text:
    Jesus CARBONELL, Appellants, v. The STATE of Florida, Appellee.
    No. 3D09-1580.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   RAMIREZ, C.J.

Jesus Carbonell appeals the trial court’s final judgment of conviction and sentence. We reverse and remand for a new trial because the trial court erred in allowing the State to introduce an uncharged robbery that took place earlier in the day when the State was unable to show that the uncharged robbery was similar enough to the charged robbery to establish relevance.

Carbonell was charged with burglary with an assault and strong armed robbery. His defense at trial was misidentification. The facts, taken in the light most favorable to the State, indicate that early in the evening on November 8, 2006, I.G. went to a Shell gas station to purchase a lottery ticket. After she bought the ticket, I.G. went to the parking lot and got in her car. A young male opened the car door, and yanked and grabbed her chain from her neck. The robber asked I.G. for her purse and after he looked into the purse, he threw it back at her. The robber then fled the scene in a pick-up truck. I.G. went back into the gas station and called the police.

A few days later, the police went to I.G.’s house and showed her a photo lineup. She was unable to identify Carbonell as the robber. The following day, the police returned and this time, I.G. identified Carbonell as someone who looked like the robber. At a deposition, I.G. indicated that she was seventy percent positive that Carbonell was the robber. At trial, she positively identified Carbonell as the robber.

Before trial, the State filed a motion to be allowed to introduce Williams Rule evidence from a woman who claimed that Carbonell had committed a strong armed robbery against her on the same day as the crime in this case. Over the objection of counsel, the trial court allowed the State to introduce the testimony of M.G. M.G. testified that on November 8, 2006, she was walking to the Metro Rail Station on US1 and 27th Avenue at approximately 8:45 a.m. when she saw a Ford pick-up truck approach and stop next to her. According to M.G., there was a man and a woman in the truck. After the truck stopped, a man jumped out of the truck and grabbed her chain and purse. The robber then got back into the truck and left. M.G. identified Carbonell in a photo lineup and in court as the person who committed the robbery.

Thereafter, during trial, the judge suppressed a statement given by Carbonell to the police where Carbonell told the police he had a drug problem, he did not remember stealing the victim’s purse, and he would not have used the family car to commit a crime. The trial court suppressed the statement based on the fact that the police took the statement after Carbonell had been appointed counsel.

During closing argument, the prosecutor argued the following:

I wish I could give you, you know, a full confession. I wish I could give you a videotape of the robbery. I wish I could make it that easy for you. It’s not going to be that easy.

The jury subsequently found Carbonell guilty as charged. The trial court sentenced him to twenty-five years as a prison releasee re-offender as to one count and a violent habitual offender as to the second count. The trial court ordered the sentences to run concurrent with each other.

On appeal, we conclude that the trial judge erred in allowing the State to introduce the uncharged robbery that took place earlier in the day because the State was unable to show that the uncharged robbery was similar enough to the charged robbery to establish relevance. The law in Florida and a comparison of the facts in the charged burglary and robbery with the facts in the uncharged robbery establish that the two crimes were not similar enough to justify their admission in this case. The Florida Supreme Court addressed the standard for admission of collateral crime evidence in Williams v. State, 110 So.2d 654 (Fla.1959). The Williams Court stated, “[o]ur view of the proper rule simply is that relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy.” Id. at 659. Section 90.404(2)(a), Florida Statutes (2005), codified this rule, which provides:

Similar fact evidence ... is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Thus, to be allowed to introduce evidence of another crime, the State must establish that the uncharged crime is relevant to some issue that is in dispute and is not being introduced to establish propensity to commit a crime. Chambers v. State, 742 So.2d 839, 840 (Fla. 3d DCA 1999). Before admitting Williams Rule evidence, the trial court must make four determinations: whether there is sufficient evidence that the defendant committed the uncharged crime; whether the evidence in the uncharged crime meets the similarity requirement necessary to be relevant; whether the uncharged crime is too remote, so as to diminish its relevance; and whether the prejudicial effect of the uncharged crime substantially outweighs its probative value. Robertson v. State, 829 So.2d 901, 907-08 (Fla.2002). Moreover, to meet the similarity requirement, the Williams Rule evidence must bear a striking similarity to the charged offense and must share with the charged offense unique characteristics that give the Williams Rule evidence probative value with respect to the charged offense. Heuring v. State, 513 So.2d 122, 124 (Fla.1987) (“The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses.”), quashed on other grounds, 559 So.2d 207 (Fla.1990).

The Florida Supreme Court in McLean v. State, 934 So.2d 1248, 1255 (Fla.2006) explained the substantial similarity requirement, stating:

[I]n cases where the purported relevancy of the collateral crime evidence is the identity of the defendant, we have required “identifiable points of similarity” between the collateral act and charged crime that “have some special character or [are] so unusual as to point to the defendant.” Drake v. State, 400 So.2d 1217, 1219 (Fla.1981). This is because “[the mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared.]” Id. Thus, “[a] mere general similarity will not render the similar facts legally relevant to show identity.” Id.

Here, the victims in both cases were the subject of a strong armed robbery where the robber took chains and a purse, and left in a pick-up truck. However, we cannot say that the two crimes were so unique to justify the admission of the uncharged crimes.

In addition, there were several dissimilar facts which also established that the uncharged crime was not admissible. In the charged crime, the victim claimed that she only saw the defendant prior to the robbery. In the uncharged crime, the victim claimed that the defendant was in a truck along with a female and that the defendant jumped out of the truck and committed the crime. The charged crime was committed at night, and the uncharged crime was committed in the morning. Finally, the two crimes were not committed at the same location, nor were they committed at the same type of location. The charged crime was committed at a gas station, and the uncharged crime was committed near a Metro Rail Station.

In this case, there is nothing so unique or particularly unusual about the similarities in the charged offense and the collateral offense so that it is reasonable to conclude that the same person committed both crimes. Therefore, the uncharged crime had little relevance to the crime charged and its probative value was clearly outweighed by its prejudicial effect, and should not have been admitted into evidence.

This Court must next resolve whether the State can establish beyond a reasonable doubt that the improper evidence did not contribute to the jury verdict. The State’s case relied heavily upon the eyewitness identification of the eighty year-old victim. The validity of this identification was a highly contested issue at trial. The first time the victim was shown a photo lineup she was unable to identify Carbonell. The following day, she was once again shown the lineup and this time, she pointed to Carbonell and indicated that he looked like the robber. During a deposition prior to trial, the victim indicated that she was seventy percent positive that Carbonell was the robber. It was not until trial when Carbonell was sitting at defense table that the victim positively identified him as the robber.

Admission of irrelevant similar fact evidence is “presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.” Robertson v. State, 829 So.2d 901 (Fla.2002). We conclude that the State has not overcome this presumption of harmful error.

Carbonell also contends that the prosecutor committed fundamental error during closing argument when the prosecutor argued to the jury that she wished she had a full confession because the improper argument could either be interpreted as a comment on Carbonell’s right to remain silent, or in the alternative, a comment on evidence that was excluded by the trial judge. As previously stated, during the trial the trial judge suppressed a statement given by the defendant to the police because the police took the statement after the defendant had been appointed counsel. Although the prosecutor’s argument may have been improper, it was defense counsel that first argued to the jury that “[tjhere is not a single thing about Mr. Carbonell making a statement in this case.” We are thus unwilling to hold that the statement constituted fundamental error, but on retrial, we caution the State against repeating such an argument.

In conclusion, we reverse the trial court’s judgment of conviction and sentence and remand for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    VILLAGE OF PINECREST, Florida, Appellant, v. GREC PINECREST, LLC, Appellee.
    No. 3D10-299.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.

      Cynthia A. Everett, Miami; Lewis, Stroud & Deutsch, and Nancy E. Stroud, Boca Raton, for appellant.
    Bilzin Sumberg Baena Price & Axelrod and Stanley B. Price and Eileen Ball Meh-ta; Patrick L. Dorsy, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

The Village of Pinecrest, Florida (“Pine-crest”) appeals from a final order denying its motion for summary judgment and granting summary judgment in favor of GREC Pinecrest, LLC (“GREC”). We affirm.

BACKGROUND

GREC, as the owner of two adjacent lots located south of S.W. 100th Street in Pine-crest, filed an application for a Development Order, in which it sought a small-scale amendment to Pinecrest’s Future Land Use Map (“FLUM”); a change to the zoning classification of the property; and approval of its site plan. Specifically, GREC sought a FLUM Amendment and a zoning change from EU-1, Residential Estate which allows no more than one dwelling unit per acre, to RU-4, Residential Multi-Family High Density which allows up to fifty units per acre; and approval of an eighteen-unit condominium project on the subject property. Pinecrest’s Planning Director recommended that the Village Council approve GREC’s application, opining that although the requested RU-4 zoning designation would allow development of fifty units per acre, the recorded covenant attached to the property would ensure that the development be limited to eighteen units, and that GREC’s project would further the objectives of the Comprehensive Development Master Plan (“Comprehensive Plan”).

After conducting a public hearing on June 13, 2006, Pinecrest denied GREC’s application in its entirety. In March 2008, after GREC successfully petitioned the trial court for a writ of mandamus, Pinecrest issued a written- order denying the application, finding that GREC had not established by competent substantial evidence a basis for the relief sought. Thereafter, GREC filed a lawsuit seeking a declaration that Pinecrest’s denial of GREC’s application was inconsistent with the Comprehensive Plan. The trial court agreed with GREC and issued the instant order finding Pinecrest’s denial of GREC’s application inconsistent with the Comprehensive Plan, and instructing Pinecrest to “approve development on the Property at a density and intensity no more restrictive than the Application filed by [GREC].”

ANALYSIS

A. Pinecrest’s Admissions Cannot be Ignored

Before considering the merits of Pine-crest’s appellate arguments, we detail a number of admissions made by Pinecrest in its answer. Among others, Pinecrest admitted that: (1) GREC’s application (seeking a Comprehensive Plan amendment, a zoning change, and a site plan approval) was consistent with the Comprehensive Plan; (2) Pinecrest should have approved GREC’s application because the application’s proposals were compatible with, and furthered the objectives, policies, land uses, densities, and intensities in the Comprehensive Plan; and (3) the designated EU-1 land density provided by Pine-crest’s FLUM for the subject property was inconsistent with the Comprehensive Plan. Taken together, these admissions reveal that GREC was entitled to develop its property as described in the three-part application. Pinecrest did not attempt to recede from these admissions below. Accordingly, the admissions constitute an important backdrop to the resolution of this case.

B. The Complaint Challenged the Denial of the Proposed Comprehensive Plan Amendment

Seeking reversal of the trial court’s order, Pinecrest first argues that GREC’s complaint failed to challenge Pinecrest’s denial of GREC’s request for an amendment to the FLUM of the Comprehensive Plan. If the allegations in the complaint were limited to Pinecrest’s denial of GREC’s proposed zoning change, we would agree with Pinecrest because GREC’s proposed zoning change (to RU-4) could not be implemented unless and until the Comprehensive Plan’s FLUM (designating the property EU-1) was challenged and amended. See Saadeh v. City of Jacksonville, 969 So.2d 1079, 1083 (Fla. 1st DCA 2007) (specifying that Florida law requires a municipality to deny a rezoning application that is inconsistent with the adopted Comprehensive Plan); Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 198 (Fla. 4th DCA 2001) (holding that consistency with a Comprehensive Plan is not a discretionary matter); Vill. of Key Biscayne v. Tesaurus Holdings, Inc., 761 So.2d 397, 398 (Fla. 3d DCA 2000) (noting that site plan approval is impossible where “the record demonstrates on its face that the [developer’s] plan ... is totally incompatible with the master plan”); Machado v. Musgrove, 519 So.2d 629, 631-32 (Fla. 3d DCA 1988) (describing zoning and planning as separate functions and that zoning must follow planning).

We, however, disagree with Pine-crest and conclude that GREC’s complaint sufficiently challenged Pinecrest’s denial of GREC’s request for a Comprehensive Plan amendment as required by law. GREC’s application before Pinecrest consisted of three main components: (1) a request for an amendment to the Comprehensive Plan’s FLUM; (2) a proposed zoning change; and (3) a request for a site plan approval. Pinecrest denied this application in its entirety. Throughout GREC’s subsequent complaint, the allegations take issue with Pinecrest’s denial of GREC’s entire application, necessarily including the denial of GREC’s proposed Comprehensive Plan amendment. Furthermore, Count III of the complaint specifically alleged that “THE [FLUM], AS APPLIED TO THE SUBJECT PROPERTY, IS NOT CONSISTENT WITH PINE-CREST’S COMPREHENSIVE PLAN AND THE GROWTH MANAGEMENT ACT.” Thus, we cannot agree with Pine-crest that GREC’s complaint failed to address the denial of GREC’s proposed Comprehensive Plan amendment.

C. The Order on Appeal is All-Encompassing

Finally, Pinecrest contends that the trial court erred by limiting the scope of its order to GREC’s requested zoning change, and failing to address Pinecrest’s denial of GREC’s proposed Comprehensive Plan amendment. Again, we disagree. The operative language in the order on appeal is as follows:

The Court declares that the denial by [Pinecrest] of GREC’s application for a development order is inconsistent with [Pinecrest’s] comprehensive plan. The Court remands this case back to [Pine-crest] and hereby orders the Village Council to approve development on the property at a density and intensity no more restrictive than the Application filed by [GREC] ... as described in ... the Amended Complaint.

(Emphasis added). As noted above, GREC’s application before Pinecrest sought a Comprehensive Plan amendment, a zoning change, and a site plan approval. Therefore, when the trial court addressed the denial of GREC’s application, it also addressed the denial of GREC’s proposed Comprehensive Plan amendment.

When considered on its own, the trial court’s instruction to “approve development on the property” could be construed as a limited order relating solely to GREC’s request for a zoning change. However, this instruction must be considered in the light of Pinecrest’s express admissions, the scope of the relief sought in GREC’s complaint, and the fact that the trial court took into account the denial of GREC’s entire, three-part application. In addition, it merits noting that Pinecrest’s current FLUM and zoning map are reflected on a single document, and the current and future zoning designations of the two instruments match in all respects. Because the two maps are one and the same, GREC is likely correct in arguing that the trial court’s order applied to both instruments.

When all of these factors are considered, it becomes clear that the trial court’s instruction included an order directing Pine-crest to make the necessary amendment to the Comprehensive Plan’s FLUM allowing GREC’s proposals to be implemented. Although the trial court did not specifically detail each step necessary to implement GREC’s proposals, we construe the order on appeal as encompassing each step.

CONCLUSION

Pinecrest denied GREC’s application for a Comprehensive Plan amendment, a zoning change, and a site plan approval. After GREC challenged this decision in court, Pinecrest made a number of admissions revealing that GREC was entitled to develop its property as described in the application. The trial court then issued the instant order described above. Pine-crest appealed from the trial court’s decision on the basis that the scope of the relief sought and obtained by GREC was legally insufficient. We disagree with Pi-necrest, holding first that GREC’s complaint did make the requisite challenge to Pinecrest’s denial of GREC’s proposed Comprehensive Plan amendment. We also hold that a combination of factors — Pine-crest’s admissions, the scope of GREC’s complaint, the fact that the trial court addressed GREC’s three-part application in its entirety, and that Pinecrest’s current FLUM and zoning map are reflected in a single document — requires that we construe the trial court’s order as all-encompassing, and not limited to GREC’s proposed zoning change.

Affirmed.


author: LaROSE, Judge.

text:
    Louis BRYANT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2156.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2010.
    James Marion Moorman, Public Defender, and Richai'd J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Louis Bryant, Jr., appeals his convictions and sentences for delivery of cocaine and possession of cocaine. We find no merit in Mr. Bryant’s argument that the trial court should have excluded evidence relating to the twenty-dollar bill used to buy cocaine. We write, however, to address a scrivener’s error in the judgment and the trial court’s imposition of certain costs and fines.

Mr. Bryant argues, and the State concedes, that the written judgment erroneously describes count I as delivery of cocaine within 1000 feet of a church. We agree and remand for correction of this scrivener’s error. See Dennis v. State, 917 So.2d 288, 288-89 (Fla. 1st DCA 2005).

Mr. Bryant challenges two fines and two costs imposed by the trial court. He filed a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(b)(2) to preserve these issues. The trial court did not rule on the motion within sixty days; thus, it is deemed denied. Fla. R. Crim. P. 3.800(b)(2)(B); Watts v. State, 973 So.2d 1271, 1272 (Fla. 2d DCA 2008). We strike the fines but affirm the costs.

The written judgment includes a $500 fine pursuant to section 775.083(1), Florida Statutes (2007). Fines under this section are discretionary and must be pronounced orally at sentencing. Dadds v. State, 946 So.2d 1129, 1130 (Fla. 2d DCA 2006). We strike the $500 fine because the trial court failed to pronounce it orally. See Perdue v. State, 17 So.3d 1283, 1283 (Fla. 2d DCA 2009); Masengale v. State, 969 So.2d 1218, 1219 (Fla. 2d DCA 2007).

The written judgment also includes an additional five percent surcharge on the $500 fine in the amount of $25, pursuant to section 938.04, Florida Statutes (2007). Because the $500 fine was not properly imposed, the $25 surcharge must also be stricken. See Perdue, 17 So.3d at 1283; Masengale, 969 So.2d at 1219; Dadds, 946 So.2d at 1130.

Mr. Bryant challenges a $50 crime prevention cost imposed pursuant to section 775.083(2). He argues that this cost is discretionary and must be pronounced orally. However, the statute provides that the court “shall” assess this cost. Id. Therefore, it is a mandatory cost that the trial court need not pronounce orally. See Anderson v. State, 739 So.2d 601 (Fla. 2d DCA 1997) (stating that trial court need not orally pronounce mandatory costs). We affirm the crime prevention court cost.

Finally, Mr. Bryant contests the imposition of a $150 prosecution cost pursuant to section 938.27. He claims that the State neither requested nor documented the cost item. Mr. Bryant did not object at the sentencing hearing when the trial court orally pronounced the prosecution cost. Thus, he has not preserved this issue for our review. See Rivera v. State, 34 So.3d 207, 209 (Fla. 2d DCA 2010) (holding rule 3.800(b)(2) motion will not preserve imposition of prosecution costs for review where the trial court orally pronounces them); Norman v. State, 676 So.2d 7, 9 (Fla. 4th DCA 1996). We affirm the imposition of the prosecution cost.

We affirm Mr. Bryant’s convictions and sentences but remand for entry of a corrected judgment and sentence as addressed in this opinion.

Affirmed and remanded.

CASANUEVA, C.J., and CRENSHAW, J., Concur.

      . In addition to the fines set forth in subsection (1), court costs shall be assessed and collected in each instance a defendant pleads nolo contendere to, or is convicted of, or adjudicated delinquent for, a felony, a misdemeanor, or a criminal traffic offense under state law, or a violation of any municipal or county ordinance if the violation constitutes a misdemeanor under state law. The court costs imposed by this section shall be $50 for a felony and $20 for any other offense and shall be deposited by the clerk of the court into an appropriate county account for disbursement for the purposes provided in this subsection....
      § 775.083(2), Fla. Stat. (2007).

      . In all criminal cases, convicted persons are liable for payment of the documented costs of prosecution, including investigative costs incurred by law enforcement agencies, by fire departments for arson investigations, and by investigations of the Department of Financial Services or the Office of Financial Regulation of the Financial Services Commission, if requested by such agencies....
      § 938.27(1), Fla. Stat. (2007).


author: PER CURIAM.

text:
    SCHOOL BOARD OF BROWARD COUNTY, Appellant, v. Royann KNOWLES, Appellee.
    No. 4D09-439.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.
    Rehearing Denied Dec. 15, 2010.
    Nicolette N. John and Thomas W. Paradise of Vernis & Bowling of Broward, P.A., Hollywood, for appellant.
    David T. Aronberg and Leonard P. Ha-berman of the Law Offices of Aronberg & Aronberg, Delray Beach, for appellee.
   PER CURIAM.

Affirmed. See Cole v. Dep’t of Corrs., 840 So.2d 398 (Fla. 4th DCA 2003).

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


author: GERBER, J.

text:
    Brian NEIMAN, and The Formula, Inc., Petitioners, v. Farhan NASEER, Kashif Shaukat, and Sona Patel, Respondents.
    No. 4D10-2091.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.
    Bart A. Houston of Genovese Joblove & Battista, P.A., Fort Lauderdale, for petitioners.
    John C. Dotterrer, Jenny Torres, and Stephen J. Giovinco of John C. Dotterrer Counsellors at Law, P.A., for respondent Farhan Naseer.
    No appearance for respondents Kashif Shaukat and Sona Patel.
   GERBER, J.

The judgment debtors appeal from a post-judgment order denying their motion for protective order and to quash a subpoena duces tecum for deposition in aid of execution served on their counsel during supplementary proceedings. The subpoena sought information about settlement funds paid to one of the judgment debtors in an unrelated lawsuit. The judgment debtors primarily argued that the information sought was protected by the attorney-client privilege and was subject to a confidentiality agreement in the settlement.

The order is not reviewable as a non-final order under Florida Rule of Appellate Procedure 9.130(a)(4). See Gaché v. First Union Nat’l Bank of Fla., 625 So.2d 86, 87 (Fla. 4th DCA 1993) (order requiring post-judgment production of financial information was not appealable where the ultimate order providing for a recovery by the judgment creditor would be appealable as a final judgment, and the judgment debtor would then have the opportunity to argue the correctness of the discovery order). However, the order would be reviewable if the judgment debtors filed a petition for writ of certiorari. See Toledo v. Publix Super Mkts., Inc., 30 So.3d 712, 714 (Fla. 4th DCA 2010) (citation omitted) (certiora-ri lies to review trial court orders compelling production of discovery claimed to be privileged or otherwise confidential, as this would present the potential of a departure from the essential requirements of the law which would cause material harm for which there is no adequate remedy on final appeal).

Treating the appeal as a petition for writ of certiorari, we agree with the circuit court that the information sought was not protected by the attorney-client privilege. The information was known to the other party to the settlement agreement in the unrelated lawsuit. We also agree that “[w]hile confidentiality agreements are necessary in some instances, to facilitate settlement, they may not be subsequently employed by a litigant to ... thwart an opponent’s discovery.” Smith v. TIB Bank of the Keys, 687 So.2d 895, 896 (Fla. 3d DCA 1997). We reject the judgment debtors’ other arguments without further comment.

Petition denied.

MAY and DAMOORGIAN, JJ., concur.


text:
    Daniel RAHYMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2965.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2010.
    Daniel Rahymes, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

We treat the petition for belated appeal as a timely appeal from the final order dated June 14, 2010, and affirm.

Affirmed.

POLEN, TAYLOR and DAMOORGIAN, JJ., concur.


text:
    Clinton G. HEARST a/k/a Sharif A. Mubarak, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2277.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Rehearing Denied Dec. 10, 2010.
    Clinton G. Hearst a/k/a Sharif A. Mubarak, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before GERSTEN, WELLS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005).


text:
    Carlos Ernesto RENDON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2302.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Carlos Ernesto Rendon, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, WELLS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Rozzelle v. State, 29 So.3d 1141 (Fla. 1st DCA 2009).


text:
    Raul AGUILAR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2314.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Rehearing and Rehearing En Banc Denied Dec. 14, 2010.
    Raul Aguilar, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, WELLS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Griffin v. State, 798 So.2d 828 (Fla. 3d DCA 2001).


text:
    Denver CURTAIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2417.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.

      Denver Curtain, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, WELLS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Salazar v. State, 892 So.2d 545, 547 (Fla. 3d DCA 2005) (“If an inmate believes that the Department has not granted correct credit ..., then the inmate must seek relief through inmate grievance procedure.”).


text:
    Erick Joel LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2421.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Rehearing Denied Dec. 10, 2010.
    Erick Joel Lopez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, WELLS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Menendez v. State, 41 So.3d 1066 (Fla. 3d DCA 2010).


text:
    Manuel RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1177.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Carlos J. Martinez, Public Defender, and Amy Weber and Michael T. Davis, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and WELLS, JJ.
   PER CURIAM.

Manuel Rodriguez appeals from a written sentence which does not comport with the trial court’s oral pronouncement at sentencing. We reverse.

It is well settled that when a conflict arises between a written sentence and the trial court’s oral pronouncement of the sentence, the oral pronouncement prevails. Ashley v. State, 850 So.2d 1265 (Fla.2003). Here, the written sentence reflects that the trial court sentenced Rodriguez as a habitual felony offender. During sentencing, however, the trial court specifically stated that it was imposing a sentence within the guidelines. Thus, the written sentence does not comport with the trial court’s oral pronouncement.

Accordingly, we reverse the sentence entered below and remand for the trial court to sentence Rodriguez to a guidelines sentence.

Reversed and remanded.


text:
    Alberto PAIROL-RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2878.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Haley & Associates, P.A. and Ana M. Jhones, for appellant.
    Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Triana, 979 So.2d 1039 (Fla. 3d DCA 2008); Luna-Martinez v. State, 984 So.2d 592 (Fla. 2d DCA 2008); Wilson v. State, 952 So.2d 564 (Fla. 5th DCA 2007); State v. Swank, 399 So.2d 510 (Fla. 4th DCA 1981). Cf. State v. Ojeda, — So.3d -, 2010 WL 4226705 (Fla. 3d DCA Oct. 27, 2010).


author: PER CURIAM. RAMIREZ, C.J., SALTER, J.

text:
    Walter D. MARKHAM, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, etc., et al., Appellees.
    No. 3D09-1985.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Walter D. Markham, in proper person.
    M. Elaine Howard, Deputy General Counsel, for Florida Unemployment Appeals Commission.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Walter D. Markham appeals the Florida Unemployment Appeals Commission’s final order affirming the decision of the Unemployment Compensation Appeals Referee dismissing Markham’s appeal as untimely filed. We affirm, as the claimant did not appeal the decision until after the 20-day statutory time limit had expired. See § 443.151(3)(a), Fla. Stat. (2009). Accordingly, the Appeals Referee was legally bound to dismiss the appeal.

Affirmed.

RAMIREZ, C.J.,

concurring.

I wholeheartedly agree with Judge Salter’s opinion. I write only to expand on how Mr. Markham’s unemployment benefits were initially denied. According to the Notice of Determination made by a “G.E. Williams,” Mr. Markham was denied unemployment benefits because he was “discharged for failure to properly notify the employer of an absence. The claimant’s actions were not in the best interests of the employer.” Based on this, Mr. Williams concluded that the discharge was for misconduct connected with the work.

Misconduct is defined in section 443.036(29) of the Florida Statutes:

“Misconduct” includes, but is not limited to, the following, which may not be construed in pari materia with each other:
(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

The Unemployment Appeals Commission, ably represented by M. Elaine Howard, refused even to discuss at oral argument how the failure to notify the employer of one absence can ever constitute misconduct. The Commission took the position that its actions and those of the appeals referee were actions that the statutory provisions clearly prescribed. This is an absurdity that flies in the face of any interest in fairness, which ultimately leaves Mr. Markham out of luck. Likewise, it does not matter that Mr. Williams may be laboring under the misimpression that misconduct somehow includes actions that are not “in the best interests of the employer,” a standard not found in the statute. Thus, Oak Construction Co., Inc. saved itself the additional unemployment taxes it may have incurred, and can discharge Mr. Markham with impunity. This in the midst of an economic recession and Mr. Markham’s inability to receive any assistance from the Agency for Workforce Innovation. We are powerless to redress this grave injustice.

SALTER, J.

(concurring).

This is another unemployment compensation benefits case in which the employer wins on a technicality and the former employee is denied even the meager safety net provided by law to cushion the trauma of unemployment. While I am obligated to concur in affirming the Commission’s order finding Mr. Markham’s appeal untimely, I write to identify a recurring problem that merits attention by the Legislature and the Agency for Workforce Innovation. That problem is the “short fuse” on procedural defaults applicable to appeals to the Agency.

Mr. Markham, like most unemployment compensation claimants, is not an attorney. He is a construction worker. Nevertheless, he represented himself in the preparation of his administrative appeals and in oral argument here. Those efforts deserve to be given further voice.

“Filing” an Administrative Appeal

The procedural trapdoor that catches many unemployed claimants is the twenty-day period for “filing” an appeal from an Agency determination or redetermination denying benefits, found in subsections 443.151(3) and (4), Florida Statutes (2008), and Florida Administrative Code Rules 60BB-5.005 and -5.006. The statutory provisions require the claimant to file his or her appeal “within 20 days after the mailing of the notices to the parties’ last known addresses, or in lieu of mailing, within 20 days after delivery of the notices.” The Rules specify that “the twenty-day period means twenty calendar days, with the date of issuance of the notice not counted, and the last day is counted unless it is a Saturday, Sunday, or holiday (in which event the period runs until the end of the next day that is not a Saturday, Sunday, or holiday)” (Rule 60BB-5.006(1)). The claimant’s appeal is “filed” when postmarked if sent by mail, when received if faxed, and when a confirmation is electronically sent, if filed on line.

In practice, most notices of a determination or redetermination are mailed. The Agency does not use certified mail or return receipts, so independently-confirmed dates of delivery are not available. The Agency relies on the computer-generated “date mailed” on the form of notice, but in this and other cases the Agency has not established a postmark, business practice, or comparable evidence to establish that a notice was actually postmarked (or even placed in a United States Postal Service mail receptacle) on the “date mailed” printed on the notice. The notices are unsigned and bear no certificate of service indicating who placed them into the possession of USPS. Nor do these rules allow any additional appeal period days for the time during which the notice is in transit before it is actually received by the claimant. In Mr. Markham’s case, the “date mailed” shown on the notice of determination was Wednesday, November 26, 2008, the day before Thanksgiving. Whether or not the notice was actually postmarked that day, Mr. Markham’s actual time to prepare and file his appeal was probably 15 or 16 days rather than 20.

Jurisdictional Determination — No “Good Cause” Exception

The appeals to the Agency are administrative rather than judicial. “Good cause” exceptions, and a preference for resolving disputes on the merits rather than technicalities, are recognized in many types of judicial proceedings, but the Agency and Commission have consistently taken the position that an appeal not filed within the twenty day period is subject to dismissal on jurisdictional grounds. See Malary v. Brinker Inter’l Payroll, 898 So.2d 1184 (Fla. 3d DCA 2005).

In this case, the appeals referee asked Mr. Markham whether he actually received the adverse determination letter in the last week of November 2008, and Mr. Markham confirmed that he did. His appeal was indisputably faxed to the Office of Appeals at the Agency on December 22, 2008, making the appeal untimely (under the statute as interpreted, and rules promulgated, by the Agency) even if the actual postmark was a few days after the computer-generated “date mailed” shown on the notice.

Mr. Markham’s Reasons for Delay

The appeals referee did not allow the parties to testify regarding the merits of the employer’s allegations of misconduct (“failure to properly notify the employer of an absence”). Instead, pursuant to the Agency’s Rule 60BB-5.007(2), the timeliness of Mr. Markham’s appeal was taken up as the first issue, and his appeal was then dismissed:

The appeals referee shall take evidence on and consider the issue of timeliness of the appeal first. If the referee finds that the appeal was not filed within the time allowed by law, it shall be dismissed. The dismissal decision shall be limited to findings of fact and conclusions of law with respect to the timeliness issue.

Mr. Markham did testify under oath, however, about the problems he had to address in order to get his appeal filed twenty-six days after the “date mailed” on the Agency’s computer-generated notice. After Mr. Markham explained his difficulties in understanding the notice, the appeals referee asked him why he didn’t visit the Agency for Workforce Innovation for an explanation:

Mr. Markham: It’s almost like — when you go there, ma’am, if you don’t know how to use a computer, it’s like you’re on your own, anywhere in Miami, Florida, you know, they don’t have a place that you can just walk in and somebody’s going to help you. That’s why — it’s just like that’s why I’m talking to you now. I don’t have an office that I can go to and explain to a person face-to-face. Everything is on a computer, and if you don’t know how to use a computer, you’re illiterate in this world these days. So that’s why, you know, I’m behind times. That’s what it is. I don’t know how to use a computer, and if you go to the Workforce, if you don’t know how to use a computer, there ain’t nobody going to help you. That’s the honest to goodness truth. They don’t have time to explain to you how to use the computer. Appeals Referee: So you’re saying at the Workforce there is no one there that can help you—
Mr. Markham: They have people there, ma’am, but it’s too many people be there. They don’t have time to explain to me how to use the computer, you know. I’m on my own. That’s why I did it the way I did it the first time, because I didn’t know how to use the computer and, you know, you just can’t get on something and go and do it and think you’re doing it right. You know, it wouldn’t be right to do that.
Appeals Referee: Well, there is also a number there, an 800. It says “Call 800-204-2418 with any questions about this claim.” Did you try calling that number there, the Workforce—
Mr. Markham: You know, like I called numbers and, you know, I just did the best I could, ma’am. I’m just glad that I’m talking to you now because, you know, it takes two or three months to even talk to somebody really, you know, there. You know, you can’t catch an MTA bus if you don’t have money.

No Prejudice to the Employer or Agency

In this case, there is no indication that the employer or Agency would have been prejudiced in any respect if the appeal period had been thirty days rather than twenty, or if the appeal time ran from actual receipt rather than the computer-generated date on the notice. Indeed, because the initial determination in favor of the employer precluded the payment of any further benefits, Mr. Markham was the party prejudiced by the additional time he used in preparing and filing his appeal.

Conclusion

“Judicial restraint” does not require us to passively watch as unrepresented, unemployed claimants lose their appeals on technicalities. I encourage the Legislature to add additional time to the claimants’ appeal period, and I encourage the Agency to promulgate an amended rule that uses the actual postmark date and a signed certificate for the “date mailed” rather than the less reliable and more anonymous computer-generated date on the notice. These modifications may not change the result for Mr. Markham, but they may allow others who follow to reach the merits of their claims. That said, I concur in affirming the Commission’s order in this case.

      . The Commission has correctly noted that the same rules apply to employers. The effect, of course, is different. If the Agency denies an award of benefits to a former employee after an initial determination of eligibility, the employer does not pay the benefits (though the employer’s unemployment taxes may later increase). The employer still has its business. The employee is newly unemployed and is trying to multi-task his or her way through applications and interviews for a new job, the adverse financial effects of the denial of benefits (which may include eviction or foreclosure, repossession of an automobile, and loss of health insurance), and the mental/emotional aspects of being out of work. The employer appealing a grant of benefits may have available a human resources professional, an attorney, computers to permit online filing, and prior experience with the Agency rules. Employee claimants appealing the denial of benefits often have none of these.

      . For example, a concurring opinion in another District Court case recently encouraged the Legislature to consider amending a different statute. Polanco v. Cordeiro, — So.3d -, 35 Fla. L. Weekly D2098 (Fla. 2d DCA Sept. 22, 2010).

      . Signed, dated certificates of mailing are used for orders issued by the Office of Appeals and the Commission. Only the first level of administrative determinations and redetermi-nations by the Agency lack such a certificate and signature.


text:
      NEXT FILTRATION TECHNOLOGIES, INC., etc., Appellant, v. MELSTREAM INDUSTRIES, INC., et al., Appellees.
    No. 3D09-2930.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Davis & Giardino and Wayne T. Hriv-nak, West Palm Beach; Weiss, Handler, Angelos & Cornwall and William J. Berger, Boca Raton, for appellant.
    Stephen E. Tunstall, Miami, for appel-lees.
    Before GERSTEN, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Next Filtration Technologies, Inc. (“Next Filtration”) appeals from summary judgments entered in favor of Luis M. Perez (“Perez”) and Melstream Industries, Inc. (“Melstream”). We affirm the Perez judgment, and dismiss the appeal from the Melstream judgment.

First, we find that Next Filtration’s claims against Perez are barred by the economic loss rule. See Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So.2d 74 (Fla. 3d DCA 1997). Thus, the trial court properly entered summary judgment in favor of Perez.

Next, the record reveals that several claims against Melstream, as well as Mel-stream’s counterclaim against Next Filtration, remain pending below. These claims are interrelated with the claims resolved by the partial summary judgment. Therefore, this Court lacks jurisdiction to review the partial summary judgment in favor of Melstream. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974).

Accordingly, we affirm the judgment entered in favor of Perez, and dismiss, without prejudice, the appeal from the partial summary judgment granted to Melstream.

Affirmed in part, and dismissed in part.


author: WELLS, Judge.

text:
    Olga MARRERO, Appellant, v. HIALEAH CLUB VILLAS CONDOMINIUM ASSOCIATION, INC., and Unlimited Property Management, LLC, Appellee.
    No. 3D09-3299.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    John H. Ruiz, Miami, for appellant.
    Cole Scott & Kissane, Gene P. Kissane and Daniel J. Klein, Miami, for appellee Hialeah Club Villas Condominium Association; Perez & Rodriguez, Javier J. Rodriguez, Coral Gables, and Johanna Castel-lon-Vega for appellee Unlimited Property Management.
    Before WELLS, CORTINAS, and SALTER, JJ.
   WELLS, Judge.

We affirm dismissal of the instant action for failure to prosecute. The action was filed in September of 2007 with the last record activity on October 3, 2008. On August 5, 2009, the defendants filed and served a notice on counsel for the plaintiff that it appeared on the face of the record that no activity had occurred for a period of ten months and that no stay had been entered and that if no such record activity occurred within sixty days, the defendants or the court below would move for dismissal pursuant to Florida Rule of Civil Procedure 1.420(e). On October 27, 2009, more than sixty days later, the defendants moved to dismiss because no record activity had occurred within the past year. Although the action was not at issue and ready to be tried, on November 3, the day on which defendants’ motion to dismiss was heard, the plaintiff filed a notice to set this matter for trial. That same day the motion to dismiss was granted.

We affirm the dismissal because no record activity occurred within a year and because no good cause was demonstrated. See Fla. R. Civ. P. 1.420(e).

Affirmed.

      . Rule 1.420(e) provides:
      (e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.


text:
    Felix Enrique HIDALGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-227.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Felix Enrique Hidalgo, in proper person.
    Bill McCollum, Attorney General, and Lunar Alvey, Assistant Attorney General, for appellee.
    Before WELLS and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Appellant’s Rule 3.800(a) motion alleges entitlement to additional credit for time served. We reverse and remand for a hearing or the attachment of records conclusively showing that the appellant is not entitled to that relief. See Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2007).


text:
    K.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-397.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before GERSTEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Williams v. State, 957 So.2d 595 (Fla.2007).


text:
    M.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-557.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    M.S., a juvenile, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, WELLS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See D.S.H. v. State, 323 So.2d 292 (Fla. 3d DCA 1975).


text:
    John MARSHALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1913.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    John Marshall, in proper person.
    Bill McCollum, Attorney General, and Lunar Alvey, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   PER CURIAM.

We reverse the order denying defendant’s post-conviction relief motion. The defendant should have been allowed to amend his motion to assert that the record shows that he is entitled to the credit for time served. The scoresheet attached to the order of May 20, 2010, does not address the question of credit for time served. If the court again denies the motion, it shall attach portions of the record demonstrating that the defendant is not entitled to the relief he seeks.

Reversed and remanded.


text:
    BROWNCORP CONSTRUCTION CONTRACTING, INC., Petitioner, v. STONEYBROOK SOUTH COMMUNITY, etc., et al., Respondents.
    No. 5D10-2583.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2010.

      Margaret A. Wharton and S. Ann Wilson of Wharton Law Group, P.A., Oviedo, and Patrick C. Crowell of Patrick C. Cro-well, P.A., Orlando, for Petitioner.
    Douglas M. Smith, Wesley S. Haber, Lynn S. Small and Darby K. Scott of Hopping Green & Sams, P.A., Tallahassee, for Respondent, Stoneybrook South Community Development District.
   PER CURIAM.

Browncorp Construction Contracting, Inc., seeks certiorari review of an order entered by the Circuit Court in and for Osceola County, which denied Browncorp’s Motion to Consolidate Osceola County case numbers 2010-CA-000914 and 2008-CA-000725. The two foreclosure cases have at least twelve parties in common and involve the same property, as well as common issues, including a lien priority issue. Consolidating the two cases would eliminate duplicative efforts and trials, thus accelerating the trial process. See State Farm Fla. Ins. Co. v. Bonham, 886 So.2d 1072, 1074 (Fla. 5th DCA 2004). Consolidation would also eliminate the risk of inconsistent results on the issues that are common to the cases, a harm for which the involved parties would not have adequate remedy on plenary appeal. Therefore, we find certiorari relief is warranted and the order of the lower court is quashed. The matter is remanded to the lower court for entry of an order of consolidation.

PETITION GRANTED; ORDER QUASHED and REMANDED.

LAWSON, COHEN and JACOBUS, JJ., concur.


text:
    Kevin F. MacLEOD, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-1992.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2010.
    Kevin F. MacLeod, Daytona Beach, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence rendered in case nos. 2007-CF-1905, 2008-CF-1813, 2009-CF-1188 and 2009-CF-1273, in the Circuit Court in and for Hernando County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, LAWSON and EVANDER, JJ., concur.


text:
    William C. BAXTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3402.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2010.
    William C. Baxter, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the dismissal of William Baxter’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. However, Baxter correctly observes that the judgment and sentence incorrectly refers to his conviction for possession of a firearm while engaged in a criminal offense as a first-degree felony when it is actually a second-degree felony. On remand, the trial court shall correct the judgment. Resentencing is not necessary.

AFFIRMED and REMANDED.

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    Laura SWEET, Appellant, v. HSBC BANK, N.A., etc., Appellee.
    No. 3D10-314.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2010.
    David S. Cohen and Jose L. Benson, Winter Park, for appellant.
    Butler & Hosch, Dennis W. Moore, and Thomasina F. Moore, for appellee.
    Before GERSTEN, SUAREZ and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See § 90.902(4), Fla. Stat. (2009); Fla. R. Civ. P. 1.120(c), 1.140(b).


text:
    U.S. ALLIANCE MANAGEMENT CORP. d/b/a U.S. Security, Appellant, v. ROSCIOLI INTERNATIONAL, INC., Appellee.
    No. 3D10-671.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2010.

      Michael William Skop, for appellant.
    Doumar, Allsworth, et al., and Karey L. Bosack Greenstein, Fort Lauderdale; Nancy Little Hoffman, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


author: KHOUZAM, Judge.

text:
    Francisco TELLO-LUGO, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4770.
    District Court of Appeal of Florida, Second District.
    Nov. 24, 2010.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Francisco Tello-Lugo appeals his judgments and sentences for three counts of lewd or lascivious battery on a child older than twelve but less than sixteen years of age. Tello-Lugo contends that the trial court erred in denying his motion for mistrial after the alternate juror was present during deliberations. We agree and reverse and remand for a new trial.

The record reflects that the trial court instructed the jurors to retire to the jury room to begin deliberations. The court then discharged the alternate juror. After approximately five minutes, the court received a note from the jury asking if the jurors could review a video recording that was played during the trial. The video equipment took around ten to fifteen minutes to set up. When the jurors entered the courtroom to watch the videotape, the court noted that the alternate juror was still present. The bailiff asked, “She wanted to stay, Judge, is she allowed?” The court informed the alternate that she had to stay in the courtroom and was not allowed to converse with the jurors.

Defense counsel moved for a mistrial, arguing that the alternate juror was in the jury room while the jury was deliberating. The alternate juror was asked if she had participated in the jury deliberations. She stated that the jurors had been “talking about everything that happened” and were “speculating and things like that.” She admitted that she had been “listening and talking.” The trial court denied the motion for mistrial.

Florida Rule of Criminal Procedure 3.280(a) provides that “an alternate juror who does not replace a principal juror shall be discharged at the same time the jury retires to consider its verdict.” This rule is mandatory, not permissive. Berry v. State, 298 So.2d 491, 492 (Fla. 4th DCA 1974). Therefore, a defendant is entitled to a mistrial upon timely motion when an alternate juror is present during jury deliberations. Ludaway v. State, 632 So.2d 732, 733 (Fla. 1st DCA 1994). This rule applies when the alternate juror is present after the jurors begin discussion of the case, and not when the alternate is “present only during the time the jury engages in organizational activity such as taking breaks, making phone calls, or electing the foreperson and the case is not discussed in his or her presence.” Bouey v. State, 762 So.2d 537, 540-41 (Fla. 5th DCA 2000) (finding that a harmless error analysis is appropriate if the alternate juror is present only during limited organizational activity).

Because the alternate juror admitted that she was present while the jurors were discussing the case, the trial court should have granted Tello-Lugo’s motion for a mistrial. Accordingly, we are compelled to reverse and remand for a new trial.

Reversed and remanded for a new trial.

WHATLEY and DAVIS, JJ., Concur.


text:
    INDUSTRIAL VIDEO TECHNOLOGIES, INC., Appellant, v. The TRAVELERS INDEMNITY COMPANY f/k/a Gulf Insurance Company, and Global Technical Solutions, Inc., Appellees.
    No. 4D09-672.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.

      Evan B. Plotka of Evan B. Plotka, P.L., Coral Springs, for appellant.
    June Galkoski Hoffman of Fowler White Burnett P.A., Fort Lauderdale, for appel-lee The Travelers Indemnity Company f/k/a Gulf Insurance Company.
    No appearance for appellee Global Technical Solutions, Inc.
   PER CURIAM.

Appellee Travelers acknowledges that the circuit court, pursuant to Florida Rule of Civil Procedure 1.540(a), should have reissued its order denying the appellant’s motion for rehearing so that the appellant could pursue a timely appeal of the circuit court’s final order of dismissal and the court’s order denying the appellant’s motion for rehearing. We therefore treat as timely the appellant’s appeal of those two orders. Having considered the merits of the appeal of those two orders, we affirm the orders without further comment.

Affirmed.

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


text:
    Judy A. RODRIGO, Appellant, v. JP MORGAN CHASE NATIONAL ASSOCIATION, Appellee.
    No. 4D10-1787.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.
    James A. Bonfiglio, Boynton Beach, for appellant.
    Jeffrey T. Kuntz, Thomas H. Loffredo and Ronald J. Tomassi of Gray Robinson, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant appeals a non-final order granting her motion to restore possession of her home but with the condition that she turn on the water and air conditioning to her unit. During the hearing on appellant’s motion to restore possession of property, appellant’s counsel agreed to these conditions. Having invited the alleged error, appellant cannot now be heard to complain. See Held v. Held, 617 So.2d 358, 860 (Fla. 4th DCA 1993) (“A party cannot claim as error on appeal that which he invited or introduced below. That is, he cannot take an inconsistent position on appeal.”) (citations omitted). Accordingly, we affirm on this issue.

Appellant also seeks to appeal a non-final order denying her motion for relief, which added as an additional condition that the appellee bank may enter the property with her permission. A non-final order denying a motion for relief from a non-final order is not renewable on appeal. See Hi-Tech Mktg. Grp., Inc. v. Thiem, 659 So.2d 479 (Fla. 4th DCA 1995); Bennett’s Leasing, Inc. v. First St. Mortg. Corp., 870 So.2d 93 (Fla. 1st DCA 2003). Accordingly, we dismiss the appeal as to the order denying the motion for relief.

Affirmed in part and dismissed in part.

HAZOURI, CIKLIN and LEVINE, JJ., concur.


author: FARMER, J.

text:
    Harry DEMOS and Alexandria Demos, Appellants, v. LANDMARK AT HILLSBORO CONDOMINIUM ASSOCIATION INC., Appellee.
    No. 4D09-2007.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.
    Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, for appellants.
    Jay Steven Levine of Jay Steven Levine Law Group, Boca Raton, for appellee.
   FARMER, J.

A condominium association sued the joint owners of a unit for an injunction to enforce rules relating to the rental of units. The owners are not married to each other and there is evidence they live at different residences in Chicago. The association attempted service of process on both at the same address. Both moved to quash service, each arguing that the association had failed to plead long arm jurisdiction properly to make process effective, and that the service itself was also defective. The trial court denied their motions. We affirm as to him and reverse as to her.

We agree that the complaint sufficiently pleaded personal jurisdiction over both defendants by alleging that they owned the unit. The long arm statute authorizes personal service outside the state on “[a]ny person, whether or not a citizen or resident of this state” for a cause of action arising from “owning ... real property within this state.” § 48.193(l)(c), Fla. Stat. (2010). The bare allegation of ownership of the unit is enough to bring them within the jurisdiction of the court without further alleging where each resides. See Fla. R. Civ. P. 1.070(h) (it is sufficient to plead the basis for service in the language of the statute without pleading the facts supporting service); Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989).

As for him, the process server’s return on service states that he was personally served at the address shown on the summons and that he confirmed that fact by pointing to his name on the summons. The summons included an alleged alias for him, which use he denied in an affidavit. He argues the return on service is therefore defective. But the summons and return both include the name by which he admits he is known. The inclusion of an alleged alias is immaterial to the validity of service or the return. No evidentiary hearing as to service on him was required to decide his motion to quash service.

As for her, there is an evidentiary problem requiring a hearing, which the Association now concedes. The process server’s affidavit states that service was made at her “usual place of abode” by delivering it to a co-resident. Her affidavit states that she had not lived at that address for over 30 years and had not been a co-resident with him for over 13 years. If that was not her usual place of abode, she could not be served there by delivering the summons to a resident at that address. Only after an evidentiary hearing can the trial judge resolve that factual conflict.

The final judgment is reversed as to her and the case remanded for further proceedings consistent with this opinion. It is affirmed as to him.

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


text:
    Matthew T. WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2117.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Defendant was sentenced in February 2007 to 24 months probation. Five months later defendant was sentenced by another court in a different circuit on an existing unrelated charge to 36 months in prison. That sentence was expressly designated as concurrent to the probation imposed in February.

In March 2009, the State filed an affidavit of violation of probation (VOP) alleging that defendant refused to take a drug test two days earlier, on March 4th. Defendant moved to dismiss the VOP on the grounds that the court had no jurisdiction to consider the charge because both the alleged violation and the filing of the formal charge occurred after the period of probation had completely lapsed. The trial judge denied the motion and adjudicated him guilty of the violation. We reverse.

We confront a legal issue of jurisdiction. We are called upon to consider an alleged VOP committed and charged only after the probationary period had already ended. Defendant is correct that his plea did not waive this jurisdictional issue.

The 24 month period of probation ended in February 2009. The VOP charge was not committed or filed until March 2009. By statute it is settled that “upon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed.” § 948.04(2), Fla. Stat. (2009); see also Carroll v. Cochran, 140 So.2d 300, 301 (Fla. 1962) (violation of probation must be set in motion before the end of the period of probation). The allegation of VOP here sought the revocation of the probation and a new sentence on the charge for which the probation was originally imposed and had already ended. A probation that has already ended by operation of law cannot be later “revoked”.

The State argues that the period of time during which he was confined on the unrelated charge should be tolled — i.e., not be counted as time served on probation. Nothing in the record suggests that the offense for the unrelated charge was committed after the sentence of probation was imposed. Also plainly he had already commenced serving the probation six months earlier when he was sentenced later on the unrelated charge.

Even more important, the sentencing judge in the later case explicitly made that imprisonment concurrent to the probation, not consecutive to it. To deem the period of probation tolled while he served time on the unrelated charge would, in effect, make that confinement consecutive to probation, contrary to the actual sentence imposed.

The State has failed to cite statutory authority for the proposition that probation time already commenced cannot be counted whilst the offender is being confined on unrelated criminal charges elsewhere. In rejecting this argument we find analogous Bolden v. Florida Department of Corrections, 865 So.2d 1 (Fla. 1st DCA 2003). Bolden involved revocation of conditional release, rather than probation as here, and the issue concerned counting the time left on sentences of incarceration on other offenses after conditional release was violated and revoked. The State argued that, because of the conditional release violation, additional incarceration for that violation could not be counted against the sentences he was serving on related and unrelated charges. The court held that the statute governing conditional release makes no mention of “tolling or adding supervision time” for purposes of calculating a new release date. 865 So.2d at 4. Similarly, the statute governing probation makes no mention of tolling a probationary period that had already commenced because of the later imposition of sentence on an earlier unrelated offense, itself made concurrent with the probation.

We reverse the judgment and sentence and remand for the entry of judgment dismissing the VOP charge.

Reversed with instructions.

GROSS, C.J., and STEVENSON, J„ concur.

      . Defendant’s challenge to the trial court’s jurisdiction raises a jurisdictional question that is fundamental and capable of being raised for the first time on appeal. Otero v. State, 793 So.2d 1115, 1116 (Fla. 4th DCA 2001); Hebb v. State, 714 So.2d 639, 639-40 (Fla. 4th DCA 1998).

      . We distinguish this from a split sentence where the probationary period does not legally commence until the incarcerative part has been fully served.


author: MAY, J.

text:
    STATE of Florida, Appellant, v. Lavaress HOPKINS, Appellee.
    No. 4D09-1152.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Melntire, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellee.
   MAY, J.

The State appeals an order dismissing a juvenile case for battery on a detainee. The State argues the court erred in dismissing the charges. We agree and reverse.

The State charged the defendant with battery by a detainee in violation of sections 784.03 and 784.082, Florida Statutes (2009). The defendant filed a motion to dismiss, relying on T.C. v. State, 852 So.2d 276, 276 (Fla. 1st DCA 2008), and argued that “[a]n alleged battery occurring at the hands of a juvenile detained in the juvenile detention facility cannot under the law be charged as battery by detainee.” When the trial court asked the State for case law in opposition to the motion, the State did not provide any cases for the court.

Although the trial court disagreed with T.C., without having any case law to support the charge, the trial court felt compelled to dismiss the case. See Bunkley v. State, 882 So.2d 890 (Fla.2004); Pardo v. State, 596 So.2d 665 (Fla.1992). The trial court urged the State to appeal, which it has.

We have de novo review of this dismissal order. State v. Powell, 974 So.2d 586, 588 (Fla. 4th DCA 2008).

The trial court’s instinct was correct. Eleven years ago in J.A. v. State, 743 So.2d 601 (Fla. 4th DCA 1999), we affirmed a trial court order adjudicating a juvenile guilty of battery upon a fellow detainee. Similarly, in J.A.D. v. State, 855 So.2d 1199 (Fla. 5th DCA 2003), the Fifth District Court of Appeal reached the same conclusion. Unfortunately, the State did not provide the trial court with these opinions at the time of the hearing on the motion to dismiss. We therefore reverse and remand the case for reinstatement of the charges.

Reversed and Remanded.

POLEN, J., and GATES, MICHAEL L., Associate Judge, concur.

      . While the charge arose from a juvenile case, it was handled by a felony court judge.


text:
    Terry L. FREDRICKSON, Appellant, v. Gail M. FREDRICKSON, Appellee.
    No. 4D09-3608.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.
    Joshua D. Ferraro of the Ferraro Law Group, PL, Stuart, for appellant.
    Lisa D. Harpring, Vero Beach, for ap-pellee.
   PER CURIAM.

The husband appeals an order denying his petition for modification of alimony. We affirm, as competent substantial evidence supports the trial court’s conclusion that even if the husband sustained a decrease in income, the change was not permanent or involuntary. We find no error in the court’s treatment of business reimbursements, nor is the husband’s combined support obligation excessive. The husband also challenges an order requiring .him to pay the wife’s attorney’s fees and costs. Because the amount has not yet been set, this issue is not ripe for review. See Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994); Trisotto v. Trisotto, 966 So.2d 986 (Fla. 5th DCA 2007). Accordingly, we dismiss this portion of the appeal as premature.

Affirmed in part; dismissed in part.

HAZOURI, CIKLIN and LEVINE, JJ., concur.


text:
    Carlos Jose CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-158.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.
    Carlos Jose Cruz, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order denying appellant’s rule 3.850 motion is summarily reversed. See, e.g., Terry v. State, 970 So.2d 863 (Fla. 4th DCA 2007); Dieudonne v. State, 958 So.2d 516 (Fla. 4th DCA 2007); Smith v. State, 956 So.2d 1266 (Fla. 4th DCA 2007). The trial court denied the motion based solely upon the state’s response to a rule 3.800(a) motion to correct an illegal sentence. The response to a completely different motion and the records attached to that response do not address or refute the claims raised in appellant’s rule 3.850 motion. This case is remanded for the trial court to follow the procedures set forth in rule 3.850(d) and Spera v. State, 971 So.2d 754 (Fla.2007).

Reversed and remanded.

POLEN, HAZOURI and LEVINE, JJ., concur.