text:
    Dylan ECCLESTON, Adam Snyder, Melissa Anne Marvulli, Anthony Tyquane Fuzz, Robert Bernard Taylor, John Bryant, Kayla Marie Freeman, Daniel Chuning, Marylynn Maldonado, Sarah Fountain, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-3445, 5D11-3555, 5D11-3745, 5D11-3746, 5D11-3747, 5D11-3827, 5D11-3848, 5D11-3850, 5D11-3851, 5D11-3879, 5D11-3880.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Walter Germain BUNCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3662.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

COHEN and EVANDER, JJ„ and MONACO, D.A., Senior Judge, concur.


text:
    Antwan Terrell KEGLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4507.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

COHEN and EVANDER, JJ., and MONACO, D.A., Senior Judge, concur.


text:
    Robert Edgar WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-185.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

COHEN and EVANDER, JJ., and MONACO, D.A., Senior Judge, concur.


text:
    George Henry McLEAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2220.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    George Henry McLean, Orlando, pro se.
    Pamela Jo 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 nos. 05-201l-CF-038386-A and 05-2011-CF-040701, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, C.J., JACOBUS, J., and MONACO, D.A., Senior Judge, concur.


text:
    Roberto Munoz RIVERA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2045.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    Robert Munoz Rivera, Milton, 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 order denying petitioner’s Rule 3.850 motion for post conviction relief in ease number 05-37193-CFAES, in the Circuit Court in and for Volusia County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER and EVANDER, JJ., concur.


author: COHEN, J.

text:
    Carlos GUERRA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-1644.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    Deana K Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Respondent.
   COHEN, J.

Carlos Guerra has filed a As we have done in similar cases, we grant Guerra’s petition and remand for a new trial on the attempted second-degree murder charge. See Mendenhall v. State, 82 So.3d 1153 (Fla. 5th DCA 2012); Dill v. State, 79 So.3d 849 (Fla. 5th DCA 2012); Hodges v. State, 64 So.3d 142 (Fla. 5th DCA 2011). We again certify conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262 (Fla.2011).

PETITION GRANTED; REMANDED for new trial.

PALMER and LAWSON, JJ., concur.


author: THOMAS, J.

text:
    Bobby CANNON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6885.
    District Court of Appeal of Florida, First District.
    July 16, 2012.
    Bobby Cannon, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial, but write to address Appellant’s assertion that he is entitled to withdraw from his plea agreement.

On May 20, 2010, following his plea, Appellant was convicted of attempted second-degree murder and sentenced to 15 years’ imprisonment. Appellant did not file a direct appeal of his judgment and sentence. In January 2011, Appellant filed the instant motion for postconviction relief, asserting two claims for relief. In ground two of his motion, Appellant asserts that he is entitled to withdraw from his plea because it was never formally accepted by the trial court. He cites to Cox v. State, 35 So.3d 47 (Fla. 1st DCA 2010), which holds that a defendant has a right to withdraw from a plea where the trial court failed to specifically state that it formally accepted the plea.

In Cox, the defendant entered a plea to two charges of conspiracy to traffic in more than 400 grams of cocaine. As a part of the plea, the defendant waived his right to withdraw from the plea. The trial court held a plea colloquy and determined the plea was intelligent and voluntary, but apparently forgot to state that the court “accepted the plea.” The case was removed from the docket, the defendant and the State agreed to confidential terms regarding substantial assistance, and the trial court sealed the plea agreement.

As part of the plea agreement in Cox, the defendant and the State agreed to a 90% reduction of bond, which allowed the defendant to remain free to perform his obligations under the plea agreement. Additionally, the State agreed to a sentencing range of 5-30 years, which allowed the defendant to avoid a possible life sentence as an habitual felony offender.

At sentencing two years later, the trial court complied with the plea agreement and sentenced the defendant to 30 years’ imprisonment. The defendant moved to withdraw from his plea. This court, relying on Harrell v. State, 894 So.2d 935, 939 (Fla.2005), and the language of Florida Rule of Criminal Procedure 3.172(g), held that the defendant was entitled to withdraw from his plea because the trial court never formally accepted the plea. In so holding, this court certified the following question of great public importance:

DOES THE HOLDING IN HARRELL V. STATE, 894 So.2d 935 (Fla.2005), REQUIRE THAT A TRIAL COURT MUST ALLOW A DEFENDANT TO WITHDRAW HIS PLEA, EVEN WHERE THE STATE HAS PERFORMED ITS OBLIGATIONS UNDER THE PLEA AGREEMENT, MERELY BECAUSE THE TRIAL COURT INADVERTENTLY NEGLECTED TO STATE THAT IT HAD “ACCEPTED THE PLEA”?

Cox, 35 So.3d at 49.

In Campbell v. State, 75 So.3d 757 (Fla. 2d DCA 2011), the Second District interpreted Cox as holding that a defendant has a unilateral right to withdraw from a plea that was never formally accepted at any time, even after sentencing. In Campbell, the defendant moved to withdraw from his plea 11 years after he was sentenced because the trial court failed to formally accept it. The Campbell court disagreed with what it interpreted as this court’s Cox decision and certified conflict, finding that once a defendant is sentenced, he does not have a unilateral right to withdraw from his plea. The Campbell court held that the supreme court’s decision in Harrell appeared to be limited to cases where a defendant moves to withdraw a plea prior to sentencing.

We hold that Cox is distinguishable from this case and that the Second District’s Campbell decision interprets Cox’s holding too broadly. The decision in Cox did not specify whether the defendant in that case moved to withdraw his plea before or after sentencing. We conclude that Cox should be read consistently with the holding in Campbell — the rule providing that a plea may be withdrawn without any justification until it is formally accepted by the trial judge only applies prior to sentencing. Cox does not stand for the proposition that a defendant has a unilateral right to withdraw from a plea years after he has been sentenced in accordance with that plea, if the trial court failed to formally accept it. Any other interpretation of Cox and rules 8.170 and 8.172(g) leads to irrational results of pleas being vacated years or decades after a defendant began serving a sentence.

AFFIRMED.

WETHERELL and MARSTILLER, JJ., concur.


text:
    Calvin PERRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0996.
    District Court of Appeal of Florida, First District.
    July 16, 2012.
    Calvin Perry, 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 judgments and sentences rendered on August 8, 2011, in Leon County Circuit Court case numbers 2004-CF-000487A and 2005-CF-000037A, is granted. Upon issuance of mandate, copies of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in each of the foregoing cases. If petitioner qualifies for the appointment of counsel at public expense, the trial court is directed to appoint counsel to represent him in the appeals authorized by this opinion.

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Hubert G. LAWRENCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1057.
    District Court of Appeal of Florida, First District.
    July 16, 2012.
    Hubert G. Lawrence, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered on or about November 10, 2011, denying petitioner’s motion for postconviction relief in Duval County Circuit Court Case Nos, 16-2010-CF-9904-AXXX and 16-2011-CF-7247-AXXX, 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.

PADOVANO, ROWE, and RAY, JJ„ concur.


author: LAGOA, J.

text:
    Stevan PARDO and Howard Kaplan, Appellants, v. Lisa GOLDBERG, etc., Appellee.
    No. 3D10-3404.
    District Court of Appeal of Florida, Third District.
    July 18, 2012.
    Rehearing Denied July 18, 2012.

      Pardo Gainsburg and Nicole R. Rekant and Jeffrey J. Pardo, Miami, for appellants.
    Kahn, Chenkin & Resnik and Marcy S. Resnik, Dania, for appellee.
    Before ROTHENBERG and LAGOA, JJ, and SCHWARTZ, Senior Judge.
   ON MOTION FOR REHEARING AND MOTION FOR CERTIFICATION

LAGOA, J.

Appellee, Lisa Goldberg, as Trustee, (“Goldberg”), has filed motions for rehearing and certification of conflict to the Florida Supreme Court in connection with the opinion issued by this Court on November 9, 2011. We deny both motions, withdraw our previous opinion, and substitute the following in its place.

Specifically, Goldberg argues in her motion for rehearing that this Court overlooked the provisions of section 59.46, Florida Statutes (2011), in denying her motion for appellate attorney’s fees and costs. Goldberg’s argument is without merit for two reasons.

First, it is well settled that when statutory grounds exists for an award of attorney’s fees, the motion seeking fees shall refer to the statute. See Fla. R.App. P. 9.400(b) (stating that the motion “shall state the grounds on which recovery is sought”); Lehigh Corp. v. Byrd, 397 So.2d 1202, 1205 (Fla. 1st DCA 1981) (“[A]n attorney who presents this court with a motion for attorney’s fees should state the grounds for the motion. If a statutory ground exists, the motion should refer to the statute, as well as specifying the appropriate section and subsections of the statute, along with the year of the statute.”). Here, Goldberg did not move for fees in this Court pursuant to section 59.46. Her motion for appellate attorney’s fees and costs did not refer to the statute, and sought fees only under the promissory note and personal guaranty.

Second, Goldberg’s reliance on section 59.46 is misplaced because that statute applies only when a contract or statute provides for payment of fees. As explained below, that is not the case here.

ON MOTION FOR APPELLATE ATTORNEY’S FEES AND COSTS

Pursuant to Florida Rule of Appellate Procedure 9.400, Goldberg moved for an award of appellate attorney’s fees and costs under both a promissory note and a personal guaranty. Because neither the promissory note nor the personal guaranty create an entitlement to such fees, we deny the motion. Nonetheless, as the prevailing party, Goldberg is entitled to the taxation of certain enumerated costs, pursuant to Rule 9.400(a), and we award those costs to her.

I. FACTUAL AND PROCEDURAL HISTORY

On November 6, 2007, Kapital Development, LLC (“Kapital”) executed a promissory note in favor of the Lisa Goldberg Revocable Trust. On that same day, Stev-an Pardo (“Pardo”) and Howard Kaplan (“Kaplan”) signed a personal guaranty of the promissory note in their individual capacities. In December of 2009, Goldberg filed suit against Kapital, alleging a claim for breach of promissory note, and against Pardo and Kaplan for breach of guaranty. The trial court subsequently entered final judgment in favor of Goldberg. Pardo and Kaplan appealed, and this Court affirmed. Pardo v. Goldberg, No. 3D10-3404, 93 So.3d 1039, 2011 WL 3601963 (Fla. 3d DCA Aug.17, 2011).

On May 10, 2011, Goldberg filed a motion for appellate attorney’s fees and costs pursuant to both the promissory note and personal guaranty that were the subject of this appeal. The attorney’s fee provision of the promissory note executed by Kapital provided as follows:

Collection. In the event this note shall be in default and placed for collection, then the undersigned agree to pay all reasonable attorney fees and costs of collection.

The promissory note further provided that:

The undersigned and all other parties to this note, whether as endorsers, guarantors or sureties, agree to remain fully bound until this note shall be fully paid and waive demand, presentment and protest and all notices hereto and further agree to remain bound notwithstanding any extension, modification, waiver, or other indulgence or discharge or release of any obligor hereunder or exchange, substitution, or release of any collateral granted as security for this note.

With respect to the obligations of the guarantors (ie. Pardo and Kaplan), the personal guaranty, provided in pertinent part, that:

[T]he undersigned, jointly and severally, guarantee(s) to Lender, Lender’s successors and assigns, heirs and personal representatives, the full performance and observance of all the covenants, conditions and agreements therein provided to be performed and observed by Kapi-tal under the Note.... The undersigned further covenants and agrees that this guaranty shall remain and continue in full force and effect until all principal and interest due Lender have been paid in full.

II. ANALYSIS

“An award of appellate attorneys’ fees must be supported by a particular contractual, statutory, or other substantive basis.” State, Dep’t of Highway Safety & Motor Vehicles v. Trauth, 971 So.2d 906, 908 (Fla. 3d DCA 2007). In assessing whether to award appellate attorney’s fees on the basis of a promissory note and personal guaranty, this Court must interpret both documents together to determine their meaning and effect. See Riesterer v. Cadle Co. II, 981 So.2d 644, 645 (Fla. 2d DCA 2008).

It is well established that “[a]s a general rule, the guarantor is not liable for attorney’s fees and costs in connection with an action to enforce a guaranty where there is no express provision in the guaranty for such liability.” MSI Fin. Grp., Inc. v. Veterans Constr. Corp., 645 So.2d 178, 179 (Fla. 3d DCA 1994) (quoting Kim v. Peoples Fed. Sav. & Loan Ass’n, 538 So.2d 867, 869 (Fla. 1st DCA 1989)).

However, “a guarantor may be liable for fees if the language in the [promissory] note is broad enough to cover a suit on the guaranty.” Riesterer, 981 So.2d at 645; cf. Cacciatore v. Fisherman’s Wharf Realty Ltd. P’ship, 778 So.2d 1076 (Fla. 4th DCA 2001) (awarding attorney’s fees on appeal where the language of the underlying personal guaranty did not include a provision awarding attorney’s fees but the lease included language that was broad enough to support such an award). But cf. Kim, 538 So.2d at 870 (holding that the language in a promissory note was not broad enough to require the guarantor to pay for the attorney’s fees incurred in enforcing the guaranty agreement).

Here, because the personal guaranty signed by Kaplan and Pardo does not include a specific provision that would obligate the guarantors to pay attorney’s fees, we must look to the language of the note to see whether it is broad enough to cover a suit on the guaranty. See MSI Fin. Grp., 645 So.2d at 179. We conclude that the attorney’s fee provision of the promissory note between Kapital and Goldberg does not include language broad enough to justify the imposition of appellate attorney’s fees against the guarantors. Kim, 538 So.2d at 870. Accordingly, we deny Goldberg’s motion for fees.

Notwithstanding the denial of fees, we award costs to Goldberg as “the prevailing party in this court is automatically entitled to taxation of certain enumerated costs unless otherwise directed by the respective courts of appeal.” Di Teodoro v. Lazy Dolphin Dev. Co., 432 So.2d 625, 626 (Fla. 3d DCA 1983).

      . That statute reads:
      59.46. Attorney’s fees
      In the absence of an expressed contrary intent, any provision of a statute or of a contract entered into after October 1, 1977, providing for the payment of attorney’s fees to the prevailing party shall be construed to include the payment of attorney’s fees to the prevailing párty on appeal.

      . Rule 9.400 governs the award of appellate attorneys fees and costs, and provides in pertinent part that "[c]osts shall be taxed in favor of the prevailing party unless the court orders otherwise.” Fla. R.App. P. 9.400(a).


text:
    John Michael SYDORIAK, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2929.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    John M. Sydoriak, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order striking appellant’s postcon-viction motion is reversed and remanded for the trial court to consider this court’s opinion in Jackman v. State, 88 So.3d 325 (Fla. 4th DCA 2012). See also Lubin v. State, 87 So.3d 1260 (Fla. 4th DCA 2012).

Reversed and Remanded.

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


text:
    Lazaro J. RABELO, Appellant, v. Tammy M. RABELO n/k/a Tammy M. Donnick, Appellee.
    No. 4D11-2967.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.

      Lazaro Rabelo, Miami, pro se.
    Tammy M. Donnick, Fort Pierce, pro se.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Voisin v. Voisin, 794 So.2d 649 (Fla. 2d DCA 2001).

GROSS, HAZOURI and CONNER, JJ., concur.


text:
    J.K.K., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1977.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Carey Haughwout, Public Defender, and Alan T. Lipson, 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.
   PER CURIAM.

We affirm J.K.K.’s adjudication of delinquency for burglary of a dwelling but reverse his adjudication of delinquency for grand theft. The state’s evidence of the value of the computer and cell phone charger which were stolen in the incident consisted solely of the owner’s testimony of the purchase price a year and a half prior to the incident. Such evidence is insufficient to establish the current value of these items. See Aycock v. State, 87 So.3d 1259, 1260 (Fla. 4th DCA 2012); Lucky v. State, 25 So.3d 691, 692-93 (Fla. 4th DCA 2010). We remand for entry of adjudication of petit theft as authorized by section 924.34, Florida Statutes (2006).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Gary R. NIKOLITS, as Property Appraiser for Palm Beach County, Florida, Petitioner, v. Harlington and Helen HANNA, Respondents.
    No. 4D12-746.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.

      Jeffrey M. Clyman, West Palm Beach, for petitioner.
    Jacob A. Rose of The Rose Law Firm, L.L.C., West Palm Beach, for respondents.
   PER CURIAM.

The Palm Beach County Property Appraiser petitions for a writ prohibiting the trial judge from further exercise of jurisdiction with respect to counts I and II in an action brought by the property owners against the appraiser, the Value Adjustment Board (VAB), and the executive director of the Department of Revenue. We grant the petition.

After the property appraiser removed the owners’ homestead tax exemption on the property in question for the 2008 tax year, the owners petitioned the VAB for the reinstatement of the exemption and the special magistrate recommended denial of their petition. The owners commenced an action in the circuit court. Counts I and II were for declaratory relief, seeking the reinstatement of the homestead exemption. While the suit was ongoing, the property appraiser continued to assess the property without the exemption, but the owners neither challenged the denial of the exemption for years 2009 and 2010 before the VAB, nor did they amend their complaint to add counts disputing the assessments for those years.

In 2011, the property appraiser learned that the owners had not paid their property taxes for 2009 or 2010. He moved to dismiss counts I and II of the third amended complaint for lack of subject matter jurisdiction pursuant to subsections 194.171(5) and (6), Florida Statutes, which provide as follows:

(5) No action to contest a tax assessment may be maintained, and any such action shall be dismissed, unless all taxes on the property assessed in years after the action is brought, which the taxpayer in good faith admits to be owing, are paid before they become delinquent.
(6) The requirements of subsections (2), (3), and (5) are jurisdictional. No court shall have jurisdiction in such cases until after the requirements of both subsections (2) and (3) have been met. A court shall lose jurisdiction of a case when the taxpayer has failed to comply with the requirements of subsection (5).

§ 194.171(5) & (6), Fla. Stat. (2011).

The trial court denied the motion and this petition followed.

The property owners take the position that their declaratory action is filed pursuant to section 196.151 (concerning homestead exemptions) and chapter 86 (concerning declaratory judgments). They contend that these statutes do not require the payment of taxes for subsequent years in order to maintain an action. They argue that because they do not pose a challenge to a tax assessment, the provisions of section 194.171 do not apply.

However, it is well established that a challenge concerning entitlement to a tax exemption is a challenge to an assessment of taxes, for purposes of section 194.171. E.g., Nikolits v. Ballinger, 736 So.2d 1253, 1255 (Fla. 4th DCA 1999) (“[I]t is clear that the application of a homestead exemption is an integral part of a ‘tax assessment’ within the meaning of section 194.171(2). A timely challenge is therefore necessary to satisfy the jurisdictional requirement of that section.”); Nikolits v. Delaney, 719 So.2d 348 (Fla. 4th DCA 1998) (concluding that taxpayers’ claim that the homestead tax assessment exceeded the statutory cap on such increases is challenge to tax assessment, governed by section 194.171, Florida Statutes (1997)); Hall v. Leesburg Reg’l Med. Ctr., 651 So.2d 231, 232 (Fla. 5th DCA 1995) (reversing final judgment ordering refund of ad valorem taxes paid, where trial court should have dismissed action for lack of jurisdiction; holding denial of exemption was “assessment” subject to statute of limitations applicable to real property tax assessments).

It does not matter whether the challenge is brought under section 196.151 or 194.171. See Ward v. Brown, 892 So.2d 1059, 1060 (Fla. 1st DCA 2003) (rejecting taxpayers’ semantic argument that they were not subject to sixty-day time limit of section 194.171 because they were not challenging the assessment on particular property, but only its classification (whether or not exempt government property); denials of exemption are assessments subject to requirements of section 194.171), approved, 894 So.2d 811 (Fla.2004).

Pursuant to the clear language of subsections 194.171(5) & (6), the petition is granted. We quash the trial court’s order denying the motion to dismiss counts I and II of the third amended complaint.

The petition for writ of prohibition is granted.

GROSS, LEVINE and CONNER, JJ., concur.


text:
    Christopher W. HENDERSON, Appellant, v. LITTON LOAN SERVICING, LP, Appellee.
    No. 4D10-1167.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Carol Cobourn Asbury, Fort Lauder-dale, for appellant.
    Andrea Shelowitz and Jason F. Joseph of Gladstone Law Group, P.A., Boca Ra-ton, for appellee.
   PER CURIAM.

We reverse the final summary judgment of foreclosure entered in this case. Whether the appellee is entitled to enforce the promissory note remains a disputed issue of material fact. In Harvey v. Deutsche Bank National Trust Co., 69 So.3d 300, 303 (Fla. 4th DCA 2011), we explained that the person entitled to enforce a negotiable instrument such as a note is the ‘holder of the instrument.’ ” (quoting § 673.3011, Fla. Stat.). A “holder” is the person in possession of the instrument that is payable to bearer or to an identified person in possession. § 671.201(21)(a), Fla. Stat. “Bearer” means “a person in possession of a negotiable instrument ... that is payable to bearer or indorsed in blank.” § 671.201(5), Fla. Stat. (emphasis added). See also Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932 (Fla. 4th DCA 2010). The note presented in these proceedings does not appear to have an endorsement in blank. Instead, the endorsement is to a specific entity, Wells Fargo, which is not the plaintiff in this case.

Reversed and remanded for farther proceedings.

WARNER, STEVENSON and GROSS, JJ., concur.


text:
    Richard BURT, Appellant, v. UNITED PARCEL SERVICE, INC., Appellee.
    No. 4D10-518.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Nichole J. Segal and Philip M. Burlington of Burlington and Rockenbach, P.A., West Palm Beach, and William M. Julien of William M. Julien, P.A., Boca Raton, for appellant.
    Monica Vila, Christopher N. Bellows and Kelly-Ann Cartwright of Holland & Knight LLP, Miami, for appellee.
   PER CURIAM.

Richard Burt sued his former employer, United Parcel Service, Inc. (“UPS”), alleging that UPS unlawfully took adverse employment action against him in retaliation for his making a valid workers’ compensation claim, in violation of section 440.205, Florida Statutes. The trial court entered summary judgment in favor of UPS. While UPS met its initial burden of coming forward with competent evidence in support of its motion for summary judgment, Burt responded to UPS’s motion with opposing evidence sufficient to reveal genuine issues of material fact. See Gomez v. Fradin, 41 So.3d 1068, 1071 (Fla. 4th DCA 2010) (“A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once he tenders competent evidence to support his motion, the opposing party must come forward with counterevi-dence sufficient to reveal a genuine issue.” (citation and quotation marks omitted)). Because genuine issues of material fact remain in dispute, we reverse and remand for further proceedings. See Hubbard v. City of Boca Raton, 839 So.2d 747, 748 (Fla. 4th DCA 2003); Rivera v. Saffold, 606 So.2d 1249 (Fla. 2d DCA 1992).

Reversed and remanded for further proceedings.

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


text:
    Ted DOUKAS, Appellant, v. FACILITIES DEVELOPMENT CORPORATION, David Frederick, Patricia Frederick and Quantum Partners, Inc., d/b/a 1st Capital Lending Trust, Appellees.
    No. 4D11-1857.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Juan C. Zorrilla of Zorrilla & Associates, P.L., Coral Gables, for appellant.
    Kristen M. Fiore and Katherine E. Gid-dings of Akerman Senterfitt, Tallahassee, Ronald B. Ravikoff of Akerman Senterfitt, Miami, and Noelle M. Page of Akerman Senterfitt, West Palm Beach, for appellees Facilities Development Corporation, David Frederick and Patricia Frederick.
   PER CURIAM.

In this appeal, appellant Ted Doukas challenges a prevailing party attorney’s fee judgment. While Doukas raises myriad challenges to the judgment, we find merit in only one of his arguments — the judgment’s lack of required Rowe findings— and write solely to address this issue.

In May of 2009, Quantum Partners, Inc. and Ted Doukas filed suit against Facilities Development Corporation (FDC) and David and Patricia Frederick, seeking to recover the balance of the premium allegedly owed for a payment and performance bond. After obtaining a favorable final summary judgment on the claims, FDC and the Fredericks sought prevailing party attorney’s fees from both Quantum Partners and Doukas, relying upon a fee provision in the General Agreement of Indemnity and section 627.428, Florida Statutes. Ultimately, FDC and the Fredericks settled with Quantum Partners, electing to pursue their claim for fees solely against Doukas.

Counsel for FDC and the Fred-ericks submitted affidavits seeking a total award for fees and costs of $141,962.64 ($120,056.52 in the first affidavit and $21,906.12 in the supplemental affidavit). The trial court awarded a reduced sum of $117,992.52. The only finding in the judgment to substantiate the award is a statement that “[t]he Court finds that the time spent by said attorneys and the hourly rates charged by said attorneys are reasonable.” This is insufficient. “The law is well established that the trial court must set forth specific findings concerning the hourly rate, the number of hours reasonably expended and the appropriateness of reduction or enhancement factors.” Powell v. Powell, 55 So.3d 708, 709 (Fla. 4th DCA 2011) (citing Rowe, 472 So.2d at 1151). The presence of competent, substantial evidence to support the award does not obviate the need for the findings. Id. “Where there is nothing in the trial court’s order that allows the appellate court to discern whether ... [the Rowe ] factors were considered in determining a reasonable attorney’s fee, a fee award simply taking the amount charged by the attorney and determining it to be reasonable is improper and an abuse of discretion.” Campbell v. Campbell, 46 So.3d 1221, 1223 (Fla. 4th DCA 2010); see also Voronin v. Voronina, 995 So.2d 1049, 1050 (Fla. 2d DCA 2008) (recognizing fee judgment without Rowe findings is fundamentally erroneous on its face and subject to reversal regardless of preservation). While we affirm the trial court’s decision to award attorney’s fees, we are compelled to reverse the fee judgment and remand the matter so that the trial court may make the necessary findings.

Reversed and Remanded.

STEVENSON, TAYLOR and CIKLIN, JJ., concur.

      . Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985).


text:
    Luis Santino MILIAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-518.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Ashley Nicole Minton of Fender & Min-ton, P.A., Fort Pierce, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Luis Santino Milian appeals his convictions and sentences for third-degree grand theft in violation of section 812.014, Florida Statutes (2009), and felony retail theft in concert with others in violation of section 812.015(8)(a). For the reasons set forth in Ms co-defendant’s case, Rimondi v. State, 89 So.8d 1059 (Fla. 4th DCA 2012), we reverse Milian’s conviction and sentence for third-degree grand theft because it violates double jeopardy, but we affirm his conviction and sentence for felony retail theft.

Affirmed in part and reversed in part.

TAYLOR, CIKLIN and GERBER, JJ., concur.


text:
    Richard BURTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5374.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Richard Burton, Chipley, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Richard Burton appeals the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The order referenced a state’s response. No response had been ordered or filed. We accept the state’s concession and reverse the trial court’s order. We remand for the trial court to consider Burton’s motion in light of rule 3.850(d).

Reversed and remanded.

MAY, C.J., GROSS and DAMOORGIAN, JJ., concur. •


author: HAZOURI, J.

text:
    Michael L. LITTLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5214.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, 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.
   HAZOURI, J.

Michael Little appeals his convictions and sentences for throwing a deadly missile into a public or private building and burglary of a structure. He raises four points on appeal. We affirm in all respects except as to his fourth point concerning a claim of a sentencing error.

Little was sentenced as a habitual offender upon the conviction for burglary of a structure based on felony convictions in 2007 and 1999. Little asserted that the convictions were not his; however, the court overruled his objections and found the convictions were his based upon the written report of a fingerprint examiner, who did not testify. The trial court then imposed a ten-year habitual offender sentence for the burglary of a structure. The state concedes this was error. When Little contested the convictions, the state had the burden of proving that they were his pursuant to Chestnut v. State, 874 So.2d 781 (Fla. 4th DCA 2004), which says:

John Chestnut appeals from the denial of his Motion to Correct Sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) (2001). Chestnut was sentenced to life in prison as a prison releasee reoffender under section 775.082(9)(a)l, Florida Statutes (2001).
During the sentencing hearing, the State presented an affidavit under seal from Joyce Hobbs, records custodian of the Florida Department of Corrections, which certified that she was the department’s records custodian and that Chestnut’s last release date was September 8, 2001, less than three months before the date of the robbery for which he was being sentenced. The state also presented certified copies of three prior convictions along with forms signed by a fingerprint analyst indicating that Chestnut’s fingerprints taken in the instant case matched those on the three prior convictions. Chestnut objects to this proof as insufficient to support his sentencing as a prison releasee reoffen-der. We agree. Without the sworn testimony at the hearing by a fingerprint analyst, the analyses of the fingerprints are hearsay and inadmissible to prove the prior convictions were Chestnut’s.
We therefore remand for a resentenc-ing hearing at which the state will be permitted to present the requisite evidence to support sentencing as a prison releasee reoffender.

Id. at 732 (emphasis supplied).

As in Chestnut, the reports of the fingerprint examiner were not competent to prove the prior convictions were Little’s.

We therefore reverse the habitual offender sentence and remand for a new sentencing hearing with the state having the opportunity to prove the prior convictions.

STEVENSON and GERBER, JJ„-concur.


text:
    Dimitri-Emmanuel RACINE, Appellant, v. Jocelyn JEAN-PIERRE and Jennifer Francoeur, Appellees.
    No. 4D10-4737.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Shelley Ray Senecal of the Law Office of Shelley Senecal, Fort Lauderdale, for appellant.

      Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, and Neal Hirseh-feld and Mark Siedle of Greenspoon Marder, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

Dimitri-Emmanuel Racine appeals from the trial court’s final judgments which were entered after a jury found him negligent in causing an automobile accident that injured Jocelyn Jean-Pierre and Jennifer Francoeur (collectively referred to as the “plaintiffs”). Racine argues that the trial court erred in not offsetting the amount from both verdicts against him with the entire amount the plaintiffs received from the settlement with Racine’s mother (the owner of the vehicle Racine was driving) and her insurance company. However, because the settlement was, in part, for the plaintiffs’ release of other claims against the mother’s insurance company and the settlement was not apportioned in any way, we find that the trial court properly denied the request to offset the verdicts beyond the mother’s bodily injury policy limits. See Gouty v. Schnepel, 795 So.2d 959, 965 (Fla.2001) (“[T]he applicability of the setoff statutes is predicated on the existence of other tortfeasors who are liable for the same injury as the settling party.” (emphasis added)); Lauth v. Olsten Home Healthcare, Inc., 678 So.2d 447, 448 (Fla. 2d DCA 1996) (“When a plaintiff has separate claims, a setoff is inappropriate. A separate and distinct claim is one that involves different elements of damages.” (citation omitted)).

Affirmed.

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


author: SHEPHERD, J.

text:
    G.W., the father, etc., Petitioner, v. DEPARTMENT OF CHILDREN & FAMILIES, Respondent.
    No. 3D12-1233.
    District Court of Appeal of Florida, Third District.
    July 18, 2012.

      Richard F. Joyce, for petitioner.
    Karla Perkins, Appellate Counsel for respondent, Department of Children & Families.
    Before SHEPHERD and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

In this petition, G.W., the father of M.W. and R.K.W., seeks certiorari relief quashing an order sheltering two of his children on the ground he summarily was deprived of his constitutional and statutory right to counsel at the hearing. We grant the petition.

On April 8, 2012, J.T. gave birth to R.K.W. at Homestead Hospital. R.K.W. tested positive for cocaine. On April 10, 2012, R.K.W. was taken into protective custody by the Florida Department of Children and Families. Based upon the alleged “evasiveness of the mother,” the Department also removed two-year-old M.W.

The trial judge held the shelter hearing on April 11, 2012. The mother was represented by Regional Conflict Counsel. The father was present, but unrepresented. The mother has a long history with the Department. This is the father’s first encounter with the system. On the morning of the hearing, the Center for Family and Child Enrichment reported the mother tested positive for cocaine and the father tested positive that morning for both oxycontin and cocaine. The father claims he takes over twenty-five pills per day, including cocaine, for “medicine reasons.” Based upon this history, the trial court stated she “assume[d] we’re going straight to TPR [termination of parental rights]” for the mother, an assertion not forcefully disputed by counsel to the Department. See § 39.806(2)-(4), Fla. Stat. (2011). All agreed that G.W. did not qualify for a petition for expedited termination of rights. Id. In fact, the Shelter Order itself states:

the father of [M.W.] and [R.K.W.] has not been eliminated as a possible future placement for the children. However, the Department is not recommending that the children be placed with him at this time. The father has not yet been drug tested. Additionally, he resides with the mother, who finally admitted after the children were removed, that [M.W.] has been living with her in Key Largo.

Section 39.402(5)(b)2 of the Florida Statutes (2012) makes it clear that “if indigent, ... parents have the right to be represented by appointed counsel ... pursuant to the procedures set forth in s[ection] 39.013 [of the Florida Statutes].” Section 39.013 of the Florida Statutes (2011), provides:

(1) All procedures, including petitions, pleadings, subpoenas, summonses, and hearings, in this chapter shall be conducted according to the Florida Rules of Juvenile Procedure unless otherwise provided by law. Parents must be informed by the court of their right to counsel in dependency proceedings at each stage of the dependency proceedings. Parents who are unable to afford counsel must be appointed counsel.
(9)(a) At each stage of the proceedings under this chapter, the court shall advise the parents of the right to counsel. The court shall appoint counsel for indigent parents. The court shall ascertain whether the right to counsel is understood. When right to counsel is waived, the court shall determine whether the waiver is knowing and intelligent. The court shall enter its findings in writing with respect to the appointment or waiver of counsel for indigent parents or the waiver of counsel by nonindigent parents.

See also Fla. R. Juv. Pro. 8.305(b)(6)(A) (providing the trial court must advise the parent of the right to counsel); accord In re A.G., 40 So.3d 908, 909 (Fla. 3d DCA 2010); S.K. v. Dep’t of Children & Families, 959 So.2d 1209, 1212 (stating that in dependency proceedings, a parent is entitled to an attorney unless the parent waives that right).

In the midst of the staccato-paced hearing conducted by the trial court in this case, the court stated, inter alia, “and I’m appointing counsel for the father.” Under the circumstance, the father missed the point. As the hearing continued, both the father and his family members begged to speak to the court. The father stated on two occasions: “Can I say something?”, “Can I say something, please?” Then, as the trial court indicated she was prepared to close down the hearing, he asked, “Why can’t I say anything?”, to which the court finally acceded briefly. On the last page of the shelter hearing transcript, the trial court stated, “And you call your lawyer, [G.W.], okay?”, to which G.W. responded, “Hold on, I didn’t know I had one.” An unidentified speaker said, “They’re going to give [one] to you.” After scheduling dates for further proceedings, the hearing then concluded.

As well explained in A.G. v. Florida Department of Children & Families, 65 So.3d 1180 (Fla. 1st DCA 2011), parents are entitled to counsel at shelter hearings in this state. In AG., following the filing of a shelter petition, the trial court held a hearing on the petition. Although the mother was represented by counsel, the father had no attorney present. Id. at 1181. The trial court did not inquire whether the father had an attorney and it did not clarify whether the father wanted to waive his right to counsel. Id. As in the case before us, the trial court in AG. appointed counsel to represent the father, but only for future proceedings. Id. at 1182. Our sister court concluded the trial court should have advised the father of his right to counsel and should have appointed counsel before proceeding further with the hearing. Id. at 1183. Likewise, we here conclude the trial court should have advised G.W. of his right to counsel before proceeding with the shelter hearing. As chronicled in A.G., the statutes and rules governing shelter hearings are replete with language requiring counsel at this stage of the dependency process. Id. at 1182. This statutory right is grounded in due process. See A.W.P., Jr., 10 So.3d 134, 135-136 (Fla. 2d DCA 2009). The trial court’s failure to provide the father the opportunity to have counsel present at the shelter hearing constituted a clear departure from the essential requirements of law, amounting to a miscarriage of justice.

Petition granted; order quashed.

      . M.W. apparently lives much of her time with the father’s Key Largo family. During the course of this appeal, the trial court has transferred this case from Miami-Dade to Monroe County Circuit Court.

      . The mother became a ward of the Florida Department of Children and Families in 1989 when, at the age of 15, she gave birth to her first child. M.W. and R.K.W. are her eighth and ninth children. All of the children have come into the system. One child died as a result of head injuries due to lack of supervision. Another was brought into DCF custody after he received a skull fracture during a physical altercation between the parents.

      . Family members present sought to have the children placed with them, separate and apart from both parents, instead of foster parents.

      . The trial court appointed Richard F. Joyce from a pool of attorneys available when Regional Conflict counsel has a conflict. Mr. Joyce, of course, was not at that moment in or near the courtroom.


text:
    Wendall HALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3245.
    District Court of Appeal of Florida, First District.
    July 19, 2012.
    Wendall Hall, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Graham v. State, 372 So.2d 1363 (Fla.1979).

DAVIS, LEWIS, and MAEAR, JJ„ concur.


text:
    Fredrick L. EVANS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3225.
    District Court of Appeal of Florida, First District.
    July 19, 2012.
    Fredrick L. Evans, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See State v. Adkins, — So.3d - (Fla.2012).

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    Lonnie L. FRITTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3128.
    District Court of Appeal of Florida, First District.
    July 19, 2012.

      Lonnie L. Fritts, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    Benito RAMIREZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3120.
    District Court of Appeal of Florida, First District.
    July 19, 2012.
    Benito Ramirez, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See McNeal v. State, 67 So.3d 407 (Fla. 2d DCA 2011).

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    Edward W. MASLOW, Appellant, v. DEPARTMENT OF REVENUE o/b/o Julianne M. EDWARDS, Appellee.
    No. 5D11-3034.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2012.
    Rehearing Denied Aug. 7, 2012.
    Edward W. Maslow, Little Falls, NY, pro se.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Child Support Enforcement Division, Tallahassee, for Appellee.
   PER CURIAM.

Edward Maslow appeals the trial court’s order recalculating his child support obligation and arrearages. In doing so, he misperceives the effect of our remand in Maslow v. Edwards, 59 So.3d 299 (Fla. 5th DCA 2011). There, we concluded that the trial court had failed to apply the correct formula in determining Maslow’s child support obligation, but affirmed as to all other issues raised by Maslow. On remand, the trial court complied with our mandate in recalculating child support. Contrary to Maslow’s argument, he was not entitled to a new trial.

AFFIRMED.

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


author: PER CURIAM. MAKAR, J.,

text:
    R.A.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5376.
    District Court of Appeal of Florida, First District.
    July 24, 2012.
    Nancy A. Daniels, Public Defender, and Diana L. Johnson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel, Assistant Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

MAKAR, J.,

concurring dubitante.

On Memorial Day in 2011, R.A.W., a fifteen-year old female, was with her sister and two males in the Blackwater State Forest, sitting close to one another on the ledge of a sandbar. Her sister and one of the males had beers in their possession; the other male did not. An enforcement officer who approached the group testified that he saw a beer can that appeared to be on the ground between R.A.W.’s legs and that when she stood up it tipped over and its dark-colored contents foamed on the sand like beer. Beyond these visual observations, the officer took no steps to confirm the liquid was actually beqr.

R.A.W. was charged with possession of alcohol by a minor. She argues, in part, that her motion for judgment of acquittal should have been granted because of the lack of adequate proof that the liquid was actually an illegal substance, a question that is addressed under a de novo standard. P.N. v. State, 976 So.2d 90, 91 (Fla. 3d DCA 2008) (judgment of acquittal is proper if the State fails to present sufficient evidence to establish a prima facie case of the crime charged).

The State, of course, bore the burden of presenting sufficient evidence to prove beyond a reasonable doubt that the brown foaming liquid was an illegal substance. But did it? This Court has previously said that, although the burden of proof is “relatively low” in alcohol possession cases, the State must present adequate evidence of the contents of a container believed to contain alcohol. See S.C.S. v. State, 831 So.2d 264, 264 (Fla. 1st DCA 2002) (reversing conviction where State presented no evidence of contents of bottle possessed by minor). Likewise, the Third District has reversed a conviction where the State failed to present evidence that a bottle’s contents were illegal alcohol. P.N., 976 So.2d at 92 (officer saw juvenile holding beer bottle, which when eventually recovered was “full of sand and water”).

Here, the only evidence that the content of the can was an illegal substance was the officer’s observation that the liquid that spilled out was brown and that, in his personal opinion, it foamed like beer when it spilled on the sand. He did not smell the can or its contents; he did not determine whether the liquid was cold or warm, which might affect foaming. He did not see her hold or drink from the can; she did not act in an unusual way when the can tipped over. In fact, he did not take possession of the can, leaving it with the group sitting on the sandbar for them to discard. R.A.W. was not subject to any observation or testing for alcohol consumption, and showed no signs of having imbibed; indeed, she denied having alcohol. In short, no steps were taken — other than observing a dark spilled liquid foaming — to determine that the can actually contained beer or other alcoholic beverage.

Because the bottle’s content was not directly verified by smell, we are left to infer that the officer’s “beer foam” testimony is legally sufficient to meet the State’s burden of proving the illegal nature of the liquid. This Court in S.C.S. and the Third District in A.A v. State, 461 So.2d 165, 167 (Fla. 3d DCA 1984), noted that an experienced officer’s testimony about the “appearance and smell of illegal contraband” is enough to prove its illegal nature. S.C.S., 831 So.2d at 264 (citing A A., 461 So.2d at 166) (emphasis added). But no Florida court has held that mere observation of a liquid or its foam without also smelling it is sufficient to establish it is alcoholic, even by an experienced officer.

The officer here was not held out as an expert, nor did he have any specialized experience or training on beer and its foaming qualities vis-á-vis other brown-colored carbonated beverages. Academic literature exists on the creation of the perfect “head” that is produced when beer is poured into a glass and foams; none appears to exist on the visual differences between spilt beer foam and spilt soda foam, particularly on sandy warm surfaces. As such, the “beer foam” opinion of the officer leaves open some doubt about the nature of the liquid. Kids do goofy things like putting soda in a beer bottle to act cool; the trial judge recognized this possibility.

This situation is unlike those where an officer either has specialized expertise or actually observes and smells an illegal substance. For example, in A.A., the “officer’s opinion that the substance seized in the present case was marijuana was based upon his sensory perceptions of sight and smell, as well as the facts that the substance was in a clear plastic baggie and the juvenile possessed ‘rolling papers.’ ” 461 So.2d at 166. The officer — who was qualified to testify as an expert in marijuana identification — had nine years of experience, four of which were in a special narcotics unit where he took eoursework on the topic of identifying marijuana; he had seen and smelled “tons” of marijuana; his “identifications of substances as marijuana had always been corroborated by lab tests.” Id. The juvenile in AA unsuccessfully argued this expert testimony was insufficient to form an opinion and “that something more in the line of scientific or chemical proof is required.” Id. The Third District disagreed, finding this degree of evidence was sufficient to establish that the substance was indeed marijuana. Id. at 167.

Here, the officer could have confirmed that the foaming brown liquid was beer by simply smelling the contents of the bottle or the foam. Doing so removes doubt (as in A.A.). It will not always confirm the liquid is illegal, but it is nonetheless an important evidentiary protocol. For example, in P.N. the officer approached a juvenile he saw holding a beer bottle; he did not see the juvenile drinking from the beer bottle or directly determine that the contents of the bottle were alcoholic. P.N., 976 So.2d at 91. He took steps to recover the bottle, however, but found it “was full of sand and salt water.” Under these circumstances, as the State conceded at oral argument in that case, “it is not illegal for a minor to possess a beer bottle that contains no alcohol.” Id.

Likewise here, it is not illegal per se for a minor to possess a beer can containing a brown liquid that (according to the officer) foamed like beer when tipped over. Admittedly, the probability that a brown foaming liquid from a beer can is actually beer is higher than it being root beer, cream soda, or a diet cola. But what if the beer can in this case had been a plastic cup instead? It is doubtful that testimony the cup contained a brown liquid that foamed like beer when spilled would sustain the State’s burden of proof that the liquid was alcohol.

There is merit to the common sense notion, as expressed by the officer, however, that a liquid flowing from a spilled beer can is probably beer, particularly when it looks and appears to foam like beer. What an appellate judge’s view might be on this point is less important than what a jury (or judge as fact-finder) might reasonably believe. See A.A., 461 So.2d at 167 (factual questions beyond province of appellate court where record supports trial court’s findings); see also Bishop v. Fair Lanes Ga. Bowling, Inc., 803 F.2d 1548, 1551 (11th Cir.1986) (“Whatever our own view may be, we believe a jury could reasonably find that it is not a ‘rare event’ in human experience for loud and aggressive talking drunks to get into fights at 2:00 A.M. on a Saturday morning.”).

When the State adjudicates a juvenile for possession of alcohol, the degree of forensic evidence does not have to approach “rocket science” to prove guilt. Only rudimentary means of establishing a liquid is an illegal substance need be pursued through observation and smell. The ultimate question in this case becomes whether “beer can + brown foaming spilt liquid = alcohol” is legally sufficient to support a delinquency adjudication for possession of alcohol. Proof of whether it was beer that spilled on Memorial Day 2011 should not be based on the perceived characteristics of its foam alone; here, the additional factor is that the container was a beer can. Given the “relatively low” burden of proof in alcohol possession cases in this District (S.C.S.), I am led to concur but not without doubt given the lack of readily available olfactory verification.

WOLF and RAY, JJ., concur. MAKAR, J., concurs dubitante.

      . See, e.g., J. Bruce German & Michael J. McCarthy, Stability of Aqueous Foams: Analysis Using Magnetic Resonance Imaging, J. Agric. & Food Chemistry (1989) (noting that aqueous foams "differ widely in their structure and kinetic stability”); see generally Beer head, Wikipedia, http://en.wikipedia.org/wiki/ Beer — head (last visited July 18, 2012) (discussing importance, formation, and development of improved beer foams).


author: SUAREZ, J. SHEPHERD, J.,

text:
    The STATE of Florida, Appellant, v. Javier DELGADO, Appellee.
    No. 3D09-3070.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.

      Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellant.
    Jeffrey E. Feiler, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

The State appeals the trial court’s grant of a motion to suppress where the defendant was charged with unlawful possession of cannabis in violation of section 893.13(6)(a), Florida Statutes (2007), and unlawfully and feloniously manufacturing cannabis with the intent to sell in violation of section 893.13(l)(a)(2), Florida Statutes (2007). We reverse.

The defendant was charged with unlawful possession of cannabis in violation of section 893.13(6)(a), Florida Statutes (2007), and unlawfully and feloniously manufacturing cannabis with the intent to sell in violation of section 893.13(l)(a)(2), Florida Statutes (2007). The defendant filed a motion to suppress on grounds that he did not consent willingly to the search, the search was not incident to a lawful arrest, and the evidence obtained was the fruit of the poisonous tree. The trial court granted the motion to suppress, and this appeal follows.

At the’ suppression hearing on October 26, 2009, Detective Bernal of the Miami-Dade Police Department testified that, on May 21, 2009, based on an anonymous tip, the officer proceeded to the location of S.W. 154th Place to check out a possible grow house. The detective explained that she was part of a special detail and that her unit specifically responded to tips, grow houses, and crime-stopper tips. ■ She proceeded to the location with Detectives Carey and Giordano and Sergeant Taber-no. Upon arriving at the scene, Detectives Bernal and Carey went to the front door of the residence where they detected the smell of marijuana. Detective Giordano and Sergeant Taberno went to the side of the house, where they were out of the view of Detective Bernal. Detective Carey knocked on the door in an attempt to contact the occupant. The defendant opened the door from within the residence. Detectives Bernal and Carey were in plain clothes. Detective Bernal had on a tactical vest with the word “Police” written on it, and Detective Carey was wearing a police jacket. Their firearms were in their holsters. When the defendant opened the door, Detective Bernal smelled a stronger odor of marijuana. After speaking with the defendant, Detective Carey signaled Detective Bernal to walk inside the residence. The other officers were still on the side of the house. Detective Bernal stayed inside the house, and Detective Carey and the defendant went to the west side of the house. The defendant was not handcuffed. While Detective Bernal was inside the house, she saw baggies of marijuana as well as a pipe in plain view. Approximately three minutes later, Detective Carey and the defendant returned to the house. They went inside, sat on the couch and Detective Carey gave the defendant an informed consent form, which he signed, consenting to the search of the residence. Afterward, he was given a waiver of Miranda, rights form, which he signed in the officers’ presence. The defendant then gave a written statement. Other officers came into the house and proceeded to take pictures of the grow house. No weapons were drawn and no handcuffs were ever placed on the defendant.

The defendant was charged with unlawful possession of cannabis in violation of section 893.13(6)(a), and unlawfully and feloniously manufacturing cannabis with the intent to sell, in violation of section 893.13(l)(a)(2), Florida Statutes (2007). The defendant filed a motion to suppress on grounds that he did not willingly consent to the search, the search was not incident to a lawful arrest, and the evidence obtained was the fruit of the poisonous tree. The trial court granted the motion to suppress, and the State appeals.

We review the trial court’s grant of a motion to suppress using a mixed standard of review; the appellate court defers to the trial court’s findings regarding the facts and applies the de novo standard of review to legal conclusions. See Riggs v. State, 918 So.2d 274, 278 (Fla.2005) (holding that, when reviewing rulings on motions to suppress, “we ‘accord a presumption of correctness ... to the trial court’s determination of historical facts, but [we] independently review mixed questions of law and fact that ultimately determine constitutional issues’ ”); Hidelgo v. State, 25 So.3d 95 (Fla. 3d DCA 2009).

A warrantless search of a dwelling may be authorized by consent. See Georgia v. Randolph, 547 U.S. 103, 106, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). The State bears the burden to show the voluntariness of the consent by the preponderance of the evidence. Reynolds v. State, 592 So.2d 1082 (Fla.1992). The preponderance of the evidence is the appropriate standard of proof of whether the consent to a search was voluntary in a knock and talk encounter situation. State v. Navarro, 19 So.3d 370 (Fla. 2d DCA 2009); see also Murphy v. State, 898 So.2d 1031, 1032 n. 4 (Fla. 5th DCA 2005) (stating that “ ‘knock and talk’ encounter is a procedure used by police officers to investigate a complaint where there is no probable cause for a search warrant”). The preponderance of the evidence in this case established that the defendant’s consent was voluntary.

The facts here do not constitute coercion sufficient to negate the consent that was obtained. The officers were on special detail responding to an anonymous tip. The anonymous tip was corroborated when the officers smelled marijuana outside the residence. At this point, the officers properly instituted the knock and talk procedure. See Navarro, 19 So.3d at 870. After knocking on the door, smelling a stronger odor of marijuana from inside the residence and, upon seeing marijuana and paraphernalia in plain view, the officers had probable cause for the search. The police obtained consent from the defendant for the search, and the defendant signed a waiver of Miranda rights form. The record reveals neither a police threat to obtain a search warrant nor other facts which would constitute coercion sufficient to negate the defendant’s voluntary consent; the police did not draw guns, did not make threats, and did not use handcuffs.

Moreover, even had the initial encounter been illegal, as the defendant contends, any taint from such an encounter does not extend to the subsequent consent obtained. See Connor v. State, 808 So.2d 598 (Fla.2001) (holding that, even if the initial encounter were illegal, where written consent and waiver of Miranda warnings were obtained prior to search, any taint from the encounter does not extend to a subsequent consent to search). The voluntariness of the defendant’s consent to search depends on the totality of the circumstances. U.S. v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). The voluntariness of the defendant’s consent will be upheld where the items seized were the result of a consensual search. Connor, at 598. The fact that the defendant signed a Miranda waiver after giving consent is of no consequence, and, based on the totality of the circumstances, the consent was voluntary. See generally U.S. v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (holding that the absence of proof that a person giving consent to search knew he could withhold his consent does not compel the conclusion that his consent was invalid); Wayne R. LaFave, 4 Search and Seizure § 8.2(j), at 119 (4th ed. 2004) (“[I]t is at best open to question ... whether the inclusion or exclusion of Miranda warnings in a given set of circumstances should weigh much in either direction in considering voluntariness.”).

Based on the totality of the circumstances and the aforementioned authorities, we reverse the trial court’s grant of the motion to suppress.

Reversed and remanded.

LAGAO, J., concurs.

SHEPHERD, J.,

concurring specially.

I agree with the decision of the Court in this case, but write to record my separate reason for reaching that result.

This case arises from an anonymous tip regarding ongoing unlawful drug activity occurring at a location on Southwest 154th Place in Miami, Florida. On May 21, 2009, four officers — Detectives Marcus Carey, Anna Bernal, Russell Giordano, and Sergeant Michael Taberno — responded to the house. Detective Giordano and Sergeant Taberno went to the sides of the house to prevent any individuals from exiting the sides of the house. Detectives Bernal and Carey approached the front door of the premises. Detective Bernal detected the unmistakable smell of marijuana as the two officers approached the front door. Detective Bernal wore a tactical vest containing the word “Police,” and Detective Carey also wore a police jacket.

Detective Carey knocked on the door and Javier Delgado opened the door. Detective Carey invited Delgado to walk around to the west side of the house with him. At the same time, Detective Carey saw another individual in the house and ordered Detective Bernal to go inside the house to secure the individual. Detective Bernal did so. After a short period, Detective Carey and Delgado returned, entered the house, and Delgado executed both a consent to search his house and a Miranda form. The officers discovered a grow house. Delgado then was arrested.

Delgado filed a motion to suppress, contending he did not willingly consent to the search, the search was not incident to a lawful arrest, and the evidence obtained was the “fruit of the poisonous tree.” I disagree. My belief is the officers in this case executed a valid “knock and talk.” A “knock and talk” encounter is a procedure used by police officers to investigate a complaint where there is no probable cause for a search warrant.” See Murphy v. State, 898 So.2d 1031, 1032 n. 4 (Fla. 5th DCA 2005). Because Detective Bernal detected a strong odor of marijuana, the officers had probable cause to enter the premises, arrest Delgado, and execute a search incident to arrest, during which the contraband was found.

There was no Fourth Amendment violation in this case.

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


text:
    M.L. a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2298.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    LENS ENTERPRISES OF JACKSONVILLE, INC., Scott Wiedenmann, M.D., P.A., and Medical Diagnostic Center of Jacksonville (the “Corporate Defendants”), Appellants, v. DE LAGE LANDEN FINANCIAL SERVICES, INC., Nicolau Sacaquini, and Scott Wiedenmann, Appellees.
    No. 1D11-4376.
    District Court of Appeal of Florida, First District.
    July 25, 2012.

      Eric C. Roberson, Jacksonville, for Appellants.
    Robert A. Solove, Solove & Solove, P.A., Miami, for Appellees.
   PER CURIAM.

DISMISSED. See Jensen v. Whetstine, 985 So.2d 1218, 1220-1221 (Fla. 1st DCA 2008); Benoit v. State Farm, Florida Ins. Co., 67 So.3d 207 (Fla. 2d DCA 2011).

WOLF, ROWE, and SWANSON, JJ., concur.


author: CORTIÑAS, J.

text:
    Narciso GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-642.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.
    Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and CORTINAS, JJ.
   CORTIÑAS, J.

Affirmed. See State v. Davis, 131 Wash. App. 246, 126 P.3d 827 (2006); State v. Byrd, 708 So.2d 401 (La.1998).


text:
    Lorenzo FOUNTAINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5599.
    District Court of Appeal of Florida, First District.
    July 26, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Adkins, 2012 WL 2848903 (Fla. July 12, 2012).

VAN NORTWICK, CLARK, and RAY, JJ., concur.


author: PER CURIAM. RAY, J.,

text:
    14302 MARINA SAN PABLO PLACE SPE, LLC, Appellant, v. VCP-SAN PABLO, LTD., a Florida limited partnership, John D. Rood, individually, John D. Rood, as Trustee of the John D. Rood Revocable Trust U/A/D 1/26/88, as amended, Marina San Pablo Master Association, Inc., a Florida corporation, and Marina San Pablo Condominium Association, Inc., a Florida corporation, Appellees.
    No. 1D11-2927.
    District Court of Appeal of Florida, First District.
    July 27, 2012.
    W. Glenn Jensen and Shane P. Martin of Roetzel & Andress, LPA, Orlando, for Appellant.
    Frank A. Ruggieri and Patryk Ozim of Larsen & Associates, P.A., Orlando, for Appellees Marina San Pablo Master Association, Inc., and Marina San Pablo Condominium Association, Inc.
   PER CURIAM.

This appeal is from an order declaring that Appellant is liable to the Marina San Pablo Master Association for certain fees and assessments. The trial court entered this order in the context of a foreclosure case, upon a motion for clarification filed more than three months after entry of the final judgment. Because the period for rehearing or clarification had passed and the trial court was not ruling on a motion filed under Florida Rule of Civil Procedure 1.540, the court lacked jurisdiction to enter the order at issue. See Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983) (quoting St. Cloud Utilities v. Moore, 410 So.2d 973, 974 n. 3 (Fla. 5th DCA 1982)). Accordingly, we QUASH the order on appeal, leaving the final judgment of foreclosure undisturbed.

RAY, J.,

concurring.

I concur in the result of the majority’s opinion and write to address what I believe to be the nature of the jurisdiction at issue. Appellant contends that the trial court lacked subject matter jurisdiction to enter the order on review. Appellee asserts that Appellant is estopped from challenging the trial court’s jurisdiction because Appellant sought the ruling from the trial court in the first place. Although the type of authority at issue is not properly designated subject matter jurisdiction, precedent from this Court leads me to conclude that the jurisdictional defect invalidates the order despite Appellant’s role in procuring it.

When the trial court entered the order on appeal, it was acting on a motion Appellant styled as one seeking clarification of a final judgment of foreclosure. As the majority opinion indicates, the motion was filed beyond the time for filing a motion for rehearing or clarification and beyond the time for filing a notice of appeal. Although the timing of this motion deprived the trial court of jurisdiction to consider it, the motion did not — and could not — deprive the court of subject matter jurisdiction.

Subject matter jurisdiction is a court’s constitutional or statutory power “to deal with a class of cases to which a particular case belongs,” Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 801 n. 3 (Fla.2003), and a challenge to such jurisdiction cannot be waived, Tabb ex rel. Tabb v. Fla. Birth-Related Neurological Injury Compensation Ass’n, 880 So.2d 1253, 1256 (Fla. 1st DCA 2004). There is no doubt that a circuit court has subject matter jurisdiction over the type of foreclosure action in this case. Art. V, § 5(b), Fla. Const.; §§ 26.012(2)(a), (c), (g), 34.01(1)(c), Fla. Stat. (2010); Alexdex Corp. v. Naehon Enters., Inc., 641 So.2d 858, 862 (Fla.1994). Thus, subject matter jurisdiction was not absent below.

The type of jurisdiction the court lacked was its “power ... over a particular case that is within its subject matter jurisdiction,” as determined by reference to the case’s procedural posture. See T.D. v. K.D., 747 So.2d 456, 457 n. 2 (Fla. 4th DCA 1999). This species of jurisdiction is termed “case jurisdiction” or “continuing jurisdiction” by some courts. It has also been referred to as “procedural jurisdiction,” meaning a court’s authority to act in a particular case. While lack of subject matter jurisdiction renders a judgment or order of a court void ab initio, lack of case jurisdiction should merely render the court’s act voidable, and under appropriate circumstances, subject to consent, waiver, or estoppel. While at least one district court has held that certain defects of procedural jurisdiction are waivable, precedent from this Court requires us to hold that the type of jurisdictional challenge presented in this case cannot be waived and may be raised for the first time on appeal. See Wilson v. State, 487 So.2d 1130, 1130-31 (Fla. 1st DCA 1986) (rejecting the argument that a criminal defendant who had requested modification of his sentence was estopped from challenging the trial court’s jurisdiction to modify his sentence because the modification occurred after the trial court lost jurisdiction to entertain the defendant’s motion); Miller v. State, 134 So.2d 513, 515 (Fla. 1st DCA 1961) (holding that the late-filing of a motion for new trial is “jurisdictional and not merely procedural,” such that the trial court had no discretion to relieve the criminal defendant of the associated deadline); cf. Bramblett v. State, 15 So.3d 839, 840 (Fla. 1st DCA 2009) (holding that the Court’s lack of jurisdiction over an untimely appeal is an issue that may be raised at any time and that such a lack of jurisdiction is “a defect no one can correct”) (quoting Hawks v. Walker, 409 So.2d 524, 525 (Fla. 5th DCA 1982)). Bound by this precedent, I concur in the result of the majority opinion.

BENTON, C.J., ROWE, J., concur, and RAY, J., concurs with Opinion.

      . E.g., Paulucci, 842 So.2d at 801 n. 3; T.D., 747 So.2d at 457 n. 2; ATM Ltd. v. Caporicci Footwear Ltd., Corp., 867 So.2d 413, 413 (Fla. 3d DCA 2003); Tobkin v. State, 777 So.2d 1160, 1163 (Fla. 4th DCA 2001).

      . In Florida’s Third Species of Jurisdiction, 82 Fla. Bar J. 11, 13 (March 2008), Judge Scott Stephens explains "procedural jurisdiction” as follows:
      Procedural jurisdiction has nothing to do with the scope of the court’s constitutional or statutory power, or the status of the parties. Instead, it is a matter of compliance with applicable procedural principles, some codified in rules, but more often products of case law. These principles can correctly be characterized as "jurisdictional,” in that they address a particular court’s authority to proceed in a specific direction at a defined time. Even when a court has subject matter jurisdiction and personal jurisdiction — hence the power to proceed— the procedural equivalents of traffic signals regulate when it is permissible to proceed.

        . MCR Funding v. CMG Funding Corp., 771 So.2d 32, 35 (Fla. 4th DCA 2000).


text:
    Maranda WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4960.
    District Court of Appeal of Florida, First District.
    July 27, 2012.
    Nancy A. Daniels, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals her convictions and sentences on three counts of home-invasion robbery with firearm or deadly weapon stemming from a single entry into a dwelling with multiple occupants. The State properly concedes that two of the three convictions must be vacated, as these convictions constitute a double jeopardy violation. See Bowers v. State, 679 So.2d 340 (Fla. 1st DCA 1996). We reverse and remand with directions that the trial court vacate Appellant’s convictions and sentences for two of the three counts.

We also remand for recalculation of the scoresheet and for resentencing based solely upon the reduction of the sentencing range as a result of the two vacated convictions. See Oliver v. State, 75 So.3d 349 (Fla. 1st DCA 2011); Cook v. State, 813 So.2d 1010 (Fla. 1st DCA 2002).

All other issues raised on appeal are affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.

THOMAS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Robert Scott ANDREWS, Appellant, v. Caroline C. ANDREWS (Deceased) by Ursula FLESCHNER (Mother of Caroline C. Andrews) In re Guardianship of Nicholas Ryan Andrews, Appellee.
    No. 1D12-2917.
    District Court of Appeal of Florida, First District.
    July 27, 2012.
    Therese Misita Truelove, Gainesville, for Appellant.
    Vicki Levy Eskin of Levy & Associates, P.A., Longwood, for Appellee (no appearance).
   PER CURIAM.

DISMISSED. See generally Brigham v. State, 769 So.2d 1100, 1101 (Fla. 1st DCA 2000); Williams v. Roundtree, 464 So.2d 1293 (Fla. 1st DCA 1985).

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    Andre FROST, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3561.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT

PER CURIAM.

We reconsider this case based on the mandate from the Supreme Court in Frost v. State, 94 So.3d 481 (Fla.2012), to apply Harris v. State, 71 So.3d 756 (Fla.2011), cert. granted, — U.S. -, 132 S.Ct. 1796, 182 L.Ed.2d 615 (2012). Based on Harris, we reverse the conviction and remand to the circuit court for further proceedings. The circuit court shall hold another evidentiary hearing on the motion to suppress, where the State may offer additional evidence in compliance with the standards adopted by the Supreme Court in Harris. If the court decides that the State has not demonstrated that there was a “reasonable basis for believing the dog to be reliable based on the totality of the circumstances” under the Harris guidelines, it should grant the motion to suppress. Id. at 758.

Reversed and remanded for further proceedings.

STEVENSON, GROSS and TAYLOR, JJ., concur.