author: MAKAR, J.

text:
    Amanda POPE and Anastasia, Inc., Appellant, v. Daniel and Donna GRACE, Joseph And Linda Noftell, Paul And Debra Linger, Ann Pastore, Thompson And Dana FilLmer, Joseph And Dottie Scruggs, Stephen Frey, Lindsey BraNlitt And JaCqueline Porter, Trustees Of The Land Trust Dated May 1, 2005, And Department Of Environmental Protection, Appellee.
    No. 1D13-258.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2014.
    Rehearing Denied Dec. 15, 2014.
    Thomas J. Morton and Timothy J. Perry of Oertel, Fernandez, Bryant & Atkinson, P.A., Tallahassee, for Appellant.
    Matthew Z. Leopold, General Counsel, Brynna J. Ross and Sidney C. Bigham, III, Senior Assistant General Counsel, Florida Department of Environmental Protection, Tallahassee, for Appellee.
   MAKAR, J.

Repairs to the foundation of a dune walkover structure triggered this legal dispute, one in which two beachfront residential property owners, Amanda Pope and Anastasia, Inc., contest a final order of the Secretary of the Department of Environmental Protection (DEP), which held that a permit for the repairs was unnecessary. At issue is whether DEP’s interpretation of section 161.053(11)(b), Florida Statutes, which exempts “activities” that do not “cause a measurable interference with the natural functioning of the coastal system” from permitting requirements, is clearly erroneous. We hold that it is not.

I.

This litigation involves all property owners within Milliken’s Replat, which is a pocket-sized neighborhood of ten residential lots, each on Milliken Lane, a short cul-de-sac off of A1A that lies just west of and perpendicular to the Atlantic Ocean, nestled in a southern Crescent Beach community adjacent to the Matanzas River and State Forest. Amanda Pope and Anastasia, Inc., own the only two beachfront lots, which adjoin one another at the cul-de-sac’s end. Their westerly neighbors, Daniel and Donna Grace and twelve other property owners, collectively own the eight landward lots situated just off the beachfront. For simplicity, we will refer to these property owners together as the Graces, who are the lead named appel-lees.

The plat of the Milliken Lane properties, drafted in 1983, has a line drawn between the beachfront lots of Ms. Pope and Anastasia, Inc., which is labeled “6’ WIDTH WALKWAY FOR WALKWAY TO BEACH.” Sometime thereafter (the record doesn’t say when), a dune walkover was built, which lies within the six-foot easement straddling their respective property lines, to facilitate the ability of all Milliken Lane property owners to access the beach by crossing over, and leaving undisturbed, the underlying sand dunes. Milliken’s Replat is subject to a Road Maintenance Agreement, which was recorded in 1994 and requires the property owners to, among other things, maintain a “certain six (6) foot wide walkway reflected on the plat running between the cul-de-sac at the end of Milliken Lane to the Atlantic Ocean, including existing dunes walk-over structure.” The agreement also states that “[sjuch road and walkway shall be maintained by the parties to this agreement [... ] in a condition so as to make it free and passable in perpetuity.”

Repairing the neighborhood’s dune walkover has been a contentious issue for years. During a March 2011 meeting, all of the property owners, except Ms. Pope and Anastasia, Inc., agreed that the dune walkover needed to be repaired. A site inspection conducted by DEP also recommended repairing or replacing a major portion of the walkover due to the age of the wood and its hardware. Ms. Pope and Anastasia, Inc., countered that the other property owners previously rejected their proposal for repairs and that they “have had long-standing objections to [the other owners] performing work on the walkover structure without their input and authorization.”

Believing it advisable to do so, the Graces applied for a permit to repair the walkover. Counsel for DEP, however, advised them the repair work may qualify for an exemption. Shortly thereafter, they made a request for an exemption determination, which DEP granted because “the proposed work appeared] to be exempt from the permitting requirements of [the] Department pursuant to Section 161.058(11), Florida Statutes.” DEP later issued an amended exemption notice, which described the factual context of the exemption:

The repair and maintenance [of the walkover] is to consist of replacement of bolts, screws, plates and other fasteners; replacement of wood members such as handrails, posts above walkover deck planks, deck planks and stringers; and repairs to support members such as the addition of sister posts next to existing posts. Repair and maintenance activities shall not result in the realignment or reconfiguration of the walkover outside of the extents of the original structure. With the exception of the minimal ground disturbance required to repair posts or to add sister posts, no vegetation shall be removed nor dune topography altered.
Based on the above description, the proposed work is not expected to cause a measurable interference with the natural functioning of the coastal system. Therefore, the Department has determined that the proposed work satisfies the exemption requirements of Section 161.053(ll)(b), Florida Statutes. All debris must be removed and disposed of landward of the coastal construction control line.

In response, Ms. Pope and Anastasia, Inc., filed petitions for an administrative hearing. Before the hearing took place in May 2012, the repairs commenced. As to the foundation work, two construction workers sistered the walkover’s posts, a process that involved using posthole diggers to manually excavate around the base of existing posts, installing new posts, and bolting the new and old ones together.

After a hearing on the matter at which a DEP expert testified about the effects of the repair work, the administrative law judge (ALJ) issued a recommended order concluding that under subsection 161.058(11)(b), the “proposed project would not cause measurable interference with the natural functioning of the coastal system, and that the criteria for the grant of an exemption from the CCCL permitting requirements were met.” Nonetheless, the ALJ concluded that DEP could not rely on subsection 161.053(11)(b); instead, only the “existing structures” exemption in subsection 161.053(11)(a) was deemed relevant. The ALJ concluded that subsection 11(a) is a specific statutory provision dealing with “existing structures” that controls over the more general provision in subsection (ll)(b) dealing with “activities.” As such, the Graces were not entitled to an exemption.

In its final order, however, DEP rejected the ALJ’s legal interpretation of section 161.053(11), concluding that the only issue was whether the foundation repair work on an existing structure such as a dune walkover, while not exempt under section 161.053(11)(a), could be exempt if the “activities” in repairing the foundation met the requirements of section 161.053(11)(b), specifically that they cause no measureable interference with the natural functioning of the coastal system. In rejecting the ALJ’s approach, DEP noted the absence of any statutory language that excluded “activities” related to “existing structures” from the exemption in subsection 11(b). It also noted that the ALJ’s approach was incorrect because “applying both paragraphs (a) and (b) of subsection 161.053(11) to the type of activity in this case would not render either provision meaningless. Indeed, the proposed activity in this case could qualify for an exemption under either provision if the activity meets the requirements of each exemption.” This appeal follows.

II.

This is a case of statutory interpretation, one in which an agency’s conclusions of law are subject to de novo review. Sullivan v. Fla. Dep’t of Envtl. Prot., 890 So.2d 417, 420 (Fla. 1st DCA 2004). We have discussed this appellate standard as it applies to DEP before:

Like other administrative agencies, DEP ‘is afforded wide discretion in the interpretation of a statute which it is given the power and duty to administer,’ but nothing requires ‘that we defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency.’ If the agency’s interpretation is within the range of possible and reasonable interpretations, it is not clearly erroneous and should be affirmed,’ but ‘judicial adherence to the agency’s view is not demanded when it is contrary to the statute’s plain meaning.

Id. (internal citations omitted).

Under the relevant statutory framework, DEP may grant a permit to allow coastal construction when certain requirements are met; it may also grant exemptions to those requirements. The two exemptions at issue are found in subsections 161.053(ll)(a) and (b), which provide:

(11)(a) The coastal construction control requirements defined in subsection (1) and the requirements of the erosion projections in subsection (5) do not apply to any modification, maintenance, or repair of any existing structure within the limits of the existing foundation which does not require, involve, or include any additions to, or repair or modification of, the existing foundation of that structure. [... ]
(b) Activities seaward of the coastal construction control line which are determined by the department not to cause a measurable interference with the natural functioning of the coastal system are exempt from the requirements of subsection (4).

§ 161.053(11)(a)-(b), Fla. Stat. (2014) (emphases added). The ALJ ruled that subsection 11(a) was the relevant exemption, and thereby exclusive, because it relates to “existing structures.” But it determined subsection 11(a) was inapplicable because the italicized language excludes repairs to an existing foundation of an “existing structure.” The bolded exemption in subsection 11(b) is the alternative that DEP concluded it could apply to any “activity” it determines will not “cause a measurable interference with the natural functioning of the coastal system.”

The crux of the dispute is whether the subsection 11(a) sets forth the exclusive exemption available under the circumstances or whether an exemption under neighboring subsection (11)(b) is available. In other words, if a project does not qualify for exemption under (11)(a) because the proposed modification, maintenance, or repairs are to an existing foundation on an existing structure, can it nonetheless receive an exemption under (11)(b), if that repair project will cause no “measurable interference with the natural functioning of the coastal system”? Ms. Pope and Anastasia, Inc., say no; the Graces and DEP say yes.

We conclude that the two exemptions can be read harmoniously to support DEP’s interpretation of its authority to grant the exemption at issue. First of all, it is apparent that the exemption in subsection 11(a) is designed to exempt only repairs, such as replacing decking or railings on an existing walkover structure, other than foundation work. It is not available for repairs to an existing foundation underlying an existing structure. But nothing in the language of subsection 11(a) — or the statutory framework generally — says that the unavailability of an exemption under 11(a) for foundation work precludes consideration of other statutory exemptions, such as the one for “activities” in subsection 11(b) — or for “minor activities” in subsection 11(c) for that matter. Had the Legislature intended that no exemptions whatsoever be available for repair work on existing foundations of existing structures, and that any repairs no matter how minor require a permit, it could have said so; it could have also said that subsection 11(a) is the exclusive exemption for repairs to existing structures. It has done neither. We therefore con-elude that subsection 11(a) does not preclude an exemption under 11(b). The subsections easily coexist, and can be read harmoniously to say that repairs to existing structures are generally permissible without a permit, but that a permit is required for repairs to an existing foundation of an existing structure unless no “measurable interference with the natural functioning of the coastal system” would result.

' We agree with DEP that the situation here is much like the analysis of whether testimony meets a hearsay exception. Simply because one specific hearsay exception doesn’t apply, doesn’t mean others can’t be considered. See, e.g., Doe v. Broward Cnty. Sch. Bd., 744 So.2d 1068, 1073 (Fla. 4th DCA 1999) (trial court erred in concluding that “section 90.803(23) preempts all other hearsay exceptions when the out-of-court statements are made by a child victim of abuse.”). Absent a clear indication from the Legislature that permits are always required for repair work on foundations of existing structures, no matter how inconsequential, we cannot read section 161.053(11) to impose such a limitation.

Buttressing its position, DEP views the term “activities” in subsection 11(b) as unambiguous when read in context with its cross-referenced subsection (4), which deals with altering, excavating, or constructing on property seaward of the coastal construction control line (CCCL). DEP claims that altering, excavating, or construction activities that do not cause a measurable interference with the natural functioning of the coastal system are exempt from permitting under subsection 11(b) — regardless of whether an “existing structure” is involved or work to the foundation is performed. This makes good sense. Work on an existing foundation need not always result in harm that requires a permit or mitigation. Instead, such work may often involve repairs — as is the case here — that do not “cause a measurable interference with the natural functioning of the coastal system” thereby justifying an exemption. DEP presented unrebutted expert testimony to this effect'. It makes little sense, given the availability of an exemption for such inconsequential activities, to require a permit when no measureable environmental harm would result.

Finally, DEP’s interpretation is given great deference because it is charged with enforcing this statute. See Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 847 (Fla. 1st DCA 2002). Because DEP’s interpretation gives effect to the plain and ordinary meaning of section 161.053(11), and gives a more reasonable interpretation of the exemption as applied in the coastal construction context, we conclude it is not clearly erroneous; it is eminently reasonable. See Kessler v. Dep’t of Mgmt. Servs., Div. of State Group Ins., 17 So.3d 759, 762 (Fla. 1st DCA 2009) (an interpretation doesn’t have to be the only possible interpretation, it just has to be reasonable). That similar statutory language has been in place since 1975 makes the presumption of interpretive correctness even stronger. See Ch. 75-87, § 2, at 186, Laws of Fla.; Dep’t of Admin, v. Nelson, 424 So.2d 852, 858 (Fla. 1st DCA 1982); State, Dep’t of Com., Div. of Labor v. Matthews Corp., 358 So.2d 256, 260 (Fla. 1st DCA 1978).

III.

In conclusion, we find that the DEP’s interpretation of section 161.053(11) is reasonable. We therefore affirm its final order, which exempted foundation repairs on the dune walkover at issue.

AFFIRMED.

THOMAS, and ROWE, JJ., concur.

      . At oral argument, counsel for DEP explained that an application for a permit under the circumstances in this case is unnecessary because the exemption in subsection 11(b) is self-executing. Counsel suggested that ob-taming an opinion from a competent engineer that the proposed activity would cause no measurable interference with the natural functioning of the coastal system enables the proposed activity to move forward without any involvement by DEP. Involving DEP — as Graces did in seeking a permit — has the benefit of an exemption determination, which can be subject to review as Ms. Pope and Anastasia, Inc., were able to do here.

      .Subsection 11(c) says the:
      [Department may establish exemptions from the requirements of this section for minor activities determined by the department not to have an adverse effect on the coastal system. Examples of such activities include, but are not limited to:
      1. Boat moorings;
      2. Maintenance of existing beach-dune vegetation;
      3. The burial of seaweed, dead fish, whales, or other marine animals on the unvegetated beach;
      4. The removal of piers or other derelict structures from the unvegetated beach or seaward of mean high water;
      5. Temporary emergency vehicular access, if the affected area is immediately restored;
      6. The removal of any existing structures or debris from the upland, if there is no excavation or, disturbance to the existing topography or to beach-dune vegetation;
      7. Construction of a new roof overhang extending no more than 4 feet beyond the confines of the existing foundation during modification, renovation, or reconstruction of a habitable structure within the confines of the existing foundation of that structure which does not include any additions to or modification of the existing foundation of that structure;
      8. Minor and temporary excavation for the purpose of repairs to existing subgrade residential service utilities (e.g., water and sewer lines, septic tanks and drainfields, electrical and telephone cables, and gas lines), if there is minimal disturbance and the grade is restored with fill compatible in both coloration and grain size to the onsite material and any damaged or destroyed vegetation is restored using similar vegetation; and
      9. Any other minor construction that has an effect similar to the above activities.
      § 161.053, Fla. Stat.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SCHERER CONSTRUCTION & ENGINEERING OF CENTRAL FLORIDA, LLC, Appellant, v. The SCOTT PARTNERSHIP ARCHITECTURE, INC., Appellee.
    Nos. 5D13-1965, 5D13-3641.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2014.
    Rehearing Denied Dec. 8, 2014.

      William J. McFarlane, III, and Mark T. Babcock, of McFarlane & Dolan, Coral Springs, for Appellant.
    Andrew P. Thompson, Stephen M. Bull, and Jason B. Vrbensky, of Bull and Associates, P.A., Orlando, for Appellee.
   PER CURIAM.

In this consolidated case, Scherer Construction & Engineering of Central Florida, LLC (Scherer) appeals both the Final Judgment on Fees and the separate Final Judgment on Costs. It argues (1) the trial court erred in awarding attorney’s fees and costs pursuant to a proposal for settlement filed by the third-party defendant below, appellee The Scott Partnership Architecture, Inc. (TSPA); and (2) the trial court erred in awarding TSPA costs as the prevailing party where Scherer had voluntarily dismissed one of two counts before any determination of liability had been reached. Because attorney’s fees for the defense of a claim voluntarily dismissed without prejudice are not recoverable pursuant to section 768.79, Florida Statutes (2013), we reverse that portion of the Final Judgment on Fees awarding fees relative to the voluntarily dismissed indemnification count. We affirm the remainder of the two judgments in all other respects.

Scherer filed a two-count complaint against TSPA as a third-party defendant alleging counts for contribution and indemnification. TSPA filed and served a proposal for settlement on Scherer. The time expired for acceptance of the proposal for settlement. Thereafter, the trial court granted a motion for summary judgment filed by TSPA, concluding that the alleged cause of action for contribution was barred. Scherer subsequently filed a Notice of Voluntary Dismissal that effectively dismissed the remaining claim for indemnification. The dismissal was without prejudice. Thereafter, the trial court rendered the judgments for fees and costs under review.

Because the indemnification count was voluntarily dismissed by Scherer without prejudice, it was improper for the trial court to render judgment awarding attorney’s fees in favor of TSPA for its defense of the dismissed count for indemnification. As this court explained in Ormond Beach Associates Ltd. v. Citation Mortgage, Ltd., 835 So..2d 292, 296-97 (Fla. 5th DCA 2002), review denied, 847 So.2d 978 (Fla.2003):

Our supreme court has ruled that, upon voluntary dismissal of an action without prejudice, statutory offer of judgment attorney’s fees are not recoverable. See MX Investments, Inc. v. Crawford, 700 So.2d 640 (Fla.1997) (holding that offer of judgment statute does not provide a basis for an award of attorney fees and costs unless dismissal is with prejudice). Thus, once the trial court recognized Citation Mortgage’s notice of voluntary dismissal without prejudice, Ormond Beach lost its right to request recovery of such fees. To hold otherwise would preclude the filing of a voluntary dismissal in all cases in which a defendant had filed an offer of judgment.

See also MX Invs., Inc. v. Crawford, 700 So.2d 640, 642 (Fla.1997) (“We conclude that section 768.79, Florida Statutes (1991), does not provide a basis for the award of attorney fees and costs unless a dismissal is with prejudice.”); Smith v. Loews Miami Beach Hotel Operating Co., Inc., 35 So.3d 101 (Fla. 3d DCA 2010) (holding defendant not entitled to fees under offer of judgment statute because plaintiff had filed voluntary dismissal without prejudice, which did not operate as an adjudication on the merits); Commonwealth Prop. Assocs., Inc. v. SunTrust Bank, Sw. Fla., 835 So.2d 1175 (Fla. 2d DCA 2002) (same); Ass’n Emp’rs Ins. Co. v. Am. Excavating & PSI, Inc., 701 So.2d 110, 110 (Fla. 5th DCA 1997) (“[N]o entitlement to attorney’s fees arises under section 768.79 unless the case is dismissed with prejudice.”), review denied, 717 So.2d 536 (Fla.1998). Although the cited case law discusses the impact of the voluntary dismissal of an entire case, the analysis is equally applicable where, as here, the voluntary dismissal was as to one of two claims.

Accordingly, we reverse that part of the final judgment awarding attorney’s fees against Scherer for TSPA’s defense of the voluntarily dismissed claim for indemnification. We affirm that part of the judgment awarding fees for the defense of the contribution count, and we affirm the judgment awarding costs.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

SAWAYA, ORFINGER, and BERGER, JJ., concur.

      . There is no evidence in the record of any contract between Scherer and TPSA that would support an award of fees.

      . The voluntary dismissal of the indemnity claim deprived the court of jurisdiction to enter Final Judgment on the indemnity claim. Randle-E. Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 69 (Fla.1978) ("The right to dismiss one's own lawsuit during the course of trial is guaranteed by Rule 1.420(a), endowing a plaintiff with unilateral authority to block action favorable to a defendant which the trial judge might be disposed to approve. The effect is to remove completely from the court’s consideration the power to enter an order, equivalent in all respects to a deprivation of 'jurisdiction'.”). Accordingly, the entry of the Final Judgment, insofar as it could be read as entry of judgment on the indemnity claim, was a nullity and cannot be used to support any argument that TSPA prevailed on the merits of the indemnity claim for purposes of section 768.79.


author: EMAS, J.

text:
    The STATE of Florida, Appellant, v. Albert HODGES, Appellee.
    No. 3D13-779.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2014.

      Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellant.
    Carlos J. Martinez; Public Defender, and James Moody, Assistant Public Defender, for appellee.
    Before WELLS, EMAS and LOGUE, JJ.
   EMAS, J.

The State appeals from a downward departure sentence, imposed by the trial court without timely filing its written reasons, and with oral reasons that we determine to be invalid. We vacate the judgment and sentence and remand for further proceedings consistent with this opinion.

FACTS

The relevant facts are not in dispute. Albert Hodges was arrested on August 10, 2012 and subsequently charged by information with three counts of possession with intent to distribute cocaine and two counts of possession with intent to distribute marijuana.

Under the sentencing guidelines, Hodges’ lowest permissible sentence was 36.3 months in prison. Hodges also qualified as a habitual felony offender. At a pretrial conference held by the trial court on March 19, 2013, the State and defense were unable to reach a negotiated plea: the State’s final plea offer was 25 months in prison followed by two years’ probation. Hodges rejected this offer and counterof-fered with 18 months’ state prison. The State rejected this offer and withdrew its original offer of 25 months. The trial judge, who acknowledged knowing nothing about the case; offered Hodges 366 days in state prison. The State objected to the offer as below the lowest permissible sentence under the guidelines.

The trial court nevertheless extended the year-and-a-day offer to Hodges, and stated, as its sole reason for the downward departure, that Hodges scored so high primarily because his prior criminal history included a ten-year-old arson conviction.

Hodges accepted the plea, was sentenced as an habitual offender to 366 days in state prison, and the trial court indicated it would enter an order setting forth its reasons for the downward departure.

The State filed its notice of appeal on March 20, 2013, the day following the plea. The trial court did not enter a timely order setting forth its reasons for departure, nor did it timely file a transcript of the plea and sentencing hearing. More than a year after the State filed its notice of appeal, and after the State had filed its initial brief in this appeal, Hodges filed a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Thereafter, on April 7, 2014, the trial court entered an order setting forth two reasons for its downward departure:

The guidelines scoresheet included criminal history points based upon a conviction more than ten (10) years ago. While Mr. Hodges has some criminal past, this Court does not believe that a guideline sentence is justified.
[T]he police had the basis to effectuate an arrest of the Defendant after the completion of the first hand-to-hand drug purchase. Instead, the police continued to surveil the Defendant, and waited to effectuate their arrest of the defendant. This would, in effect, then enhance the potential penalties that Mr. Hodges faced. See State v. Steadman [Henderson], 108 So.3d 1137 (Fla. 5th DCA 2013).

ANALYSIS

In Florida, sentencing for all non-capital offenses committed after October 1, 1998 is governed by the Criminal Punishment Code, enacted by the Florida Legislature and contained in Chapter 921, Florida Statutes. See also Fla. R. Crim. P. 3.704 (implementing, and providing procedural components for, the Criminal Punishment Code). Pursuant to section 921.0024(l)(a), Fla. Stat. (2012), a score-sheet is prepared for each defendant, which takes into account and assesses points based upon, inter alia, the severity of the defendant’s primary offense at conviction, additional offenses at conviction, and prior criminal history. See generally, §§ 921.022-.024, Fla. Stat. (2012). A score is assigned to each primary offense, additional offense, and prior criminal history. These points are added together and, after additional calculations not relevant here, the resulting score (represented in months) establishes a defendant’s “lowest permissible sentence” which “is assumed to be the lowest appropriate sentence for the offender being sentenced.” § 921.00265(1), Fla. Stat. (2012). The'trial court may not impose a sentence below the lowest permissible sentence unless there is a valid mitigating circumstance to justify a downward departure. § 921.0026(1), Fla. Stat. (2012). Section 921.0026(2) provides a non-exclusive list of mitigating circumstances for a valid downward departure. While a trial court may depart for a reason other than those set forth in section 921.0026(2), it may only do so if the articulated reason for departure is consistent with legislative sentencing policies and is not otherwise prohibited. State v. Bowman, 123 So.3d 107 (Fla. 1st DCA 2013); State v. Knox, 990 So.2d 665 (Fla. 5th DCA 2008); State v. Ayers, 901 So.2d 942 (Fla. 2d DCA 2005).

Rule 3.704 implements the legislatively-created sentencing guidelines, and the statute and the rule each requires a court imposing a downward departure to file, within seven days of'the sentencing, either a written order or a copy of the hearing transcript, setting forth the basis for the downward departure. See § 921.00265(2); Fla. R. Crim. P. 3.704(d)(27)(A).

There is no question that the trial court’s written order was untimely rendered. The trial court’s order was filed more than one year after the sentence was imposed. In fact, the order was filed after the time permitted under rule 3.800(b)(2) for a party to serve a motion to correct a sentencing error pending appeal (“The motion [to correct a sentencing error] ... must be served before the party’s first brief is served ”) (emphasis added). Because the motion to correct sentencing error was served untimely, the order rendered thereafter was untimely, and cannot be deemed valid under rule 3.704, rule 3.800(b)(2) or section 921.00265(2). See Miran v. State, 46 So.3d 186 (Fla. 2d DCA 2010) (holding that trial court acts without jurisdiction when entering an untimely order on 3.800(b)(2) motion, and the untimely order is deemed a nullity and must be stricken).

We are thus left with the oral reason announced by the trial court at the time of sentencing. As counsel for Hodges correctly and commendably conceded on appeal, the oral reason was an insufficient basis to justify a downward departure, as we discuss in greater detail infra.

We therefore reverse the judgment and sentence, and remand this cause to the trial court for further proceedings. On remand, under the circumstances of this case, the trial court is not prohibited from again imposing a sentence that departs below the lowest permissible guidelines. Jackson v. State, 64 So.3d 90 (Fla.2011). However, the court may do so only if Hodges establishes by a preponderance of the evidence that a valid departure reason exists and is supported by competent substantial evidence. Because our remand permits the trial court, if appropriate, to again consider a downward departure, we briefly address the insufficiency or invalidity of the reasons relied upon by the trial court, in an effort to avoid unnecessary litigation in any future proceedings in this case.

The “remote” arson conviction

At the time of sentencing, the trial court orally provided a single reason for the downward departure: that Hodges’ “conviction for arson ten years ago” was the “reason why you are scoring what you are scoring.” The subsequently-filed written order also indicated that, given the remoteness of this conviction, a guidelines sentence was not justified.

The remoteness of the prior conviction is not a valid basis for downward departure, because the question of whether and the extent to which a trial court may consider “remote” prior convictions has already been addressed by the legislature in the Criminal Punishment Code. Specifically, section 921.0021(5) provides a definition for “prior record” and sets forth the parameters under which a remote conviction will not be scored under the Criminal Punishment Code. That definition provides in relevant part as follows:

“Prior record” means a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense.... Convictions for offenses committed by the offender more than 10 years before the primary offense are not included in the offender’s prior record if the offender has not been convicted of any other crime for a period of 10 consecutive years from the most recent date of release from confinement, supervision, or sanction, whichever is later, to the date of the primary offense.

(Emphasis added.)

Hodges’ prior arson conviction (as well as the accompanying burglary and criminal mischief convictions) was properly included in his scoresheet because it did not qualify as “remote” under the definition of prior record. The arson offense was committed ín 2003; the instant offenses were committed on August 10, 2012, less than ten years later. For this reason alone, the arson could not properly be characterized by the trial court as “remote,” as such a characterization would be contrary to the legislative sentencing policy as expressed through the provisions of the Criminal Punishment Code.

Further, the statute provides that for a prior conviction to be excluded as remote, the defendant must maintain a conviction-free record for the intervening ten-year period. § 921.0021(5), Fla. Stat. (2012). The record reveals that, in the nine-year interval between the 2003 arson and the 2012 instant offenses, Hodges was convicted in 2006 for possession with intent to sell marijuana and in 2011 for tampering with physical evidence.

Because the Legislature has already determined how a defendant’s prior criminal history is to be scored, and under what circumstances a prior record is too remote to be included in a scoresheet calculation, the trial court was not permitted to discount the properly-scored 2003 arson conviction as remote, or base a downward departure on a determination that a properly-scored prior criminal history results in a guidelines sentence that is unduly harsh. Bowman, 123 So.3d at 109-10; Knox, 990 So.2d at 669; Ayers, 901 So.2d at 946; State v. Lerman, 624 So.2d 849 (Fla. 2d DCA 1993).

Sentence manipulation

The trial court’s written order contained an additional basis for downward departure not stated orally at the time of sentencing: that the police engaged in sentence manipulation, citing to State v. Steadman, 827 So.2d 1022 (Fla. 3d DCA 2002). We conclude this reason was improperly included in the written order and was not supported by competent substantial evidence.

First, the issue of sentence manipulation was never raised at the time of the plea and sentence. Neither defense counsel nor the trial court articulated such a basis for the downward departure. This reason was expressed for the first time in a written order entered more than a year after the sentence was imposed. Such an after-the-fact finding is contrary to the principles established by the contemporaneity requirement of departure sentencing and, as the Florida Supreme Court has acknowledged in disapproving such a procedure, it can create the impression that the trial court is attempting to justify a sentence that may otherwise be subject to challenge. See e.g., Bryant v. State, 148 So.3d 1251, 39 Fla. L. Weekly S591 (Fla. Oct. 9, 2014); State v. Collins, 985 So.2d 985, 989 (Fla.2008).

Second, because this basis was never raised or articulated at the time of sentencing as a basis for departure, the State was not given the opportunity at sentencing to oppose or rebut it. The State was denied notice and an opportunity to be heard at the sentencing on this purported basis for downward departure.

Finally, there was no competent, substantial evidence presented at the sentencing hearing to support the trial court’s conclusion that the police officers engaged in sentence manipulation. The fact of the instant case appears to be a far cry from those presented in Steadman, 827 So.2d at 1023-24. The defendant in Steadman was charged in six separate informations with six sales of cocaine to a single undercover police officer, taking place on six separate dates over a period of five weeks. All of the sales took place within 1000 feet of a middle school. The first transaction took place on March 7, but the officers did not arrest Steadman at that time. Instead the same officer made subsequent purchases from Steadman on March 9, March 12, March 23, April 6 and April 12, before arresting him. The officer supervising the operation candidly acknowledged that they “decided to forego any arrest of Steadman until the police had made multiple purchases, in order to generate enough quantity of cocaine to command a lengthy prison sentence for Steadman.” Steadman, 827 So.2d at 1024. In a case of first impression, this Court held that sentence manipulation may serve as a valid basis for a downward departure, but provided guidelines for making such a fact-intensive determination:

When considering sentence manipulation as a basis for downward departure the trial court’s inquiry should focus on law enforcement intent: was the sting operation ¡continued only to enhance the defendant’s sentence or did legitimate law enforcement reason exist to support the police conduct, such as to determine the extent of the criminal enterprise, to establish the defendant’s guilt beyond a reasonable doubt, or to uncover any co-conspirators? If legitimate law enforcement concerns exist, then a downward departure based on sentence manipulation is not warranted.

Id. at 1025.

In the instant case, by contrast, the officers observed Hodges engage in three hand-to-hand transactions over a period of approximately thirty minutes on a single day. Hodges made each sale to a private individual, not an undercover officer or confidential informant. Each of the three purchasers was arrested by take-down officers immediately after leaving the scene of the transaction. No testimony or other evidence was presented at sentencing that the officers could have immediately arrested Hodges following the first sale; that the officers intentionally refrained from arresting him for the purpose of increasing the number of counts and sentencing exposure; or that there were no legitimate law enforcement reasons for not arresting Hodges immediately after the first sale. We are left merely to speculate what reasons may have existed for the officers’ actions, because at the sentencing the trial court did not articulate this as a basis for departure, and the State had no evidentia-ry opportunity to contest or rebut this determination. Moreover, the burden of establishing the necessary facts to support a downward departure is on the defendant. No evidence was presented at the sentencing to sustain the burden for a downward departure based upon Steadman.

Reversed and remanded for proceedings consistent with this opinion.

      . The case was set for trial and it appears the judge below was a "backup judge” who intended to preside over the trial in place of the assigned trial court judge.

      . Rule 3.800(b)(2) provides:
      If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party's first brief is served. A notice of pending motion to correct sentencing error shall be filed in the appellate court, which notice automatically shall extend the time for the filing of the brief until 10 days after the clerk of circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(f)(6).
      (Emphasis added.)
      The motion to correct sentencing error was not filed before the initial brief was served, and no notice of pending motion to correct sentencing error was filed with this Court.

      . The correct citation for Steadman is 827 So.2d 1022 (Fla. 3d DCA 2002). The citation in the trial court's order is to State v. Henderson, another downward departure decision inapplicable to the facts at issue.

      . .Rule 3.704(d)(27)(A) alternatively permits the sentencing judge to list the departure reasons on the Criminal Punishment Code score-sheet.

      . As discussed infra, even if we were to base our decision on the merits of the untimely written order, it failed to set forth any valid basis, supported by competent substantial evidence, to justify the downward departure.

      .If the trial court does not intend to impose a downward departure sentence, or determines there are no valid reasons for a downward departure, the defendant may elect to negotiate a plea with the State, enter an open plea to the court and be sentenced pursuant to the Criminal Punishment Code, or withdraw his previously-entered plea.

      . Further, the statute measures the ten-year period from the date the defendant is released from serving any sentence for the original offense. Hodges was convicted of the arson offense in May 2003 and sentenced to two years’ state prison.

      . Indeed, it is clear that the trial court, in extending a plea offer of 366 days, did not simply discount or exclude the points assessed for the prior arson. The record shows that 14 points were assigned for this prior conviction. Even if the prior arson (and the 14 points) were removed from Hodges' score-sheet, the lowest permissible sentence would have been 25.8 months, significantly higher than the 366-day downward departure sentence offered by the trial court.

      . Although the defense asserted, at oral argument, that the trial court held a rule 3.800 hearing (following the filing of the notice of appeal and the State's service of its initial brief) at which the State was given an opportunity to argue the issue of sentence manipulation, we do not have, on the record before us, any transcript of such a hearing. Moreover, such a hearing (and the order subsequently issued) was untimely under rule 3.800(b)(2), given that the State had already filed its initial brief on appeal. Further, an opportunity to make argument falls far short of proper notice and an opportunity to present evidence to rebut the requisite evidentiary showing by the defendant.

      . We reject Hodges’ suggestion that the arrest form (which was a part of the court file) could serve as a basis to support the downward departure. To the extent that the arrest form is relevant, it appears to undermine, rather than support Hodges' position that the police intended to manipulate his charges or sentences. Hodges engaged in three separate transactions with three individuals (sale of cocaine to the first individual; sale of cocaine and marijuana to the second individual; and sale of cocaine and marijuana to the third individual). However, the arrest form charged only a single count of sale of cocaine and a single count of sale of marijuana. This would appear to belie any assertion that law enforcement intended to manipulate or increase Hodges’ charges or sentence. Although the State Attorney's Office ultimately charged Hodges with three sales of cocaine and two sale of marijuana, Steadman holds that the relevant inquiry focuses on the intent of law enforcement at the time of the events leading to the arrest. Steadman 827 So.2d at 1025.


text:
    Phillip S. LANE, Appellant, v. WORKFORCE BUSINESS SERVICES, INC. f/k/a Employee Leasing Solutions, Superior Coatings, Inc., and American Zurich Insurance Company, Appellees.
    No. 1D14-0959.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2014.
    Rehearing Denied Dec. 15, 2014.

      E. Taylor Davidson of DiCesare, Davidson & Barker, P.A., Lakeland, and Joshua M. Drechsel of Brumbelow Dreschel Law Group, Saint Petersburg, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order by the Judge of Compensation Claims (JCC) which denies an award of attorney’s fees under section 57.105, Florida Statutes (2013), as well as the reimbursement of the costs of litigation associated with videotaping two depositions. Because we find that section 57.105 is not applicable to original proceedings in workers’ compensation claims brought under chapter 440, we affirm the denial of attorney’s fees. We reverse, however, the denial of costs because the JCC applied an improper standard in determining whether the costs of a videographer were taxable.

In this case, the Employer/Carrier (E/C) denied compensability of Claimant’s accident and injuries, prompting Claimant to file a petition for benefits seeking a determination as to his entitlement to benefits under chapter 440. Extensive litigation ensued. One day before the scheduled final hearing on Claimant’s petition, Claimant and the E/C entered into a stipulation whereby the E/C accepted compensability of the claim. As a part of the stipulation, the E/C agreed to the payment of litigation costs and a statutory guideline attorney’s fee under section 440.34, Florida Statutes (2011). Claimant also claimed an additional attorney’s fee under section 57.105, and the parties agreed that the JCC would decide issues relating to Claimant’s entitlement to such fees. In the appealed order, the JCC denied the attorney’s fees claimed under section 57.105, concluding that such fees were not awarda-ble in workers’ compensation proceedings before a JCC. The JCC also denied the entirety of the costs Claimant incurred in videotaping the depositions of two adverse witnesses who were instrumental in denying the compensability of the underlying claim.

The Florida Workers’ Compensation Law, as set forth in Chapter 440, establishes the liability of an employer thereunder as exclusive and in place of all other liability to an injured employee. § 440.11, Fla. Stat. (2011). It is well-established that “[wjorkers’ compensation is purely a creature of statute and, as such, is subject to the basic principles of statutory construction.” Sunshine Towing, Inc. v. Fonseca, 933 So.2d 594, 594-95 (Fla. 1st DCA 2006) (citing McDade v. Palm Beach Cnty. Sch. Distr., 898 So.2d 126, 128 (Fla. 1st DCA 2005), and Travelers Ins. Co. v. Sitko, 496 So.2d 920, 921 (Fla. 1st DCA 1986)); see also J.J. Murphy & Son, Inc. v. Gibbs, 137 So.2d 553, 562 (Fla.1962) (noting that workers’ compensation “must be governed by what the statutes provide, not by what deciding authorities feel the law should be”). Chapter 440 does not provide the statutory authority for the application of section 57.105 — by either incorporation or indirect reference.

We reject Claimant’s argument that the attorney’s fee provisions of section 57.105 are intended to supplement the provisions of chapter 440 with an additional sanction or remedy. The essentially self-contained workers’ compensation law in chapter 440 already provides a host of specific sanctions and remedies which includes attorney’s fees for frivolous claims and defenses under section 440.32, Florida Statutes (2011). Furthermore, section 57.105 contains no suggestion of legislative intent to include workers’ compensation cases. In 2003, the Florida Legislature amended section 57.105 to include, specifically, an award of reasonable attorney’s fees for baseless claims and defenses raised in administrative proceedings under chapter 120. See § 57.105(5), Fla. Stat. (2003). No similar amendment was made which would expressly include workers’ compensation cases. Under the doctrine inclusio unius est exclusio alterius, an inference must be drawn that the Legislature did not intend to include workers’ compensation trial proceedings within section 57.105. See Gay v. Singletary, 700 So.2d 1220, 1221 (Fla.1997). We conclude, therefore, that the JCC properly denied Claimant an award of attorney’s fees under section 57.105.

The JCC, however, improperly denied Claimant reimbursement for any and all of the costs for the two videotaped depositions. Section 440.34(3), Florida Statutes (2011), provides that “[i]f any party should prevail in any proceedings before a[JCC] or court, there shall be taxed against the non-prevailing party the reasonable costs of such proceedings.” In the final order here, the JCC noted that there was no showing that the witnesses (both of whom were individuals responsible for the denial of Claimant’s workers’ compensation case) would be unavailable for final hearing requiring Claimant to place the video depositions in evidence in lieu of live testimony. The JCC also commented that Claimant’s attorney testified that a civil suit was being contemplated and video depositions are often used in a civil trial. The JCC did not make any other relevant findings, including whether the elicited testimony was unnecessary or whether the cost was in excess of what is normally charged for a videotaped deposition: i.e., whether the costs were reasonably expended in pursuing workers’ compensation benefits.

“A denial of costs is subject to review under an abuse of discretion standard.” Moore v. Hillsborough Cnty. Sch. Bd., 987 So.2d 1288, 1289 (Fla. 1st DCA 2008) (citing Morris v. Dollar Tree Store, 869 So.2d 704, 707 (Fla. 1st DCA 2004)). Failure to apply the correct legal standard is grounds for reversal. Village of N. Palm Beach v. McKale, 911 So.2d 1282, 1283 (Fla. 1st DCA 2005) (reversing a finding of compensability where JCC applied incorrect evidentiary standard); see also Cromartie v. City of St. Petersburg, 840 So.2d 372, 375 (Fla. 1st DCA 2003) (reversing and remanding denial of com-pensability of psychiatric injury where it was unclear whether JCC applied correct standard of causation). Here, the JCC implied that the cost of videotaping the depositions was not reimbursable without proof that the witnesses would be unavailable to testify live at the final hearing. The JCC did not consider, as she should have, the reasonableness of Claimant’s strategic decision to videotape the testimony of adverse witnesses who might later testify and be cross-examined using the videotaped depositions. Thus, the JCC used an improper standard by concluding the costs of a videographer could be awarded only if Claimant proved that the ■witnesses could not appear at trial. Further, Claimant could not be assured of any witness’s appearance, and is not obliged to be clairvoyant. The JCC’s findings here also seemed to suggest that the costs were not subject to reimbursement because the depositions might later be used in a civil lawsuit. Costs incurred exclusively for a purpose unrelated to the workers’ compensation claim certainly would not be reimbursable; however, the fact that the depositions here may ultimately serve a dual purpose is not enough to preclude the associated expense as a reasonable cost in the pursuit of workers’ compensation benefits.

In summary, we AFFIRM that portion of the final order denying attorney’s fees under section 57.105. We REVERSE, however, the denial of costs associated with the videotaped depositions, and REMAND for application of the reasonableness standard set forth in section 440.34(3).

LEWIS, C.J., CLARK and MARSTILLER, JJ., concur.

      . Section 57.105 provides for an award of a reasonable attorney’s fee in a civil proceeding or action where the losing party or the losing party's attorney knew, or should have known, that a claim or defense was not supported by the necessary material facts. § 57.105(1), Fla. Stat. (2013).

      . Claimant makes much of this Court’s decision in Demedrano v. Labor Finders of Treasure Coast, 8 So.3d 498, 500 (Fla. 1st DCA 2009) (citing Dayco Prods, v. McLane, 690 So.2d 654, 656 (Fla. 1st DCA 1997)). In Demedrano, this Court held that section 57.104 — which provides that the time and labor of legal assistants should be considered in the computation of an award of attorneys’ fees — applies in workers’ compensation cases. The holdings in both Demedrano and Dayco concern only section 57.104 and the means by which an attorney’s fee award is to be calculated; this Court has never held that the attorney fee entitlement provision in section 57.105 applies to workers’ compensation cases. For the reasons stated herein, we decline to extend the holding in these decisions to permit JCCs to award attorney's fees under section 57.105.


text:
    Ray JAMES, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D14-4361.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2014.
    Rehearing Denied Dec. 16, 2014.
    Ray James, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondents..
   PER CURIAM.

DENIED. See Smartt v. First Union National Bank, 771 So.2d 1232 (Fla. 5th DCA2000).

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


text:
    Christopher SALMONSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1959.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2014.
    Christopher Salmonson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Carrie McNamara, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We treat appellees’ motion for remand as a confession of error, reverse the order denying appellant’s motion to dissolve temporary injunction, and remand for further proceedings. See State v. Beeler, 530 So.2d 932, 984 (Fla.1988); Burtoff v. Tauber, 85 So.3d 1182, 1184 (Fla. 4th DCA 2012) (citing Matin v. Hill, 801 So.2d 1003, 1006 (Fla. 4th DCA 2001)).

PADOVANO and SWANSON, JJ„ concur.

WETHERELL, J., dissents.


text:
    Ruben Danyon McCLOUD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2200.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2014.
    Ruben Danyon McCloud, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on February 6, 2013, in Leon County Circuit Court case number 2008-CF-1151-A is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Benjamin M. DIAMOND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2453.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2014.
    Benjamin M. Diamond, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on July 23, 2013, in Leon County Circuit Court case number 2009-CF-4010-A is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Skyler COBURN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3741.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2014.
    Skyler Coburn, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on March 26, 2014, in Clay County Circuit Court case number 2012-CF-001991 is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Charles PRYOR, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D14-0776.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2014.
    Charles Pryor, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Vincent WALSH, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D14-1523.
    District Court of Appeal of Florida, First District.
    Nov. 14, 2014.
    Vincent Walsh, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, and Mark J. Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

WOLF, CLARK, and SWANSON, JJ., concur.


author: BENTON, J.

text:
    David Ledonte WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5585.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2014.
    Nancy A. Daniels, Public Defender, Tallahassee, and Kevin Steiger, Assistant Public Defender, Apalachicola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

David Ledonte Washington appeals convictions (and concurrent sentences of fiffy-two-and-one-half months) for failure to report a change in address as required by the sexual offender registration statute, section 943.0435, Florida Statutes (2012). He argues the trial court erred in ruling there had been no discovery violation even though the state failed to alert the defense that a key witness planned to testify differently than she had testified on deposition as to an allegation central to the prosecution. We reverse and remand for a new trial.

Before she was deposed, the witness in question, Alicia Pitts, told a deputy sheriff that Mr. Washington had never lived at her residence. This oral statement was recorded; and contemporaneously she signed a written statement to the same effect. Later, when put under oath at deposition, however, she testified that she had lied when she told the officer that Mr. Washington did not reside at her address. She testified on deposition that, even when she gave the original oral and written statements, Mr. Washington was. in fact living at her home, although she had not seen him for a couple of days.

At trial thereafter, when the prosecutor told the jury in opening statement that Ms. Pitts would testify that she had given Mr. Washington permission to live with her, but that he never did so, defense counsel objected, argued she was surprised, and asked for a Richardson hearing. See Richardson v. State, 246 So.2d 771 (F.la.1971). The prosecutor responded that Ms. Pitts had' “given two different stories. She told the officer he doesn’t live there. She said at the deposition that he lived there.... She was kind of hedgy back and forth. And today what I expect, because when I talked to her when she got here this morning, I asked her the questions I was going to ask her on the stand, and she basically said, he didn’t live here.” When defense counsel contended that the prosecutor had an obligation to inform her as soon as practicable of Ms. Pitts’ oral statement the morning of the trial, the prosecutor argued the failure to disclose the oral statement reverting to her original story was not a discovery violation. Agreeing, the trial judge denied a Richardson hearing on grounds the information was not “new [or] unknown.”

Pursuant to Florida Rule of Criminal Procedure 3.220(b)(1), when, as happened in the present case, a defendant elects reciprocal discovery, the prosecutor is under an obligation to disclose to the defendant “a list of the names and adr dresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto” and “the statement of any person whose name is furnished.” Fla. R. Crim. P. 3.220(b)(1)(A)-(B). The obligation to disclose is a continuing duty. See Fla. R. Crim. P. 3.220(j) (“If, subsequent to compliance with the rules, a party discovers additional witnesses or material that the party would have been under a duty to disclose or produce at the time of the previous compliance, the party shall promptly disclose or produce the witnesses or material in the same manner as required under these rules for initial discovery.”).

On the authority of Smith v. State, 7 So.3d 473 (Fla.2009), we hold Ms. Pitts’ statement to the prosecutor the morning of the trial should have been promptly disclosed to the defense, even though it was neither written nor recorded, nor summarized in any writing or recording. The failure to disclose it necessitated a Richardson hearing, which the trial court declined to conduct. The failure to conduct a Richardson hearing was error, which was not harmless under the rule laid down in State v. Schopp, 653 So.2d 1016, 1021 (Fla.1995) (“[O]nly if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.”). See Cox v. State, 819 So.2d 705, 712 (Fla.2002) (“[W]here the State commits a discovery violation, the standard for deeming the violation harmless is extraordinarily high. A defendant is presumed to be procedurally prejudiced ‘if there is a reasonable [possibility] that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.’ ”) (citation omitted).

As written, the discovery rule defines a statement as “a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording.” Fla. R. Crim. P. 3.220(b)(1)(B). Cf. Fla. R. Crim. P. 3.220(b)(1)(C) (requiring the prosecutor to disclose “any written or recorded statements and the substance of any oral statements made by the defendant”) (emphasis added). Our supreme court has expanded the definition of statement for purposes of Rule 3.220(b)(1)(B) to include certain unrecorded oral statements, originally only those made “in circumstances where the oral statement materially alters a prior written or recorded statement previously provided by the State to the defendant.” State v. Evans, 770 So.2d 1174, 1180 (Fla. 2000).

At issue here is an oral statement made to the prosecutor the day of trial at material variance with the witness’s pretrial deposition, but consistent with the antecedent statements to the deputy. Appellant relies on Scipio v. State, 928 So.2d 1138 (Fla.2006), where an investigator for a medical examiner’s office testified on deposition that a photograph depicted a semi-automatic pistol under the victim’s body. There, when defense counsel met with the investigator on the morning of trial and asked him to review his deposition testimony, the investigator reaffirmed his deposition testimony. When later the same day (but before trial) the investigator went with the prosecutor to the state attorney’s office to review the photograph, the prosecutor refused defense counsel’s request to accompany them.

At the state attorney’s office, the investigator told the prosecutor he had mistaken a pager for a pistol; at trial, the defense was “completely surprised” by the investigator’s testimony that the photograph depicted a pager, not a pistol. Id. at 1145-46. The Florida Supreme Court determined “the State’s discovery violation was a flagrant case of ‘dirty pool’ that [was] ‘exactly the type of conduct the discovery rules were designed to prevent.’ ” Id. at 1141. (quoting Scipio v. State, 867 So.2d 427, 430 (Fla. 5th DCA 2004)). Even though the investigator’s original statement was given on deposition (rather than being produced or in any way vouched for by the state), the supreme court ruled failure to disclose the later unrecorded, unwritten statement before trial, was a discovery violation. The court said that, because the investigator “actually gave a statement by deposition that he possessed relevant information of the crime scene, the State also had an obligation to disclose any material change in that statement.” Id. at 1142.

The present case is arguably distinguishable from Scipio because the witness in Scipio was not a private citizen, but an investigator for a government agency. Although the witness in Scipio made the original statement on deposition (and the state had furnished the defense no written or recorded statement previously in its exclusive possession, as part of discovery), the investigator did work for the government and become a witness in that capacity. By contrast, in the present case, Ms. Pitts was a private citizen. In no sense can the state be said to have vouched for her testimony on deposition. To the contrary, the state had previously furnished the defense statements she had made that were at odds with the testimony she gave on deposition.

Whether or not Scipio is controlling, however, the supreme court’s more recent decision in Smith dictates today’s result. There, as in the present case, a state witness first gave the authorities statements incriminating the accused, which the prosecution produced for the defense, but later testified on deposition that his original statements were false; and at trial repudiated his deposition testimony by reverting to his initial version of events. See Smith, 7 So.3d at 505. Our supreme court flatly rejected the state’s argument that no discovery violation occurred because earlier, incriminating statements Mr. Walker had made had been disclosed to the defense. The Smith court ruled that, where “the trial record clearly indicates that the State had prior knowledge that Walker intended to recant his deposition testimony (in which he disavowed any [pertinent] conversations with Smith ... and any knowledge about Smith’s involvement in Brown’s murder) .... [t]he fact that Walker’s recantation of his deposition testimony was not reduced to writing did not relieve the State of its continuing discovery obligation as to this witness. The State committed a discovery violation “when it failed to disclose to [Smith] a material change in the State [witness’s] deposition statement.’ Scipio, 928 So.2d at 1145.” Id. at 506.

The state committed the same kind of violation in the present case.

Reversed and remanded.

LEWIS, C.J., and RAY, J., concur.

      . Whether or not the defendant invokes reciprocal discovery, the prosecutor must disclose to the defendant "any material information within the state’s possession or control that tends to negate the guilt of the defendant.” Fla. R. Crim. P. 3.220(b)(4). But "when information from a witness is not a statement as defined by rule 3.220(b)(1)(B), ‘the State [i]s under no obligation to disclose' the information if that information is ‘not Brady material [see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] and [i]s not a material alteration to an existing written or recorded statement previously provided by the State to the defendant.’ ” State v. McFadden, 50 So.3d 1131, 1134 (Fla.2010) (citation omitted; footnote omitted).

      . The learned trial judge ruled there had been no discovery violation and that there was therefore no need for a Richardson hearing, reasoning that the contents of Ms. Pitts’ statement the day of trial was not "new,” inasmuch as it was what she first told the deputy sheriff. But the fact that Ms. Pitts had recanted her testimony on deposition, testimony in which she repudiated her initial statements to the deputy, was indeed "new.” See Smith v. State, 7 So.3d 473, 506 (Fla.2009).

      . Aside from Ms. Pitts and the deputy sheriff called to prove up what Ms. Pitts had said to him, the only witnesses at trial were records custodians. Ms. Pitts was the only witness at trial who testified where the appellant lived.

      . In McFadden, the supreme court discussed its earlier decision in State v. Evans, 770 So.2d 1174, 1176 (Fla.2000), saying that Evans

      requires disclosure when "the oral statement materially alters a prior written or recorded statement previously provided by the State to the defendant." We explained [in Evam ] that, ordinarily, "unlike failure to name a witness, changed testimony does not rise to the level of a discovery violation and will not support a motion for a Richardson inquiry.” However, when a witness is "transformed from a witness who 'didn't see anything’ into an eyewitness — indeed, apparently the only eyewitness — to the [crime,] ... the State's nondisclosure of the changes ... was tantamount to failing to name a witness at all” and therefore warranted a Richardson hearing.

        McFadden, 50 So.3d at 1133 (citations omitted).

      . The decisions in Evans and McFadden, standing alone, do not go so far as to place the prosecution under an obligation to disclose the statement Ms. Pitts made the morning of the trial, because her statement to the prosecutor was oral, unrecorded, unsummar-ized and did not materially alter a prior written or recorded statement or summary previously provided by the State to the defendant. Ms. Pitts’ initial statements to the officer, one in writing, the other an audio recording— both of which were duly provided to the defense — were to the effect that appellant did not reside with her. Her oral statement to the prosecutor on the morning of trial, that Mr. Washington had not lived at her residence, although inconsistent with her deposition, was not inconsistent with and did not materially alter the statements the prosecution had previously provided. The present case falls outside the rule of McFadden and Evans.

      . In Smith, 7 So.3d at 473, Corey Smith was charged with the murder of Cynthia Brown. Carlos Walker was listed as a state witness. Walker gave three statements prior to trial. In his initial statement to the police, he implicated Smith in the murder of Brown. In his subsequent deposition, Walker denied knowing about any involvement by Smith. Still later Walker apparently made another statement to the prosecutor before trial to the effect that he had lied in his deposition and would testify consistently with his initial statement. The state did not disclose this fact to the defense. Id. at 505. At trial, Walker testified that Smith told him that Brown had been "snitching” on him regarding another murder and that Brown "got to come up dead for him to win trial.” Id. Walker also testified that he overheard Smith discussing Brown with three other men, again stating he wanted Brown to "come up dead in order for him to win the trial.” Id. Walker testified that he observed Smith offer Chazre Davis nine ounces of powder cocaine to kill Brown. Finally, Walker testified that Smith boasted of Brown’s murder at a party celebrating the dismissal of the other murder charges. When defense counsel moved for a mistrial based on the state’s failure to inform the defense that Walker had lied in his deposition, the prosecutor argued the defense had been given Walker’s prior statement to the police that was consistent with his trial testimony. Id.


text:
    Robert James BOWEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-2490.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2014.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the appellant challenges his convictions for burglary of a structure or conveyance and burglary of a dwelling or structure with damages in excess of $1,000. We affirm appellant’s convictions and sentences without comment. However, because the appellant filed a pro se notice of appeal prior to filing his motions to withdraw plea, we remand with directions to the trial court to enter an order dismissing, not denying, appellant’s pro se motions to withdraw plea. See Adkinson v. State, 36 So.3d 836 (Fla. 1st DCA 2010).

Judgment and sentence AFFIRMED; order denying motion to withdraw plea REVERSED with directions.

BENTON, CLARK, and ROWE, JJ., concur.


text:
    Adam SCHOLL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4752.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2014.
    Adam Scholl, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, THOMAS, and WETHERELL, JJ., concur.


text:
    Jerry Neal PRATER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5206.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2014.
    Jerry Neal Prater, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, THOMAS, and WETHERELL, JJ., concur.


text:
    Jerry Neal PRATER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5208.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2014.
    Jerry Neal Prater, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, THOMAS, and WETHERELL, JJ., concur.


text:
    Jerry Neal PRATER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5210.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2014.
    Jerry Neal Prater, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, THOMAS, and WETHERELL, JJ., concur.


text:
    Eddie James MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-4935.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2014.
    Eddie James Murphy, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of October 27, 2014, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. The dismissal is without prejudice to appellant filing a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

WOLF, CLARK, and SWANSON, JJ., concur.


text:
    Veronica WALCZAK, Appellant, v. Charles WALCZAK, Appellee.
    No. 5D13-2227.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.
    Andrea Black, of Andrea Black, P.A., Orlando, for Appellant.
    Nicholas Shannin, of Shannin Law Firm, P.A., Orlando, for Appellee.
   PER CURIAM.

Based on the numerous errors contained in the final judgment concerning equitable distribution, many of which are admitted by the appellee, Charles Walczak, we reverse that part of the final judgment and remand the case to the trial court to redetermine the equitable distribution plan in this case. Once the new equitable distribution plan is determined, the trial court will then have to decide whether the issues of alimony and attorney’s fees will have to be readdressed. Accordingly, we also reverse that part of the final judgment awarding alimony and attorney’s fees. We remand to the trial court for further pro-ceedmgs. In all other respects, the final judgment is affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

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


text:
    Nolan Darnell BERNARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3701.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.
    James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Craft, 685 So.2d 1292, 1295 (Fla.1996) (holding that after trial court follows procedure outlined in Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), and denies motion to discharge counsel, court is not thereafter obligated to inform defendant of his or her right to self-representation absent an unequivocal request for self-representation).

TORPY, C.J., LAWSON and LAMBERT, JJ., concur.


text:
    Deol NARAYAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1463.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.
    Deol Narayan, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vineent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We reverse and remand this case to the trial court in accordance with this court’s decision in Narayan v. State, 149 So.3d 739 (Fla. 5th DCA 2014).

REVERSED and REMANDED.

SAWAYA, LAWSON, and WALLIS, JJ., concur.


text:
    STATE FARM MUTUAL AUTOMOBILE, etc., Appellant, v. Sarah SIMPSON, Jai Saint And Christopher Walker, Appellees.
    No. 5D14-2380.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.
    Cynthia B. Beissel, of Hassell-Legal, P.A., Daytona Beach, for Appellant.
    Peter A. Shapiro, of the Law Offices of Peter A. Shapiro & Jonathan D. Wilson, Orlando, for Appellees.
   ON CONCESSION OF ERROR

PER CURIAM.

Pursuant to Appellees’ concession of error, based on the Florida Supreme Court’s recent decision in Travelers Commercial Insurance Co. v. Harrington, — So.3d -(Fla.2014), which was not available to the circuit court when the order being appealed was rendered, we reverse the circuit court’s “Final Declaratory Judgment Against the Defendant” and remand to the circuit court for further proceedings.

REVERSED and REMANDED.

EVANDER, BERGER and LAMBERT, JJ., concur.


text:
    Paul SAVAGE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3314.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.
    Paul Savage, Milton, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 5, 2013, order denying postconviction motion in case no. 08-776-CF-52, in the Circuit Court in and for Putnam County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

GRANT PETITION.

PALMER, EVANDER, and COHEN, JJ., concur.


text:
    Anthony J. ROMINE, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-3451.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.
    Anthony J. Romihe, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant appeals an order denying his Florida Rule of Criminal Procedure 3.801(a) motion for correction of jail credit. He contends that the trial court erred in awarding only 352 days of jail credit when he was sentenced, and asserts that he is entitled to an additional 13 days of jail credit.

The trial court, in denying Appellant’s facially sufficient motion, did not elaborate on the reasons for its denial, and did not attach any records to its order that refute Appellant’s claim. When a rule 3.801 motion is summarily denied based on the records in the case, a copy of the portion of the files and records that conclusively show that the defendant is not entitled to relief shall be attached to the final order. Fla. R. Grim. P. 3.850(f)(5) (incorporated in Florida Rule of ' Criminal Procedure 3.801(e)). In a reply to our order directing a response, the State properly conceded that this case should be remanded.

REVERSED and REMANDED with directions that the trial court either grant the additional 13 days of jail credit or attach records to its final order that conclusively show that Appellant is not entitled to relief.

PALMER, ORFINGER and LAMBERT, JJ., concur.


author: LAMBERT, J.

text:
    GEICO GENERAL INSURANCE COMPANY, etc., Petitioner, v. Hermilio RODRIGUEZ, Individually, etc., Respondent.
    No. 5D14-3557.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.
    Angela C. Flowers, of Kubicki Draper, P.A., Ocala, for Petitioner.
    Thomas Andrew Player, of The Nation Law Firm, Longwood, for Respondent.
   ON CONFESSION OF ERROR

LAMBERT, J.

Geico General Insurance Company petitions for a writ of certiorari to review an order granting Respondent’s second motion for mandatory judicial notice. We have jurisdiction. Pending before this court in a separate case involving these parties is the direct appeal of a final judgment rendered in favor of Geico. In that appeal, we entered-an order relinquishing jurisdiction for the limited purpose of addressing Rodriguez’s Florida Rule of Civil Procedure 1.540(b)(2) motion for relief from judgment. The trial court, in its September 23, 2014 order, not only addressed the motion for relief from judgment, but also granted Respondent’s second motion for mandatory judicial notice.

A trial court’s action on matters outside the express purpose of our relinquishment of jurisdiction results in a void order. See Hernandez v. Hernandez, 924 So.2d 853, 855 (Fla. 2d DCA 2006). Certiorari is the appropriate remedy to quash an order issued in excess of the lower tribunal’s jurisdiction. See Morse v. Moxley, 691 So.2d 504, 506 (Fla. 5th DCA 1997). Respondent professionally confesses error, and concedes that Geico’s petition for common law certiorari should be granted. We agree.

Accordingly, we grant the petition and quash the portion of the September 23, 2014 order that granted Respondent’s second motion for mandatory judicial notice.

PETITION FOR WRIT OF CERTIO-RARI GRANTED; ORDER QUASHED, in part.

ORFINGER and LAWSON, JJ., concur.

      . See Art. V, § 4(b)(3), Fla. Const.; Fla. R. App. P. 9.030(b)(2).


text:
    Delroy CAMPBELL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-3791.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.

      Delroy Campbell, Perry, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the July 22, 2014, final order denying his motion for postcon-viction relief in Case No. 2007-CF-4630-A, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, PALMER and LAMBERT, JJ., concur.


text:
    Antonio AVILES, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-90.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2014.
    John S. Zaleskie, Jr., Assistant Regional Counsel for The Office of Criminal Conflict and Civil Regional Counsel, Tavares, and Paula C. Coffman, Assistant Criminal Conflict Counsel for The Office of Criminal Conflict & Civil Regional Counsel, Cassel-berry, for Appellant.
    Antonio Aviles, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm this Anders appeal in all respects but remand for correction of a scrivener’s error in the written sentencing documents. The trial court orally pronounced a twenty-year mandatory sentence on counts I and II, pursuant to section 775.087(2)(a)2., Florida Statutes; however, the documents state that a ten-year minimum mandatory sentence was imposed.

AFFIRMED AND REMANDED.

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

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


text:
    Burt L. McGEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1745.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2014.

      James S. Purdy, Public Defender, and Robert Jackson Pearce III, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm without prejudice to defendant filing a timely motion under Florida Rule of Criminal Procedure 3.801.

AFFIRMED.

PALMER, ORFINGER and EVANDER, JJ., concur. •


text:
    Venturia ABRAHAM, also known as Venturia Abrams, Appellant, v. CYPRESS PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 1D14-4908.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.
    Hewett G. Woodward, of The Woodward Law Firm, Orlando, for Appellant.
    Trevor G. Hawes and Bradley L. Little, of Cole, Scott & Kissane, P.A., Jacksonville, for Appellee.
   PER CURIAM.

DISMISSED. Henderson v. Tandem Health Care of Jacksonville, Inc., 898 So.2d 1191 (Fla. 1st DCA 2005); Continental Equities, Inc. v. Jacksonville Transp. Authority, 558 So.2d 154 (Fla. 1st DCA 1990).

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Alvoid HARTLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5037.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We treat petitioner’s motion for extension of time as a petition alleging ineffective assistance of appellate counsel for purposes of exercising our jurisdiction. However, we find that petitioner has failed to establish good cause to extend the time for filing such a petition. See Chance v. State, 65 So.3d 1176 (Fla. 1st DCA 2011). Accordingly, we deny relief and dismiss this proceeding.

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Terry Lee MARSHALL, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5110.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.
    Terry Lee Marshall, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The court recently granted a petition for belated appeal filed by petitioner’s trial counsel in case number 1D14-3137, and a belated appeal of petitioner’s judgment and sentence is currently progressing in case number 1D14-4978. Accordingly, the petition for belated appeal is DISMISSED.

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    M.T., Father of Infant Boy Born November 13, 2012, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-4926.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.
    M.T., Father of Infant Boy Born November 13, 2012, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. This dismissal is without prejudice to appellant’s right to seek relief in the circuit court. Daily v. Soloway, 125 So.3d 363 (Fla. 1st DCA 2013).

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Shadesia FRANCES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4515.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.
    M. Blair Payne, Public Defender, and Kimberly K. Mears, Assistant Public Defender, Lake City, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on August 27, 2014, in Columbia County Circuit Court case number 11-924-CF is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent her in the belated appeal authorized by this opinion.

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Lucille Janet CARTER, Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D14-4292.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.
    Terry D. Bork of the Law Offices of Terry Bork, Jacksonville, for Appellant.
    Therese A. Savona, Chief Appellate Counsel, Department of Health, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellee’s confession of error, the final order of the Florida Department of Health Board of Nursing revoking the appellant’s nursing license is REVERSED and this matter is REMANDED to the Board for further proceedings. See Butler v. State Bd. of Nursing, 107 So.3d 1184 (Fla. 1st DCA 2013).

WOLF, CLARK, and SWANSON, JJ., concur.


text:
    Thomas B. FELTON, Petitioned, v. STATE of Florida, Respondent.
    No. 1D14-3105.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.
    Thomas B. Felton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying motion to correct illegal sentence rendered on August 16, 2012, in Clay County Circuit Court case number 10-2007-CF-1033-AXXX-MA is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Daniel P. COLWART, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1465.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2014.
    Daniel P. Colwart, pro se.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying defendant’s motion to withdraw plea rendered on November 12, 2013, in Duval County Circuit Court case number 16-2011-CF-3900-AXXX-MA is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

Insofar as the petition seeks a belated appeal in circuit court case number 16-2011-CF-003769-AXXX-MA, the petition is denied.

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    King A. GREENE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5221.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2014.

      King A. Greene, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

PADOVANO, MARSTILLER, and OSTERHAUS, JJ., concur.


text:
    Joseph L. RIVERS, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D13-5918.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2014.
    Joseph L. Rivers, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from a final order dismissing appellant’s tort complaint against appellee and two of its employees. We affirm the dismissal of the complaint against appellee’s employees because they were immune from suit under section 768.28(9)(a), Florida Statutes. However, appellee concedes that we must reverse the dismissal of the complaint against ap-pellee because the trial court improperly considered matters outside the four corners of the complaint regarding whether appellant complied with the presuit notice requirements of section 768.28(6)(a), Florida Statutes. See Hamide v. State, Dep’t of Carr., 548 So.2d 877, 879-80 (Fla. 1st DCA 1989).

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

LEWIS, C.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    Paul Conrad HAUG, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-2778.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2014.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; David Campbell and Virginia Harris, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Paul Conrad Haug, challenges his convictions and sentences, arguing that the trial court failed to conduct a plea colloquy prior to adjudicating him guilty and sentencing him for violating his probation. “Due process requires a court accepting a guilty plea to carefully inquire into the defendant’s understanding of the plea, so that the record contains an affirmative showing that the plea was intelligent and voluntary.” Koenig v. State, 597 So.2d 256, 258 (Fla.1992). As properly conceded by the State, the record reflects that Appellant was never sworn in, he never admitted to any of the'alleged violations of probation, and he was never informed of the consequences of his admission. Because the legal requirements of Florida Rules of Criminal Procedure 3.170(k) and 3.172(c) were not fulfilled, the trial court erred in entering the judgment and sentence for violation of probation. We, therefore, REVERSE and REMAND for further proceedings.

THOMAS, ROWE, and OSTERHAUS, JJ., concur.


author: WOLF, J.

text:
    DEPARTMENT OF JUVENILE JUSTICE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3007.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2014.
    John Milla, Assistant General Counsel, Department of Juvenile Justice, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Respondent.
   WOLF, J.

The Department of Juvenile Justice filed a petition for writ of certiorari seeking review of an order entered by a circuit court judge concerning juvenile eases before that judge. The order required that “if the Department of Juvenile Justice ultimately recommends probation versus commitment in the PDR [predisposition report], the PDR must also include the restrictiveness level recommendation that would meet the child’s needs if the Court ... determines the child is to be committed.” We find this order contravenes section 985.433, Florida Statutes, by combining the two-step process set forth in subsections 985.433(6) and (7). See B.K.A. v. State, 122 So.3d 928, 929 (Fla. 1st DCA 2013) (finding there is a “two-part process for juvenile dispositions, as set out in section 985.433(6) and (7), Florida Statutes”); J.B.S. v. State, 90 So.3d 961, 968 (Fla. 1st DCA 2012) (finding the court properly “structured the proceeding as a two-step process in compliance with sections 985.433(6) and (7)(b)”). By contravening the statute, the circuit court judge violated the separation of powers doctrine and thereby acted in excess of his jurisdiction. See State, Dep’t of Juvenile Justice v. Soud, 685 So.2d 1376, 1378-80 (Fla. 1st DCA 1997). While the Legislature may want to consider whether combining the current two-step process would be more efficient, that is the prerogative of the Legislature, not the circuit court. Accordingly, we GRANT the petition for writ of certiorari and QUASH the order.

THOMAS and WETHERELL, JJ., concur.


text:
    Roberto RIVERA, M.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D14-3878.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2014.
    Roberto Rivera, M.D., pro se, Appellant.
    Therese A. Savona, Assistant General Counsel, Florida Department of Health, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED as moot.

WOLF, THOMAS, and WETHERELL, JJ., concur.


text:
    Jermaine R. REED, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4839.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2014.
    Jermaine R. Reed, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003), (holding that, generally, a criminal defendant has no right to partially represent himself and, at the same time, be partially represented by counsel).

WOLF, THOMAS, and WETHERELL, JJ., concur.


text:
    Yanco PETERSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D12-3788, 1D12-3791.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2014.

      Jeffrey E. Lewis, and Michael J. Titus, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren L. Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm conviction and-sentence imposed in lower court case number -08-781 CF (1D12-3788) for violation of probation, and the convictions and sentences imposed in lower court case number 10-356CF (1D12-3791) for six counts of fighting or baiting animals. Appellant is collaterally estopped from arguing the trial court erroneously denied his motion to suppress. He challenged the denial in a prior case raising the same arguments as raised here, and this Court affirmed the order per curiam. See Peterson v. State, 118 So.3d 224 (Fla. 1st DCA 2013); see also Ziegler v. State, 116 So.3d 255, 258 (Fla.2013) (“In Florida, collateral estoppel prevents the same parties from relitigating issues that have already been fully litigated and determined.”). In addition, the Order Granting Motion to Cite Statute and Strike Fine and Surcharges entered July 30, 2013, in lower court case number 08-781 CF remedies the errors in the amended final judgment that Appellant now seeks to be corrected. Further, the sentence in the amended final judgment in lower court case number 10-356CF for Count 19 accurately reflects the sentence the trial judge orally pronounced.

However, the amended final judgment in lower court case number 10-356CF imposes a discretionary fine and related surcharge under sections 775.083 and 938.04, Florida Statutes, respectively, which the trial court failed to specifically announce at sentencing. Accordingly, we strike these costs and remand for the trial court to enter a corrected judgment. On remand, the court may reimpose the discretionary fine and surcharge after following the appropriate procedures. See DeSalvo v. State, 107 So.3d 1185, 1187 (Fla. 1st DCA 2013); Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012).

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

VAN NORTWICK, PADOVANO, and MARSTILLER, JJ., concur.


text:
    Linda CROFTON, Appellant, v. WELLS FARGO BANK, N.A., et al., Appellee.
    No. 1D14-5028.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2014.
    Ronald Bergwerk, Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. The Court declines to abate the appeal as requested by the appellant in the response to the Court’s November 12, 2014, order. See Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009) (dismissing appeal rather than allowing lower court to enter a final order where an indeterminate amount of judicial labor remained to' be done before a final order could be entered).

VAN NORTWICK, THOMAS, and WETHERELL, JJ., concur.