M.D., P.A. In their complaint, the Gwyns alleged that because of the defendants’ negligence, Daniel was deprived of oxygen during the labor and delivery process and was born profoundly impaired and brain damaged. Orlando Regional filed an amended answer and asserted, as an affirmative defense, that it was immune from suit because it had provided timely notice to the Gwyns of its participation in NICA.

During discovery, the Gwyns acknowledged receipt of the aforesaid notice. Thereafter, Orlando Regional filed its motion for summary judgment, arguing that it was afforded civil liability protection due to its participation in NICA and its giving of timely notice to the Gwyns. In response, the Gwyns observed that it was undisputed that Dr. Stroup, the only attending obstetrician at the time of Daniel’s delivery, was not a “participating physician” as defined in the Act. Specifically, section 766.302(7), Florida Statutes (2010), defines “participating physician” as:

A physician licensed in Florida to practice medicine who practices obstetrics, or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred....

Because claims are only compensable under NICA if the obstetric services are provided by a “participating physician,” the Gwyns argued that no shield or immunity was given to Orlando Regional (or any other person) regardless of whether a NICA notice was given. The trial court accepted the Gwyns’ argument and denied the motion.

NICA was enacted by the Florida Legislature with the intent to stabilize and reduce malpractice insurance premiums for physicians practicing obstetrics. § 766.301(l)(e). A fund was created by the Legislature to provide compensation, on a no-fault basis, for birth-related neurological injuries. Fla. Birth-Related Neurological Injury Comp. Ass’n v. Dep’t. of Admin. Hearings, 29 So.3d 992, 995 (Fla.2010). Financing for the fund was provided through assessments made against hospitals and physicians (see section 766.314) and limitations were placed on amounts recoverable by claimants (see section 766.31). In essence, NICA was intended to establish a limited system of compensation irrespective of fault. See § 766.301(l)(d). Because NICA’s remedies are limited, obstetric patients subject to limited compensation under NICA are entitled to receive pre-delivery notice of their rights and limitations under the Act. See § 766.316; see also Fla. Birth-Related Neurological Injury Comp. Ass’n, 29 So.3d at 995; Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309-10 (Fla.1997).

With limited exceptions not applicable to the instant case, physicians providing obstetric services are required to pay an annual assessment of $5,000 to be considered a “participating physician.” See §§ 766.302(7) and 766.314(4)(c). Significantly, birth-related neurological injuries are only compensable under the Act if obstetric services were provided by a participating physician:

Upon determining that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth, the administrative law judge shall make an award providing compensation for the following items relative to such injury ...

§ 766.31(1) (emphasis added); see also Calixte v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 2010 WL 1938022, DOAH Case No. 09-6428N (May 11, 2010) (dismissing, with prejudice, petitioners’ claim for NICA benefits because the physician who provided services to the mother was not a “participating physician”); Lopez v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 2009 WL 3495456, DOAH Case No. 09-4150N (Oct. 27, 2009) (dismissing, with prejudice, petitioners’ claim for NICA benefits because the physician who provided obstetrical services to the mother was not a “participating physician”).

In the present case, Orlando Regional admits that the Gwyns would not be entitled to any compensation under NICA. Nonetheless, it contends that the giving of a NICA notice affords it immunity from suit. We disagree. While immunity for medical providers may be the end result, the NICA statutes do not expressly grant immunity from suit to anyone. Instead, pursuant to section 766.308(2), NICA is to provide the exclusive remedies for claims that fall within the Act:

The rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, her or his personal representative, parents, dependents, and next of kin, at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate post-delivery resuscitation during which such injury occurs, arising out of or related to a medical negligence claim with respect to such injury; except that a civil action shall not be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or a willful and wanton disregard of human rights, safety, or property, provided that such suit is filed prior to and in lieu of payment of an award under ss. 766.301-766.316. Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in section 766.311.

Here, NICA cannot be found to afford the Gwyns’ their exclusive remedy for the simple reason that, as a matter of law, the Gwyns do not have a compensable claim under NICA. The remedies and protections afforded by NICA are limited to those cases in which obstetric services were provided by a participating physician at the infant’s birth. Therefore, the Act does not afford the Gwyns a remedy and, correspondingly, it does not afford Orlando Regional protection from a tort claim.

Orlando Regional cites for support to Florida Birth-Related Neurological Injury Compensation Association v. Department of Administrative Hearings, 29 So.3d 992 (Fla.2010). However, that case is readily distinguishable because, unlike here, the obstetric services were provided by a participating physician. Thus, where a NICA notice had been given by the physician but not the hospital, the Florida Supreme Court held that the participating physician was immune from suit notwithstanding the hospital’s failure to give the statutorily-required NICA notice. The Florida Supreme Court then concluded that the plaintiffs could either pursue them remedy under NICA or, alternatively, bring a tort claim against the hospital only. In the instant case, the Gwyns do not have alternative remedies available. As a matter of law, they have no NICA claim because them claim does not fall within the scope of the Act. Their only available remedy is through the courts.

Petition for Writ of Certiorari is hereby DENIED.

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

      . §§ 766.301-.316, Fla. Stat. (2010).

      . Pursuant to section 766.316, Florida Statutes, each hospital with a participating physician on its staff and physicians deemed to be "participating physicians” under the Act are required to provide notice to their obstetrical patients "as to the limited no-fault alternative for birth-related neurological injuries.”


text:
    ILLINOIS NATIONAL INSURANCE CO., Petitioner, v. Patricia BOLEN, Respondent.
    No. 5D10-2856.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.

      Peter S. Roumbos and Brentt E. Palmer, of Young, Bill, Fugett, & Roumbos, P.A., Pensacola, for Petitioner.
    Brian T. Wilson and Anthony Sos, of Dellecker, Wilson, King, McKenna & Ruf-fier, Orlando, and Barbara Green, of Barbara Green P.A., Coral Gables, for Respondent.
   GRIFFIN, J.

Illinois National Insurance Company [“INIC”] seeks certiorari review of a post-judgment order of the trial court lifting the abatement of the bad faith claim of Respondent, Patricia Bolen [“Bolen”], while the insurer’s appeal of the excess judgment is pending. We agree the lifting of the abatement was premature and reverse.

Bolen was involved in a motor vehicle accident on May 28, 2005, in Santa Rosa County, Florida, when the vehicle she was driving was struck by another vehicle while traveling westbound on I — 10. At the time of the accident, Bolen was insured under an automobile insurance policy with INIC, which carried uninsured motorist [“UM”] limits of $25,000. Bolen filed her initial complaint against INIC on April 10, 2007, alleging a claim for UM benefits (Count I) and a claim for bad faith (Count II) for INIC’s alleged breach of its fiduciary duty in the handling of her UM claim.

INIC filed a motion to dismiss Count II of Bolen’s complaint on the ground that the bad faith claim against INIC had not accrued because there had not been a final determination of liability and damages against the tortfeasors. On October 24, 2007, the trial court entered an order that abated Count II of the complaint until there had been a final determination of liability and damages against INIC on Bo-len’s UM claim.

Count I proceeded to trial, and a verdict in the amount of $870,366.90 was rendered on December 2, 2009. A partial final judgment on Count I was entered by the lower court on June 21, 2010. INIC filed a timely appeal of the partial final judgment on July 19, 2010, and it is currently pending before this Court.

After the verdict was rendered, Bolen filed her motion to dissolve the abatement of Count II, contending that her bad faith claim was now ripe for prosecution. INIC filed its response to Bolen’s motion to dissolve abatement and argued that, because the appeal was pending, there had been no final determination of liability and damages on the UM claim; therefore, lifting the abatement would be premature.

We agree that the bad faith claim may not proceed until the UM carrier’s appeal has been finally determined. The same concerns that impel abatement of the bad faith claim in the first instance remain until the insurer’s claims of error resulting in an excess verdict are resolved against them on appeal.

The First District explained in XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578 (Fla. 1st DCA 2006), that:

[TJhere should be no discovery until the underlying breach of contract action has been resolved. The trial court’s ruling on the breach of contract claim is pending on appeal, therefore is not finally resolved. [Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005)], does not require production of attorney-client documents relating to the breach of contract action while it continues to be litigated. 899 So.2d at 1130 (stating “litigants who choose to file both actions [breach of contract and bad faith] simultaneously must recognize that certain documentation relevant to the bad faith action may not be available for discovery until after resolution of the underlying matter”). [Plaintiff] cites no other authority for making those disclosures until the contract action is over, including any appeals. Therefore, the trial court erred by requiring production....

Id. at 587 n. 7.

Petition for Writ of Certiorari GRANTED; Order VACATED.

TORPY and EVANDER, JJ., concur.

      . We are not persuaded by Bolen's argument that there can be no irreparable harm because the order merely lifted the abatement, but did not yet require the insurer to do anything.


text:
    Eli H. CORTES, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3114.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.
    Eli H. Cortes, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

In his 2000 case, Eli Cortes [“Cortes”] was convicted of three drug trafficking charges, and his convictions and sentences were affirmed on direct appeal. Cortes v. State, 827 So.2d 1012 (Fla. 5th DCA 2002). He subsequently filed several other post-conviction motions and appeals pertaining to the 2000 convictions and sentences. In this current proceeding, Cortes appealed the denial of his two most recent rule 3.800(a) motions to correct illegal sentence. We affirmed, Cortes v. State, 48 So.3d 855 (Fla. 5th DCA 2010), then issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), because the motions appeared to be successive and/or procedurally barred.

Having considered Cortes’ response, we conclude that he has provided no valid reason for filing this frivolous appeal, that he is abusing the judicial process, and that he should be barred from further pro se filings. We therefore prohibit Cortes from filing with this Court any further pro se pleadings concerning Orange County Circuit Court Case No. 00-CF-4485. See Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995); see also Bauer v. State, 31 So.3d 220, 220 (Fla. 4th DCA 2010). Any additional pleadings or motions in this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing with The Florida Bar.

The Clerk of this Court is directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary action. See §§ 944.09, 944.279(1), 944.28(2), Fla. Stat. (2010).

Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

GRIFFIN, SAWAYA, and JACOBUS, JJ., concur.


text:
    Moses RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3592.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.
    Moses Richardson, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. We affirm the trial court’s summary denial of Richardson’s Rule 3.800(a) motion without prejudice to Richardson’s right to seek additional jail credit pursuant to a legally sufficient motion. See Alfonso v. State, 901 So.2d 939 (Fla. 4th DCA 2005).

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

      . Fla. R.Crim. P. 3.800(a).


text:
    Manuel CRIOLLO, Petitioner, v. Barbara J. CRIOLLO, n/k/a Barbara J. Langella, Respondent.
    No. 5D10-3597.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.
    Cheri A. Russell and Mark D. Shelnutt of Mark D. Shelnutt, P.A., Ocala, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

Manuel Criollo petitioned the court for habeas corpus relief, asserting that he was entitled to immediate release from incarceration imposed for contempt. We agree with Petitioner and order his release.

Petitioner was held in civil contempt for failing to pay child support arrearages and alimony due in the amount of $66,615.45. The trial court ordered Petitioner incarcerated for a period of one hundred days for the contempt, with a purge amount equal to the full sum owed. After reviewing the transcript of the hearing on the motion, this court determines that the evidence presented did not support the finding that the petitioner had the present ability to pay the purge amount. Release is therefore mandated, and the order of contempt is appropriately vacated. See Fla. Fam. L.R.P. 12.615(e).

PETITION GRANTED.

LAWSON, EVANDER and COHEN, JJ., concur.

      . Petitioner was released by order November 9, 2010 with this opinion to follow.


text:
    Rufus HATTEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-4167.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.
    Rufus Hatten, Wewahitchka, pro se.
    No Appearance for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

After receiving this Court’s affirmance of the denial of his twelfth pro se post-conviction motion attacking his 1994 conviction for armed robbery, Petitioner, Rufus Hatten [“Hatten”], filed a petition for writ of habeas corpus seeking reconsideration of our “erroneous PCA”. We issued a Spencer show cause order directing Hat-ten to demonstrate why he should not be barred from further pro se challenges to his convictions and sentences in this case. Having considered Hatten’s response and finding it to be unpersuasive, we conclude that he is abusing the judicial process and should be barred from further pro se filings. Therefore, we now prohibit Rufus Hatten from filing with this Court any further pro se pleadings concerning St. Johns County, Seventh Judicial Circuit Court case number CF93-1246. The clerk of this Court is directed not to accept any further pro se filings from Hatten concerning this case. Any additional pleading regarding this case will be summarily rejected by the clerk, unless they are filed by a member in good standing of the Florida Bar. See Johnson v. State, 652 So.2d 980 (Fla. 5th DCA 1995). The clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005); § 944.279(1), Fla. Stat. (2010).

Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

GRIFFIN, ORFINGER and TORPY, JJ., concur.

      . State v. Spencer, 751 So.2d 47 (Fla.1999).


text:
    Jose ESCOBAR-GUILLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2454.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.
    Jose Escobar-Guillen, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Respondent.
   SAWAYA, J.

Jose Escobar-Guillen appeals the trial court’s order that summarily denied his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief in which he alleged a Miranda violation and coerced confession. Pursuant to Spera v. State, 971 So.2d 754, 755 (Fla.2007), we reverse. We do so because we are unable to conclude that the facial deficiencies of these claims, referenced by the trial court, cannot be remedied by amendment. See Oliver v. State, 10 So.3d 704 (Fla. 5th DCA 2009).

Accordingly, the order is reversed and this case remanded with instructions that the trial court strike the motion with leave to amend in a specified time consistent with the parameters identified in Spera. See Oliver; Parsons v. State, 981 So.2d 1249, 1250 (Fla. 5th DCA 2008).

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    John James ZUKOWSKI, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-4424.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 2011.
    John J. Zukowski, Chattahoochee, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2008-CF-014144-A/O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

TORPY, EVANDER and JACOBUS, JJ., concur.


text:
    B.S.K., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-309.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2011.
    James S. Purdy, Public Defender and Joseph A. Palmer, Assistant Public Defender, Daytona Beach, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, B.S.K., filed a petition for a writ of habeas corpus, claiming that she was illegally detained due to an improperly prepared Risk Assessment Instrument (RAI). Finding that Petitioner is entitled to relief, we grant the petition.

Petitioner is charged with felony possession of a controlled substance, along with three misdemeanors. Her RAI includes one point based on the mistaken conclusion that the crime was committed in a well-planned and premeditated manner. Without the additional point, Petitioner’s total score on the RAI would be reduced to eleven points, which, by itself, does not support secure detention.

Therefore, with respect to case no. 2011-000774-CJCI, Petitioner shall be brought before the trial court immediately and line III.E. of the RAI shall be corrected to reflect zero points. Any other scoring error may be corrected at that time. If Petitioner does not score sufficient points under the corrected RAI and no other criteria for detention is found pursuant to section 985.255, Florida Statutes (2010), Petitioner shall be released to nonsecure detention or home detention.

PETITION GRANTED; REMANDED WITH INSTRUCTIONS.

ORFINGER, TORPY, COHEN, JJ., concur.


author: KELLY, Judge.

text:
    Marvalius Laclut SWIFT, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-476.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2011.
    James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

In this Anders appeal, Marvalius Laclut Swift challenges his convictions and sentences for possession of cocaine and possession of cocaine with intent to sell within 1000 feet of a church. After a thorough review of the record, we have found no reversible error and affirm Mr. Swift’s judgments and sentences. However, we agree with Mr. Swift’s contention that the trial court erred in imposing certain costs under sections 938.05(1) and 938.29(l)(a), Florida Statutes (2008), as he asserted in a timely motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

Mr. Swift correctly contends that the assessment of $225 to the Criminal Justice Trust Fund must be reduced to $200 based on the version of section 938.05(l)(a) in effect at the time of his offenses. See § 938.05(l)(a), Fla. Stat. (2007); Torres v. State, 42 So.3d 914, 915 (Fla. 2d DCA 2010). With respect to the imposition of a $100 public defender fee, Mr. Swift is also correct that under the applicable version of the statute, he would only be liable for such fee if the trial court pronounced it at sentencing and informed him of his right to contest the amount at a hearing. See § 938.29(l)(a), Fla. Stat. (2007). Although it appears from the record that Mr. Swift disagreed with the amount of the fee awarded, it is not clear whether the court properly advised him of his right to a hearing to contest the amount. We therefore strike the public defender fee without prejudice to it being reimposed on remand after the proper procedures are followed. See Del Valle v. State, 26 So.3d 650, 651 (Fla. 2d DCA 2010). Finally, as to the $3 fee to “Teen Court Fund” under section 938.19, we affirm the assessment but remand for the trial court to correct the amended order assessing fines and costs to reflect the applicable ordinance in accordance with Ayoub v. State, 901 So.2d 311, 315 (Fla. 2d DCA 2005).

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

WHATLEY and CRENSHAW, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).