text:
    Jose CACERES-ABREU, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-843.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and, Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Edward HAMM, Emerald Eberhardt, Melanie Magaoay, Jeffrey Whitting-ton, Jr., Tyler Walter, Kristopher Hayes, Todd Tenny, Dontay Hudson, Samantha Wright, Linda Chacon, Jessica Houge, Timothy Edwards, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D12-968, 5D12-1093, 5D12-1148, 5D12-1149, 5D12-1150, 5D12-1151, 5D12-1152, 5D12-1153, 5D12-1154, 5D12-1155, 5D12-1202, 5D12-1203.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

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

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

TORPY, PALMER, and JACOBUS, JJ., concur.


text:
    William RICHARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1088.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

ORFINGER, C.J., SAWAYA and COHEN, JJ., concur.


text:
    Anthony LUTHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1138.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    Caesar Daniel TROSO, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1172.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.

      Keith F. Szachacz, Kepler B. Funk and Alan S. Diamond, of Funk, Szachacz & Diamond, LLC, Melbourne, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012)'; State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    Amy McDONALD, Jacob Lamay, Robin Butler, Neville Durant, Kewandra Carmouche, Dana Cook, Darren Donovan, Didier Dorvil, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D12-1576, 5D12-1577, 5D12-1578, 5D12-1579, 5D12-1585, 5D12-1586, 5D12-1588, 5D12-1712.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

TORPY, PALMER, and JACOBUS, JJ., concur.


text:
    Martin MAZZARELLA, Alisha Stowers, Rochelle Williams, Lisa Tennaro, Cornelius Evans, Tara Farley, David Lee, Leander Jones, Andrew Surina, Michelle Shell, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D12-1729, 5D12-1735, 5D12-1738, 5D12-1783, 5D12-1790, 5D12-1908, 5D12-1911, 5D12-1919, 5D12-1920, 5D12-1921.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    Celeste Renee SMILEY, Eric W. Spei-gle, Benjamin Chavis, Terry L. Williams, Jason Dailey, Nicholas Boyer, Eric Waldo, Dwayne Brown, Jessica McDonald, Joseph Huebner, William Bryant, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D12-1748, 5D12-1838, 5D12-1839, 5D12-2006, 5D12-2007, 5D12-2026, 5D12-2072, 5D12-2073, 5D12-2077, 5D12-2088, 5D12-2136.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    John COURTNEY, Douglas Dutra, Ava Jackson, Michael Sumner, Robert Towler, Tammy Smock, Sandra Harris, Anthony Willis-Viera, Jesse Williams, Carlos Vicente-Abad, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D12-1922, 5D12-1930, 5D12-2029, 5D12-2030, 5D12-2031, 5D12-2033, 5D12-2034, 5D12-2035, 5D12-2049, 5D12-2051.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur. •


text:
    Arthur Sherron WILLIAMS Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2015.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    Isaac HOLDER, Jr., Joseph A. Galletta, Mark Flowers, Eric Elmore, Kenneth Davis, Chad Caudill, Robert Stuckert, Jr., Rashad Green, Herbert Sharp, John Howes, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D12-2053, 5D12-2054, 5D12-2079, 5D12-2080, 5D12-2081, 5D12-2082, 5D12-2084, 5D12-2085, 5D12-2091, 5D12-2258.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    Jane BROOKS, Kevin Washington, Erica Jenkins, Tiffany Staines, Jenis Pegues, III, Michael Schaller, Edward Paschal, Jr., Timothy Bell, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D12-2260, 5D12-2263, 5D12-2265, 5D12-2267, 5D12-2269, 5D12-2271, 5D12-2287, 5D12-2404.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    William RUIZ-VALENTINE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2364.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 2012.
    William Ruiz-Valentine, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and, Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

SAWAYA, LAWSON, and BERGER, JJ., concur.


text:
    Donald Stephen FLEWELLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4983.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2012.
    Donald Stephen Flewellen, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals an order summarily denying his rule 3.800(a) motion to correct illegal sentence. We reverse.

The defendant was on probation for two second-degree felonies when he allegedly violated his probation. Pursuant to a negotiated agreement, the defendant admitted to the violation in exchange for a sentence of twenty-five years in prison. The waiver of rights form indicated that the maximum sentence was thirty years. The sentencing document for both counts I and II reflects a sentence of twenty-five years, concurrent.

The defendant filed a rule 3.800(a) motion. The motion essentially advanced two distinct claims: (1) the scoresheet included one too many prior DUI with serious bodily injury offenses, for which he was assessed nine additional points; and (2) the twenty-five year sentence for each second-degree felony exceeded the fifteen-year statutory maximum for each count.

The State responded and the trial court found that any scoresheet error was harmless because the defendant was sentenced pursuant to a valid plea agreement, providing for a twenty-five-year sentence. The trial court also found the twenty-five-year sentence was not illegal because the defendant could have been sentenced to an aggregate sentence of up to thirty years for the two second-degree felonies. We find merit in the defendant’s second argument.

“General sentences on multiple convictions are improper.” Durant v. State, 763 So.2d 1157, 1158 (Fla. 4th DCA 2000). “A sentence which exceeds the statutory maximum is an illegal sentence, and an illegal sentence cannot be imposed even as part of a negotiated plea agreement.” Wheeler v. State, 864 So.2d 492, 492 (Fla. 5th DCA 2004) (citations omitted). “A sentence can exceed the statutory maximum, but only if the lowest permissible sentence under the sentencing code exceeds the statutory maximum.” Id.

Here, the concurrent twenty-five year sentences imposed for each count exceeded the fifteen-year statutory maximum for the second degree felonies. Id. The sentence is therefore illegal and must be corrected.

We therefore reverse the sentence and remand for the trial court to correct the sentences so that neither exceeds the statutory maximum. The trial court may impose consecutive sentences in such a way that the plea agreement is effectuated, so long as neither sentence exceeds the statutory maximum and the cumulative total does not exceed the original twenty-five year sentence. See Tilley v. State, 871 So.2d 294, 295 (Fla. 5th DCA 2004); Everett v. State, 824 So.2d 211, 213 (Fla. 1st DCA 2002); Norton v. State, 731 So.2d 762, 763 (Fla. 4th DCA 1999).

Reversed and Remanded.

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

      . Although we cannot determine from the record provided whether the defendant’s argument concerning the scoresheet error has merit, even if the appellant is correct it is harmless, as using consecutive sentences the trial court can achieve the same sentence.


text:
    Derrick SEPP, Appellant, v. Kenneth S. TUCKER, Secretary, Department of Corrections, Appellee.
    No. 1D12-2839.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2012.
    Derrick Sepp, pro se, Appellant.
    No Appearance for Appellee.
   PER CURIAM.

DISMISSED. See Milord v. Parole Comn., 4 So.3d 762 (Fla. 1st DCA 2009) (J. Browning concurring); Parker v. McNeil, 9 So.3d 761 (Fla. 1st DCA 2009).

BENTON, C.J., LEWIS, and ROWE, JJ., concur.


author: LEWIS, J.

text:
    GOMEZ LAWN SERVICE, INC. and Eugenio Gomez, Appellants, v. THE HARTFORD, Appellee.
    No. 1D12-0302.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2012.

      Bram J. Gechtman of the Law Offices of Bram J. Gechtman, P.A., Miami, for Appellant.
    Eugenio Gomez; Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant Gomez Lawn Service, Inc.
    William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellee.
   LEWIS, J.

In this workers’ compensation appeal, Appellants challenge an order of the Judge of Compensation Claims (JCC) that bars Eugenio Gomez’s (Claimant’s) petition for benefits, based on the JCC’s interpretation of section 440.185, Florida Statutes (2010). Because the JCC erred in continuing his analysis after finding that Claimant gave notice of his accident to his Employer within thirty days of the accident, we reverse.

BACKGROUND

The relevant facts are not in dispute. Claimant, along with his wife, are the owners of Gomez Lawn Service, Inc. (Employer), a Florida corporation. Claimant is president of the corporation and his wife is the corporate secretary. Mrs. Gomez acts as the chief operating officer, handling all the business details. Claimant and his brother perform the services provided by the corporation and are also paid as employees of the Employer. Claimant did not elect to exempt himself from the provisions of chapter 440, as he is empowered to do by section 440.02(15)(b)l., Florida Statutes (2010).

On July 13, 2010, Claimant was traveling in a company-owned vehicle from one job site to another when he was involved in a motor vehicle accident that resulted in cervical and lumbar injuries. When Mrs. Gomez was notified of the accident, she reported it to the Employer’s motor vehicle insurer, which opened a personal injury claim under the personal injury protection (PIP) provisions of the policy. Claimant’s medical treatment throughout the summer and fall was provided under the PIP insurance. Claimant’s treating neurologist advised Claimant in August that objective evidence of a disk herniation at L5/S1 had been discovered and that surgery was an option. Thereafter, Claimant underwent a series of injections.

In November, with the PIP benefits reaching their limit and the possibility of surgery looming, Mrs. Gomez consulted an attorney. As a result of that consult, Mrs. Gomez notified the Employer’s workers’ compensation carrier, The Hartford (Carrier), of the claim on approximately December 1, 2010. On January 26, 2011, when the Carrier failed to activate a claim, Claimant filed a petition for benefits. The Carrier denied the claim, citing lack of timely notice pursuant to section 440.185, Florida Statutes (2010).

In the final order, the JCC denied and dismissed the claim, finding that Claimant and the Employer were in effect the same party and did not notify the Carrier of the injuries until approximately ninety days after the accident. The JCC reasoned that, because Claimant “pursued a course of treatment and received a diagnosis that could lead to more extensive medical care including surgery,” it was “necessary to determine if the exceptions in Section [440.185(l)](b) or (d) of the Statute would apply and render effective the otherwise not timely notice.” The JCC concluded that, based upon his assessment of Mrs. Gomez’s testimony, “the nature, seriousness and probable compensable character of the event ... should have been apparent on the date of the accident and that notice 90 + days after the fact in this case is not reasonable and is untimely.”

ANALYSIS

When the facts are not in dispute, the JCC’s application of the law to those facts is reviewed de novo. See Airey v. Wal-Mart, 24 So.3d 1264, 1265 (Fla. 1st DCA 2009). When the issue is one of statutory interpretation, appellate review is de novo. See McKenzie v. Mental Health Care, Inc., 48 So.Sd 767, 768 (Fla. 1st DCA 2010). Section 440.185(1) provides that:

“An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under this chapter.... ”

Section 440.41(1), Florida Statutes (2010), provides that when the employer is not a self-insurer, “[njotice to or knowledge of an employer of the occurrence of the injury shall be notice to or knowledge of the carrier.”

The plain language of section 440.185(1), Florida Statutes (2010), the version of the operative statute based on Claimant’s date of accident, required Claimant to report his injury to his Employer within thirty days of its occurrence, and nothing more. See Germ v. St. Luke’s Hosp. Ass’n, 993 So.2d 576, 578 (Fla. 1st DCA 2008) (“When interpreting a statute, courts look first to the statute’s plain language. If the statute’s plain language is clear and unambiguous, courts should rely on the words used in the statute without involving rules of construction or speculating as to the legislature’s intent. Courts should give statutory language its plain and ordinary meaning and may not add words that were not included by the legislature.”) (citations omitted). Likewise, section 440.41(l)’s plain language imputes the Employer’s knowledge to the Carrier. Accordingly, once Claimant gave notice to the Employer, Claimant fully satisfied the notice requirement imposed by section 440.185(1). The JCC had no authority to read into section 440.185(1) a requirement that Claimant report the injury to the Carrier within thirty days. This Court’s reasoning in Bend v. Shamrock Services, 59 So.3d 153 (Fla. 1st DCA 2011), and McArthur v. Mental Health Care, Inc., 35 So.3d 105 (Fla. 1st DCA 2010), both have application here. In Bend, this Court explained:

We begin our analysis by asserting the necessary and oft-repeated premise that workers’ compensation is purely a creature of statute, and all rights and liabilities under the system are established by chapter 440, Florida Statutes. A JCC has only those powers expressly provided by statute and, conversely, has no jurisdiction or authority beyond that which is specifically conferred by statute and a court may not read into chapter 440 authority not granted to the JCCs. Significantly, nothing in chapter 440 allows a JCC to provide the remedy of voiding a policy ab initio; rather, a review of the comprehensive scheme contained within chapter 440 indicates the contrary.

59 So.3d at 156 (citations omitted). In McArthur, this Court declined to require the JCC to rule on the claimant’s claim that the E/C committed fraud, stating that “[a] JCC has only those powers expressly provided by statute.” 35 So.3d at 106-07. We concluded that “as the JCC recognized at the final hearing, had the Legislature intended to give the JCC the authority to sanction an E/C or its attorney for violating section 440.105, it could have easily done so as it did in section 440.09(4) for fraud by employees.” Id. at 107 (footnote omitted). Nothing in section 440.185 requires an injured employee to notify the carrier of an injury, nor does the section permit a JCC to deny entitlement to benefits if the carrier is not timely notified. Section 440.185(2) addresses an employer’s obligation to notify the carrier of a reported injury, requiring that notice to the carrier be provided by the employer within seven days.

The cases relied upon by the JCC and the Carrier are of no precedential value because they are distinguishable. The issues addressed in those cases either do not relate to statutory notice requirements or involve prior versions of the relevant statutory provisions. See Solar Pane Insulating Glass, Inc. v. Hanssen, 727 So.2d 961, 965 (Fla. 1st DCA 1998) (holding claimant/employer’s knowledge of continued use of corset would not be imputed to carrier for statute of limitations purposes); Leonard Elec. Co. v. Erskine, 634 So.2d 289, 290 (Fla. 1st DCA 1994) (holding evidence supported JCC’s excusal of claimant/employer’s failure to give timely notice of accident based on JCC’s finding that carrier was not prejudiced by late notice, an analysis then required by section 440.185(l)(a), Florida Statutes (1989) (repealed), without reference to section 440.41(1)); Vicki’s Styling, Inc. v. Moberg, 489 So.2d 194, 195 (Fla. 1st DCA 1986) (holding self-employed claimant/employer’s alleged “authorization” of medical treatment would not be imputed to carrier); Alphes Enters, v. Dean, 377 So.2d 791, 791-92 (Fla. 1st DCA 1979) (reversing judge’s finding that carrier had not been prejudiced by self-employed claimant/employer’s failure to give notice of injury within thirty days); Brent v. Brent, 107 So.2d 181, 181-82 (Fla. 3d DCA 1958) (affirming deputy commissioner’s denial of claim where employer, claimant’s husband, attempted to waive carrier’s statute of limitations defense). Hanssen, Moberg, and Brent addressed a claimant’s right to ongoing medical treatment; thus, they have no bearing in the initial notice of injury, or section 440.41(l)’s clear statement that notice of injury to the employer is notice to the carrier. Erskine and Dean address notice of injury issues; however, in each instance the version of section 440.185(l)(a) there at issue contained a caveat that an employee’s late notice would be excused if the judge found there was no prejudice to the employer or carrier. In Erskine (date of accident May 23, 1990), this Court affirmed the JCC’s finding that the carrier was not prejudiced. 634 So.2d at 290. In Dean, the date of the accident was not given, and the opinion does not specifically reference any statutory provision or year, but, it is noted that a version of section 440.185(1), identical to the 1990 version of section 440.185(1), was in effect between 1975 and 1979, and was likely at issue given the opinion’s release date of December 7, 1979. See 377 So.2d at 791-92.

The Legislature is not unaware of the fact that small corporations often have shareholders and corporate officers that also occupy the position of employee; indeed, the plain language of chapter 440 acknowledges as much. See § 440.02(15)(b), Fla. Stat. (2010) (defining employee as officer of corporation who performs services for remuneration); see also § 440.02(15)(b)2., Fla. Stat. (2010) (limiting number of corporate officers that can be exempted as non-employees under chapter 440). Nevertheless, the Legislature has not seen fit to implement within section 440.185 any specialized rules regarding notice where the employee has some ownership interest in the corporate employer. Although the potential variations of corporate ownership and control are legion (making any attempt to construct a court-made specialized notice rule for such circumstances unwieldy at its inception), it is axiomatic that it is the role of the Legislature, not this Court (and certainly not that of the JCC), to construct such specialized rules of law. Lest it be overlooked, the notice requirements imposed by section 440.185 are purely legislative edicts, and an injured employee who provides notice as required by the statute is not thereby excused from proving the merits of his case. Accordingly, although the plain language of section 440.185(1) might well have delayed the Carrier the notice it would have received had the Employer had other owners (of course, another owner might also have provided even more delayed notice, or the delay here might have indeed saved the Carrier money), to the extent this result is unfair, the resolution lies with the Legislature, not this Court.

The statutory penalty imposed upon an employer who fails to timely report injuries is as set out in section 440.185(9). By reading into the statute a requirement that Claimant must inform the Carrier of his injury within thirty days, the JCC, in effect, impermissibly created an equitable or non-statutory remedy. As this Court recently made clear, when employees’ rights to benefits and carriers’ rights to defenses “are founded on statutory and legal bases, there is no occasion (or allowance) for this court to graft onto an otherwise coherent statutory scheme, general equitable principles so as to permit non-legal (equitable) permutations of such rights. Equity will not act when there is a remedy at law.” Jackson v. Computer Science Raytheon, 36 So.3d 754, 756 (Fla. 1st DCA 2010).

The Carrier raised three jurisdictional/procedural arguments: (1) this Court lacks subject matter jurisdiction because the interests of the Employer and Carrier are identical; (2) the Employer lacks standing to file an appeal because the order is wholly favorable to it; and (3) the Employer did not preserve for appellate review its argument that the JCC erred in not applying section 440.185(9), Florida Statutes (2010). Addressing first whether this Court has subject matter jurisdiction, the Carrier’s argument that its interests were identical to the Employer’s interests lacks merit. There is no dispute that an employer’s interests may diverge from that of its carrier. See Hanssen, 727 So.2d at 965 (holding that when interests of employer and carrier are opposed, this Court will not treat employer as carrier’s alter ego) (superseded on other grounds). As the JCC noted, the “parties obviously recognized the divergent interests among the Employer and Carrier in this case because the Employer and the Carrier were represented by different counsel.” The Carrier’s denial of benefits created potential liabilities for the Employer; thus, the Employer’s interests, as recognized by the JCC, diverged from those of the Carrier. For example, an employer has a legal duty to provide workers’ compensation benefits to its employees. See § 440.10(l)(a), Fla. Stat. (2010) (“Every employer coming within the provisions of this chapter shall be liable for, and shall secure, the payment to his or her employees ... the compensation payable under ss. 440.13, 440.15, and 440.16.”). Failure to do so can subject the employer to a loss of certain defenses should the injured employee opt to file suit in circuit court on account of the accident. § 440.06, Fla. Stat. (2010) (“Every employer who fails to secure the payment of compensation, as provided in s. 440.10, by failing to meet the requirements of s. 440.38 may not, in any suit brought against him or her by an employee subject to this chapter to recover damages for injury or death, defend such a suit on the grounds that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his or her employment, or that the injury was due to the comparative negligence of the employee.”). The Employer’s interests were not identical to those of the Carrier. Indeed, under the plain language of section 440.10(l)(a), Florida Statutes (2010), the Employer, here a corporation, is liable to provide Claimant’s medical services and compensation, not the insurance carrier that collected a premium to provide those benefits.

Addressing standing next, it cannot be said that this order was wholly favorable to the Employer. A litigant has standing to seek review of an order that is at least partially adverse to its interests. See Franklin Life Ins. Co. v. Davy, 753 So.2d 581, 585 (Fla. 1st DCA 1999) (finding appellant was aggrieved in part by trial court’s limit of new trial to only damages where motion requested new trial on both liability and damages). The order here was at least partially adverse to the Employer, because, even though the Employer may benefit because its premiums would not be affected (because there was no loss to the Carrier), it has also been exposed to other liabilities and it remains liable for Claimant’s injuries. § 440.10(l)(a), Fla. Stat. (2010). Further, the Employer clearly expressed its position at the hearing that its employee should be covered under chapter 440. Because the Employer has standing to proceed with this appeal, Claimant’s notice of appeal and joinder were filed timely.

Addressing finally the preservation issue, the Carrier’s premise is inaccurate— the Employer is not asking the JCC to impose the remedy in section 440.185(9); accordingly, there was no need to “preserve” this argument in the traditional sense. The sole issue before the JCC, and the dispositive issue here, is whether the JCC properly applied section 440.185(1), Florida Statutes (2010), when he found Claimant/Employer failed to give the Carrier timely notice of the injury. Claimant made it clear that he believed that the notice requirements imposed by chapter 440 were satisfied when he provided timely notice to the Employer that he had sustained an injury. Reference on appeal to other statutory provisions in support of a party’s position on an issue is not the equivalent of raising a new issue. Just as parties may cite case law in their briefs in support of their position that often times was not put before the JCC, they may also cite other statutory provisions that lend support to their argument. The Employer is not requesting that the section 440.185(9) penalty be applied; indeed, the JCC has no authority to impose this penalty. Instead, the Employer is referencing that section in support of its argument that the JCC imposed an impermissible, non-textual penalty — one not found in section 440.185(1) — on Claimant. Because the issue in this appeal was submitted to the JCC, it was preserved for review by this Court.

Accordingly, this appeal is REVERSED and REMANDED for further proceedings consistent with this opinion.

THOMAS and SWANSON, JJ„ concur.


text:
    John Thomas BARROW, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1953.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2012.
    John Thomas Barrow, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the judgment and sentence rendered on December 7, 2010, in Duval County Circuit Court case number 2010-CF-009949. See Wofford v. State, 866 So.2d 774, 775 (Fla. 1st DCA 2004) (granting belated appeal to proceed as seeking review of the underlying judgment and sentence for which rendition was postponed pending order denying defendant’s timely motion to withdraw plea). Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

PADOVANO, THOMAS, and CLARK, JJ., concur.


author: WHATLEY, Judge.

text:
    Ivana ALTER, Appellant, v. Robert G. PAQUETTE, Appellee.
    No. 2D11-3816.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2012.

      Beverly L. Brennan, Naples, for Appellant.
    Phillip A. Roach, Bonita Springs, for Appellee.
   WHATLEY, Judge.

Ivana Alter appeals a final judgment of injunction for protection against repeat violence. We agree with Alter that the evidence did not support a finding that she committed acts of repeat violence as defined in section 784.046(2), Florida Statutes (2011), and we therefore reverse.

Section 784.046(2) allows a victim of repeat violence to petition the court for an injunction for protection. Repeat violence is defined as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.” § 784.046(l)(b). The statute defines violence as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(l)(a). To support the issuance of an injunction, the incidents of repeat violence must be proven by competent, substantial evidence. Singletary v. Greever, 62 So.3d 700, 702 (Fla. 2d DCA 2011).

Robert G. Paquette filed the petition for an injunction for protection against repeat violence alleging several incidents of violence directed toward him by Alter. However, at the hearing on the petition there was testimony regarding only two of the allegations. In his petition, Paquette alleged that Alter had violated a prior temporary injunction by approaching him and hitting him at a restaurant known as Pure on May 28, 2011. He testified at the hearing that he and his wife were smoking outside of the restaurant when, he noticed Alter across the street. Alter walked toward the entrance of the restaurant, “tapped” him on the shoulder as she walked by him, and went inside the restaurant. Paquette went inside the restaurant and while he was talking to the manager, Alter left the restaurant. Alter testified that it appeared that Paquette and his wife were leaving the restaurant when she and her friend arrived and that she neither spoke to nor touched Paquette as she and her friend entered the restaurant. When she realized that Paquette had entered the restaurant, she immediately left. We conclude that even if Paquette’s testimony that Alter tapped him on the shoulder as she entered the restaurant amounted to a battery, there was insufficient evidence establishing a second act of violence.

In his petition, Paquette alleged that Alter had sent him seven text messages demanding money in return for her promise to not tell his wife about the affair. At the hearing, Paquette testified regarding six text messages from Alter asking him to repay $10,000. Alter testified that she had loaned Paquette this money when they were looking for an apartment together and he had never repaid the money to her. Paquette contends that Alter’s text messages constituted stalking. We disagree.

A person is guilty of stalking when he or she maliciously, willfully, and repeatedly harasses another person. § 784.048(2). Harassment is defined as engaging “in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” § 784.048(l)(a). “In determining if an incident causes substantial emotional distress, courts use a reasonable person standard, not a subjective standard.” Slack v. Kling, 959 So.2d 425, 426 (Fla. 2d DCA 2007).

The case at bar is similar to Ravitch v. Whelan, 851 So.2d 271, 272-73 (Fla. 5th DCA 2003), in which the Fifth District held that there was insufficient evidence to suggest that the appellant’s request to his ex-girlfriend to repay money allegedly loaned to her during the course of the relationship was threatening, hostile or abusive conduct supporting the issuance of an injunction for protection against repeat violence. Here, Alter testified that the text messages concerned a loan she had made to Paquette, and Paquette testified that several messages asked him to repay money. As in Ravitch, because Alter testified that she was seeking the repayment of a loan, it cannot be said that the text messages served “no legitimate purpose.” See § 784.048(l)(a).

Accordingly, the evidence did not support the finding that Alter committed two acts of violence or stalking, and we therefore reverse the injunction for protection against repeat violence.

Reversed and remanded.

YILLANTI and KHOUZAM, JJ., Concur.

      . At the hearing on Paquette’s petition, Pa-quette admitted that he had been having an affair with Alter. Both Paquette and Alter testified that the affair had ended a few months before the petition was filed.


author: DAVIS, Judge.

text:
    J.P. MORGAN MORTGAGE ACQUISITION CORPORATION, Appellant, v. Gideon GOLDEN; Gilana D. Golden; any and all unknown parties claiming by, through, under and against the herein named individual defendant(s) who are not known to be dead or alive, whether said unknown parties may claim an interest as spouses, heirs, devisees, grantees, or other claimants; Mortgage Electronic Registration Systems, Incorporated, as Nominee for Coldwell Banker Home Loans; Spanish Oaks Homeowners Association, Inc.; Tenant #1, Tenant #2, Tenant #3, and Tenant #4 The Names Being Fictitious to Account for Parties in Possession, Appellees.
    No. 2D11-2997.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2012.

      Jeffrey M. Gano of Florida Default Law Group, P.I., Tampa, for Appellant.
    Leslie M. Conklin, Clearwater, for Ap-pellee Gideon Golden.
    No appearance for remaining Appellees.
   DAVIS, Judge.

J.P. Morgan Mortgage Acquisition Corporation appeals the trial court’s order awarding Gideon Golden attorney’s fees following the dismissal of its foreclosure complaint. J.P. Morgan argues that Mr. Golden was not entitled to the fee award because the complaint was dismissed and that the trial court erred in applying a 2.5 multiplier to the fee award. We affirm.

J.P. Morgan filed its complaint seeking to foreclose the mortgage on Mr. Golden’s residence in Pinellas County. Mr. Golden did not initially respond to the complaint, and a default was entered. Six months after the entry of the default, Mr. Golden retained attorney Leslie Conklin to represent him in the foreclosure action. Mr. Golden and Mr. Conklin signed a fee agreement by which Mr. Conklin agreed to undertake the representation on a contingency basis. That is, Mr. Golden was not obligated to pay any fee, and Mr. Conklin would receive a fee only if he was able to defeat the complaint and was successful in obtaining a fee award from the court.

After successfully setting aside the default, Mr. Conklin filed an answer and affirmative defenses on Mr. Golden’s behalf. In that pleading, Mr. Conklin prayed for attorney’s fees pursuant to section 57.105(7), Florida Statutes (2008), and the prevailing party provision of the note and mortgage. The prayer also requested sanctions against J.P. Morgan. Mr. Conk-lin was successful in obtaining a dismissal of the complaint on the grounds that J.P. Morgan had failed to give the proper notice of intent to foreclose as was required by the terms of the mortgage.

Upon the dismissal of the complaint, the trial court determined that Mr. Golden was entitled to an award of his attorney’s fees and to the imposition of a sanction. The trial court set a hearing for the determination of the amount of the award. Prior to the hearing, Mr. Conklin filed his affidavit detailing his time records and alleging that his normal fee for such cases was $300 an hour.

At the hearing, J.P. Morgan objected to Mr. Conklin’s claims that he reasonably had expended fifty hours in the litigation and that he was entitled to the application of a multiplier as provided in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990). Mr. Conklin testified as to both issues, and counsel for J.P. Morgan cross-examined him as to both, exploring whether some of the time entries were for matters reasonably required by the litigation. Counsel for J.P. Morgan also cross-examined Mr. Conklin as to the factors set forth in Quanstrom that should be considered when determining whether a multiplier — and more particularly a multiplier of 2.5 — should be applied to a fee award. See id. at 834.

Mr. Golden then presented expert witness David Levenreich, an attorney practicing in Pinellas County who does foreclosure defense representation. Mr. Levenreich testified that in his opinion Mr. Conklin’s fee of $300 per hour was reasonable, as was Mr. Conklin’s claim that he had expended fifty hours in the litigation. Mr. Levenreich further testified that Mr. Conklin was the only attorney in the area who would provide foreclosure defense representation on a contingency basis and that based on the Quanstrom factors, the 2.5 multiplier was appropriate. Counsel for J.P. Morgan cross-examined him on the Quan-strom factors, and the trial court took the matter under advisement.

Subsequently, the trial court issued its order finding that Mr. Conklin had reasonably expended fifty hours in providing the successful defense for Mr. Golden and that his hourly fee of $300 was reasonable. The court further found that the testimony presented supported the application of the 2.5 multiplier. The trial court ordered an attorney’s fee award of $37,500, half of which was to be paid by J.P. Morgan and half by its counsel. J.P. Morgan filed a motion for rehearing, objecting to the use of the multiplier and to the division of the fee award. The motion noted that Mr. Golden never pleaded for section 57.105(1) fees but rather only referenced section 57.105(7). In response to the motion, the trial court amended its order, awarding the same amount of fees but requiring that the entire fee be paid by J.P. Morgan.

On appeal, J.P. Morgan argues (1) that the trial court erred in awarding attorney’s fees pursuant to section 57.105(7) because Mr. Golden was not the prevailing party, (2) that the trial court erred in granting attorney’s fees without making the requisite findings of fact, and (3) that the trial court grossly abused its discretion in applying a 2.5 multiplier in this case. We affirm as to all three issues.

There was much discussion on the record and on appeal as to whether the trial court awarded the fees to Mr. Golden as the prevailing party or whether the fees were a sanction under section 57.105(1). Our review of the record indicates that Mr. Golden never asked for fees under subsection (1) of the statute, although he did ask for sanctions. The trial court’s initial order did suggest that the fees were awarded under that subsection in that J.P. Morgan’s attorney was ordered to pay half of the fees. Had the trial court not amended that order, it might be inferred that the trial court was entering such a fee award as a sanction on its own initiative, a procedure allowed by the statute. See § 57.105(1). However, when J.P. Morgan filed its motion for reconsideration pointing out that Mr. Golden had never sought fees under subsection (1), the trial court amended its order and placed total responsibility for the fee award on J.P. Morgan. Furthermore, the trial court did not make any findings that would suggest that the fees were based on section 57.105(1). On appeal, J.P. Morgan argues, and Mr. Golden concedes, that the award was not based on this subsection, and we agree.

The issue then becomes whether Mr. Golden is entitled to an award of his attorney’s fees under section 57.105(7) based on the provisions of the note and mortgage. The contract provisions provide that the mortgagee is entitled to its attorney’s fees upon prevailing in the action to enforce the note and mortgage. And section 57.105(7) provides that such contractual obligations must be read to be reciprocal. J.P. Morgan argues on appeal that Mr. Golden was not the prevailing party because the complaint was dismissed and could be filed again in a subsequent action. Specifically, J.P. Morgan maintains that there was not a determination made as to the merits of the lawsuit, only a dismissal for failure to comply with the conditions necessary to bring the suit. We do not agree.

“The refiling of the same suit after the voluntary dismissal does not alter the [mortgagor’s] right to recover prevailing party attorney’s fees incurred in defense of the first suit.” Bank of N.Y. v. Williams, 979 So.2d 347, 348 (Fla. 1st DCA 2008). As such, Mr. Golden, as the prevailing party in the instant case, is entitled to an award of attorney’s fees under the provisions of the note and mortgage.

J.P. Morgan attempts to distinguish Bank of New York, by pointing out that in that case the dismissal of the foreclosure complaint was based on a lack of standing while here J.P. Morgan’s complaint was dismissed for a failure to meet a condition precedent. We conclude that such is a distinction without a difference.

As to whether the trial court made the factual findings required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), we conclude that indeed the trial court did and that these findings are supported by competent, substantial evidence in the record. We therefore affirm as to this issue without further comment.

Finally, we also affirm the trial court’s use of a 2.5 multiplier. In Quan-strom, the Florida Supreme Court set forth the requirements that must be shown to support the application of a multiplier and the situations that determine what degree of multiplier should be applied. 555 So.2d at 834. There is testimony in the instant record to support the trial court’s finding that the conditions necessary to justify a multiplier of 2.5 existed in this case. See id. (“[I]f the trial court determines that success was unlikely at the outset of the case, it may apply a multiplier of 2.0 to 2.5.”). First, when Mr. Golden sought representation, he was divorced, out of work, and supporting three children. He had no ability to pay Mr. Conklin. Also, by the time he contacted Mr. Conklin, a default already had been entered and six months had passed. Because Mr. Golden did not have the ability to pay the mortgage and already had defaulted, it seemed unlikely that Mr. Conk-lin would have any way to succeed in defending Mr. Golden’s ownership rights. Furthermore, Mr. Golden’s expert witness testified that he knew of no other attorneys in the area who would undertake a mortgage foreclosure defense on such a contingency contract. These facts support the trial court’s findings that the Quan-strom requirements had been met. We therefore affirm the application of the 2.5 multiplier. See Bank ofN.Y, 979 So.2d at 348.

Affirmed.

NORTHCUTT and WALLACE, JJ„ Concur.

      . The confusion in this case arises from the fact that there were two mortgages on the subject property. J.P. Morgan did send a notice of intent to foreclose; however, it was in reference to the mortgage that was not contained in the complaint. The trial court determined that, as to the mortgage for which the complaint sought foreclosure, J.P. Morgan had not given the required notice and was thus barred from bringing the cause of action due to the failure to comply with a condition precedent.

      . Section 57.105(1) provides for attorney’s fees to be awarded as a sanction where “the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial ... [w]as not supported by the material facts ... or ... [w]ould not be supported by the application of then-existing law." Such an award is to be paid “in equal amounts by the losing party and the losing party's attorney.” Id. Subsection (7) of the statute, on the other hand, provides that “[i]f a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails.”

      . We note that if the trial court had awarded the attorney’s fees as a sanction pursuant to section 57.105(1), the use of the multiplier would have been improper. See Swortz v. S. Rainbow Corp., 603 So.2d 107, 108 (Fla. 3d DCA 1992).


text:
    STATE of Florida, Appellant, v. Vincent HALL, Appellee.
    No. 2D11-6322.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellee.
   PER CURIAM.

The order granting Vincent Hall’s motion to dismiss is reversed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

Reversed and remanded.

SILBERMAN, C.J., and WALLACE and BLACK, JJ., Concur.


author: SILBERMAN, Chief Judge.

text:
    Juan Carlos BORREGO, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5988.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2012.
    Ita M. Neymotin, Regional Counsel, Second District, and Robert D. Rosen, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Chief Judge.

Juan Carlos Borrego appeals his judgment and sentence for burglary of an unoccupied dwelling, grand theft, and obstructing or opposing an officer without violence. After entering a negotiated plea, Borrego was sentenced to ninety-six months in prison followed by ninety-six months of probation for burglary of an unoccupied dwelling, to a concurrent term of sixty months in prison for grand theft, and to time served for obstructing or opposing an officer without violence. Borre-go argues and the State concedes that the sentence for the second-degree felony of burglary of an unoccupied dwelling exceeds the statutory maximum of fifteen years and is illegal. See §§ 775.082(3)(c); 810.02(l)(b), (3)(b), Fla. Stat. (2010).

When a trial court imposes a sentence of incarceration followed by probation, the combined term cannot exceed the statutory maximum for the offense. Manning v. State, 961 So.2d 1135, 1136 (Fla. 2d DCA 2007); Gonzales v. State, 816 So.2d 720, 721 (Fla. 5th DCA 2002). A defendant cannot agree to an illegal sentence. Burgess v. State, 854 So.2d 754, 755 (Fla. 2d DCA 2003); Morales v. State, 712 So.2d 474, 474 (Fla. 2d DCA 1998). Here, the total sentence of sixteen years— ninety-six months (eight years) in prison followed by ninety-six months (eight years) of probation — exceeds the statutory maximum and constitutes an illegal sentence. See Morales, 712 So.2d at 474.

The State concedes that resentencing is required. We affirm Borrego’s convictions and reverse his sentences and remand for the trial court to impose a lawful sentence.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and WALLACE, JJ., Concur.

      . An exception occurs when the lowest permissible sentence under the Criminal Punishment Code exceeds the statutory maximum. See Fla. R. Crim. P. 3.704(d)(25). Here, the lowest permissible sentence is 71.18 months or 5.93 years. Thus, the statutory maximum of fifteen years is applicable.


text:
    STATE of Florida, Appellant, v. Gary A. KEUHN, Appellee.
    No. 2D11-4860.
    District Court of Appeal of Florida, Second District.
    Sept. 28, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellee.
   PER CURIAM.

We reverse the trial court’s dismissal of the charges against Gary A. Keuhn based on the constitutionality of section 893.13, Florida Statutes (2011). See State v. Adkins, 96 So.3d 412 (Fla.2012).

Reversed and remanded.

DAVIS, WALLACE, and BLACK, JJ., Concur.


author: ROWE, J.

text:
    STATE of Florida, Appellant, v. Christopher HANNAH, Appellee.
    No. 1D11-3627.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2012.

      Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   ROWE, J.

The state appeals the trial court’s order suppressing evidence seized by police from Christopher Hannah at the crime scene. The trial court ruled that the officers exceeded the proper scope of the investigatory detention by transporting Hannah from the place where he was first detained by police to the scene of the crime. The state argues that the scope of the investigatory detention was not exceeded because the crime scene was within the immediate vicinity of the place where Hannah was initially detained. The state also argues that the evidence seized from Hannah at the crime scene would have been admissible under the doctrine of inevitable discovery. We agree, and for the reasons set forth below, we reverse the order on appeal.

FACTS

During the hearing on the motion to suppress, two police officers testified that they responded to a report of a vehicular burglary at 1961 West Sharon Street in Quincy. As one of the officers approached the crime scene, he encountered Hannah, who had emerged from behind a vacant house at 1923 West Sharon Street. The officer asked for and received Hannah’s name. The officer also asked Hannah why he was present at the location. Hannah provided evasive responses. While continuing to question Hannah, the police learned from a radio transmission that Hannah was a suspect in other burglary cases under investigation by the police department. After receiving this information, Hannah was placed in the back of the patrol car, without handcuffs, and transported two houses down to the crime scene. One of the officers testified that the distance between the place where Hannah was stopped and the crime scene was less than half a block.

When Hannah arrived at the scene, an officer observed that Hannah’s shoes appeared to match the shoe prints on the ground at the scene. After determining that they matched, the officers placed Hannah under arrest for the burglary. Next, the officers performed a check for any outstanding warrants, and learned that there were outstanding warrants for Hannah’s arrest. At the motion hearing, one of the officers testified that even if Hannah had not been a suspect in the 1961 West Sharon Street burglary, it would have been normal operating procedure to have checked for outstanding warrants before breaking contact with a person who had been stopped, especially once it was discovered that the person was a suspect in other burglaries.

The trial court granted Hannah’s motion to suppress, explaining that pursuant to section 901.151, Florida Statutes, and this court’s decision in Kollmer v. State, 977 So.2d 712 (Fla. 1st DCA 2008), an investigatory stop exceeds the scope of lawful detention if the detainee is moved beyond the place of the initial detention or its immediate vicinity. In its order, the trial court referred to the officer’s testimony that Hannah was approximately “two houses down, not even half a block” from the crime scene when the officer made contact with Hannah. The trial court determined that “the police conduct in this case was entirely reasonable and the additional deprivation of liberty represented by placing Hannah in a car unhandcuffed and transporting him half a block was so minimal as to be insignificant.” But based on this court’s decision in Kollmer, the trial court concluded that a distance sufficient to require transportation by a motor vehicle was not within the “immediate vicinity” of the place where Hannah was initially detained. The trial court also declined to find that the evidence seized at the crime scene was admissible under the doctrine of inevitable discovery because the outstanding warrants were not discovered until Hannah had been transported to the crime scene and his shoes had been seized.

I. LAWFUL SCOPE OF INVESTIGATORY STOP

The encounter between Hannah and the officers in this case was an investigatory stop, commonly known as a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Because the police had reasonable suspicion to stop Hannah, the lawfulness of the stop itself is not in question. Rather, the question presented in this case is whether the police officers exceeded the lawful scope of the investigatory stop by moving Hannah from the place where he was initially detained to the crime scene, half a block away.

Section 901.151(3), Florida Statutes, commonly known as the “Stop and Frisk Law,” codifies the principles set forth in Terry, State v. Cook, 475 So.2d 285, 286 (Fla. 5th DCA 1985), and provides that the scope of an investigatory detention extends to “the place where it was first effected or the immediate vicinity thereof.” Although the Legislature did not provide a definition for the term “immediate vicinity,” the inclusion of the term in the statute demonstrates the Legislature’s recognition that some movement of the detainee from the place where he is initially detained is permissible. § 901.151(B), Fla. Stat.

No Florida court has expressly construed the term “immediate vicinity.” Excluding cases examining movement of the detainee from the place of the initial detention to the police station, our research has only revealed one Florida case determining whether movement of a detainee was within the “immediate vicinity” of the place where the detainee was initially stopped, Kollmer v. State, 977 So.2d 712 (Fla. 1st DCA 2008). In Kollmer, this court held that police officers exceeded the scope of a lawful investigatory stop by transporting the detainee away from the place where he was initially detained to the crime scene. There, an officer testified he saw a white male fleeing into a wooded area; a police dog tracked this individual through the woods and located the man lying on his back in a yard. Id. at 713-14. That person was transported to the scene of the crime in a police car, wearing handcuffs, for the victim to identify. Id. at 714. Citing section 901.151(3), Florida Statutes, as well as federal cases involving movement of a detainee from the place of the initial detention to a police station, the Kollmer court concluded that the officers exceeded the scope of a lawful investigatory stop by placing the detainee in the police car and transporting him from the place where he was initially stopped to the location where he was identified by the victim. Id. at 715. While the Kollmer court did not provide specific details regarding the distance from the place where the detainee was first stopped to the place that the detainee was transported, implicit in the Kollmer court’s holding is that the movement of the detainee was beyond the “immediate vicinity” of the place where the detainee was initially stopped. Id.

Federal courts examining police encounters under the Fourth Amendment have found that the scope of an investigatory stop is not exceeded when the detainee is moved from the point where the detainee is first stopped to a location nearby. See, e.g., United States v. McCargo, 464 F.3d 192, 198 (2d Cir.2006) (finding that transportation of a matter of “blocks” did not exceed the scope of a Terry stop and was reasonable, allowing the court to conclude that “in some circumstances, police may transport a suspect short distances in aid of a Terry stop”); accord, United States v. Vanichromanee, 742 F.2d 340, 345 (7th Cir.1984) (concluding that moving defendant from a parking garage to an apartment did not turn the investigatory detention into an arrest because “[t]he ultimate question [was] not why the detainees were moved, but whether the move made the stop more intrusive”). However, if the detainee is moved to a location not in close proximity to where the detainee was first stopped, then courts have found that the scope of the investigatory detention has been exceeded. See, e.g., United States v. Virden, 488 F.3d 1317, 1321 (11th Cir.2007) (providing that a seizure that was “accomplished by the taking of [the defendant’s] vehicle to a new location [two miles away] for the purposes of investigation” was “unreasonable absent probable cause because of its scope and intrusiveness”).

In this case, Hannah was transported just half a block from where he was initially stopped by the police. Based upon these facts, we conclude that Hannah’s detention did not extend beyond the immediate vicinity of the place where he was initially stopped. Accordingly, we reverse the trial court’s order and remand for further proceedings.

II. INEVITABLE DISCOVERY

Another basis for reversal of the suppression order is the trial court’s conclusion that the doctrine of inevitable discovery did not apply. Although in most cases “the trier of fact must find by a preponderance of the evidence that the information sought to be suppressed would have been discovered by lawful means,” an appellate court may reverse a suppression order where the record on appeal establishes without dispute that the evidence inevitably would have been found. State v. Walton, 565 So.2d 381, 384 (Fla. 5th DCA 1990).

Here, the record establishes without dispute that the evidence seized from Hannah at the crime scene would have been inevitably discovered. Immediately after detaining Hannah, but before transporting him to the crime scene, the police learned Hannah’s name and that he was a suspect in other burglary cases. One of the officers testified that even if Hannah had not been a suspect in the burglary at 1961 West Sharon Street, it would have been normal operating procedure to check for outstanding warrants before breaking contact with the detainee, especially once the officer learned that the detainee was a suspect in other burglaries. Once the police discovered Hannah’s outstanding warrants, the police would then have had probable cause to search Hannah’s person and seize Hannah’s shoe in a search incident to arrest. See Hatcher v. State, 834 So.2d 314 (Fla. 5th DCA 2003) (applying inevitable discovery doctrine where the police officers would have inevitably found the evidence based upon normal police investigatory procedures of running warrants search after issuing a citation).

Accordingly, we reverse the suppression order and remand for further proceedings.

REVERSED AND REMANDED.

ROBERTS and WETHERELL, JJ., concur.

      . Federal and Florida courts have held that the scope of a lawful investigatory detention is exceeded when the defendant is moved from the place where the defendant is initially detained to the police station for questioning, concluding that such seizures are sufficiently like arrests and, thus, require probable cause. See Hayes v. Florida, 470 U.S. 811, 815-16, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Griggs v. State, 994 So.2d 1198, 1201 (Fla. 5th DCA 2008).


text:
    William NORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6853.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2012.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, William Norris, appeals the revocation of his probation in two cases and the resulting imposition of new sentences for his underlying offenses. In both cases, the trial court found that Appellant violated his probation by engaging in the conduct proscribed in section 562.11(l)(a)l., Florida Statutes (2009), among other violations. Although the court made this finding in reference to the allegation in the affidavit of violation of probation that Appellant committed the criminal offense of “Contributing to the Delinquency of a Minor,” the record establishes that the court relied on the elements of an unrelated statute, section 562.11(l)(a)l., and not section 827.04, which defines contributing to the delinquency of a minor. Because the conduct proscribed in section 562.11(l)(a)l. was not charged, the trial court fundamentally erred in relying on this statute for a finding of violation of probation. See Bishop v. State, 21 So.3d 830, 832 (Fla. 1st DCA 2008).

The trial court has yet to consider whether Appellant contributed to the delinquency of a minor under the applicable statute. We, therefore, reverse the finding that Appellant contributed to the delinquency of a minor and remand for consideration of this issue under section 827.04(3), while affirming the remaining violations. If the trial court finds no violation of section 827.04(3), it is directed to consider whether Appellant’s probation should be revoked and the same sentences imposed based on the remaining violations alone. See Hostetter v. State, 82 So.3d 1217, 1221 (Fla. 1st DCA 2012). We also direct the trial court to enter a written order of revocation of probation in case number 07-2267. See Leggs v. State, 27 So.3d 155,155 (Fla. 1st DCA 2010).

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

PADOVANO, ROWE, and RAY, JJ„ concur.


text:
    Jordan Eric PRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2274.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2012.
    Jeffrey E. Lewis, General Counsel, Office of Criminal Conflict, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal in which the Office of Criminal Conflict and Civil Regional Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the appellant’s conviction and sentence with the exception of certain costs imposed.

We strike the $150 indigent legal assistance lien imposed, because the appellant was not given notice of his right to a hearing to contest the amount of this lien. See Fla. R.Crim. P. 3.720(d)(1) (“Notice of the accused’s right to a hearing to contest the amount of the lien shall be given at the time of sentence.”); McCarthan v. State, 91 So.3d 268 (Fla. 1st DCA 2012) ([W]e strike the $100 indigent legal assistance lien imposed, since the appellant was not given notice of his right to a hearing to contest the amount of this lien.). On remand, if the trial court wishes to impose the public defender fee it must advise the appellant of its intent to do so and his right to a hearing to contest imposition of that fee. See Vaughn v. State, 65. So.3d 138 (Fla. 1st DCA 2011).

Additionally, we strike the $100 “Sheriffs Investigatory Cost” as it was not requested by the state. See Parker v. State, 44 So.3d 1190 (Fla. 1st DCA 2010) (“With respect to the investigatory costs, there is no record indication that the State requested or demonstrated these costs as required under the statute. Accordingly, the Sheriffs Investigatory Cost ... must be stricken.”); Hills v. State, 90 So.3d 927 (Fla. 1st DCA 2012) (“Because section 938.27(8) does not pertain to ‘investigative costs’ of law enforcement agencies such as the Sheriffs Office, the requirement that such costs be requested on the record and subjected to argument regarding the amount remains.”). On remand, the state may not seek to reimpose these costs because they were not requested. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Finally, we strike the imposition of the $20 cost imposed pursuant to section 938.06, Florida Statutes (2010), because no fine was imposed. See Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011). Accordingly, we AFFIRM the appellant’s judgment and sentence in part, but we REVERSE AND REMAND in part for proceedings consistent with this opinion.

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


text:
    Jordan Eric PRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2273.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2012.
    Jeffrey E. Lewis, General Counsel, Office of Criminal Conflict, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal in which the Office of Criminal Conflict and Civil Regional Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the appellant’s conviction and sentence with the exception of certain costs imposed.

We strike the $150 indigent legal assistance lien imposed, because the appellant was not given notice of his right to a hearing to contest the amount of this lien. See Fla. R.Crim. P. 3.720(d)(1) (“Notice of the accused’s right to a hearing to contest the amount of the lien shall be given at the time of sentence.”); McCarthan v. State, 91 So.3d 268 (Fla. 1st DCA 2012) ([W]e strike the $100 indigent legal assistance lien imposed, since the appellant was not given notice of his right to a hearing to contest the amount of this lien.). On remand, if the trial court wishes to impose the public defender fee it must advise the appellant of its intent to do so and his right to a hearing to contest imposition of that fee. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Additionally, we strike the $100 “Sheriffs Investigatory Cost” as it was not requested by the state. See Parker v. State, 44 So.3d 1190 (Fla. 1st DCA 2010) (“With respect to the investigatory costs, there is no record indication that the State requested or demonstrated these costs as required under the statute. Accordingly, the Sheriffs Investigatory Cost ... must be stricken.”); Hills v. State, 90 So.3d 927 (Fla. 1st DCA 2012) (“Because section 938.27(8) does not pertain to ‘investigative costs’ of law enforcement agencies such as the Sheriffs Office, the requirement that such costs be requested on the record and subjected to argument regarding the amount remains.”). On remand, the state may not seek to reimpose these costs because they were not requested. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Finally, we strike the imposition of the $20 cost imposed pursuant to section 938.06, Florida Statutes (2010), because no fine was imposed. See Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011). Accordingly, we AFFIRM the appellant’s judgment and sentence in part, but we REVERSE AND REMAND in part for proceedings consistent with this opinion.

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


text:
    Jordan Eric PRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2272.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2012.
    Jeffrey E. Lewis, General Counsel, Office of Criminal Conflict, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal in which the Office of Criminal Conflict and Civil Regional Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the appellant’s conviction and sentence with the exception of certain costs imposed. We also strike the order imposing restitution.

We strike the $150 indigent legal assistance lien imposed, because the Appellant was not given notice of his right to a hearing to contest the amount of this lien. See Fla. R.Crim. P. 3.720(d)(1) (“Notice of the accused’s right to a hearing to contest the amount of the hen shall be given at the time of sentence.”); McCarthan v. State, 91 So.3d 268 (Fla. 1st DCA 2012) ([W]e strike the $100 indigent legal assistance lien imposed, since the appellant was not given notice of his right to a hearing to contest the amount of this lien.). On remand, if the trial court wishes to impose the public defender fee it must advise the appellant of its intent to do so and his right to a hearing to contest imposition of that fee. See Vaughn v. State, 65 So.3d 188 (Fla. 1st DCA 2011).

Furthermore, we strike the $100 “Sheriffs Investigatory Cost” as it was not requested by the state. See Parker v. State, 44 So.3d 1190 (Fla. 1st DCA 2010) (“With respect to the investigatory costs, there is no record indication that the State requested or demonstrated these costs as required under the statute. Accordingly, the Sheriffs Investigatory Cost ... must be stricken.”); Hills v. State, 90 So.3d 927 (Fla. 1st DCA 2012) (“Because section 938.27(8) does not pertain to ‘investigative costs’ of law enforcement agencies such as the Sheriffs Office, the requirement that such costs be requested on the record and subjected to argument regarding the amount remains.”). On remand, the state may not seek to reimpose these costs because they were not requested. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Additionally, we strike the imposition of the $20 cost imposed pursuant to section 938.06, Florida Statutes (2010), because no fine was imposed. See Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011). Finally, we strike the order imposing restitution in this case as restitution was never orally pronounced. See Seymore v. State, 667 So.2d 408 (Fla. 4th DCA 1996). Accordingly, we AFFIRM the appellant’s judgment and sentence in part, but we REVERSE AND REMAND in part for proceedings consistent with this opinion.

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


text:
    Jordan Eric PRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2271.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2012.
    Jeffrey E. Lewis, General Counsel, Office of Criminal Conflict, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas EL Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal in which the Office of Criminal Conflict and Civil Regional Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the appellant’s conviction and sentence with the exception of certain costs imposed.

We strike the $150 indigent legal assistance lien imposed, because the Appellant was not given notice of his right to a hearing to contest the amount of this lien. See Fla. R.Crim. P. 3.720(d)(1) (“Notice of the accused’s right to a hearing to contest the amount of the lien shall be given at the time of sentence.”); McCarthan v. State, 91 So.3d 268 (Fla. 1st DCA 2012) ([W]e strike the $100 indigent legal assistance lien imposed, since the appellant was not given notice of his right to a hearing to contest the amount of this lien.). On remand, if the trial court wishes to impose the public defender fee it must advise the appellant of its intent to do so and his right to a hearing to contest imposition of that fee. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Additionally, we strike the $100 “Sheriffs Investigatory Cost” as it was not requested by the state. See Parker v. State, 44 So.3d 1190 (Fla. 1st DCA 2010) (“With respect to the investigatory costs, there is no record indication that the State requested or demonstrated these costs as required under the statute. Accordingly, the Sheriffs Investigatory Cost ... must be stricken.”); Hills v. State, 90 So.3d 927 (Fla. 1st DCA 2012) (“Because section 938.27(8) does not pertain to ‘investigative costs’ of law enforcement agencies such as the Sheriffs Office, the requirement that such costs be requested on the record and subjected to argument regarding the amount remains”). On remand, the state may not seek to reimpose these costs because they were not requested. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Finally, we strike the imposition of the $20 cost imposed pursuant to section 938.06, Florida Statutes (2010), because no fine was imposed. See Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011). Accordingly, we AFFIRM the appellant’s judgment and sentence in part, but we REVERSE AND REMAND in part for proceedings consistent with this opinion.

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


text:
    Jordan Eric PRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2270.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2012.
    Jeffrey E. Lewis, General Counsel, Office of Criminal Conflict, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal in which the Office of Criminal Conflict and Civil Regional Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the appellant’s conviction and sentence with the exception of certain costs imposed.

We strike the $150 indigent legal assistance lien imposed, because the appellant was not given notice of his right to a hearing to contest the amount of this lien. See Fla. R.Crim. P. 3.720(d)(1) (“Notice of the accused’s right to a hearing to contest the amount of the lien shall be given at the time of sentence.”); McCarthan v. State, 91 So.3d 268 (Fla. 1st DCA 2012) ([W]e strike the $100 indigent legal assistance lien imposed, since the appellant was not given notice of his right to- a hearing to contest the amount of this lien.). On remand, if the trial court wishes to impose the public defender fee it must advise the appellant of its intent to do so and his right to a hearing to contest imposition of that fee. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Additionally, we strike the $100 “Sheriffs Investigatory Cost” as it was not requested by the state. See Parker v. State, 44 So.3d 1190 (Fla. 1st DCA 2010) (“With respect to the investigatory costs, there is no record indication that the State requested or demonstrated these costs as required under the statute. Accordingly, the Sheriffs Investigatory Cost ... must be stricken.”); Hills v. State, 90 So.3d 927 (Fla. 1st DCA 2012) (“Because section 938.27(8) does not pertain to ‘investigative costs’ of law enforcement agencies such as the Sheriffs Office, the requirement that such costs be requested on the record and subjected to argument regarding the amount remains.”). On remand, the state may not seek to reimpose these costs because they were not requested. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Finally, we strike the imposition of the $20 cost imposed pursuant to section 938.06, Florida Statutes (2010), because no fine was imposed. See Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011). Accordingly, we AFFIRM the appellant’s judgment and sentence in part, but we REVERSE AND REMAND in part for proceedings consistent with this opinion.

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


text:
    Jordan Eric PRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2269.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2012.
    Jeffrey E. Lewis, General Counsel, Office of Criminal Conflict, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal in which the Office of Criminal Conflict and Civil Regional Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the appellant’s conviction and sentence with the exception of certain costs imposed.

We strike the $150 indigent legal assistance lien imposed, because the appellant was not given notice of his right to a hearing to contest the amount of this lien. See Fla. R.Crim. P. 3.720(d)(1) (“Notice of the accused’s right to a hearing to contest the amount of the lien shall be given at the time of sentence.”); McCarthan v. State, 91 So.3d 268 (Fla. 1st DCA 2012) ([W]e strike the $100 indigent legal assistance lien imposed, since the appellant was not given notice of his right to a hearing to contest the amount of this lien.). On remand, if the trial court wishes to impose the public defender fee it must advise the appellant of its intent to do so and his right to a hearing to contest imposition of that fee. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Additionally, we strike the $100 “Sheriffs Investigatory Cost” as it was not requested by the state. See Parker v. State, 44 So.3d 1190 (Fla. 1st DCA 2010) (“With respect to the investigatory costs, there is no record indication that the State requested or demonstrated these costs as required under the statute. Accordingly, the Sheriffs Investigatory Cost ... must be stricken.”); Hills v. State, 90 So.3d 927 (Fla. 1st DCA 2012) (“Because section 938.27(8) does not pertain to ‘investigative costs’ of law enforcement agencies such as the Sheriffs Office, the requirement that such costs be requested on the record and subjected to argument regarding the amount remains.”). On remand, the state may not seek to reimpose these costs because they were not requested. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Finally, we strike the imposition of the $20 cost imposed pursuant to section 938.06, Florida Statutes (2010), because no fine was imposed. See Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011). Accordingly, we AFFIRM the appellant’s judgment and sentence in part, but we REVERSE AND REMAND in part for proceedings consistent with this opinion.

WOLF, VAN NORTWTCK, and LEWIS, JJ., concur.


text:
    Jordan Eric PRUITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2268.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2012.
    Jeffrey E. Lewis, General Counsel, Office of Criminal Conflict, and Sheila Callahan, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal in which the Office of Criminal Conflict and Civil Regional Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the appellant’s conviction and sentence with the exception of certain costs imposed.

We strike the $150 dollar indigent legal assistance lien imposed, because the appellant was not given notice of his right to a hearing to contest the amount of this lien. See Fla. R.Crim. P. 3.720(d)(1) (“Notice of the accused’s right to a hearing to contest the amount of the lien shall be given at the time of sentence.”); McCarthan v. State, 91 So.3d 268 (Fla. 1st DCA 2012) ([W]e strike the $100 indigent legal assistance lien imposed, since the appellant was not given notice of his right to a hearing to contest the amount of this lien.). On remand, if the trial court wishes to impose the public defender fee it must advise the appellant of its intent to do so and his right to a hearing to contest imposition of that fee. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Additionally, we strike the $100 “Sheriffs Investigatory Cost” as it was not requested by the state. See Parker v. State, 44 So.3d 1190 (Fla. 1st DCA 2010) (“With respect to the investigatory costs, there is no record indication that the State requested or demonstrated these costs as required under the statute. Accordingly, the Sheriffs Investigatory Cost ... must be stricken.”); Hills v. State, 90 So.3d 927 (Fla. 1st DCA 2012) (“Because section 938.27(8) does not pertain to ‘investigative costs’ of law enforcement agencies such as the Sheriffs Office, the requirement that such costs be requested on the record and subjected to argument regarding the amount remains.”). On remand, the state may not seek to reimpose these costs because they were not requested. See Vaughn v. State, 65 So.3d 138 (Fla. 1st DCA 2011).

Finally, we strike the imposition of the $20 cost imposed pursuant to section 938.06, Florida Statutes (2010), because no fine was imposed. See Pullam v. State, 55 So.3d 674 (Fla. 1st DCA 2011). Accordingly, we AFFIRM the appellant’s judgment and sentence in part, but we REVERSE AND REMAND in part for proceedings consistent with this opinion.

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


text:
    Jerry MEANS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3703.
    District Court of Appeal of Florida, First District.
    Oct. 2, 2012.
    Jerry Means, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED.

CLARK, MARSTILLER, and MAKAR, JJ., concur.


author: CIKLIN, J.

text:
    T.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2121.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2012.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Introduction

T.W. appeals the trial court’s denial of a motion for dismissal of the charges against him for burglary and injuring a police dog. We conclude that the burglary conviction should have been dismissed because there was no evidence that T.W. intended to aid in the burglary or that he committed any act in furtherance of the burglary. We further hold that the evidence was insufficient to find that the police dog suffered “great bodily harm” under section 843.19(2), Florida Statutes (2010), as a result of his encounter with T.W., and reverse that conviction as well. We also remand for a new disposition hearing for T.W.’s remaining charge, resisting arrest without violence.

Background

The state filed a petition for delinquency on November 5, 2010, accusing T.W. of committing burglary of a conveyance, injuring a police dog, and resisting arrest without violence, based on events occurring on September 26, 2010. On May 20, 2011, the matter proceeded to a non-jury trial.

Deputy Michael Henken, of the Broward County Sheriffs Office, testified that he was on routine patrol around 1:00 a.m. in a marked law enforcement vehicle. He was slowly driving through a neighborhood and patrolling the homes in the area when he came upon two or three young males in and around a Ford Explorer sports utility vehicle (“SUV”), which was parked on the side of the road. As he drove past, he saw that one of the males was actually inside the SUV. He said that another male, T.W., was standing by the passenger door of the SUV with a “stunned” look on his face. Deputy Henken rolled his car past the SUV, stopped, put it in reverse, and returned to the SUV. As he did so, the males scattered on foot. Deputy Henken was unable to catch up to any of the fleeing individuals and thus called for K-9 and helicopter backup.

Next, Deputy Emmanuel Koutsofios testified that he is a K-9 handler whose primary job consists of locating fleeing suspects. He is trained to recognize if a police dog is in pain or injured. He arrived at the scene in response to a request to locate the burglary suspects who had fled. After issuing the standard canine warning, he released his police dog, Rocky, to find the suspects.

Rocky, remaining tethered to a fifteen-foot leash, detected someone near the side of a house. Deputy Koutsofios took Rocky to the backyard of the house, where he issued more police warnings. Deputy Koutsofios then heard the sounds of screaming and scuffling in the backyard near a pool pump and some bushes. He turned on his flashlight and saw T.W. on the ground kicking Rocky, who had detained T.W. by biting his leg. Deputy Koutsofios saw T.W. kick Rocky “several” times with his free leg but could not provide an estimated number of kicks. T.W. reportedly kicked Rocky throughout the dog’s entire facial area.

Deputy Koutsofios testified that he yelled at T.W. multiple times to stop kicking Rocky so the deputy could pull him back, but T.W. did not comply, started to stand up, and then began punching Rocky “numerous times” with a closed fist. Deputy Koutsofios heard Rocky yelp, which he found unusual because Rocky had been hit previously while working but had never before made a similar sound. The deputy also testified that Rocky is trained to “bite and hold” in these situations and will only release a suspect upon command or if the dog’s defensive instincts force him to do so. Rocky released T.W.’s leg and began biting at T.W.’s hand, which was being used to strike Rocky in the face. Deputy Koutsofios indicated that Rocky is trained to tolerate high levels of pain, so the fact that Rocky yelped and released T.W. was significant.

Deputy Koutsofios then apprehended T.W., forced him to the ground, removed Rocky, and called for assistance. Deputy Koutsofios noticed that Rocky had blood around the white fur under his chin (most of Rocky’s fur is black). According to the deputy, Rocky “had blood coming from his nose down his mouth and it was all where the white part is and it was on the pool deck as well.”

Deputy Koutsofios’s supervisors instructed him to keep a watchful eye on Rocky for the evening and let him rest. The supervisor indicated that it was not necessary to bring Rocky to a veterinarian or make arrangements to have x-rays taken. The deputy kept Rocky in the living room of his house and vigilantly observed Rocky during the night. At the time of the trial, Deputy Koutsofios said that Rocky was doing fine.

On cross-examination, Deputy Koutsof-ios testified that Rocky was eighty-five pounds and T.W. was a thirteen-year-old child weighing approximately 120 pounds. The deputy indicated that Rocky bit T.W.’s left lower leg so severely that he broke it. The deputy acknowledged that T.W. was bleeding from the bite and some of the blood on the pool deck might have been T.W.’s. Deputy Koutsofios also testified that Rocky suffered no permanent injury as a result of his encounter with T.W. In fact, Rocky was able to return to regular K-9 training the following week.

After the state rested, T.W. made a motion for judgment of dismissal, arguing that the state failed to make a prima facie case for burglary because T.W. never entered the SUV. T.W. also argued that the state failed to make a prima facie case for injuring a police dog, because the statute under which the state chose to prosecute T.W. required proof of “great bodily harm” to the dog. The trial court denied both motions.

In presenting a defense, T.W. testified that he was the male standing on the passenger side of the SUV. He testified that he was accompanying some friends and that they were on their way to meet up with another friend. As a shortcut, they went through a residential neighborhood. One of T.W.’s friends approached the SUV because the friend said he needed money. T.W. testified that he warned the friend not to get into the SUV but his friend entered the vehicle anyway. Thereupon, T.W. told the friend that he was going to leave because he did not want to get in trouble. When asked why he ran, T.W. testified that he knew he was going to be suspected of illicit conduct because his friend was in the SUV by the time Deputy Henken approached. T.W. testified that he was scared.

The trial court ultimately found T.W. guilty of all charged offenses, adjudicated T.W. delinquent, and sentenced him to three concurrent sentences of one year and eight months in a level eight detention program.

On appeal, T.W. challenges the court’s finding of guilt on both his burglary and injuring a police dog charges,

“The standard of review applicable to a motion for judgment of dismissal in a juvenile case is the same as the standard for a motion for judgment of acquittal in a criminal case, de novo review.” A.A.R. v. State, 926 So.2d 463, 465 (Fla. 4th DCA 2006). As such,

In moving for a judgment of dismissal, the movant admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. All reasonable inferences that may be drawn from such evidence must be viewed in a light most favorable to the state.

Id. (alterations removed) (citations and internal quotation marks omitted). “A motion for judgment of dismissal tests the legal sufficiency of the state’s evidence.” A.L.J. v. State, 12 So.3d 873, 874 (Fla. 4th DCA 2009).

Burglary

In the instant case, the state presented no evidence that T.W. actually entered the SUV. As such, his conviction could only be based upon a principal theory of burglary. “In order to be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.” Theophile v. State, 78 So.3d 574, 578 (Fla. 4th DCA 2011) (citation and quotation marks omitted). Importantly, this court has stressed that “[mjere knowledge that an offense is being committed, mere presence at the scene, and even a display of questionable behavior after the fact, are not, alone, sufficient to establish participation.” Id.

Based upon these sound legal principles, we conclude that the state did not present sufficient evidence to convict T.W. under a principal theory. The state presented no evidence that T.W. did anything to encourage or aid the crime, such as acting as a lookout. Deputy Henken testified that he saw T.W. next to the SUV but not in it and not entering or touching it.

We readily acknowledge that T.W.’s flight after law enforcement arrived displayed questionable behavior. However, “fleeing from the scene when an offense is committed ... does not sufficiently establish participation.” AS.F. v. State, 70 So.3d 754, 757 (Fla. 4th DCA 2011).

Because the state offered no evidence that T.W. (1) intended to aid in the commission of the burglary and (2) actually aided in some way, the burglary conviction must be reversed and this matter remanded to the trial court for entry of a judgment of dismissal as to this count.

Injuring a Police Dog

T.W. was convicted of injuring a police dog, in violation of section 843.19(2), Florida Statutes, which states:

Any person who intentionally and knowingly, without lawful cause or justification, causes great bodily harm, permanent disability, or death to, or uses a deadly weapon upon, a police dog, fire dog, SAR dog, or police horse commits a felony of the third degree....

§ 843.19(2), Fla. Stat. (2010) (emphasis added). The police dog in this case, Rocky, did not die, no evidence of permanent disability was presented, and the state did not attempt to argue permanent disability below or on appeal. As such, the issue before us comes down to whether Rocky suffered “great bodily harm” pursuant to the statute.

Neither section 843.19 nor any Florida case law offers a definition of “great bodily harm” under these types of circumstances. However, cases discussing “great bodily harm” in the context of aggravated battery to a human being provide some guidance. Like section 843.19, section 784.045 (aggravated battery) does not define “great bodily harm.” Nonetheless, Florida courts have generally defined “great bodily harm” as “great as distinguished from slight, trivial, minor or moderate harm, and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery.” See Gordon v. State, — So.3d —, 2011 WL 6016913 (Fla. 3d DCA 2011); Nguyen v. State, 858 So.2d 1259, 1260 (Fla. 1st DCA 2003); Heck v. State, 774 So.2d 844, 845 (Fla. 4th DCA 2000); C.A.C. v. State, 771 So.2d 1261, 1262 (Fla. 2d DCA 2000); Guthrie v. State, 407 So.2d 357, 358 (Fla. 5th DCA 1981). In GAG, the Second District emphasized that the state “must prove more than that the victim suffered some harm.” 771 So.2d at 1262.

After thoroughly reviewing the record and the transcripts, we must conclude that the state did not offer competent, substantial evidence that Rocky suffered “great bodily harm” during his encounter with T.W. While Rocky unquestionably suffered some harm from the encounter, we must note that he was not taken to a veterinarian for any medical treatment and he returned to work within a week. Additionally, it is unclear how much of the blood at the scene of the encounter came from Rocky or T.W. The evidence simply did not support a finding that Rocky suffered “great bodily harm” and we must reverse this conviction as well.

Conclusion

Because the state did not offer sufficient evidence to prove that T.W. acted as a principal to the burglary, his burglary conviction must be reversed and a judgment of dismissal entered in its place. Further, because the evidence did not support a finding that Rocky suffered “great bodily harm,” we must reverse the conviction for injuring a police dog as well with instructions to the trial court that it enter a judgment of dismissal.

Finally, we remand this matter to the trial court for purposes of conducting a new disposition hearing for the remaining misdemeanor conviction for resisting arrest without violence for two reasons. First, the trial court’s sentencing decision in this matter may be affected by the elimination of the two felony convictions. See T.L.T. v. State, 53 So.3d 1100, 1103 (Fla. 4th DCA 2011) (remanding for new disposition hearing after vacating one of the two felony charges because “the elimination of [one of the] charge[s] may affect the court’s judgment as to the propriety of the sentence”). Second, the crime of resisting arrest without violence is a first-degree misdemeanor for which T.W. may not be sentenced to more than one year of commitment. T.W.’s sentence of one year and eight months in a level eight detention program clearly exceeds this one-year limit. See J.D.M. v. State, 82 So.3d 1134, 1135-36 (Fla. 2d DCA 2012) (reversing the disposition order where the trial court sentenced the juvenile to more than one year of commitment to the Department of Juvenile Justice for a first-degree misdemeanor because it exceeded the statutory maximum period of one year and therefore constituted an illegal sentence).

Reversed and remanded with instructions.

WARNER and HAZOURI, JJ., concur.

      . The resisting arrest without violence conviction is not being challenged on appeal.

      . Deputy Koutsofios testified that the standard canine warning he used was, "It’s the Broward County Sheriff's Office. You’re under arrest. Surrender or I'll release my police dog.”