author: GROSS, C.J. HAZOURI, J.,

text:
    Mark GUSOW, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2135.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.
    Rehearing Denied May 7, 2009.

      Mark Gusow, Coleman, pro se.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

On March 6, 2000, Mark Gusow entered pleas of guilty to 47 felonies — one count of conspiracy to commit racketeering, 11 counts of money laundering, 18 counts of grand theft, and 17 counts of loan broker fraud. Pursuant to his plea bargain with the state, he was sentenced to probation.

Just five months after the plea, a violation of probation warrant was filed. The violation of probation charges were amended in February and May 2001. On September 25, 2001, Gusow admitted the violations. The circuit judge reinstated Gusow on probation, with the additional condition of mandatory drug treatment.

In 2006, Gusow again violated his probation. The circuit judge sentenced him to a 17-year prison term on two counts, and concurrent sentences on the other counts.

In 2007, Gusow moved to vacate his 2000 plea arguing that his plea was involuntary, because his counsel misadvised him that he would face a maximum of only five years in prison for a violation of probation. The trial court denied the motion

We affirm for two reasons. First, the attorney misadvice concerned a matter collateral to the plea, i.e., a consequence that did not flow directly from the plea, so the purported error did not amount to constitutionally deficient assistance of counsel. Second, Gusow’s postconviction relief motion was untimely because it was filed more than two years after the conviction based on his plea became final. See Fla. R.Crim. P. 3.850(b).

It is important to view this case in the context of the ebb and flow of the law on postconviction relief over the last 15 years. Beginning in the 1990’s, the Florida Supreme Court expanded the availability of postconviction relief. Concrete evidence of this expansion is the growth of postconviction relief cases on this court’s docket. In 1998, 573 postconviction relief cases were filed, representing 12.9% of our docket. In 2008, 1192 postconviction relief cases were filed, comprising 23% of our docket. The typical postconviction case has evolved, moving from claims of attorney incompetence relating to a jury finding of guilty to cases such as Gusow’s, where defendants seek to set aside plea bargains due to the bad advice their attorneys gave them prior to the plea. In these latter cases the contention is not that an innocent person was unjustly convicted of a crime, always a proper subject of postconviction relief, but that the plea was rendered “involuntary,” that but for the bad legal advice, the defendants would not have pleaded guilty.

A crucial case in this development in postconviction law was State v. Leroux, 689 So.2d 235 (Fla.1996), a four-to-three decision. In that case, the defendant alleged that he based his guilty plea on his lawyer’s incorrect advice as to his estimated release date; the lawyer told Leroux that he would be released from prison in four years due to his entitlement to gain time credits. Id. at 235. After his incarceration, the Department of Corrections told Leroux that “his counsel’s advice was erroneous and he would have to serve over seven years before being released.” Id. The Supreme Court recognized that “[mjisrepresentations by counsel as to the length of a sentence or eligibility for gain time can be the basis for a postconviction relief in the form of leave to withdraw a guilty plea.” Id. at 236. Although the trial judge correctly advised Leroux about his 15-year sentence and the mandatory minimum sentence of three years, the Supreme Court held that the general question covering whether anyone had “promised” Leroux “anything” to plead guilty did not conclusively rebut Leroux’s postconviction relief claim.

Leroux fueled an explosion of cases where defendants sought to set aside guilty pleas based on what their lawyers allegedly told them prior to the plea.

Major v. State, 814 So.2d 424 (Fla.2002), imposed an analytical framework on this area; the case recognized that prior to the defendant accepting a plea bargain, the trial court and defense counsel have a duty to advise a defendant about the direct, but not the collateral consequences of a plea. The failure to advise about a collateral consequence could not be the basis for postconviction relief to set aside the plea bargain. The court adopted this definition of a “direct consequence” of a plea: “whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Id. at 431 (quoting Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982) (quoting Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir.1973))); see also Bolware v. State, 995 So.2d 268 (Fla.2008); State v. Partlow, 840 So.2d 1040 (Fla.2003).

Gusow’s claim is not that the trial court failed to advise him of the potential penalties under rule 3.172(c)(1), but that defense counsel told him that his sentence would be no more than 5 five years if he violated his probation. The sentence the defendant might receive if he violated his probation was collateral to the plea — it was not “definite, immediate,” and “largely automatic” as a result of his plea. The important term of this plea bargain was that Gusow was sentenced to probation for 47 felonies; the length of a prison term might come into play only if Gusow violated his probation and the court, in its discretion, revoked probation and decided that the violation justified more than five years in prison instead of a myriad of other sentencing alternatives.

Because this case involves a claim of wrong attorney advice about a matter collateral to the plea bargain, it is controlled by State v. Dickey, 928 So.2d 1193 (Fla.2006). There, the Supreme Court held that

claims that a defendant entered a plea based on wrong advice about a potential sentence enhancement for a future crime fail to meet the Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] test [for constitutionally deficient assistance to a defendant], either because such claims do not demonstrate deficient performance in the case at issue or because, as a matter of law, any deficient performance could not have prejudiced the defendant in that case.

Id. at 1198. This case is similar to Dickey, in that the attorney advice at issue involves a potential sentence for a future violation of the law, a violation of probation. Thus, following Dickey, we hold that “wrong advice about the consequences” for a violation of the law “not yet committed cannot constitute ineffective assistance of counsel.” Additionally, the driving motivation for the defendant to accept the plea was that he received probation for 47 felonies, not the potential maximum sentence if he violated his probation.

If we were not constrained by the Le-roux framework and were writing on a blank slate, we would adopt the analysis of Justice John Paul Stevens’ dissent in United States v. Smith, 440 F.2d 521, 528-29 (7th Cir.1971), written when the justice was on the seventh circuit. The dissent argued that a guilty plea should not be subject to collateral attack unless the error is constitutional or jurisdictional in nature. Id. at 528. Justice Stevens believed that collateral attacks to a conviction should be permitted only to correct serious “fundamental” constitutional errors, errors that resulted in a manifest injustice.

Justice Stevens drew a distinction between the “voluntariness” of a plea, which has a constitutional dimension because it involves the waiver of the right to a jury trial, and the “wisdom” of a plea. Justice Stevens explained that a defendant’s lack of knowledge about the actual sentence to be imposed does not affect the voluntariness of the plea in a constitutional manner which would permit collateral attack. He wrote:

The 'consequences’ of the plea of guilty which relate to voluntariness, and therefore have constitutional significance, are consequences of the plea rather than consequences of the conviction. The same punishment may be imposed in consequence of conviction regardless of whether the accused pleaded guilty or not guilty. But the waiver of constitutional protections, which would be available if the defendant elected to stand trial, is a consequence of the plea itself. In order for the plea to be voluntary, the defendant’s understanding of the protections he is waiving must be sufficient to guarantee that the waiver is not the product of ignorance, terror, or deception.

Id. at 530 (footnote omitted). Justice Stevens explained that the consequences of conviction, such as a sentence or, as it applies to this case, the potential sentence for a violation of probation, do not have the same constitutional significance as the consequences of a plea:

The consequences of conviction have a different significance. They relate to the wisdom of a decision to plead guilty rather than to the voluntariness of the decision. A variety of factors enter into the exercise of judgment which produces that decision. Among them are counsel’s appraisal of the likelihood of a successful defense, the admissibility of critical items of evidence, the question whether the accused can conscientiously make a false denial of guilt, the opprobrium that may result from a public trial, an estimate of the sentence which the judge may impose, and the chance of probation or parole. An erroneous appraisal of any of those factors affects the wisdom of the plea, but does not make it involuntary.

Id. at 530. Under Justice Stevens’s analysis, Gusow’s postconviction claim is merit-less, because it relates only to the wisdom of his decision to plead guilty, viewed through the lens of hindsight; Gusow’s claim is without constitutional significance.

A second basis for affirming the denial of postconviction relief is that it was untimely. Gusow filed his motion in 2007, more than two years after the judgment and sentence became final and this is not a case where “the facts upon which the claim is predicated were unknown to the movant ... and could not have been ascertained by the exercise of due diligence.” Fla. R.Crim. P. 3.850(b)(1).

As Justice Harding observed in his dissent in Leroux, easy entitlement to post-conviction relief “damages the doctrine of finality.” 689 So.2d at 238 (Harding, J., dissenting). The legal system places a value on having a case come to an end; it is a serious thing to set aside a plea seven years after the fact. Witnesses disappear, files are lost, and memories fade. In United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), the Supreme Court emphasized the importance of finality in our jurisprudence, and commented that a policy to limit collateral attack “has special force with respect to convictions based on guilty pleas”:

Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.

Timmreck, 441 U.S. at 784, 99 S.Ct. 2085 (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th Cir.1971) (Stevens, J., dissenting)).

Focusing on the importance of finality, recent Florida Supreme Court cases have taken a stringent view as to the time limit in Rule 3.850(b). The bad attorney advice in this case is analogous to the erroneous advice given in Ey v. State, 982 So.2d 618 (Fla.2008). There, a defendant charged with petit theft told his lawyer that he had committed another crime — dealing in stolen property. Id. at 619. The lawyer told the defendant that a plea in the petit theft case “would not affect any subsequent sentence for his other crime.” Id. Ey entered a plea in April, 2000 and was sentenced to probation. His plea became final in May, 2000. Soon after, he was arrested and charged with dealing in stolen property. When the defendant was sentenced in 2001 on the dealing in stolen property conviction, the felony petit theft conviction was used to classify him as a habitual offender and he was sentenced to a 30-year term. Id. One aspect of the Supreme Court’s holding is that a lawyer’s erroneous advice about the effect of a guilty plea “on a subsequent sentence imposed [in another case] for a crime committed before the plea” was entered is a cognizable claim of ineffective assistance of counsel. Id. at 623.

In 2002, outside the rule 3.850 two-year time limit for the petit theft case, Ey challenged his plea. He alleged that counsel had misadvised him that the petit theft conviction would not be used to enhance the sentence for dealing in stolen property. Ey learned of the misadviee on August 30, 2000, when he received the state’s notice of sentence enhancement in the second case. Ey, 982 So.2d at 620.

On the timeliness issue, the Supreme Court expressly rejected Ey’s view that the motion was timely because it was filed within two years of August 30, 2000, after the defendant received notice of the state’s intent to enhance. The Court reasoned:

The fact of the plea subjects the defendant to the potential for subsequent sentence enhancement on another offense. The defendant with knowledge both of his plea and of the other offense he committed before entering his plea can ascertain within two years of the plea whether that plea could subject him to enhancement of any subsequent sentence. Therefore, we hold that a defendant’s claim that counsel erroneously advised that a plea would not affect the subsequent sentence of another crime committed before the plea must be filed within two years after the conviction based on the plea is final.

Ey, 982 So.2d at 625.

Significant to this case is the holding that a claim “must be filed within two years after the conviction based on the plea is final.” Id. at 625. Gusoufs claim is analogous to that of the Ey defendant. See also State v. Green, 944 So.2d 208, 217 (Fla.2006) (holding that defendant has only two years from the date of conviction becoming final in which to discover that the conviction resulting from the plea subjects defendant to deportation).

Like the defendant in Ey, within two years of the 2000 plea, Gusow could have discovered that a probation violation on his 47 felonies would have subjected him to more than five years in prison. The length of a potential sentence for a violation of probation was also at issue in the 2001 violation of probation proceeding where Gusow admitted the violation. Gu-sow’s 2007 motion was filed well outside the two-year window of rule 3.850(b), so that it was untimely. This court has never extended the timeliness analysis once applied in deportation cases under Peart v. State, 756 So.2d 42 (Fla.2000), to claims of misadviee, such as the one presented by Gusow. See Wainwright v. State, 983 So.2d 635 (Fla. 4th DCA 2008) (existence of conditional release was not a newly discovered fact justifying untimely postcon-viction motion attacking voluntariness of 1990 plea) rev. denied, 996 So.2d 214 (Fla.2008). McFadden v. State, 904 So.2d 570 (Fla. 4th DCA 2005) (finding that the Rule 3.850 time limit for attacking the voluntariness of plea based on counsel’s alleged misadvice began to run when conviction and order placing defendant on probation became final, not later when defendant violated probation and was sentenced); Marshall v. State, 983 So.2d 680 (Fla. 4th DCA 2008) (en banc) (holding that discovery of collateral civil consequences of a plea beyond two year time limit does not permit belated postconviction claim). See also Chandler v. State, 2009 WL 80221 (Fla. 2d DCA 2009) (recognizing that Ey overruled the second district’s cases to the contrary and that the two-year time limit begins to run from the date the conviction becomes final and not from the time the defendant learns of misadvice).

Rule 3.850(b) sets out limited exceptions to the time limitation, and reliance on the misadvice of counsel is not one of them. See Fla. Bar re Amendment to Rules of Criminal Procedure (Rule 3.850), 460 So.2d 907 (Fla.1984) (creating for the first time the two-year time limitation on postconviction claims). A motion filed outside the time limit is barred by laches as a matter of law unless one of the exceptions is met. See State v. Taylor, 722 So.2d 890 (Fla. 4th DCA 1998); see also McCray v. State, 699 So.2d 1366, 1368 (Fla.1997). As the Florida Supreme Court held in State v. Green, 944 So.2d 208 (Fla.2006), and reaffirmed in Ey, a movant can discover an attorney’s misadvice about the law. The postconviction movant, who is the party seeking the extraordinary relief of setting aside a presumptively valid and final conviction, bears the burden of discovering and raising claims within the two-year time limit. Ignorance of the law is no excuse. Although no one can know all the law, all persons are charged with constructive knowledge of the law. With due diligence, a defendant can discover an attorney’s misadvice within the two-year time limit. If the purported erroneous legal advice is truly the lynchpin of a plea, there is an incentive to verify the information within two years of the plea. The time for filing a postconviction motion should not be held open until a defendant has “actual knowledge” regarding counsel’s bad advice about the law. Such a policy crushes the concept of finality and opens plea bargains to attack many years after the entry of a plea.

Creating an additional exception to the time limitation based on reliance on the misadvice of counsel would make ignorance of the law an excuse, would encourage defendants to remain ignorant of the law, and would place a premium on the services of attorneys who provide misad-vice. A defendant could hold a misadvice claim as a “wildcard” which could be played to challenge the voluntariness of a plea many years after the plea conference.

To find Gusow’s claim untimely comports with the concept of finality that the two-year time limit is supposed to serve. The rule allows a claim outside of the two year limit if “facts on which the claim is predicated” “were unknown to the movant ... and could not have been ascertained by the exercise of due diligence.” Fla. R.Crim. P. 3.850(b)(1) (emphasis added). The length of a maximum sentence for a violation of probation is not a “fact” contemplated by the rule. The length of a potential sentence is a matter of statutory law, to which there was always an answer within the two-year time limit. Unlike exculpatory evidence not found because of an attorney’s laziness, a potential sentence for a violation of probation is not the type of “fact” which justifies setting aside a plea many years after the plea was entered.

Finally, we note that the onslaught of postconviction relief cases over the last decade has likely damaged the remedy. We recall the words of Justice Jackson describing the “undiscriminating use of the writ of habeas corpus by federal judges to set aside state court convictions”:

The fact that the substantive law of due process is and probably must remain so vague and unsettled as to invite farfetched or border-line petitions makes it important to adhere to procedures which enable courts readily to distinguish a probable constitutional grievance from a convict’s mere gamble on persuading some indulgent judge to let him out of jail. Instead, this Court has sanctioned progressive trivialization of the writ until floods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own. Judged by our own disposition of habeas corpus matters, they have, as a class, become peculiarly undeserving. It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.

Brown v. Allen, 344 U.S. 443, 536-39, 73 S.Ct. 397, 425-26, 97 L.Ed. 469 (1953) (Jackson, J., concurring) (emphasis added). Affirmed.

POLEN, J., concurs.

HAZOURI, J., dissents with opinion.

HAZOURI, J.,

concurring in part and dissenting in part.

I concur in the result because I agree that what sentence may be imposed upon violation of probation is a collateral consequence of the plea. However, see the contrary holding by the Third District Court in Polite v. State, 990 So.2d 1242 (Fla. 3d DCA 2008).

I disagree that Gusow’s claim is untimely if his claim of misadvice is a cognizable claim under rule 3.850. The majority relies heavily on the Florida Supreme Court’s decision in Ey v. State, 982 So.2d 618 (Fla.2008). In my judgment, the majority reads Ey too broadly. As the majority notes, the court in Ey concluded that a defendant must file his claim “within two years after the conviction based on the plea [becomes] final.” Id. at 625. By doing so, the court reasoned that a defendant “with knowledge both of his plea and of the other offense he committed before entering the plea can ascertain within two years of the plea whether that plea could subject him to enhancement of any subsequent sentence.” Id. The majority concludes that, like the defendant in Ey, Gu-sow, within two years of the 2000 plea, could have discovered that a probation violation on his forty-seven felonies would have subjected him to more than five years in prison. What the majority fails to note is that, in Ey, the factual evidence supporting the court’s conclusion is substantially different than in the instant case and, is therefore, distinguishable.

In Ey, the defendant had been arrested for petit theft and pled no contest to the charge because, allegedly, his counsel advised him that his plea to petit theft would not affect the charges pending against him for three counts of dealing in stolen property. Subsequent to his plea to petit theft, he was tried and convicted on the charges of dealing in stolen property and, at sentencing, the trial court used his conviction for petit theft to enhance his sentence as a habitual felony offender. This resulted in a sentence of thirty years in prison. Prior to his trial for dealing in stolen property, the state gave notice of its intent to seek enhancement because of the prior conviction for petit theft. This notice occurred well within the two-year time limit for postconviction relief under rule 3.850. In addition, the conviction and sentence for dealing in stolen property was also within the two-year time limit for filing a motion pursuant to rule 3.850. Therefore it is under these facts that the court in Ey concluded:

[t]he defendant with knowledge both of his plea and of the other offense he committed before entering his plea can ascertain within two years of the plea whether that plea could subject him to enhancement of any subsequent sentence. Therefore, we hold that a defendant’s claim that counsel erroneously advised that a plea would not affect a subsequent sentence for another crime committed before the plea must be filed within two years after the conviction based on the plea is final.

Ey, 982 So.2d at 625 (citing Fla. R.Crim. P. 3.850(b)). The defendant in Ey was on notice prior to his trial on dealing in stolen property that there could be enhancement because of his petit theft conviction, and that was well within the two-year time limit. So when the court in Ey says that the defendant can ascertain within two years of the plea whether the plea could subject him to enhancement of any subsequent sentence, does that require the defendant to make an independent investigation as to whether the advice of counsel was incorrect? If true, then the whole concept of misadvice of counsel as a cognizable claim under rule 3.850 is somewhat illusory.

In Ey, the defendant had actual knowledge that the state was seeking enhancement prior to the expiration of the two-year time limit. In the instant case, without being advised by the trial court that his sentence for violation of probation could exceed five years, Gusow’s reliance on the misadvice of his counsel would only become ascertainable when he was sentenced for the probation violation.

The majority poses the proposition that defendants are charged with constructive knowledge of the law and that ignorance of the law is no excuse. If correct, then we need not concern ourselves with timeliness. If a defendant is presumed to know the law and ignorance of the law is no excuse, then a defendant should be presumed to know that the advice given by counsel is an incorrect statement of the law.

There is no record evidence that Gusow was advised by the trial court at any of his several violation of probation hearings that he could be sentenced to more than five years imprisonment upon violation of his probation. As farfetched as it may seem that Gusow, facing probation for forty-seven prior felonies, would not be aware that he could be sentenced in excess of five years, we cannot conclude, based on this record, that there is no substance to his claim.

      . One problem with this case is that it appears that appellant has provided only a partial record of the plea colloquy. On the day the plea was taken, the case was recalled numerous times. In that portion of the record appellant filed in support of this motion, there is not a complete plea colloquy. The circuit judge who took the 2000 plea is thorough and meticulous, so it is unlikely that he omitted to cover those factors required by Florida Rule of Criminal Procedure 3.172(c). Gusow does not claim that his plea was involuntary because the trial court failed to tell him any of the things required by rule 3.172(c).

      . As of the date of this opinion, Leroux has been cited at least 169 times in reported appellate decisions, most often for the proposition that a claim of misadvice about the length of the sentence that would actually be served was not refuted by records and required an evidentiary hearing.

      . As we noted in footnote 1, the record does not appear to contain the entire plea colloquy. If it did, and the trial court advised Gusow of the maximum possible penalty under rule 3.172(c)(1), we would hold that the record conclusively refutes his claim. Faced with a discrepancy between the "maximum possible penalty” for his 47 felonies and what his lawyer said he could receive for violating his probation, the defendant could not have reasonably relied on the lawyer’s supposed advice that he faced only five years for a violation of probation. See Scheele v. State, 953 So.2d 782, 785 (Fla. 4th DCA 2007); Hill v. State, 895 So.2d 1122, 1124 (Fla. 4th DCA 2005); contra Medina v. State, 920 So.2d 136 (Fla. 3d DCA 2006); Johnson v. State, 757 So.2d 586 (Fla. 2d DCA 2000).

      . We recognize that the Third District Court of Appeal has held that "the maximum penalty that could be imposed if community control/probation is violated is a direct consequence of” a plea to two years in prison followed by two years of community control. See Polite v. State, 990 So.2d 1242, 1244 (Fla. 3d DCA 2008). We certify conflict with Polite. We also disagree with Polite’s apparent holding that a trial court must grant postcon-viction relief where a defendant testifies about bad attorney advice, without which the defendant would not have entered a plea, and the attorney does not remember the transaction with the defendant, but testifies to his standard practice which is to correctly advise defendants about the length of their sentences. We believe that under these circumstances the trial court is entitled to disbelieve the defendant’s testimony.

      . The United States Supreme Court quoted Justice Stevens’ dissent in Smith with approval in United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979).

      . Perhaps there are in existence plea colloquies or other record evidence that Gusow was advised that he was facing a prison term far in excess of five years upon violation of his probation but that is not part of the record on this appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Chay ALEXANDER, Petitioner, v. BROWARD COUNTY SHERIFF'S OFFICE and Al Lamberti in his capacity as Sheriff of Broward County, Florida, Respondents.
    No. 4D09-1032.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.

      Edwin Ferguson, Riviera Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for respondent Broward County Sheriffs Office.
   PER CURIAM.

Petitioner Chay Alexander challenges his bond totaling $1,251,100.00 on charges of trafficking in oxycodone (two counts), and one count of trafficking in hydrocodone, possession of alprazolam with intent to sell or deliver, and resisting/obstructing a police officer without violence. Petitioner seeks habeas corpus relief in this court on the grounds that the total amount of the bond set is excessive in light of his financial circumstances. It is well settled that excessive bond is tantamount to no bond, and that an appellate court will grant relief where the petitioner shows that the amount of bond set is unreasonable under the circumstances. See Luyao v. Mascara, 815 So.2d 748 (Fla. 4th DCA 2002); Brazil v. Jenne, 755 So.2d 784 (Fla. 4th DCA 2000).

Here, the petitioner has demonstrated that the amount of bond was unreasonable. Petitioner testified at the bond hearing that he worked as a barber earning about $17,000 annually. He said he did not own a home or real property, and had no other assets with which to post bond. He testified that he has resided in the county for more than 30 years, and had between 20 and 25 relatives living in the community. No evidence was presented suggesting that he would fail to appear in court. Even though petitioner was shown to be a convicted felon, we find that the bond set in this case was excessive. Therefore, we grant the petition and return it to the trial court for a new determination on reasonable bond in a reduced amount.

Petition Granted.

POLEN, TAYLOR, and DAMOORGIAN, JJ., concur.


text:
    James B. RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4517.
    District Court of Appeal of Florida, First District.
    April 3, 2009.
    James B. Richardson, pro se, Appellant.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. See Rogers v. State, 510 So.2d 1230, 1230 (Fla. 1st DCA 1987); Alvarez v. State, 635 So.2d 1053, 1054 (Fla. 4th DCA 1994). If the trial court again enters an order summarily denying the postconviction motion, it shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

REVERSED AND REMANDED for further proceedings.

KAHN, THOMAS, and ROBERTS, JJ., concur.


text:
    Marc ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4376.
    District Court of Appeal of Florida, Fourth District.
    April 8, 2009.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Ruger v. State, 941 So.2d 1182 (Fla. 4th DCA 2006).

WARNER, HAZOURI, JJ., and SHAHOOD, GEORGE A., Senior Judge, concur.


text:
    Edmilson ULHOA, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1016.
    District Court of Appeal of Florida, Fourth District.
    April 8, 2009.

      Carlos A. Canet of the Law Office of Carlos A. Canet, Ft. Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affimed. See Roberts v. State, 732 So.2d 1127 (Fla. 4th DCA 1999).

WARNER, HAZOURI, JJ., and SHAHOOD, GEORGE, A., Senior Judge, concur.


text:
    Keith PETERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1718.
    District Court of Appeal of Florida, Fourth District.
    April 8, 2009.
    Keith Peters, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

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

GROSS, C.J., POLEN and FARMER, JJ., concur.


text:
    Anthony EVINS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D08-5114.
    District Court of Appeal of Florida, Fourth District.
    April 8, 2009.
    Anthony Evins, Moore Haven, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner sought a writ of habeas corpus in a sworn petition claiming that his counsel failed to file an appeal from his plea and sentence, although requested to do so by petitioner. Petitioner seeks a belated appeal. We issued an order to show cause, and the state responded stating that it had contacted the attorney named in the petition, and the attorney maintained that he had not represented the petitioner. Petitioner then filed a sworn response in which he admitted that the attorney did not represent him and that he mentioned that fact to the prison paralegal who was assisting him. According to the petitioner, the prison paralegal told him that it would not matter as the court would find the correct attorney. He asks this court to allow him to amend his petition to name the correct attorney.

We dismiss the petition. Petitioner knowingly swore to false allegations. He cannot rely on the misadviee of a prison paralegal to excuse his intentionally false statements of fact. We will not permit the amendment of his petition because of his false statements.

WARNER, STEVENSON and TAYLOR, JJ., concur.

      . We would add that from his allegations in the petition, it does not appear that the issue about which he complains is one that can be remedied in an appeal from the plea and sentence in any event.


author: TORPY, J.

text:
    Christopher TANZLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2949.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2009.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Christopher M. Tanzler, Perry, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   EN BANC

TORPY, J.

In this direct appeal from his criminal conviction, Appellant filed a pro se Florida Rule of Criminal Procedure 3.800(b)(2) motion after we permitted him to file an initial brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), but before we permitted counsel to withdraw. Our Clerk, in reliance on Rodriguez v. State, 881 So.2d 671 (Fla. 5th DCA 2004), ordered Appellant’s counsel to show cause why Appellant’s rule 3.800(b)(2) motion should not be stricken because it was not signed by counsel and not timely filed. Having considered Appellant’s response, we permit Appellant to proceed. In doing so, we recede from our decision in Rodriguez.

Since we decided Rodriguez, two of our sister courts have expressed conflict. Lopez v. State, 905 So.2d 1045 (Fla. 2d DCA 2005); Proctor v. State, 901 So.2d 994 (Fla. 1st DCA 2005). We are persuaded by and adopt their reasoning.

PALMER, C.J., GRIFFIN, SAWAYA, ORFINGER, MONACO, LAWSON, EVANDER and COHEN, JJ., concur.


author: COHEN, J.

text:
    Scott Ray ZABRISKIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3954.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2009.
    Scott Zabriskie, Kissimmee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Scott Zabriskie appeals from the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion was initially set for a hearing, but the trial judge summarily denied the motion when neither Zabriskie nor his lawyer appeared at the appointed time. The judge indicated a willingness to rehear the matter if Zabriskie appeared within a relatively short period of time. He did not.

Zabriskie filed a motion for rehearing, explaining his failure to appear in a timely fashion. The trial court, despite apparently accepting Zabriskie’s explanation as true, found it less than compelling and denied the motion for rehearing. We find no abuse of discretion in the denial. Unlike in Ey v. State, 960 So.2d 853 (Fla. 2d DCA 2007), there was no factual dispute necessitating an evidentiary hearing.

Because the merits of the motion, which warranted an evidentiary hearing, were not reached, the denial and this affirmance are without prejudice to Zabriskie timely re-filing a motion for postconviction relief.

AFFIRMED.

PALMER, C.J., and LAWSON, J., concur.


author: GRIFFIN, J.

text:
    James D. HUBBARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-437.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2009.

      Paula C. Coffman, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

James D. Hubbard [“Hubbard”] appeals his convictions and sentences for eleven counts of various forms of sexual abuse of his step-daughter. Eight counts charged Hubbard with sexual battery of a child over twelve but under eighteen by a person in familial or custodial authority. Of these eight counts, counts one, two, and three alleged that Hubbard “caus[ed] his penis to unite with or penetrate the victim’s vagina;” counts five, six, and seven alleged that Hubbard “caus[ed] his penis to unite with or penetrate the victim’s mouth;” count eight alleged that Hubbard “caus[ed] his penis to unite with or penetrate the victim’s anus;” and count nine alleged that Hubbard “caus[ed] his mouth to unite with or penetrate the victim’s vagina.” Count four charged Hubbard with aggravated child abuse, alleging that he “maliciously punish[ed]” the victim. Count ten charged Hubbard with lewd and lascivious exhibition by a defendant eighteen years of age or older, alleging that he “masturbate[d] or expose[d] his genitals in a lewd or lascivious manner or committed] any other sexual act not involving actual physical or sexual contact.” Finally, in count eleven, the State charged Hubbard with use of a child in a sexual performance, alleging that he “employ[ed], authorized] or induced] • ■ • a child less than 18 years of age, to engage in a sexual performance, to-wit: forced the victim to perform oral sex on her mother’s vagina and, or, receive the same from her mother while [he] photographed the acts, knowing the character and content of the performance.”

After trial, the jury found Hubbard guilty of seven counts of sexual battery, one count of child abuse, as a lesser included offense; one count of lewd and lascivious exhibition by a person eighteen years of age or older; and one count of use of a child in a sexual performance. The trial court sentenced Hubbard to life in prison, with three of the sexual battery counts running consecutively, and all remaining counts running concurrently with each other and with the three consecutive counts.

We find no error and affirm on all issues save one. Appellant is correct that the trial court erred in failing to grant the motion for judgment of acquittal on Count eleven because no evidence was offered that Hubbard photographed the victim and her mother having oral sex. While the record shows many photographs were taken of a variety of sex acts involving Hubbard, no evidence matches the allegations in count eleven. Accordingly, we vacate the conviction in count eleven and remand to the trial court for entry of a corrected judgment. Under the circumstances, re-sentencing is not required.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, C.J., and SAWAYA, J., concur.


text:
    Daryl Leslie LAVENDER, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4020.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2009.

      Daryl L. Lavender, Arcadia, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant, Daryl Leslie Lavender, was convicted of lewd and lascivious assault upon a child. In his direct appeal, his conviction and sentence were affirmed. Lavender v. State, 650 So.2d 1137 (Fla. 5th DCA 1995) (No. 93-2700). His judgment and sentence became final on April 28, 1997, and he finished serving his 1993 sentence in 2000. At that time, Lavender was civilly committed pursuant to the Jimmy Ryce Act. § 394.910, et seq., Fla. Stat. (2000).

Since 2000, by his own admission, Lavender has extensively litigated his 1993 criminal case and his 2000 civil commitment case in several courts, state and federal. Because he appeared to be abusing the legal process as it related to his 1993 criminal case, this court issued a show cause order pursuant to State v. Spencer, 751 So.2d 47, 48 (Fla.1999). In a 65-page response, Lavender advised us what he believes to be the “relevant facts” in his 1993 case, provided “record excerpts,” and took issue with all of the post-conviction rulings against him. In other words, his only response was to reargue his criminal case one more time.

Lavender cannot continue to litigate in his 1993 criminal case as a method to fight against his civil commitment. As the trial court rightly points out, his motions (or the essence of their complaints) should be filed in his 2000 civil commitment case. We further observe that at the time Lavender filed the instant appeal, he had a separate appeal in his 2000 civil commitment case pending before this court.

We conclude Lavender’s appeal is frivolous and an abuse of process. See Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”). Accordingly, in order to conserve judicial resources, we prohibit Lavender from filing with this Court any further pro se pleadings concerning St. Johns County, Circuit Court Case No. CF93-883. The Clerk of this Court is directed not to accept any further pro se filings concerning this case from Lavender. Any more pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk of this Court is further directed to forward a certified copy of this opinion to the appropriate institution for disciplinary procedures as provided in sections 944.09 and 944.279, Florida Statutes.

AFFIRMED; Future Pro Se Criminal Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

EVANDER, LAWSON and COHEN, JJ., concur.


text:
    Ronnie J. CUMMINGS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-123.
    District Court of Appeal of Florida, Fifth District.
    April 9, 2009.
    Ronnie J. Cummings, Graceville, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Petitioner seeks a writ of prohibition to preclude the trial court from proceeding to trial in his case, contending that he is entitled to discharge pursuant to the speedy trial rule. Fla. R. Crim. P. 3.191.

This Court cannot review by prohibition the speedy trial issue until the trial court has denied a motion for discharge. The order denying discharge should be included in an appendix attached to the petition. Accordingly, we deny the petition for prohibition without prejudice to file a motion for discharge in the circuit court. Barstad v. State, 925 So.2d 1135, 1136 (Fla. 5th DCA 2006).

PETITION DENIED.

TORPY, LAWSON and EVANDER, JJ., concur.


text:
    William GAY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Carmax Auto Superstores, Inc., Appellees.
    No. 1D09-1038.
    District Court of Appeal of Florida, First District.
    April 13, 2009.
    William Gay, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, for Appellees.
   PER CURIAM.

DISMISSED. See Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998).

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


text:
    Darlene FARREN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Jackson County Board of County Commissioners, Appellees.
    No. 1D08-3128.
    District Court of Appeal of Florida, First District.
    April 13, 2009.
    Talbot W. Trammell, Coral Gables, for Appellant.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellees.
   PER CURIAM.

Claimant, Darlene Farren, a former animal control officer, appeals an order of the Florida Unemployment Appeals Commission affirming the appeals referee’s decision that she was ineligible for benefits because her use of county inmates for her personal business constituted misconduct pursuant to section 443.036(29), Florida Statutes. We AFFIRM.

ALLEN, WOLF, and DAVIS, JJ., concur.


text:
    John UNDERWOOD, Appellant, v. FLORIDA FAVORITE FERTILIZER and Crawford and Company, Appellees.
    No. 1D08-5866.
    District Court of Appeal of Florida, First District.
    April 13, 2009.
    Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Brian C. Dowling of Goodman, McGuffey, Lindsey & Johnson, LLP, Winter Park, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s order to show cause, entered February 27, 2009, the appeal is hereby DISMISSED for lack of jurisdiction. See Troche v. BJ’s Wholesale Club, Inc., 954 So.2d 685, 686 (Fla. 1st DCA 2007) (noting if notice of appeal is not timely filed, the appellate court lacks jurisdiction and must dismiss the appeal); see also Caldwell v. Wal-Mart Stores, Inc., 980 So.2d 1226, 1228 (Fla. 1st DCA 2008) (noting a motion for rehearing in a workers’ compensation case does not toll the time for filing an appeal); Fla. Admin. Code R. 60Q-6.122(3) (providing “a motion for re-hearing does not toll the time within which an order becomes final or an appeal may be filed”).

WOLF, KAHN, and BENTON, JJ., concur.


text:
    D.T. and C.T., Parents of C.G., D.T., K.T., etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D08-3718.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2009.
    Jeffrey D. Deen and Timothy M. Beasley, Brooksville, for Appellant.
    Patricia M. Propheter, Department of Children and Families, West Palm Beach, for Appellee.
   PER CURIAM.

See G.M. v. Dep’t of Children and Families, 969 So.2d 569, 571 (Fla. 1st DCA 2007) (“Although Appellant raises various points regarding possible defects in the procedural posture of this case, it does not appear that any of his claims were argued below. Thus, any objections ... have been waived and are not preserved for our review.”) (citations omitted); C.W. v. Dep’t of Children and Family Servs., 944 So.2d 1197, 1199 n. 2 (Fla. 3d DCA 2006) (noting that a trial court must be affirmed as to its factual findings when those findings are supported by competent, substantial evidence).

AFFIRMED.

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


author: THOMAS, J. BARFIELD, J.,

text:
    Cozette R. DRAKE, as successor trustee, to the William R. Hemby Revocable Trust and the Hemby Unified Credit Shelter Trust, as successor personal representative of the Estate of William R. Hemby, and as successor trustee of the Patricia S. Hemby Revocable Trust, Appellant, v. WALTON COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 1D07-3202.
    District Court of Appeal of Florida, First District.
    April 14, 2009.

      J. Stanley Chapman, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee; and Gregory T. Stewart, Harry F. Chiles, and Carly J. Schrader of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Appellee.
   OPINION ON MOTION FOR REHEARING EN BANC, MOTION FOR REHEARING, MOTION FOR CLARIFICATION, AND MOTION FOR CERTIFICATION

THOMAS, J.

This cause is before us on Appellee’s motion for rehearing en banc, motion for rehearing, motion for clarification, and motion for certification. We deny the motion for rehearing en banc, rehearing, and certification, and grant only to clarify the two separate takings. Accordingly, we withdraw our former opinion of November 21, 2008, and substitute in its place this corrected opinion.

Appellant, as successor in interest to the original plaintiffs below, appeals a final judgment entered in favor of Appellee Walton County (County). We affirm the final judgment on all claims except Appellant’s inverse condemnation claims, which require us to consider whether the County engaged in a taking of private property when it diverted water across Appellant’s property and allowed the water diversion to continue after an emergency passed. We hold as a matter of law that the County’s action constitutes a taking of Appellant’s private property for a public purpose and that her claim is not precluded by section 252.43(6), Florida Statutes. Accordingly, we reverse and remand for the court to enter a final judgment in favor of Appellant on her inverse condemnation claim.

Facts and Procedural History

William and Patricia Hemby purchased the subject property in 1992. The upper portion of this property had previously experienced water overflow from an outflow of Oyster Lake, and the water eventually flowed into the Gulf of Mexico. This previous water flow was stabilized in 1988 with the assistance of state authorities. Between 1988 and 1995, no water crossed the upper portion of Appellant’s property, thus making the upper portion of the land available for development. It was during this time that Appellants purchased the subject property.

In 1995, following Hurricane Opal, the County reconfigured the drainage from the outflow and diverted water through the upper portion of Appellant’s property. This action was taken to alleviate flooding of other property caused by rising water in Oyster Lake when the outflow culverts became blocked. After this reconfiguration, from 1996 through 1999, the County cooperated with Appellant to help redirect the flow away from the subject property and restore the water flow to pre-Opal conditions; however, these efforts were unsuccessful. In 2004, the County successfully redirected the water flow away from Appellant’s property, but in 2005, at least once under emergency conditions, the County diverted the water flow across the upper portion of the subject property in order to protect a neighbor’s home and property. This water diversion remains in place.

The County acknowledges that it diverted water across the upper portion of Appellant’s property in 1995 and 2005, primarily to save other private property, but asserts that this water diversion simply restored the natural processes in existence before the Hembys purchased the property in 1992.

A bench trial was conducted on Appellant’s two claims of inverse condemnation for the periods of 1996 through 2004, and 2005 onward, and final judgment was entered for the County. The trial court ruled in part that diverting the water could not constitute a taking because the County’s reconfiguration followed declared emergencies under section 252.43(6), Florida Statutes. The trial court found that this reconfiguration simply restored the natural drainage pattern from Oyster Lake that predated any artificial structures or drainage improvements, and concluded that Appellant could not rely on the drainage patterns established in 1988 and assume the property could be used for development. Thus, the trial court concluded that the Hembys did not engage in due diligence before buying the property; therefore, because the County only responded to emergency conditions by restoring the outflow and allowing Oyster Lake to drain, and this drainage was a natural occurrence, the County did not legally take Appellant’s property.

Analysis

We review the trial courts factual findings to determine whether they are supported by competent, substantial evidence. When they are not, it is the duty of the appellate court to reverse. See Beaty v. Miller, 480 So.2d 196, 197 (Fla. 1st DCA 1985). We review the court’s legal conclusions de novo. See S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 319-20 (Fla.2005).

The critical undisputed fact in this case is that before the Hembys purchased the subject property in 1988, the ditch draining the Oyster Lake outflow was stabilized and did not discharge water across the upper portion of the property. This ditch was permitted by the Department of Environmental Regulation as part of a ditch relocation and stabilization project. This drainage was not changed until the County acted in 1995 to alleviate flooding caused when the Oyster Lake outflow was clogged after Hurricane Opal. While the County’s actions in clearing the culvert to alleviate flooding of other property may have been prudent and commendable, and authorized by statute, the fact remains that the County acted in a manner that caused flooding on Appellant’s property. Hurricane Opal did not flood Appellant’s property; it was the County’s action in response to the hurricane that caused the flooding. This case would be in a completely different posture had Appellant’s property been flooded by the hurricane itself, without the County’s intervention.

The trial court’s findings that Oyster Lake previously discharged water onto Appellant’s property “for centuries” is not, in our view, legally relevant. The relevant fact is that the Hembys could reasonably rely on the drainage pattern established by the drainage stabilization in 1988, and when the County reconfigured that drainage pattern, it resulted in a taking. Schick v. Fla. Dep’t of Agric., 504 So.2d 1318 (Fla. 1st DCA 1987), rev. denied, Dep’t of Agric. v. Schick, 513 So.2d 1060 (Fla.1987). Government cannot choose to act and protect one property owner by diverting floodwater onto the property of another without compensating that property owner. Although Appellant’s property may have flooded in the distant past, such flooding was eliminated in 1988.

We have previously held that a county takes private property when it directs a concentrated flow of water from one property onto another, permanently depriving the owner of all beneficial enjoyment of their property. Leon County v. Smith, 397 So.2d 362, 364 (Fla. 1st DCA 1981); Martin v. City of Monticello, 632 So.2d 236, 237 (Fla. 1st DCA 1994). To assert an inverse condemnation claim based on such governmental action, the property owner must demonstrate that the government’s action constitutes a substantial interference with her private property rights for more than a momentary period, and will be continuous or reasonably expected to continuously recur, resulting in a substantial deprivation of the beneficial use of her property. See Elliott v. Hernando County, 281 So.2d 395, 396 (Fla. 2d DCA 1973) (noting that “rain is a condition that is reasonably expected to continually re-occur in the future)”; Assoc. of Meadow Lake, Inc. v. City of Edgewater, 706 So.2d 50 (Fla. 5th DCA 1998); cf. Diamond K Corp. v. Leon County, 677 So.2d 90 (Fla. 1st DCA 1996) (holding that no taking occurred as a result of flooding of a creek in the appellant’s property because the appellant had not shown that a continuing physical invasion occurred, depriving it of all reasonable use of its property). A taking is more likely to have occurred when a governmental action confers a public benefit rather than prevents a public harm. Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1381 (Fla.1981).

In developing her property, Appellant does not seek to change its natural environmental conditions, but rather seeks to protect it from the County’s water flow diversion. The County admits that it diverted water across Appellant’s property, and the undisputed testimony establishes that the ditch the County constructed caused water to divert and flow onto Appellant’s property. The County allowed the ditch that it created during emergency conditions to remain as a drainage easement on Appellant’s property long after the emergency passed. We find that the County’s reconfiguration conferred a public benefit on other property owners rather than prevented a public harm. We hold that this constitutes a taking.

Based on these undisputed facts, the court’s legal conclusion that “there has been neither a continuing physical invasion of the property nor a substantial deprivation of all beneficial use” is not supported by competent, substantial evidence. As in Smith, the water diversion here is a permanent or continuous physical invasion of Appellant’s property, rendering it useless and permanently depriving Appellant of the beneficial enjoyment of her property.

We assume arguendo that the County’s reconfigurations in 1995 and 2005 were authorized pursuant to section 252.43(6). Further, Appellant concedes that the County’s actions constituted a proper public purpose, arguing only that regardless of the legitimacy of the County’s actions in diverting water across her property under its police power, she is entitled to compensation for the taking and that the County does not enjoy statutory immunity during an emergency. See Art. X, § 6, Fla. Const. (“No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner[.]”); Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527, 533-34 (1929) (explaining that the power of eminent domain can be exercised only for a valid public purpose).

We agree with Appellant and hold that section 252.43(6) does not grant the County immunity during an emergency and thus preclude Appellant, as an innocent property owner, from initiating a takings claim. See Storer Cable T.V. of Fla., Inc. v. Summerwinds Apartments Assocs., Ltd., 493 So.2d 417, 418 (Fla.1986) (holding that a statute authorizing television service providers to enter private property without compensation to owners is unconstitutional). Regardless of the County’s statutory right to excavate drainage paths to preserve property under section 252.43(6), the Florida Constitution requires compensation for an adversely affected owner. See Art. X, § 6, Fla. Const.; Notami Hosp. of Fla., Inc. v. Bowen, 927 So.2d 139, 142 (Fla. 1st DCA 2006) (“State constitutions are limitations upon the power of state legislatures. Consequently, a statute enacted by the Legislature may not restrict a right granted under the Constitution”) (citations omitted), aff'd, 984 So.2d 478 (Fla.2008). Thus, the County’s statutory authority under section 252.43(6), Florida Statutes, must yield to Article 10, section 6 of the Florida Constitution, which requires the County to compensate Appellant.

We find that Appellant’s claims are not precluded by section 252.43(6), Florida Statutes, and that two takings occurred when the County diverted water across Appellant’s property — the first taking occurred during the period of 1995 through 2004, and the second from 2005 to the present date. We therefore reverse the final judgment and remand with directions to enter judgment for Appellant on her inverse condemnation claims and to determine the value of the taking. All other issues raised by Appellant are affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

BROWNING, J., concurs; BARFIELD, J., dissents with written opinion.

BARFIELD, J.,

dissenting.

The majority’s opinion, reversing the trial court’s ruling against the plaintiff on her inverse condemnation claims, relies in part on this Court’s earlier opinion in Leon County v. Smith, 397 So.2d 362 (Fla. 1st DCA 1981). In that case, this Court found that there was no record evidence to support Leon County’s ai'gument that Smith’s property was a natural drainage basin. However, in the case at issue, the record is replete with undisputed evidence that the plaintiffs property is the natural drainage basin for Oyster Lake, a coastal dune lake located north of County Road 30A in Walton County. The record also contains substantial and undisputed evidence that the path of the natural flow of water from Oyster Lake (the outfall) has historically meandered across the entire subject property. The trial court’s findings with regard to these facts are supported by the record and therefore must be affirmed.

The subject property, three beachfront lots on the Gulf of Mexico south of County Road 30A, had been donated to the Florida State University Foundation by developers. The Foundation was unable to sell the undeveloped beachfront lots because prospective purchasers wanted assurances that development would not be precluded by the Oyster Lake outfall. In 1984, the plaintiffs predecessors in interest purchased the adjacent lot east of the subject property, which included an existing beach house.

In the late 1980s, the then existing channel for the outfall from Oyster Lake became blocked, causing flooding of the subject property by the outfall and threatening the boardwalk and septic tank on the adjacent property owned by the plaintiffs predecessors in interest. With the Foundation’s power of attorney, the plaintiffs predecessors in interest attempted to divert the Oyster Lake outfall away from their property by having a trench dug for the outfall near the western edge of the subject property, but the first attempt failed within six months. In 1988, the Florida Department of Environmental Regulation allowed the plaintiffs predecessors in interest to deepen the trench near the western edge of the subject property. In 1992, the plaintiffs predecessors in interest purchased the Foundation’s three beachfront lots for a total price of $50,000 (i.e., each of the beachfront lots subject to the Oyster Lake Outfall cost the plaintiffs predecessors in interest a mere $16,666.67).

The fact that the plaintiffs predecessors in interest were allowed to divert the natural flow of the outfall from Oyster Lake to a drainage trench which they constructed along the edge of the subject property, in order to protect their beach house on the adjacent lot, does not change the fact that the subject property is the natural drainage basin for Oyster Lake, of which the plaintiffs predecessors in interest were well aware prior to their 1992 purchase of the property.

In 1995, due to Hurricane Opal, the box culvert under County Road 30A was completely filled with sand, blocking the natural outfall from Oyster Lake. Walton County cleared the culvert to relieve the flooding of the Oyster Lake area, and once the culvert was cleared, the water pressure and topography caused the Oyster Lake outfall to take a path different from the trench which had been constructed by the plaintiffs predecessors in interest in 1988. It is clear that under the well-settled law pertaining to inverse condemnation and to interference with the natural flow of surface waters, the actions of the County after Hurricane Opal in clearing the blockage of the natural flow of water from Oyster Lake and restoring its natural outfall was reasonable and did not constitute a “taking” of the subject property, nor of any portion thereof, by inverse condemnation. I find no record evidence to support the majority’s “findings,” contrary to the factual findings of the trial court, that “following Hurricane Opal, the County reconfigured the drainage from the outflow and diverted water through the topper portion of Appellant’s property ” (emphasis added) and that it was the County’s actions in response to Hurricane Opal, not the hurricane itself, which “caused flooding on Appellant’s property.”

During the ensuing years, Walton County cooperated with the plaintiffs predecessors in interest in their attempts to re-channel the Oyster Lake outfall to its pre-Hurricane Opal location along the western edge of the subject property and to stabilize to some extent the drainage trench that had been dug in 1988. However, both state and local officials found unacceptable and denied the request by the plaintiffs predecessors in interest for the placement of concrete slabs along the trench to permanently redirect and reinforce the outfall channel along the edge of the subject property. In September 2001, Walton County informed the state permitting authorities that it viewed the Oyster Lake outfall trench project proposed by the plaintiffs predecessors in interest as contrary to the Walton County Comprehensive Plan. These facts and subsequent events demonstrate that the Oyster Lake outfall mitigation attempts did not and were not intended to permanently restrict the outfall from ever again flowing across the subject property, as it had done for at least two centuries according to the undisputed expert opinion testimony.

In November 2002, the plaintiffs predecessors in interest turned them attention to improving the existing beach house on their original lot, and sought a permit to expand its size. Walton County approved the permit, but required the plaintiffs predecessors in interest to combine the original lot with the easternmost of the three lots purchased in 1992 from the Foundation in order to comply with the County’s Comprehensive Plan.

However, in August 2002, the plaintiffs predecessors in interest had filed suit against Walton County, claiming inverse condemnation, trespass, and negligence based upon the clearing of the box culvert following Hurricane Opal and other storms. While the case was pending, Walton County announced plans to build an open-span bridge to replace the box culvert through which the Oyster Lake outfall flows under the road, and the plaintiffs predecessors in interest responded by seeking a temporary injunction to stop the proposed construction.

Just before the 2004 hearing on the injunction request, Hurricane Ivan struck the area, filling the box culvert with debris and blocking the Oyster Lake outfall. Walton County obtained an emergency permit to clear the culvert and to channel the outfall west along the road right-of-way to the western boundary of the subject property, then south along the western property line to the Gulf of Mexico. The plaintiffs predecessors in interest obtained a temporary permit to place sandbags in front of the culvert to reinforce the flow of water west along the road right-of-way. The majority characterizes the actions of the County after Hurricane Ivan as having “successfully redirected the water flow away from Appellant’s property,” but it does not explain its apparent conclusion that this attempt by the County to mitigate the effects of the natural outfall from Oyster Lake on the subject property could somehow give the plaintiffs predecessors in interest the right to claim a taking by inverse condemnation if such mitigation attempts were subsequently to fail or to become untenable.

In April 2005, heavy storm water flow caused erosion along the western side of the outfall trench, flooding the adjacent property west of the subject property and threatening the beach house on that adjacent property. Walton County replaced the sand under that beach house and temporarily “hardened” the western bank of the outfall trench with sandbags, which were removed after one week.

In July 2005, Hurricane Dennis struck the area, filling the box culvert and outfall channel with sand and debris, thereby causing flooding around Oyster Lake. The County cleared the culvert and the channel along the road right-of-way, but angled the channel diagonally across the northwest corner of the subject property to avoid destruction of the adjacent beach house which had been threatened in April 2005. In August 2005, Hurricane Katrina struck the area, again filling the box culvert and channel with sand and debris. The County again cleared the culvert and the channel along the road right-of-way, and again angled the channel diagonally across the northwest corner of the subject property to avoid destruction of the adjacent beach house which had been threatened in April 2005.

In February 2006, the plaintiffs predecessors in interest amended their complaint against Walton County to allege separate claims of inverse condemnation, alleging a temporary taking of their property from 1995 to 2004, and takings of their property after Hurricanes Dennis and Katrina in 2005, along with claims for “condemnation blight,” trespass, and negligence. They sought damages and injunc-tive relief, including a mandatory injunction requiring Walton County to remove the so-called “artificial watercourse” from them property and to construct appropriate drainage facilities upstream and adjacent to their property, and an injunction against all other development which would contribute to the storm water flow across them property. After a bench trial, the trial court found for Walton County on each of the claims.

In its former opinion of November 21, 2008, the majority appeared to affirm the final judgment for Walton County on all the claims except the inverse condemnation claims relating to the alleged 2005 “takings” based on Walton County’s having “diverted” water diagonally across the subject property and having “allowed the water diversion to continue after an emergency passed.” At the time, I read the majority’s opinion as having implicitly rejected the claims of inverse condemnation related to the County’s repeated clearings of the box culvert prior to the 2005 alleged “diversion” of waters diagonally across the northwest corner of the subject property. This led to the inescapable conclusion that, had the County merely cleared the box culvert and allowed the Oyster Lake outfall to flow unimpeded to the Gulf of Mexico in 2005, as it had previously done after Hurricane Opal and other storms, the majority would have been forced to find that all inverse condemnation claims of the plaintiffs predecessors in interest would properly have been denied.

The majority’s subsequent substituted opinion merely adds language to the last paragraph clarifying its holding that “two takings” occurred, one “during the period 1995-2004” and another “from 2005 to the present day.” Earlier in the opinion, the majority noted that, “[t]his case would be in a completely different posture had Appellant’s property been flooded by [Hurricane Opal] itself, without the County’s intervention,” and that the subsequent cooperative efforts of the County and the plaintiffs predecessors in interest “to help direct the flow away from the subject property and restore the water flow to pre-Opal conditions” were “unsuccessful.” However, neither the original opinion nor the substituted opinion explains how Walton County’s actions between 1995 and 2004 in clearing the box culvert of debris caused by hurricanes and storms somehow resulted in a “taking” of the subject property.

In 2005, instead of allowing the outfall from Oyster Lake to flow naturally across the subject property, as it has historically done, Walton County attempted to mitigate the effects of the outfall by channeling it across the corner and along the edge of the subject property, in an attempt to protect both the property owned by the plaintiffs predecessors in interest and the beach house of the adjacent property owner. It should be noted that the beach house of the adjacent property owner would in all likelihood not have been threatened if the County had allowed the outfall to flow naturally across the subject property, as it has done for as long as such things have been recorded. To allow the plaintiff to recover damages from Walton County based on its actions in attempting to mitigate the effects of the natural flow of water from the coastal dune lake on both properties is, in my opinion, a travesty of justice and a clear departure from well-settled law.

The majority opinion appears to hold that a servient tenement, which has been subject to the natural flow of surface water from the dominant tenement for centuries, can divert the natural flow of surface water from the dominant tenement into an artificial channel and thereafter require the dominant tenement to permanently maintain this artificial flow of surface water. This apparent holding is in direct conflict with Westland Skating Center, Inc. v. Gus Machado Buick, Inc., 542 So.2d 959, 961 (Fla.1989), in which the supreme court adopted the “reasonable use” rule for cases involving surface waters:

Under this rule, a possessor of land is not unqualifiedly entitled to deal with surface waters as he pleases[,] nor is he absolutely prohibited from increasing or interfering with the natural flow of surface waters to the detriment of others. Each possessor is legally privileged to make reasonable use of his land even though the flow of surface waters is altered thereby and causes some harm to others. He incurs liability only when his harmful interference with the flow of surface waters is unreasonable.

The majority attempts to support its holding, that the plaintiffs predecessors in interest “could reasonably rely on the drainage pattern established by the drainage stabilization in 1988, and when the County reconfigured that drainage pattern, it resulted in a taking,” by citing Schick v. Florida Dept. of Agriculture, 504 So.2d 1318 (Fla. 1st DCA), review denied, Dept. of Agriculture v. Schick, 513 So.2d 1060 (Fla.1987). However, the holding in Schick was that a complaint alleging the state had contaminated the underground water supply with now-banned pesticide, rendering the land unusable, stated a cause of action for inverse condemnation. I fail to see how that holding supports the majority’s apparent holding that the plaintiff and her predecessors in interest had the right to divert the natural flow of surface water from Oyster Lake and then to hold Walton County liable for attempting to restore the natural flow of surface water while attempting to mitigate the effects of the outfall on the subject property and on adjacent property.

It is further troubling that the majority opinion does not inform the parties and the trial judge what portion of the subject property has been “taken” by inverse condemnation. The legal description in the complaint encompasses the three waterfront lots measuring 150 feet on the Gulf of Mexico purchased by the plaintiffs predecessors in interest from Florida State University Foundation. It is clear from the facts presented below that at present, the Oyster Lake outfall has been redirected so that instead of flowing freely across all of the subject property, as it has done for thousands of years, it now flows diagonally across a portion of the northwest corner of the subject property and thence along the western border of the property. The evidence does not support a finding that this has resulted in the plaintiffs loss of all beneficial use of all three of the lots comprising the original subject property, or even in her loss of all beneficial use of the westernmost of the three lots purchased from the Foundation in 1992. The evidence does demonstrate that the easternmost of the three lots has been combined with the original lot and beach house purchased by the plaintiffs predecessors in interest in 1984, and that it is being used as a residence.

The majority opinion dismisses as “not legally relevant” the uncontroverted fact that all of the property at issue has been subject to the natural flow of surface water from the outfall of Oyster Lake for centuries. There is no justification for the majority’s substituting its findings of fact for the factual findings of the trial court which were supported by competent substantial evidence, and there is absolutely no legal or record support for the majority’s holding, which is in direct conflict with well-settled Florida law. I would affirm the trial courts judgment in all respect.

      . William R. Hemby and Patricia Hemby sued Walton County in 2002 for inverse condemnation, trespass and negligence. Mr. Hemby died in November 2006, and his estate’s interest in the suit was transferred to the William R. Hemby Revocable Trust, with Mrs. Hemby as trustee. Mrs. Hemby died while this appeal was pending, and her estate's interest in the suit was transferred to the Patricia S. Hemby Revocable Trust, with her daughter, Cozette R. Drake, as successor trustee of both trusts. Appellant is Ms. Drake.

      . Section 252.43(6), Florida Statutes, states:
      (6) Nothing in this section applies to or authorizes compensation for the destruction or damaging of standing timber or other property in order to provide a firebreak or damage resulting from the release of waters or the breach of impoundments in order to reduce pressure or other danger from actual or threatened flood or applies to or authorizes compensation beyond the extent of funds available for such compensation.


author: SILBERMAN, Judge.

text:
    Quarra WOODARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-500.
    District Court of Appeal of Florida, Second District.
    April 15, 2009.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Quarra Woodard challenges the revocation of her community control and her resulting sentence. We affirm but note that Woodard’s written sentence fails to conform to the trial court’s oral pronouncement of sentence. Following the revocation of Woodard’s community control, the trial court orally imposed a sentence of 39 months’ imprisonment. However, the written sentence reflects 39.9 months’ imprisonment.

Woodard did not preserve this issue for appellate review because she did not object or file a motion to correct sentence pursuant to Florida Rule of Appellate Procedure 3.800(b). Accordingly, we affirm without prejudice to any right Woodard may have to file an appropriate postconviction motion addressing this issue. See Young v. State, 988 So.2d 1128, 1129 (Fla. 2d DCA 2008) (affirming Anders appeal without prejudice to any right the defendant had to file an appropriate postconviction motion to address an unpreserved sentencing error).

Affirmed.

CASANUEVA and KELLY, JJ., Concur.


text:
    Michael Dimond HILLIARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4544.
    District Court of Appeal of Florida, Second District.
    April 15, 2009.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

In this appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Michael Hilliard challenges his convictions and sentences in circuit court case number 07-CF-11715, and the revocation of his drug offender probation and resulting sentence in circuit court case number 06-CF-13121. After reviewing the record, we directed the parties to submit supplemental briefs regarding Hil-liard’s written sentences in both cases and whether any error in the written sentences could be addressed in this appeal.

Both parties acknowledge in their supplemental briefs that Hilliard’s written sentences fail to conform to the trial court’s oral pronouncement of the sentences. However, they also acknowledge that neither Hilliard nor the State preserved the errors for appeal by objecting or filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). See Young v. State, 988 So.2d 1128, 1129 (Fla. 2d DCA 2008) (noting that the defendant failed to preserve a sentencing error for appellate review by not objecting during sentencing or filing a motion pursuant to rule 3.800(b)); State v. Hamner, 816 So.2d 810, 812 (Fla. 6th DCA 2002) (noting that the State failed to preserve its argument that Hamner’s downward departure sentence was illegal when it failed to object or file a motion to correct sentence pursuant to rule 3.800(b)).

Accordingly, we affirm Hilliard’s convictions and sentences in case number 07-CF-11715 and the revocation of his probation and resulting sentence in case number 06-CF-13121.

Affirmed.

KELLY and LaROSE, JJ., Concur.


author: WELLS, Judge.

text:
    Ronnie COVINGTON, Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH, Appellee.
    No. 3D08-2007.
    District Court of Appeal of Florida, Third District.
    April 15, 2009.
    William C. Robinson, for appellant.
    Tracie L. Dickerson, North Miami, for appellee.
    Before GERSTEN, C.J., and WELLS and LAGOA, JJ.
   ON CONFESSION OF ERROR

WELLS, Judge.

Ronnie Covington appeals from a final default judgment claiming that prior to the entry of that judgment he had received no notice that an administrative complaint had been filed against him. On the Florida Department of Health’s acknowledgement that Covington was not properly served and thus entitled to the hearing that he has requested, we reverse the final order on appeal and remand for a hearing on the merits of the Department’s complaint.


text:
    C.M., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D08-3929.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Rehearing Denied May 7, 2009.
    Roger Ally of the Law Offices of Roger Ally, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Christy Fisher, Assistant Attorney General, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

The father appeals an order adjudicating his 7 year old child dependent. Setting aside the evidence of the child’s presence during a domestic violence incident, which was minimal, the finding that the child suffered mental harm as a result of witnessing the domestic violence incident was not supported by competent substantial evidence. The only evidence of harm to the child came from the hearsay testimony from a child advocate. See B.C. v. Dep’t of Children & Families, 846 So.2d 1273 (Fla. 4th DCA 2003); K.V. v. Dep’t of Children & Family Servs., 939 So.2d 200 (Fla. 2d DCA 2006); K.B. v. Dep’t of Children & Family Servs., 937 So.2d 709 (Fla. 2d DCA 2006). We therefore reverse the adjudication of dependency.

GROSS, C.J., POLEN and FARMER, JJ., concur.


text:
    Alexander J. MILANICK, Appellant/Cross-Appellee, v. Charles OSBORNE, Appellee/Cross-Appellant.
    No. 5D08-605.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2009.

      Michael R. D’Lugo and Kasia Pabis of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellant/Cross-Appel-lee.
    Robert J. Riggio of Law Offices of Robert J. Riggio, P.A., Daytona Beach, for Appellee/Cross-Appellant, Charles Osborne.
    C. Christopher Anderson, III, and Philip C. Claypool, Tallahassee, for Commission on Ethics.
   PER CURIAM.

ON MOTION FOR CLARIFICATION

We grant the Commission on Ethics’ motion for clarification and substitute the following in lieu of the original opinion.

Alexander J. Milanick appeals a final order awarding Charles Osborne, the former mayor of Beverly Beach, $77,234.43 in attorney’s fees and costs he incurred to defend against an ethics complaint Milan-ick filed against him. Milanick argues that the Administrative Law Judge (“ALJ”) abused its discretion in denying his motion for continuance to retain counsel. On cross-appeal, Osborne challenges the Commission’s denial of attorney’s fees and costs incurred in connection with the administrative hearing held September 28, 2007, and Milanick’s attempt to seek discretionary review with the Florida Supreme Court of this court’s decision in Osborne v. Commission on Ethics, 951 So.2d 25 (Fla. 5th DCA 2007).

A motion for continuance is addressed to the sound judicial discretion of the trial court and absent abuse of that discretion its decision will not be reversed on appeal. Fleming v. Fleming, 710 So.2d 601, 603 (Fla. 4th DCA 1998). The same discretion is vested in the ALJ. Fla. Admin. Code R. 28-106.210. Finding the ALJ did not abuse its discretion, we affirm the denial of Milanick’s motion for continuance.

Section 112.317(7), Florida Statutes (2007), entitles Osborne to an award of reasonable attorney’s fees and costs incurred in defending against the ethics complaint. This includes proving entitlement to and the amount of those costs and fees, including fees and expenses incurred after the administrative hearing. See Kaminsky v. Lieberman, 675 So.2d 261, 262 (Fla. 4th DCA 1996).

Osborne’s invoices for legal fees in exhibits 6 and 7 reflect services rendered in connection with the supreme court proceeding and the administrative hearing. We hold that Osborne is entitled to an award of attorney’s fees and costs incurred in connection with the September 28, 2007, hearing, including services rendered both during and after the hearing. Osborne is not entitled, however, to any fees or costs for services rendered in connection with the supreme court proceeding. Even where a fee award is mandatory, absent a mandate or determination by the appellate court that fees are appropriate, the lower tribunal has no jurisdiction to award the fees. Respiratory Care Servs., Inc. v. Murray D. Shear, P.A., 715 So.2d 1054, 1056 (Fla. 5th DCA 1998). Osborne did not request an award of fees incurred with respect to the supreme court proceedings. Accordingly, we reverse the Commission’s order to the extent it denied an award of fees and costs related to the administrative proceeding and affirm the denial of such fees for the supreme court proceeding.

To summarize, we affirm Milanick’s appeal, concluding that the ALJ did not abuse its discretion in denying his motion for a continuance to retain counsel. We affirm in part and reverse in part Osborne’s cross-appeal, denying his claim for attorney’s fees and costs relative to the supreme court proceeding, but approving an award of fees and costs rendered in connection with the September 28, 2007, administrative hearing. The Commission, upon remand, must determine which entries from exhibits 6 and 7 reflect services rendered with respect to the administrative proceeding and disregard entries that relate to the supreme court matter. Finally, this court grants Osborne’s motion for appellate attorney’s fees and remands the matter for the Commission to determine and assess a reasonable award for the appeal.

Upon remand, the Commission shall apply the approach described in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), to determine a reasonable award of attorney’s fees and costs. Further, in determining a reasonable award for appellate fees, the Commission shall not award appellate attorney’s fees based upon Osborne’s unsuccessful claim for fees attributable to the supreme court proceeding. See Imperial Terrace East Homeowner’s Ass’n, Inc. v. Grimes, 666 So.2d 276, 277 (Fla. 5th DCA 1996) (explaining that “a court may reduce an attorney’s fees award based upon the ‘results obtained’ if a ‘party prevails on a claim or claims for relief, but is unsuccessful on other unrelated claims’ ”) (quoting Rowe, 472 So.2d at 1151).

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

MONACO and COHEN, JJ., and KEST, S., Associate Judge, concur.

      . In Osborne v. Commission on Ethics, 951 So.2d 25 (Fla. 5th DCA), review dism’d, 962 So.2d 337 (table) (Fla.2007), we reversed a final order denying an award of attorney’s fees and costs in favor of Osborne and remanded for further proceedings to establish the amount. The ensuing administrative hearing is the subject of this appeal.


text:
    Kim M. VALDES, former wife, Appellant, v. Robert W. VALDES, Jr., former husband, Appellee.
    No. 1D08-3887.
    District Court of Appeal of Florida, First District.
    April 20, 2009.

      Daniel T. O’Connell, Gainesville, for Appellant.
    John R. Nettles and Jill A. Conti, Gainesville, for Appellee.
   PER CURIAM.

The former wife appeals a final judgment of dissolution of marriage. We reverse the child support award. If a trial court does not articulate findings regarding the actual or adjusted income of the parties, this Court cannot determine whether a child support award is within the guidelines. We remand for the trial judge to calculate the child support in accordance with the statutory guidelines set forth in section 61.30, Florida Statutes. See Smith v. Smith, 996 So.2d 924, 926 (Fla. 1st DCA 2008). The remaining issues on appeal are affirmed without further discussion.

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

HAWKES, C.J., LEWIS, and THOMAS, JJ., concur.


author: DAVIS, Judge.

text:
    Cyrenthia Denise POWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 2D08-5602.
    District Court of Appeal of Florida, Second District.
    April 22, 2009.
    Cyrenthia Denise Powell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.
   DAVIS, Judge.

Cyrenthia Powell challenges, through a petition for writ of certiorari, the dismissal of her motion for correction, reduction, and modification of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). Based on the State’s proper concession of error and because the postcon-viction court erred by dismissing her motion as untimely, wé grant the petition.

Powell was originally sentenced on June 15, 2007, to five years’ incarceration for violating the probation she was serving for a possession of cocaine conviction. This court affirmed her sentence on direct appeal, see Powell v. State, 986 So.2d 610 (Fla. 2d DCA 2008) (table decision), and the mandate issued on July 31, 2008. On September 5, 2008, she filed her pro se motion for reduction of sentence pursuant to rule 3.800(e). The postconviction court dismissed the motion as untimely.

Pursuant to the rule, a defendant may file a rule 3.800(c) motion within sixty days from the imposition of the legal sentence or within sixty days from the receipt by the circuit court of a mandate affirming the sentence or an order dismissing the appeal. Since the mandate affirming Powell’s direct appeal was issued on July 31, 2008, and her rule 3.800(c) motion was received by the postconviction court on September 5, 2008, within sixty days of the issuance of the mandate affirming her direct appeal, Powell’s motion was timely.

It appears from the order of dismissal that the postconviction court erroneously believed that Powell had not filed a direct appeal of her revocation of probation and the resulting sentence. Because of this error, the postconviction court concluded that the motion was untimely as filed outside the sixty-day limit from the date of Powell’s sentence. However, because Powell did file a direct appeal, the time for the filing of the motion was extended and her motion was timely. See Byrd v. State, 920 So.2d 825, 826 (Fla. 2d DCA 2006). Accordingly, we grant the petition for writ of certiorari, quash the postconviction court’s order, and remand for the court to consider Powell’s rule 3.800(c) motion on its merits.

Petition granted.

SILBERMAN, and CRENSHAW, JJ., Concur.


text:
    Victor LEON, Appellant, v. ALTEC ROOFING, INC., a Florida corporation, and Circle Bay Yacht Club Condominium Association, Inc., Appellees.
    No. 4D08-1668.
    District Court of Appeal of Florida, Fourth District.
    April 22, 2009.
    Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for appellant.
    Glen H. Waldman of Heller Waldman, P.L., Coconut Grove, and Enza G. Boder-one of Bilzin Sumberg Baena Price & Ax-elrod, LLP, Miami, for appellee Altec Roofing, Inc.
    Monte R. Shoemaker and Kellye A. Shoemaker of Shoemaker & Shoemaker, P.A., Altamonte Springs, for Amicus Curiae Florida Worker’s Advocate and Florida Justice Association.
   PER CURIAM.

Affirmed. See Tractor Supply Co. v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007).

POLEN, STEVENSON and DAMOORGIAN, JJ., concur.


author: KELLY, Judge.

text:
    John KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2310.
    District Court of Appeal of Florida, Second District.
    April 24, 2009.

      John Knight, pro se.
   KELLY, Judge.

John Knight challenges the order of the postconviction court denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court has twice considered and rejected Knight’s claim that his attempted second-degree murder conviction was illegally reclassified from a second-degree felony to a first-degree felony. Because this court determines that there exists no manifest injustice that would warrant reconsideration of the issue, we affirm the order of the postconviction court.

The trial transcript establishes that Knight and the victim argued over a bicycle. Knight shot the victim in the back. As the victim lay helpless on the ground, Knight walked up to him and continued to shoot. The victim was shot a total of eight times and was rendered a paraplegic. The State charged Knight with attempted first-degree murder with a firearm. At trial, the jury found him guilty of the lesser offense of attempted second-degree murder. The verdict form did not reference a firearm; nevertheless, pursuant to section 775.087(1), Florida Statutes (1993), and based on the evidence that Knight used a firearm in the commission of the offense, the trial court enhanced the degree of the offense from a second-degree felony to a first-degree felony and sentenced Knight to thirty years in prison. This court affirmed Knight’s judgment and sentence. Knight v. State, 678 So.2d 343 (Fla. 2d DCA 1996) (table decision).

Knight filed a Florida Rule of Criminal Procedure 3.850 motion in which he argued that the enhancement was illegal because the jury did not make a finding that he used a firearm in the commission of the attempted second-degree murder.' We affirmed the denial of this claim. Knight v. State, 826 So.2d 299 (Fla. 2d DCA 2002) (table decision). Knight then raised this exact claim in a rule 3.800(a) motion. Again, we affirmed the denial of the claim. Knight v. State, 895 So.2d 419 (Fla. 2d DCA 2004) (table decision). Subsequently, Knight filed the present rule 3.800(a) motion in which he, for a third time, claimed the trial court illegally enhanced the degree of the offense based on his use of a firearm.

Without a jury finding that the appellant used a firearm, the enhancement of the degree of the offense of second-degree murder from a second-degree felony to a first-degree felony was improper. See, e.g., State v. Tripp, 642 So.2d 728 (Fla.1994). However, even if the trial court erred when it enhanced Knight’s sentence, he is not entitled to relief because the error was harmless. No rational jury would have found that Knight did not use a firearm in his attempt to murder the victim. See Galindez v. State, 955 So.2d 517, 523-24 (Fla.2007). Accordingly, we find the error harmless beyond a reasonable doubt. See id.

We suspect Knight’s multiple attempts to obtain relief on this claim stem from a mistaken belief that such an error is, or was at one time, per se reversible. The supreme court, however, has never held that it is. In the absence of such a declaration by the supreme court, all judgments are subject to a harmless error analysis. See § 924.33, Fla. Stat. (1993); State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995); State v. DiGuilio, 491 So.2d 1129, 1134 (Fla.1986).

Knight likely was misled because until recently the supreme court had not discussed the harmless error test in any of its decisions reversing an improper firearm enhancement. See, e.g., Tripp, 642 So.2d at 728; State v. Overfelt, 457 So.2d 1385 (Fla.1984). A reversal without a discussion of whether an error is harmless might suggest an error is per se reversible; however, it does not make it so. As for the error Knight raises, any question as to whether it is, or ever was, per se reversible was answered by the supreme court in Galindez:

Finally, in [Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) ], the Supreme Court reversed the Washington Supreme Court’s holding that harmless error analysis does not apply to [Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),] error. Accordingly, to the extent some of our pre-Apprendi decisions may suggest that the failure to submit factual issues to the jury is not subject to harmless error analysis, Re-cuenco has superseded them. See, e.g., State v. Estevez, 753 So.2d 1, 7 (Fla.1999) (holding that even where the evidence is uncontroverted, to sentence a defendant to a minimum mandatory sentence for trafficking, the jury must make express findings of the amount of cocaine involved); State v. Hargrove, 694 So.2d 729, 730 (Fla.1997) (holding that even where evidence regarding the use of a firearm is unrebutted, to impose mandatory minimum sentence, a jury must make that finding); State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (holding that to enhance a sentence because of the defendant’s use of a firearm, the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used).

955 So.2d at 522-23 (emphasis added).

Accordingly, we conclude that Knight did not demonstrate a manifest injustice and the postconviction court properly refused to consider his claim for a third time.

Affirmed.

NORTHCUTT, C.J., and LaROSE, J., concur.

      . A defendant who has already had a rule 3.800(a) illegal sentence claim determined against him is collaterally estopped from relit-igating die same claim except where the application of collateral estoppel would result in a manifest injustice. Cillo v. State, 913 So.2d 1233 (Fla. 2d DCA 2005).


text:
    Joshua L. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4071.
    District Court of Appeal of Florida, Second District.
    April 24, 2009.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm the order modifying Joshua L. Butler’s probation for delivery of cocaine without prejudice to any right Butler may have to file a postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850.

ALTENBERND, DAVIS, and SILBERMAN, JJ., Concur.