author: VAN NORTWICK, J.

text:
    Jamie Lee TASKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3072.
    District Court of Appeal of Florida, First District.
    June 24, 2009.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

In this appeal of an order revoking probation, Jamie Lee Tasker challenges the assessment on his scoresheet of forty points for victim injury as a result of sexual contact. The scoresheet at issue was prepared for the initial sentencing hearing where probation was ordered following completion of a jail term. The issue of the scoring of victim injury points was not raised at that initial sentencing nor was it raised in the three subsequently held hearings regarding allegations that Tasker violated the conditions of his probation. It was only after Tasker’s probation was revoked and this appeal filed that the issue of the scoring victim injury points for sexual contact was raised. During the pen-dency of this appeal, appellate counsel filed a motion to correct sentence, pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure, challenging the assessment of forty points. The trial court denied the motion.

Under our case authority, appellant has not preserved the issue of the assessment of victim injury points. As we explained in Fitzhugh v. State, 698 So.2d 571, 573 (Fla. 1st DCA 1997), “an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet.” See also Bowman v. State, 974 So.2d 1205 (Fla. 1st DCA 2008). Importantly, section 924.06(2), Florida Statutes (2007), provides that “an appeal of an order revoking probation may review only proceedings after the order of probation.” We acknowledge other districts have held to the contrary. See Stubbs v. State, 951 So.2d 910 (Fla. 2d DCA 2007)(holding that trial court erred in refusing to allow defendant to challenge the inclusion of victim injury and legal constraint points at sentencing following revocation of probation); Spell v. State, 731 So.2d 9 (Fla. 2d DCA 1999)(holding defendant could challenge victim injury points after revocation of community control); Bogan v. State, 725 So.2d 1216 (Fla. 2d DCA 1999)(holding that defendant could challenge assessment of victim injury points in appeal of revocation of probation despite the fact that defendant did not raise the issue at the original sentencing hearing or in a prior appeal); see also Routenberg v. State, 802 So.2d 361 (Fla. 2d DCA 2001)(holding that a claim that victim injury points for penetration were incorrectly assessed on scoresheet could be raised in a rule 3.800(a) motion even after violation of probation); and Wright v. State, 707 So.2d 385 (Fla. 2d DCA 1998)(explaining defendant did not waive right to challenge scoresheet points for victim injury for penetration by not raising issue at original sentencing hearing). We certify conflict with Stubbs, Spell, and Bo-gan.

AFFIRMED; conflict certified.

WOLF and KAHN, JJ., concur.


source: Caselaw Access Project

author: PLEUS, JR., R., Senior Judge.

license: Public Domain

text:
    Jermaine WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-57.
    District Court of Appeal of Florida, Fifth District.
    June 26, 2009.
    Jermaine Wright, Madison, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, JR., R., Senior Judge.

Jermaine Wright challenges the summary denial of his postconviction motion. His first two claims alleged trial counsel was ineffective in questioning a police officer at trial and failing to depose a witness before trial. The next two claims alleged the trial court committed fundamental error by admitting hearsay evidence at trial and then convicting him in the absence of sufficient evidence of guilt. We affirm the denial of relief on these four claims, as each was either conclusively refuted by the record, procedurally barred, or otherwise without merit.

Wright’s fifth and final postconviction claim alleged counsel was ineffective for coercing him to testify and telling him what to say on the stand. He further claimed counsel misadvised that if he testified, counsel would ensure he was sentenced to only three years’ imprisonment on the lesser charge of aiding and abetting. Wright asserted that the outcome of the trial would have been different if counsel had not forced him to testify. The trial court did not address this claim and the limited portions of the record before us do not refute it.

Therefore, we remand for the trial court to either hold an evidentiary hearing on ground five or attach those portions of the record conclusively refuting the claim.

AFFIRMED in part; REVERSED in part, and REMANDED.

SAWAYA and COHEN, JJ., concur.


author: PER CURIAM.

text:
    Luis Alonzo LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3309.
    District Court of Appeal of Florida, Second District.
    June 26, 2009.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Patterson v. State, 796 So.2d 572, 574 (Fla. 2d DCA 2001); Stancliff v. State, 996 So.2d 259, 260 (Fla. 1st DCA 2008); Wyden v. State, 958 So.2d 540, 540 (Fla. 3d DCA 2007); Winther v. State, 812 So.2d 527, 528 (Fla. 4th DCA 2002).

CASANUEVA, DAVIS, and SILBERMAN, JJ„ Concur.


author: COBB, W., Senior Judge.

text:
    Lance T. HARTWELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1161.
    District Court of Appeal of Florida, Fifth District.
    June 26, 2009.

      Lance T. Hartwell, Bonifay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock MeGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   COBB, W., Senior Judge.

Appellant, Lance T. Hartwell, was convicted and sentenced in four separate cases after all were consolidated for a single jury trial. Hartwell makes several claims for posteonviction relief. All but two of them are procedurally barred because they could or should have been raised on direct appeal. See Smith v. State, 445 So.2d 823 (Fla.1983). Hartwell’s claims that the State did not provide notice of its intent to habitualize him or proper proof of his predicate offenses to support habitualization require reversal.

To refute Hartwell’s claim regarding the lack of notice of habitualization, the trial court attached to its order a notice of intent to habitualize in a different case than the one in which Hartwell was habitualized. The State concedes that this does not conclusively refute Hartwell’s claim. While lack of written notice of ha-bitualization can be harmless error if the defendant had actual notice, whether Hart-well had actual notice would have to be determined in an evidentiary hearing. See Massey v. State, 609 So.2d 598, 600 (Fla. 1992). Therefore, we reverse and remand for either attachment of those portions of the record conclusively refuting Hartwell’s claim or an evidentiary hearing.

Hartwell also alleges that the State did not provide certified copies of his predicate convictions to prove that he qualified to be sentenced as a habitual offender. Hartwell’s claim that the State did not prove his prior convictions at sentencing is facially insufficient because Hartwell does not deny that he qualifies to be sentenced as a habitual offender. See Sampson v. State, 832 So.2d 251 (Fla. 5th DCA 2002). Instead of striking the claim and allowing an amendment as is required by Spera v. State, 971 So.2d 754 (Fla.2007), the trial court held that Hartwell’s reply to the State’s response was his amendment to that claim and denied it. The trial court’s denial without affording Hartwell an opportunity to amend was error under Spera. We therefore reverse and remand to allow Hartwell to amend this facially insufficient claim within a reasonable time set by the trial court.

We affirm the denial of postconviction relief in all other respects.

AFFIRMED in part; REVERSED in part; and REMANDED

ORFINGER and LAWSON, JJ., concur.


author: THOMAS, J.

text:
    Allen McGRIFF, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1282.
    District Court of Appeal of Florida, First District.
    June 30, 2009.
    Nancy A. Daniels, Public Defender, M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant seeks review of his convictions and sentences for attempted second-degree murder with a firearm and aggravated battery with a firearm. He alleges that the trial court reversibly erred in reading the jury instruction on the law of principals in response to a question from the jury and that his prison releasee reoffen-der sentence is unconstitutional. We agree that the trial court erred in instructing the jury on the law of principals. As such, we reverse and remand for a new trial.

Appellant’s charges arose out of a shooting that occurred at a flea market in Duval County, Florida. During the trial testimony, no evidence was offered that Appellant acted in concert with others in committing the crimes, although there was testimony that he was standing in a group when the shooting occurred. Before the jury retired for deliberations, the jury instructions were read, which did not include the principals instruction. During deliberations, the jury asked the following question: “If defendant was in the group, but we can’t decide if he was [sic] shooter can we convict [sic] of battery?” In response to the question, and over the objection of defense counsel, the trial court read the following instruction on the law of principals:

If the defendant helped another person or persons attempt to commit a crime or commit a crime, the defendant is a principal and must be treated as if he had done all of the things the other persons did if the defendant had a conscious intent that the criminal act be done and, second, the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other persons to actually commit or attempt to commit the crime. To be a principal, the defendant does not have to be present when the crime was committed.

The trial court abused its discretion in instructing the jury on the law of principals. The principals instruction may be given if the evidence adduced at trial supports such an instruction. See Masaka v. State, 4 So.3d 1274, 1284 (Fla. 2d DCA 2009); Wells v. State, 967 So.2d 418, 419 (Fla. 1st DCA 2007); Lewis v. State, 693 So.2d 1055, 1057 (Fla. 4th DCA 1997); Thomas v. State, 617 So.2d 1128, 1128 (Fla. 3d DCA 1993). If there is no evidence that would support the principals theory, then the reading of the instruction is error. See id. Such an error is not harmless when it is capable of misleading the jury in such a way that the defendant’s right to a fair trial is prejudiced. See Masaka, 4 So.3d at 1286; Wells, 967 So.2d at 419.

In the instant case, there was no evidence offered that Appellant worked in conjunction with anyone else to commit the crimes. Such a theory was never argued before the jury, and the instruction on principals was neither requested by the State nor read in the original reading of the jury instructions. The instruction was only given after the jury presented the court with a question regarding its inability to determine whether Appellant was the actual shooter. Where there was no evidence offered that Appellant acted with anyone in committing the shootings, the trial court erred in reading the principals instruction. See Lovette v. State, 654 So.2d 604, 606 (Fla. 2d DCA 1995) (holding that the trial court committed reversible error in instructing the jury on a principals theory because there was no evidence that the appellant acted in concert with anyone in committing the charged offenses).

Further, the error was not harmless in that it was likely to cause the jury to be confused as to whether they could return a guilty verdict if Appellant was in a group of people but another member was the actual shooter. The jury’s question indicates that there was already some confusion regarding the verdict, and the trial court’s improper reading of the principals instruction could have only furthered the confusion. Additionally, it is not apparent from the verdict form if the jury convicted Appellant on a principals theory. As such, the reading of the instruction is reversible error. See Wells, 967 So.2d at 419 (finding that reading the principals instruction was not harmless error where the verdict did not reveal whether the jury relied on the principals theory to convict and the instruction was likely to cause confusion). Finally, the error was especially prejudicial because it was done after the closing argument, when the defense had no opportunity to address this new theory of the case. See Knuth v. State, 679 So.2d 22 (Fla. 2d DCA 1996); King v. State, 642 So.2d 649 (Fla. 2d DCA 1994), disapproved of on other grounds by Welsh v. State, 850 So.2d 467 (Fla.2003).

Accordingly, because the trial court erred in instructing the jury on the law of principals and the error was not harmless, we reverse Appellant’s convictions and sentences and remand for a new trial.

REVERSED and REMANDED.

DAVIS and BROWNING, JJ., concur.


text:
    Angela F. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0168.
    District Court of Appeal of Florida, First District.
    June 30, 2009.
    Angela F. Williams, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Angela Williams entered into a negotiated plea of guilty to violating her probation. Based on the negotiated plea, the trial court sentenced her to three years’ imprisonment with credit for time served from the appellant’s most recent arrest. The court did not award Williams any credit for time spent in prison on her original sentence, and in neither the written admission nor the plea colloquy was the issue discussed. Williams now argues that she is entitled to credit for the 18 months she served in prison on the incarcerative portion of her original split sentence and to jail credit for time served in the original sentence.

The appellant’s motion is facially insufficient with regard to the jail credit, we therefore affirm the trial court’s summary denial of the appellant’s jail credit claim without further comment. However, the appellant’s claim for prison credit appears to have merit.

When a defendant is given a split sentence, serves time in prison, is released on probation, and subsequently violates that probation, the defendant is entitled to credit for time served in prison on the original sentence unless the appellant specifically waives the right to credit as part of a negotiated plea. See Waters v. State, 662 So.2d 332 (Fla.1995); Wells v. State, 751 So.2d 703 (Fla. 1st DCA 2000). The record before us contains no documentation that Williams waived her entitlement to credit for prison time served.

On appeal from a summary denial, this Court must reverse unless the postconviction record shows conclusively that the appellant is entitled to. no relief. See Fla. R.App. P. 9.141(b)(2). Because the record does not conclusively refute the appellant’s claim, we reverse the appellant’s claim to prison credit and remand the cause to the trial court for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

WOLF, WEBSTER, and CLARK, JJ., concur.


text:
    Lawrence DIGSBY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0364.
    District Court of Appeal of Florida, First District.
    June 30, 2009.
    Lawrence Digsby, pro se, Appellant.
    Bill McCollum, Attorney General and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the denial of his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of all but two of appellant’s claims.

As to appellant’s claim that counsel was ineffective for failing to obtain videotapes which allegedly showed the incident giving rise to the charges (ground D), we reverse and remand for the trial court to either attach portions of the record conclusively refuting the claim or for an evidentiary hearing. As to appellant’s claim that counsel was ineffective for failing to impeach Mr. Swindell with prior convictions (ground M), we reverse and remand with directions that the trial court give appellant leave to amend his facially insufficient claim. See Spera v. State, 971 So.2d 754 (Fla.2007) (holding that a trial court must allow the defendant at least one opportunity to amend a facially insufficient postcon-viction motion if it can be amended in good faith).

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

ALLEN, PADOVANO and BROWNING, JJ., concur.


text:
    Aqeel Waleed BARUTI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2874.
    District Court of Appeal of Florida, First District.
    June 30, 2009.
    Aqeel W. Baruti, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


author: WHATLEY, Judge.

text:
    Charles HARMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-915.
    District Court of Appeal of Florida, Second District.
    July 1, 2009.
    Richard A. Harrison of Allen Dell, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Charles Harman appeals an order denying his petition to expunge the records of criminal justice agencies and the official records of the circuit court. We conclude that the trial court erred in denying the petition based on its two stated grounds and reverse.

The procedure to expunge judicial records and nonjudicial criminal history records is governed by Florida Rule of Criminal Procedure 3.692 and section 943.0585, Florida Statutes (2007). In the present case, the State acknowledges that Mr. Harman satisfied the requirements of section 948.0585 and rule 3.692 for the expunction of his criminal history records and judicial records. However, as noted by the State and Mr. Harman, even where a petitioner has satisfied all of the statutory requirements, section 943.0585 gives the trial court the discretion to deny expunction. See Russell v. Miami Herald Publ’g Co., 570 So.2d 979, 982 (Fla. 2d DCA 1990) (interpreting statute as allowing a trial court to expunge its own records using its sound discretion). A trial court has the discretion to deny a petition “if there is a good reason for denial based on the facts and circumstances of the individual case.” Anderson v. State, 692 So.2d 250, 252 (Fla. 3d DCA 1997).

Here, the trial court denied the petition based on its finding that the charged offense was serious and its finding that Mr. Harman previously had been accused of a domestic violence offense. We conclude that the trial court abused its discretion in denying the petition based on these two reasons.

On April 12, 2005, Mr. Harman was charged by information with the second-degree murder of his wife. However, on April 27, 2006, the State filed a nolle pro-sequi in the case. At the hearing on Mr. Harman’s petition, the prosecutor argued that the charges were dropped because the medical examiner could not determine whether Mr. Harman’s wife’s death was a homicide or a suicide, and therefore, the State could not establish corpus delecti. The prosecutor noted that, even though the case was dropped because the State could not establish corpus delecti, it was not dropped because it believed that Mr. Harman did not commit the offense. It noted that the cause of death was a single gunshot wound and that when a detective asked Mr. Harman how many times he pulled the trigger, Mr. Harman replied that the “gun only went off once.”

As the State concedes, even though the charge in the instant case was serious, the seriousness of the offense, standing alone, is insufficient to support the denial of the petition. See Anderson, 692 So.2d at 254 (“[T]he exercise of discretion contemplates that the court will make its decision based on consideration of all of the facts and circumstances, rather than deciding the petition solely on the nature of the charge.”); see also Godoy v. State, 845 So.2d 1016, 1017 (Fla. 3d DCA 2003) (concluding that trial court’s denial of petition cannot be based solely on the nature of the charge). Therefore, the trial court abused its discretion in denying the petition based on the seriousness of the offense.

We also conclude that the trial court abused its discretion in denying the petition based on the previous domestic violence offense because, as the State concedes, there was no evidence presented at the hearing to support this finding. At the hearing, the prosecutor stated that Mr. Harman previously had been accused of domestic violence by his former wife and that his former wife alleged that Mr. Har-man had threatened to kill her and had told her that he could make it look like self-defense. However, there was no testimony or documentary evidence presented to support the prosecutor’s statements. Therefore, the trial court erred in relying on the attorney’s statements to support its findings.

Accordingly, we reverse the order denying Mr. Harman’s petition to expunge and remand to permit the trial court to reconsider the petition. See Godoy, 845 So.2d at 1017 (remanding with directions to the trial court to reconsider appellant’s petition based on all of the facts and circumstances, not only on the nature of the charge); Oymayan v. State, 765 So.2d 812, 815 (Fla. 1st DCA 2000) (remanding for trial court to reconsider request for ex-pungement of judicial records).

Reversed and remanded with directions.

ALTENBERND and FULMER, JJ., Concur.

      . When the trial court announced its two stated reasons for denying the petition, Mr. Har-man did not object or otherwise challenge those reasons in the trial court.

      . At the hearing, Mr. Harman argued that this was not an admission that he pulled the trigger.


author: FARMER, J.

text:
    STATE of Florida, Appellant, v. Gabriel SANTIAGO, Appellee.
    No. 4D07-4682.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.
    Rehearing Denied Aug. 5, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellee.
   FARMER, J.

Under the authority of rule 3.190(c)(4), the trial court dismissed an Information charging defendant with dealing in stolen property. The property in question was a power washer on loan to defendant. Defendant’s factual basis for dismissal was that, because he needed money he had pawned the washer, but before he could redeem the washer from the pawnshop and timely return it under his agreement with the lender, the police charged him with dealing in stolen property.

The issue was whether the lender’s permission to use the washer allowed defendant to pawn it. His motion asserted that his act of using the washer to borrow money was “within the scope of the consent granted to him.” The State filed no Traverse to this fact.

At the hearing on the motion, defendant pointed out that the undisputed facts he relied on were those in a police report supporting his assertion that the right to pawn the washer was within the consent. The trial court stated that if the State agreed that the facts relied on by defendant were not disputed, then the court would grant the motion. He directed defense counsel to reduce those facts to writing, show the writing to the prosecutor, and obtain an acknowledgement that those facts were undisputed. If they were undisputed, the court would enter the order granting dismissal. If not, defendant should advise the court of that fact because “if it’s not her agreement on the facts, then we need to talk again.” Later that same day, the court entered an order reciting:

“Having heard argument, the Court finds that the undisputed facts reflect the victim’s consent as to the use and possession of the subject property by the defendant. This factual basis is insufficient to provide a basis for the charge of dealing in stolen property.”

We affirm.

The State argues that at the hearing on his motion defendant actually stipulated orally to different facts in a “probable cause affidavit” and thus the facts could not be deemed undisputed. The record does not support this argument. It shows instead that defendant specifically referred to and relied upon the police report, not a probable cause affidavit.

The State also argues that at the hearing defendant had agreed to an “oral” traverse. We are unable to find any such agreement or stipulation in the record.

In State v. Kalogeropolous, 758 So.2d 110 (Fla.2000), the supreme court explained:

“In order for the State to defeat a motion to dismiss, rule 3.190(d) provides in part:
The state may traverse or demur to a motion to dismiss that alleges factual matters. Factual matters alleged in a motion to dismiss under subdivision (c)(4) of this rule shall be deemed admitted unless specifically denied by the state in the traverse.... A motion to dismiss under subdivision (c)(4) of this rule shall be denied if the state files a traverse that with specificity denies under oath the material fact or facts alleged in the motion to dismiss.
Fla. R.Crim. P. 3.190(d) (emphasis added).... [T]he ‘with specificity’ language was added to the rule to clarify that the State was required to file a specific traverse to ‘specific material fact or facts’ in order to defeat a motion to dismiss. If the facts in the motion that the State does not specifically deny support the defendant’s position but additional facts exist that would create a material issue preventing the granting of the motion, the State should set forth those additional facts in the traverse just as a non-movant would have to do in a counter-affidavit in order to defeat a motion for summary judgment.” [c.o.]

758 So.2d at 111-12. The State’s failure to file a Traverse to the professedly undisputed fact that defendant’s permission to use the washer included the right to pledge it temporarily to obtain money from a pawn shop was quite rightly the deciding factor for the very able and experienced trial judge who granted this motion to dismiss.

Affirmed.

GROSS, C.J., and DAMOORGIAN, J., concur.

      . Fla. R.Crim. P. 3.190(c)(4) ("the court may at any time entertain a motion to dismiss on ... the ... grounds ... the undisputed [material] facts do not establish a prima facie case of guilt against the defendant").


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. S.E., the Mother, Appellee.
    No. 4D08-993.
    District Court of Appeal of Florida, Fourth District.
    July 1, 2009.
    Rehearing Denied Aug. 7, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Charles M. Fahlbusch, Senior Assistant Attorney General, Fort Lauder-dale, for appellant.
    Michael A. Hymowitz of Braverman & Hymowitz, Fort Lauderdale, for appellee.
   PER CURIAM.

The Department of Children and Families (DCF) appeals the trial court’s award of fees in favor of S.E., the mother, pursuant to section 57.105, Florida Statutes (2006), following the involuntary dismissal of a dependency action. We reverse the award of fees in its entirety, finding that DCF’s verified petition for dependency was always supported by the material facts necessary to establish a claim for dependency. As to the award of costs under section 57.041, we affirm without further discussion.

S.E. and her husband have two children, J.E. and E.E., born in 2000 and 2003, respectively. Both children have received significant medical treatment from birth. The family moved from California to Florida in November 2005 because S.E.’s husband got a new job. Shortly thereafter, DCF received two anonymous child abuse reports on its hotline and investigated S.E. and her two children. On February 22, 2006, DCF filed a verified petition for dependency based primarily on medical opinions and recommendations from the Child Protection Team (CPT) and its experts, Dr. Wright and Dr. Schulman. The petition alleged that S.E. suffered from Mun-chausen Syndrome by Proxy, a phenomenon where a person deliberately makes another person, most often his or her own child, sick or convinces others that the person is sick. DCF’s petition focused mainly on E.E., the younger child, noting that once S.E. became pregnant with E.E., J.E.’s medical condition improved.

On April 3, 2006, S.E. filed a sworn motion to dismiss as to each child, asserting the insufficiency of DCF’s claims and attaching extensive documentation of the children’s medical history, as well as affidavits from the children’s physicians rebutting the allegation of Munchausen Syndrome by Proxy. On April 14, 2006, S.E. served a section 57.105 motion for attorney’s fees on DCF. More than twenty-one days later, DCF still had not withdrawn its dependency petition, so on May 10, 2006, S.E. filed her section 57.105 motion. On May 12, 2006, the trial court denied S.E.’s motions to dismiss.

Trial had been scheduled for July, and immediately prior to its commencement, Dr. Alexander, Statewide Medical Director, Child Protection Teams, explained in a letter that, upon review of the records, he did not find sufficient evidence that E.E. was the victim of Munchausen Syndrome by Proxy. Consequently, DCF sought to amend its petition, dropping the Munchausen Syndrome by Proxy claim. However, Dr. Alexander, along with Dr. Wright and Dr. Schulman, continued to express concern over the children’s welfare with the mother, believing that she still posed a threat of harm. Thus, the proposed amended petition contained an allegation that the children were dependent because they remained at risk of physical injury due to the mother. The trial court permitted the amendment, but then granted S.E.’s renewed motion to dismiss, finding that DCF’s amended petition failed to specifically set forth the acts or omissions upon which the petition was based. The trial court reserved ruling on S.E.’s section 57.105 motion.

The hearing on S.E.’s entitlement to fees lasted three days, culminating in the trial court’s order, finding that, based on the evidence presented, DCF knew or should have known that, at the time of filing, its verified petition for dependency was not supported by the material facts necessary to establish a claim for dependency. As a result, the trial court awarded S.E. fees pursuant to section 57.105.

This court reviews a trial court’s award of section 57.105 fees for an abuse of discretion. The statute provides in pertinent part:

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

Although the trial court granted S.E.’s motions to dismiss, we find the trial court abused its discretion in finding that, at the time of filing, DCF knew or should have known its petition for dependency lacked support. We also note that DCF’s petition did not subsequently become frivolous during the pendency of the action. See Weatherby Assocs., Inc. v. Ballade, 783 So.2d 1138, 1142 (Fla. 4th DCA 2001) (holding that section 57.105 fees are recoverable from the point at which the suit becomes frivolous).

Pursuant to section 39.01(14)(f), Florida Statutes (2006), a child can be found dependent if he or she is “at substantial risk of imminent abuse, abandonment, or neglect.” In its initial and amended petitions for dependency, DCF relied on the opinions of CPT’s medical professionals. Because the CPT doctors remained convinced throughout the pendency of this litigation that a risk of imminent abuse, abandonment, or neglect existed, despite the withdrawal of the Munchausen Syndrome by Proxy allegations, we find that DCF’s petition for dependency was always supported by the necessary material facts to overcome an award of section 57.105 fees. See generally Murphy v. WISU Props., Ltd., 895 So.2d 1088, 1094 (Fla. 3d DCA 2004) (holding that mere dismissal of a suit does not necessarily justify a section 57.105 attorney’s fee award).

We reverse the trial court’s award of section 57.105 fees in its entirety. We affirm the award of costs.

Reversed and remanded.

STEVENSON, HAZOURI and LEVINE, JJ., concur.

      . See § 39.303, Fla. Stat. (2006) (“The Children's Medical Services Program in the Department of Health shall develop, maintain, and coordinate the services of one or more multidisciplinary child protection teams in each of the service districts of the Department of Children and Family Services.”).


text:
    George KALIVRETENOS and G & G Two, LLC, Appellants, v. 81 DUNDEE, LLC and 158 Dundee, LLC, Appellees.
    No. 5D08-592.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2009.
    Dennis R. O’Connor and R. Sam Duna-way, III, of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Orlando, for Appellant.
    Richard S. Dellinger and Melody B. James of Lowndes, Drosdick, Doster, Ranter & Reed, P.A., Orlando, for Appellees.
   PER CURIAM.

As to the claims of error raised by G & G Two, LLC, we affirm. The claims of error raised by George Kalivretenos are currently stayed as a result of his bankruptcy filing and will be addressed if and when the bankruptcy stay is lifted.

AFFIRMED as to G & G Two, LLC; stayed as to George Kalivretenos.

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


text:
    Jose PRIDE, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5154.
    District Court of Appeal of Florida, First District.
    July 8, 2009.

      Jose Pride, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the appellant’s motion for postconviction relief. However, the trial court indicated that any farther postconviction motions regarding the underlying case will not be entertained. If a trial court wishes to bar the appellant from filing further postconviction motions, it must follow the dictates of State v. Spencer, 751 So.2d 47 (Fla.1999), and provide the defendant with notice and an opportunity to respond through issuance of a show cause order. Accordingly, we affirm on the merits but reverse and remand for the trial court to comply with the requirements of Spencer.

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

BARFIELD, DAVIS, and ROBERTS, JJ., concur.


text:
    In the Interest of R.W., a child. C.W., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D09-426.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.
    Jackson S. Flyte, Regional Counsel, Second District, and Robert D. Rosen, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bar-tow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paulin, Orlando, for Appellee Guardian ad Litem Program.
   PER CURIAM.

C.W., the Father, challenges the trial court’s final judgment terminating his parental rights to his child, R.W. The Father, who is a prisoner, apparently indicated over the telephone a willingness to surrender his rights if certain conditions were met, but he never executed written surrender forms. The Department of Children and Family Services and the Guardian ad Litem Program concede that it was error to terminate the Father’s parental rights on the ground that he voluntarily surrendered his rights when he did not execute the necessary surrender forms. § 39.806(l)(a), Fla. Stat. (2008). Accordingly, we reverse the final judgment and remand for further proceedings.

Reversed and remanded.

CASANUEVA, C.J., and ALTENBERND and VILLANTI, JJ., Concur.


text:
    Michael FARLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1516.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.
    Michael Farley, pro se.
   WHATLEY, Judge.

Michael Farley appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850 in June 2007. The posteonviction court summarily denied each of the six grounds of the motion as untimely, ruling that Mr. Farley failed to establish newly discovered evidence to justify consideration of claims related to his guilty plea and sentence in June 2001. We affirm, without comment, the summary denial of grounds 1 through 5. However, we are compelled to reverse the summary denial of ground 6.

In ground 6, Mr. Farley alleged that a supplemental police report was withheld from him before he pleaded guilty in June 2001. According to Mr. Farley, the police report would have been crucial to his defense, as established by deposition testimony by his former counsel (taken in connection with a prior rule 3.850 proceeding). Mr. Farley asserted that had he been aware of the information contained in the police report, he would not have pleaded guilty and instead would have insisted on proceeding to trial.

The posteonviction court ruled that the claim was untimely because it referred to one of three police reports that were the subject of a rule 3.850 claim filed in July 2003 (amending his prior timely filed rule 3.850 motion). The court reasoned that because it was apparent that Mr. Farley was aware of the existence of the police report in July 2003, the report did not constitute newly discovered evidence excusing the untimeliness of his claim filed in June 2007.

In a motion for reconsideration, Mr. Farley alleged that the supplemental police report at issue in his present rule 3.850 motion was separate and distinct from the three other reports at issue in his prior rule 3.850 motion. He provided factual support for that allegation and also alleged that he first became aware of the supplemental police report in “late 2005.” The posteonviction court denied the motion for reconsideration.

We reverse the summary denial of ground 6 because the record before the posteonviction court did not conclusively establish that Mr. Farley’s claim of newly discovered evidence was untimely. We express no opinion on the merits of the claim.

In this appeal, we did not consider copies provided by Mr. Farley to this court of a portion of the supplemental police report and the transcript of the deposition testimony of his former counsel, which allegedly support his claim. These items were not before the posteonviction court when it considered ground 6 of Mr. Farley’s motion. On remand, Mr. Farley shall make these items part of the record by promptly filing them with the posteonviction court. If the posteonviction court again summarily denies this claim, it shall attach those portions of the record conclusively showing that Mr. Farley is entitled to no relief.

Affirmed in part; reversed in part; remanded with directions.

DAVIS and KELLY, JJ., Concur.


author: DAVIS, Judge.

text:
    James C. HOAG, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5387.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.
   DAVIS, Judge.

In a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), James C. Hoag alleged that numerous errors appearing on his 1994 guidelines scoresheet resulted in an illegal sentence. We reverse the postconviction court’s order summarily denying Mr. Hoag’s motion to the extent that it denied relief on his claim that the severity level of an additional offense was incorrectly scored. The order is affirmed in all other respects without comment.

Mr. Hoag was convicted of second-degree murder and attempted second-degree murder and was sentenced to concurrent terms of 28.1 years and fifteen years, respectively. On his 1994 guidelines scoresheet for the primary offense of second-degree murder, the offense of attempted second-degree murder was listed as an additional offense and scored as a level 9 offense for 10.8 points. However, under the applicable statutes and rules and as apparent on the face of the scoresheet, the offense of attempted second-degree murder should have been scored as a level 8 offense for 9.6 points. See §§ 777.04(1), 782.04(2), 921.0012(3)©, Fla. Stat. (1995); Fla. R.Crim. P. 3.702(c) & (d)(6), 3.990; see also Hoag v. State, 801 So.2d 207 (Fla. 2d DCA 2001). As a result, 1.2 points were erroneously added to Mr. Hoag’s score-sheet total.

As originally scored, Mr. Hoag’s total sentencing points equaled 298, resulting in a recommended state prison sentence of 270 months, with a permissible sentencing range between 202.5 and 337.5 months. For the primary offense of second-degree murder, Mr. Hoag was sentenced to the maximum 337.5 months or 28.1 years. Had the additional offense of attempted second-degree murder been scored correctly, Mr. Hoag’s total sentencing points would have been 296.8, with a maximum permissible sentence of 336 months or twenty-eight years. Thus Mr. Hoag’s sentence for second-degree murder exceeded the maximum permissible sentence by 0.1 years.

Errors in offense-level scoring are cognizable in a rule 3.800(a) motion. See Herrmann v. State, 768 So.2d 511 (Fla. 2d DCA 2000). However, “if the trial court could have imposed the same sentence using a correct scoresheet, any error was harmless.” Brooks v. State, 969 So.2d 238, 243 (Fla.2007). When a defendant is sentenced to the maximum guidelines sentence, a scoresheet error that improperly adds sentencing points to the total requires resentencing using a corrected scoresheet. See Mitchell v. State, 880 So.2d 1261, 1262 (Fla. 2d DCA 2004) (“[T]he scoresheet error resulted in the imposition of a sentence that could not have been imposed — absent a departure-under a correct scoresheet.... Accordingly, we reverse and remand for the trial court to resentence Mitchell under a corrected scoresheet.”); see also Pantle v. State, 784 So.2d 1139 (Fla. 2d DCA 2001).

In this case, the scoresheet error was not harmless because the trial court could not have imposed a 28.1-year sentence using a correct scoresheet reflecting a maximum guidelines sentence of twenty-eight years. Accordingly, Mr. Hoag is entitled to be resentenced using a corrected scoresheet scoring the additional offense of attempted second-degree murder as a level 8 offense.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.

      . The record before us does not indicate that the trial court made any findings that would justify a departure.


text:
    Gregory GEORGE, Appellant, v. Tammy GEORGE, Appellee.
    No. 2D08-3234.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.
    David M. Wall, Clearwater, for Appellant.
    James A. Byrne, St. Petersburg, for Ap-pellee.
   DAVIS, Judge.

Gregory George (the Husband) challenges the trial court’s interlocutory order granting his continuance and awarding Tammy George (the Wife) temporary support in the amount of $1500 per month.

After filing her motion for temporary support and other relief in the pending dissolution action below, the Wife served an amended notice that a hearing on the motion was set for May 28, 2008. The Husband then filed a motion for continuance two business days before the hearing. Although the record before us does not include a transcript of that hearing, pursuant to Florida Rule of Appellate Procedure 9.200(a)(4), the parties have filed with this court a statement of the proceedings that has been approved by the trial court. According to that statement, both parties were present at the hearing with counsel, and the court first addressed the Husband’s motion for continuance. Although “[t]he parties were not given the opportunity to present testimony to the Court,” counsel for the Wife did hand the judge a document entitled “Tammy George’s Minimum Estimated Monthly Expenses,” and the Wife’s financial affidavit already was on file with the court. The trial court then “ruled that the Husband’s Motion for Continuance would be granted provided the Husband paid to the Wife the sum of [$1500] per month support, without prejudice and to be revisited after hearing the Wife’s Motion for Temporary Support.” Finally, the statement of the proceedings provides that “[t]he Husband’s counsel told the Court that he did not like the Court’s ruling, but accepted the same as a condition of the continuance being granted.”

The court later reduced the temporary award to writing in an order that acknowledged that the court had not heard evidence on the issue of temporary support.

On appeal, the Husband argues that the trial court erred in granting temporary relief without any evidentiary basis to make such an award. The Wife responds that at the hearing the Husband agreed to pay the temporary support in exchange for the continuance and that as such he has waived his right to challenge the award on appeal. We agree.

We initially note that the Husband is correct that “temporary alimony awards must be supported by competent, substantial evidence that demonstrates the need for support and the paying spouse’s ability to pay.” Driscoll v. Driscoll, 915 So.2d 771, 773 (Fla. 2d DCA 2005). He is also correct that it is undisputed in this case that no such evidence was presented to the trial court. However, from the record before us, it is clear that the Husband agreed to the temporary payments in order to obtain his continuance. We therefore conclude that he has waived the right to raise the issue on appeal. Cf. Menendez v. Menendez, 435 So.2d 287, 289 (Fla. 5th DCA 1983) (“[T]he former husband contends the award of attorney’s fees to his former wife is erroneous because the lower court made the award without expert testimony regarding the fees. He has waived this objection by having stipulated below to the court determining the award without the necessity of expert testimony.”).

In conclusion, the Husband has failed to meet his burden of establishing that the trial court abused its discretion. See Driscoll, 915 So.2d at 773 (“Temporary awards of alimony are discretionary.”). As such, we must affirm the trial court’s order.

Affirmed.

WHATLEY, J, and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . The Husband was served with the amended notice of hearing several months earlier, on January 18, 2008.


text:
    Tywan JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4275.
    District Court of Appeal of Florida, Fourth District.
    July 8, 2009.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See J.P.N. v. State, 931 So.2d 1066 (Fla. 4th DCA 2006).

FARMER, HAZOURI and CIKLIN, JJ., concur.


text:
    Thomas C. GEFTOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4874.
    District Court of Appeal of Florida, Fourth District.
    July 8, 2009.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant, and Thomas C. Geftos, Punta Gorda, for himself.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers and Thomas A. Palmer, Assistant Attorneys General, West Palm Beach, for appellee.
   PER CURIAM.

In this Anders appeal, we affirm the conviction and sentence. Our review of the record, however, indicates a possible sentencing error.

The defendant below pled no contest to two offenses: strong arm robbery and aggravated fleeing or eluding at high speed. He entered into a negotiated plea of fifteen years and a day as a habitual felony offender on both offenses and fifteen years mandatory minimum as a prison releasee reoffender (PRR) on the second offense. The court accepted the plea, adjudicated him guilty and sentenced him in accordance with the plea agreement.

The defendant argues that his PRR sentence is illegal because the PRR statute does not make aggravated fleeing and eluding a predicate offense for such enhanced punishment. By the PRR statute’s clear text, aggravated fleeing and eluding is not designated as a predicate crime. § 775.082(9)(a), Fla. Stat. (2008). The State argues that when the fleeing/eluding is aggravated, thus resulting in violence, the predicate is satisfied. We reject this argument because violence must be a necessary element of the felony. Paul v. State, 958 So.2d 1135, 1137 (Fla. 4th DCA 2007).

The defendant, though, did not preserve this issue for appeal. We recognize that “a defendant cannot assent to an illegal sentence.” Gregory v. State, 997 So.2d 1287, 1288 (Fla. 3d DCA 2009). We further acknowledge that “a defendant’s right to challenge an illegal sentence is not waived by the fact that the sentence was the result of a negotiated plea.” Torbert v. State, 832 So.2d 203, 205 (Fla. 4th DCA 2002). However, unpreserved sentencing errors cannot be corrected in an Anders case. Colon v. State, 869 So.2d 1290 (Fla. 4th DCA 2004). Accordingly, our affir-mance is without prejudice to the defendant filing an appropriate post-conviction motion raising any such unpreserved sentencing issues. Id.

Affirmed.

FARMER, HAZOURI and GERBER, JJ., concur.

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


text:
    Carlos A. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4913.
    District Court of Appeal of Florida, Fourth District.
    July 8, 2009.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

In this violation of probation case, the defendant challenges the search resulting in his charge of trafficking and possession of cocaine. The facts are thus.

The FBI asked Police to stop and detain a man in a described van on 1-75. The man was the subject of at least three pending warrants. Police stopped the van heading north on the highway. The driver identified one of the passengers seated behind him as the man police were seeking. Police removed the man from the vehicle and detained him.

There were nine other passengers in the van. Luggage for the passengers was placed in the rear. To retrieve baggage from the rear, the driver had to leave the passenger compartment and walk around to the rear and open the rear door. The driver pointed to one of the bags and stated that the detained passenger had brought it onto the van. The passenger also identified it as his bag. Police took the man and the bag to the station and conducted a search. Inside the bag were articles of clothing and personal care and also a box containing two bricks of cocaine wrapped in black tape. The quantity was sufficient to charge him with trafficking.

Defendant argues that the State failed to prove that the cocaine was his and not one of the other passenger’s. He argues that the issue involves constructive possession and that the State failed to adduce proof that the other passengers in the van did not place the contraband in his bag.

The evidence does not support this argument. Nothing in the evidence suggests that the luggage area and bag were accessible by the other passengers in the van. Nothing suggests how a passenger might have been able to place the bricks inside the box into another passenger’s luggage located in the rear of the van.

Whether property in a vehicle was accessible to other persons in the same vehicle is a factual matter. On appeal we are required to assume that the trial judge’s decision resolved all factual issues in favor of the ultimate decision. The trial judge considered the description of the incident, the circumstances and layout of the van, given by the driver and the police. The result means that the court necessarily concluded that the bag was not accessible to anyone else in the van and that defendant was in sole dominion and control of his own luggage placed in the rear of the van. We agree with the State that a reasonable view of the evidence could exclude an issue of constructive — as opposed to actual — possession.

Affirmed.

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


text:
    In the Interest of D.W., E.W., D.W., E.W., E.M., and M.M., minor children. A.G., Appellant, v. Department of Children and Family Services, and Guardian Ad Litem Program, Appellees.
    Nos. 2D08-5327, 2D08-5328.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.
    Robert G. Hancock, Bartow, for Appellant.
    Jeffrey Dana Gillen, West Palm Beach, for Appellee, Department of Children and Family Services.
    Jennifer S. Paullin, Orlando, for Appel-lee, Guardian Ad Litem Program.
   WHATLEY, Judge.

We treat the appeal in case number 2D08-5327, involving D.W., E.W., D.W., and E.W., as a petition for writ of certiora-ri and deny the petition. The appeal in case number 2D08-5328, involving E.M. and M.M., is affirmed.

ALTENBERND and KELLY, JJ., Concur.


text:
    Dennis MACALUSO, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-329.
    District Court of Appeal of Florida, Fourth District.
    July 8, 2009.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Defendant was found incompetent to stand trial and sent to a facility. The court held a hearing five months later. His attorney advised the court that he had since been found competent based on “evaluations that were obtained by the Public Defender’s Office.” Without further hearing or evidence, the court spontaneously declared defendant competent to begin trial and the case proceeded to trial. Before jury selection, his attorney added that facility doctors had found defendant competent to be tried. A jury was selected and found him guilty of aggravated battery, as charged, and trespassing and assault, both lesser included offenses of other crimes charged. He now appeals the conviction on the grounds that the competency issue was improperly decided. We agree.

Florida Rule of Criminal Procedure 3.212(c)(7) provides: “If, at any time after such commitment, the court decides, after hearing, that the defendant is competent to proceed, it shall enter its order so finding and shall proceed.” [e.s.] In Abreu-Gutierrez v. James, 1 So.3d 262 (Fla. 4th DCA 2009), we held:

“[a] defendant who has been found incompetent to proceed is presumed to remain incompetent to proceed until adjudicated competent by the court. The court must hold a hearing and enter an order finding that the defendant is competent before proceedings may resume.”

1 So.3d at 264-65 (citing Samson v. State, 853 So.2d 1116, 1116 (Fla. 4th DCA 2003)). In Samson under nearly identical circumstances as here, we said:

“In the present ease, the trial judge did not take the testimony of any of the examining physicians and did not enter a written order stating that Samson was restored to competence. Therefore, he remained incompetent to proceed and could not enter valid pleas.”

853 So.2d at 1117. If the Rule wanted lawyers to be able to stipulate to restored competency without an evidentiary hearing, it would have so stated in explicit terms.

It follows that the conviction must be set aside and, as to competency, the case returned to its status before the trial judge spontaneously declared defendant competent without hearing or evidence. If he is later found competent to proceed, a new trial is required as to the aggravated battery, trespassing and assault charges.

Reversed.

HAZOURI and GERBER, JJ., concur.


author: DAMOORGIAN, J.

text:
    Gloria ALIOTO-ALEXANDER, Appellant, v. TOLL BROS., INC., and John Barr, Appellees.
    No. 4D08-1011.
    District Court of Appeal of Florida, Fourth District.
    July 8, 2009.

      Lawrence U. Taube of the Law Office of Lawrence U. Taube, West Palm Beach, for appellant.
    John D. Boykin of Casey Ciklin Lubitz Martens & O’Connell, West Palm Beach, for Toll Brothers, Inc., appellee.
   DAMOORGIAN, J.

In this appeal, appellant, Gloria Alioto-Alexander, challenges an attorney’s fee award in favor of Toll Brothers, Inc. We affirm.

This case arises from a lawsuit in which appellant sued Toll Brothers, Inc., alleging that it was vicariously liable for the actions of its employee, John Barr. Barr was also sued for his actions. During the course of the litigation, Toll Brothers served Alioto-Alexander with a $5,000 proposal for settlement, pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2003). The proposal stated that it was being made by Toll Brothers, but provided that the offer was conditioned upon the dismissal of the entire action, including the claims against Barr. The proposal did not apportion the $5,000 between the claim against Toll Brothers and the claims against Barr. Toll Brothers and Barr prevailed in the underlying ease giving rise to the attorney’s fees judgment on appeal.

Florida Rule of Civil Procedure 1.442, which governs proposals for settlement, specifically provides that “[a] joint proposal shall state the amount and terms attributable to each party.” Fla. R. Civ. P. 1.442(c)(3). Our supreme court has thus held that where an offer is “made by multiple offerors [it] must apportion the amounts attributable to each offeror” in order to support a fee award. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278-79 (Fla.2003). This apportionment requirement applies even where one party’s alleged liability is solely vicarious. See Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005).

Appellant insists that the proposal for settlement was a “joint proposal” from Toll Brothers and Bair. Accordingly, the proposal cannot support an attorney’s fee award as it failed to apportion the $5,000 between Toll Brothers and Barr. We disagree. By its own terms, the proposal for settlement was made by Toll Brothers and Toll Brothers alone was offering to pay the sum of $5,000. The dismissal of the entire suit, including the claims against Barr, was simply a condition of the proposal and did not serve to transform the proposal for settlement into one made by multiple of-ferors.

Affirmed.

MAY, J., and TUTER, JACK, Associate Judge, concur.


text:
    Joseph L. WORRELL, Appellant, v. Gary R. NIKOLITS, as Property Appraiser of Palm Beach County, Florida, John K. Clark, as Tax Collector of Palm Beach County, Florida, and James A. Zingale, as the Executive Director of the Florida Department of Revenue, jointly and severally, Appellees.
    No. 4D08-1455.
    District Court of Appeal of Florida, Fourth District.
    July 8, 2009.
    Joseph L. Worrell, Palm Beach Gardens, pro se.
    Jeffrey M. Clyman, West Palm Beach, for appellee Gary H. Nikolits, as Property Appraiser for Palm Beach County, Florida.
   PER CURIAM.

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

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Luis Alfredo LUCIANO, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-601.
    District Court of Appeal of Florida, Fifth District.
    July 10, 2009.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, Brigid E. Collins and Wesley Heidt, Assistant Attorneys General, Day-tona Beach, for Appellee.
   ON REMAND

PER CURIAM.

In accordance with the mandate from the Florida Supreme Court, we vacate our prior opinion and substitute this opinion in its stead.

Appellant’s convictions for shooting from a vehicle and shooting into an occupied vehicle are affirmed. Valdes v. State, 3 So.3d 1067 (Fla.2009). Based on the concession by the State of the lack of eviden-tiary support for the award of investigative costs, we remand this cause with instructions that the trial court strike the award. The trial court may re-impose such costs upon appropriate motion and proof.

CONVICTIONS AFFIRMED; AWARD OF COSTS REMANDED.

TORPY, LAWSON and COHEN, JJ., concur.

      . § 790.15(2), Fla. Stat. (2006); § 790.19, Fla. Stat. (2006).


text:
    Damion Latroy DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4427.
    District Court of Appeal of Florida, Fifth District.
    July 10, 2009.
    Damion Davis, Graceville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Cf Lowe v. State, 2 So.3d 21, 38 (Fla.2008) (“Because the Court found no fundamental error [on direct appeal], Lowe fails to demonstrate that counsel’s failure to object to the comments resulted in prejudice sufficient to undermine the outcome of the trial under Strickland [ ].”); Chandler v. State, 848 So.2d 1031, 1046 (Fla.2003) (“Because Chandler could not show the comments were fundamental error on direct appeal, he likewise cannot show that trial counsel’s failure to object to the comments resulted in prejudice sufficient to undermine the outcome of the case under the prejudice prong of the Strickland test.”).

SAWAYA, ORFINGER and LAWSON, JJ., concur.

      . Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Liam GILLEN, Appellant, v. AURORA LOAN SERVICES, LLC, Appellee.
    No. 5D09-1221.
    District Court of Appeal of Florida, Fifth District.
    July 10, 2009.

      Michael E. Rodriguez, Apollo Beach, for Appellant.
    Forrest G. McSurdy of Stern & McSur-dy, Law Offices of David J. Stern, P.A., Plantation, for Appellee.
   PER CURIAM.

Based on Appellee’s confession of error, this matter is summarily reversed pursuant to Rule 9.315(b) and remanded to the trial court for further proceedings.

REVERSED and REMANDED.

SAWAYA, PALMER and TORPY, JJ., concur.


text:
    Brad Michael CRAWFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-485.
    District Court of Appeal of Florida, First District.
    July 13, 2009.
    Nancy A. Daniels, Public Defender, and Alice B. Copek, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Carolyn M. Snurkowski, Assistant Deputy Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

In light of the insufficiency of the evidence presented by the prosecution to prove the commission of the two counts of grand theft of which the appellant was convicted, these convictions are reversed and this case is remanded to the trial court with directions that the appellant be discharged. See Martin v. State, 379 So.2d 179 (Fla. 1st DCA1980).

HAWKES, C.J., ALLEN, and CLARK, JJ., concur.


text:
    Christopher Lee ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4972.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.
    Carey Haughwout, Public Defender and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

This case is before us on remand from the Supreme Court of Florida for reconsideration following its decision in Yisrael v. State, 993 So.2d 952 (Fla.2008). In Yisra-el, the supreme court disapproved of our decision as it related to the admission of a release date letter from the Department of Corrections as either a business or public records exception to the hearsay rule. However, “the supreme court held that a signed release date-letter, written under seal, or a section 90.902(11) business record certification, may be used to authenticate an attached DOC ‘Crime and Time Report’ to render the entire report admissible under the public records exception to the hearsay rule.” Ingram v. State, 7 So.3d 657, 657-58 (Fla. 4th DCA 2009) (citing Yisrael, 993 So.2d at 960).

Here, the State admitted the Crime and Time Report with the required authentication to support an enhanced sentence under the Prison Releasee Reoffender statute as approved in Yisrael. We therefore affirm.

Affirmed.

STEVENSON, MAY and LEVINE, JJ., concur.


text:
    Brandon Michael WARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-4126.
    District Court of Appeal of Florida, First District.
    July 16, 2009.
    Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Brandon Michael Ward, challenges his convictions and sentences for second-degree murder and attempted second-degree on several grounds, three of which merit discussion. First, the trial court erred in instructing the jury on the charge of attempted first-degree murder that one of the victims was justified in using non-deadly force against Appellant if the victim reasonably believed that he was in imminent danger of death or great bodily harm. The substitution of the victim’s name for the defendant’s name in the standard jury instruction on the justifiable use of non-deadly force was misleading and shifted the focus from Appellant’s theory of self-defense to whether or not the victim had a legal right to attack Appellant. Butler v. State, 493 So.2d 451 (Fla.1986). Second, the trial court erred in instructing the jury on the forcible felony exception to self-defense on the charge of attempted first-degree murder because Appellant claimed self-defense as to both charges and there was not a separate forcible felony for the jury to consider. Gilchrist v. State, 938 So.2d 654, 655 (Fla. 4th DCA 2006). Finally, fundamental error occurred in this case when the trial court gave the standard jury instruction for the lesser included offense of manslaughter by act, which improperly imposed the additional element of intent to kill. Montgomery v. State, — So.3d -, 34 Fla. L. Weekly D360, 2009 WL 350624 (Fla. 1st DCA Feb. 12, 2009) (question certified; conflict certified). Therefore, this case is reversed and remanded for a new trial.

REVERSED and REMANDED.

BARFIELD, DAVIS, and ROBERTS, JJ., concur.


text:
    ALCON CONSTRUCTION COMPANY, INC. and Claims Center/Summit, Petitioners, v. James M. WILLIAMS, Respondent.
    No. 1D09-2536.
    District Court of Appeal of Florida, First District.
    July 16, 2009.
    Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Petitioners.
    Carl Carrillo of Carl Carrillo, P.A., Gainesville, for Respondent.
   PER CURIAM.

DENIED. See, e.g., Vazquez v. Wendy’s, 931 So.2d 152, 152 (Fla. 1st DCA 2006) (“Prior to considering whether the order departs from the essential requirements of law, ... the petitioner must establish that the order results in irreparable harm.”); Brown & Williamson Tobacco Corp. v. Carter, 680 So.2d 546, 547 (Fla. 1st DCA 1996) (holding “the time, trouble, and expense of an unnecessary trial is not ‘irreparable harm’ when determining whether the threshold elements of certiorari jurisdiction have been met”).

KAHN, PADOVANO, and LEWIS, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF REVENUE, Appellant, v. James Sekou WALTON, Appellee.
    No. 1D08-5625.
    District Court of Appeal of Florida, First District.
    July 16, 2009.
    Bill McCollum, Attorney General, William H. Branch, Assistant Attorney General, Office of Child Support Enforcement, Tallahassee, for Appellant.
    James Sekou Walton, pro se, Appellee.
   THOMAS, J.

Appellant, State of Florida, Department of Revenue (“DOR”), seeks review of the trial court’s child support order directing that it lift restrictions applied to Appellee’s passport for failure to pay child support. DOR argues that the trial court erred by ordering it to remove restrictions imposed on Appellee’s passport by federal law as a result of child support arrearages. We agree and adopt the reasoning set forth by the Fourth District in Department of Rev enue ex rel. Jackson v. Nesbitt, 975 So.2d 549 (Fla. 4th DCA 2008), which addressed a factually similar situation and held that the trial court did not have authority to order DOR to remove the passport restrictions.

Accordingly, we reverse that part of the trial court’s child support order which directs DOR to lift Appellee’s passport restrictions and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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


text:
    James P. MOSCHIANO, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4904.
    District Court of Appeal of Florida, Second District.
    July 17, 2009.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

James P. Moschiano appeals the revocation of an amended and reinstated term of probation and resulting sentence of five years’ incarceration for domestic violence aggravated battery, a second-degree felony. We find no merit in the first argument, that the circuit court abused its discretion in rejecting his claim that although he admitted the violation, it was not willful or substantial. However, we conclude his second argument is meritorious — that the circuit court erred by failing to render a written order of revocation. We therefore remand this case for entry of a written order of revocation which specifies the conditions that the circuit court found Mr. Moschiano had violated. See Dawkins v. State, 936 So.2d 710 (Fla. 2d DCA 2006) ; Montonez v. State, 724 So.2d 650 (Fla. 2d DCA 1999).

Affirmed; remanded with instructions.

CASANUEVA, DAVIS, and SILBERMAN, JJ., Concur.

      . We note that the procedure used in this case upon a finding of violation of probation— rendering a repeat judgment of conviction instead of an order of revocation — is the same procedure used in Hillsborough County that we disapproved in Dawkins, 936 So.2d at 711-12. It would behoove the circuit court to amend its procedure in violation of probation and community control cases to avoid the pitfalls and potential problems outlined there.


text:
    Nathaniel Lee CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3604.
    District Court of Appeal of Florida, First District.
    July 17, 2009.

      Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant raises two issues on appeal. We affirm as to both. We write to note that the issue related to whether the trial court erred in denying appellant’s objection to the State’s peremptory challenge of a juror was not adequately preserved for appeal. See Carratelli v. State, 961 So.2d 312, 318 (Fla.2007).

WOLF, WEBSTER, and CLARK, JJ., concur.


text:
    Alfredo C. CANSECO, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0263.
    District Court of Appeal of Florida, First District.
    July 17, 2009.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, for Appellee.
   PER CURIAM.

We affirm but certify the same issue as certified in State v. Freijo, 987 So.2d 190 (Fla. 3d DCA 2008), as being one of great public importance.

WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 So.2d 208 (Fla.2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA?

WOLF, WEBSTER, and CLARK, JJ., concur.


text:
    Robert James BRIM, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2106.
    District Court of Appeal of Florida, Second District.
    July 17, 2009.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Robert James Brim appeals the denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We affirm the denial without prejudice to any right Brim may have to raise a claim of bad faith destruction of the evidence under Florida Rule of Criminal Procedure 3.850. See Moore v. State, 903 So.2d 238, 239-40 (Fla. 2d DCA 2005).

Affirmed.

FULMER, DAVIS, and SILBERMAN, JJ., Concur.


text:
    Lana J. ALLAN, former wife, Appellant, v. Charles Layton ALLAN, former husband, Appellee.
    No. 1D09-1007.
    District Court of Appeal of Florida, First District.
    July 21, 2009.
    John S. Mills and Jessie L. Harrell of Mills Creed & Gowdy, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant’s motion to determine jurisdiction, filed June 17, 2009, is granted. As the trial court vacated the order on appeal, there remains no controversy to be resolved by this court. Accordingly, this appeal is dismissed as moot.

DAVIS, BROWNING, and THOMAS, JJ., concur.


author: CRENSHAW, Judge.

text:
    Janet MURPHY, Appellant, v. BAY COLONY PROPERTY OWNERS ASSOCIATION and Victor Coveduck, Appellees.
    No. 2D08-2246.
    District Court of Appeal of Florida, Second District.
    July 22, 2009.

      Charles F. Johnson of Blalock, Walters, Held & Johnson, P.A., Bradenton, for Appellant.
    Richard G. Groff of Dye, Deitrieh, Pe-truff & St. Paul, P.L., Bradenton, for Ap-pellee Bay Colony Property Owners Association.
    No appearance for Appellee Victor Co-veduck.
   CRENSHAW, Judge.

Janet Murphy appeals the trial court’s order dismissing with prejudice her complaint seeking a declaratory judgment against Bay Colony Property Owners Association (“Bay Colony”). Because the trial court improperly ruled on the final merits of Murphy’s claim, we reverse the trial court’s order and remand for further proceedings.

In January 2003, James Waller entered into a settlement agreement with Bay Colony that permitted Waller to construct a dock on his property. The agreement, which was binding upon the parties’ successors and assigns, placed restrictions on the construction of the dock and was to run with the land. The agreement also restricted the construction of any boat lifts on the dock without Bay Colony’s approval. Waller subsequently sold his property to Murphy, who sought to change the lift mechanism of the dock. Murphy submitted a formal request to Bay Colony to approve the new boat lift, but Bay Colony denied the request.

In September 2007, Murphy filed a complaint for declaratory relief against Bay Colony and demanded a declaration of her rights under the terms of the agreement. Bay Colony moved to dismiss the complaint, arguing that the agreement unambiguously gave it the power to approve or deny Murphy’s request without the requirement of following any procedure or standards in making its decision. After conducting a hearing, the trial court granted Bay Colony’s motion and dismissed Murphy’s action with prejudice on the basis that it failed to state a cause of action.

When ruling on a motion to dismiss for failure to state a cause of action, the trial court must accept the material allegations as true and is bound to a consideration of the allegations found within the four corners of the complaint. Consuegra v. Lloyd’s Underwriters at London, 801 So.2d 111, 112 (Fla. 2d DCA 2001); Davidson v. Iona McGregor Fire Prot. & Rescue Dist., 674 So.2d 858, 859 (Fla. 2d DCA 1996). Thus, the question of whether a complaint states a cause of action is one of law and the standard of review is de novo. Meadows Cmty. Ass’n v. Russell-Tutty, 928 So.2d 1276, 1278 (Fla. 2d DCA 2006).

A complaint for declaratory judgment should not be dismissed if the plaintiff established the existence of a jus-ticiable controversy cognizable under the Declaratory Judgment Act, chapter 86, Florida Statutes (2007). See Thompson v. Fla. Cemeteries, Inc., 866 So.2d 767, 769 (Fla. 2d DCA 2004). As this court has previously stated, “[t]he test for the sufficiency of a complaint for declaratory judgment is not whether the plaintiff will succeed in obtaining the decree he seeks favoring his position, but whether he is entitled to a declaration of rights at all.” X Corp. v. Y Person, 622 So.2d 1098, 1101 (Fla. 2d DCA 1993). Thus, Murphy needed to demonstrate that she “is in doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege and that [s]he is entitled to have such doubt removed.” Id. Murphy must also show a “bona fide, actual, present, and practical need for the declaration.” Id. (citing Platt v. Gen. Dev. Corp., 122 So.2d 48, 50 (Fla. 2d DCA 1960)).

Here, Murphy alleged that she was uncertain as to her rights under the attached agreement because she believed her plan to add the boat lift complied with all of the agreement’s restrictions and requirements. Murphy also argued that Bay Colony’s denial of her request was arbitrary and capricious. We find Murphy established doubt as to the existence of her right to add a boat lift to her dock under the terms of the agreement, and thus demonstrated a bona fide, actual, present, and practical need for the declaration of this right. Hence, she alleged the existence of a justiciable controversy and stated a facially sufficient claim for declaratory relief. See Russellr-Tutty, 928 So.2d at 1280.

However, the trial court, in granting Bay Colony’s motion to dismiss, held that the agreement was not ambiguous because Bay Colony “must give its approval for the improvements Murphy desires.” We find the trial court improperly ruled on the final merits of Murphy’s claim rather than on the sufficiency of her complaint. See id. Therefore, the trial court’s determination was inappropriate at the motion to dismiss stage and cannot be considered a substitute for a motion for summary judgment. Id.; Consuegra, 801 So.2d at 112. Accordingly, we reverse the dismissal of Murphy’s complaint with prejudice and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.


author: FULMER, Judge.

text:
    Robert Lee OSTEEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1351.
    District Court of Appeal of Florida, Second District.
    July 22, 2009.
    Robert Lee Osteen, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Robert Lee Osteen appeals from the order denying his motion for postconviction relief after evidentiary hearing. We reverse and remand for a new evidentiary hearing because the trial court abused its discretion in denying Osteen’s request for appointed counsel. We also reverse the summary denial of Ground Two and direct that Osteen be given an evidentiary hearing on this claim.

Osteen was sixteen when he and two codefendants committed the robbery at issue in this case. Osteen pleaded guilty and was sentenced to two years’ community control followed by eight years’ probation in 2003. The sentence was an agreed-upon downward departure. In imposing sentence, Judge Langford stated: “The Score Sheet calls for a minimum sentence of 75 months State Prison. You can add six months to that, which will be 81 months, if he violates the conditions of Community Control and/or probation that you are going to be put on.”

In 2005, the community control officer filed an affidavit of violation alleging that Osteen failed to remain confined to his approved residence and failed to report as directed. At the revocation hearing, the community control officer recommended that the supervision be restored and Os-teen be placed in a residential probation restitution center. She advised that Os-teen was twenty years old and that he lacked direction. One of the codefendants had previously violated his community control and had received ninety-six months in prison. Judge Shinholser accepted Os-teen’s open admission to the violation and imposed a forty-year sentence. The sentence was affirmed on direct appeal. Os-teen v. State, 939 So.2d 1071 (Fla. 2d DCA 2006) (table).

Osteen filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in January 2007. In Ground One, he alleged that his counsel was ineffective for failing to convey a plea offer before the revocation hearing. In Ground Two, he alleged that his counsel was ineffective for failing to object and preserve for review the issue of Judge Shinholser’s bias and prejudice as evidenced by the presumptively vindictive forty-year sentence and the comments of the judge at the revocation hearing.

The postconviction court entered an initial order on January 26, 2007, directing a response ■ from the State on Ground One and summarily denying Ground Two. The court reasoned that Osteen failed to allege any facts that would demonstrate vindictiveness in sentencing and that because the forty-year sentence was within the sentencing authority of the trial court, there was no basis for an objection by counsel. Osteen filed an addendum to his motion in August 2007 (Ground Three) claiming that his open plea to the violation of community control was not voluntary because his counsel had failed to inform him that he could have entered a plea to a cap of ninety-six months in an agreement with the State.

In October 2007, the postconviction court ordered an evidentiary hearing for Grounds One and Three. In November 2007, Osteen moved for appointment of counsel for the evidentiary hearing. The postconviction court entered an order denying the motion for appointment of counsel on the basis that the issues were not complex and did not require substantial legal research.

Osteen filed a second addendum to his postconviction motion on November 7, 2007, in which he alleged that counsel was ineffective for failing to discover “the stipulation” by the original judge, Judge Langford, that upon violation of community control, Osteen would receive ninety months (or the low end of the sentencing guidelines). The postconviction court entered an order on December 13, 2007, denying this claim after finding that it was refuted by the transcript of the original sentencing hearing in August 2003 before Judge Langford.

The evidentiary hearing occurred in December 2007. The transcript shows that Osteen first renewed his request for appointed counsel. Osteen told Judge Shin-holser that a jailhouse lawyer had prepared his postconviction motion for him and had advised him to object to proceeding without appointed counsel for the hearing. The judge again denied the request for counsel. Osteen indicated that he was unable to proceed without the assistance of counsel. The State moved for directed verdict but also asked the court to reserve ruling until the State put on its case.

The State then called Christopher Boldt, the defense attorney for the violation of community control. Boldt indicated that he had received an offer from the State for a ninety-six month sentence, which was in parity with what the codefendant had received. Boldt had some recollection of a conversation with Osteen immediately preceding the revocation hearing and he remembered using the words “known quantity” with respect to a plea offer. Osteen had responded that he wanted to go home, which Boldt perceived to be a “no” to a negotiation that would involve further incarceration. Boldt met with Osteen the day before the hearing, and Osteen made no indication that he would be willing to accept significant amounts of further incarceration.

The postconviction court stated that the directed verdict was granted. But for the sake of the appellate record, the court found that Boldt provided effective representation, that Boldt did convey the plea offer, and that Osteen rejected the offer because he did not want to serve any more jail time and wanted to go home and the only way he could do that was to enter a straight-up plea. The court found that' the plea was voluntary.

Osteen argues on appeal that the postconviction court erred in denying his request for appointed counsel at the evi-dentiary hearing. We agree that this was an abuse of discretion in that the record does not reflect that Osteen had the capability of representing himself. See Bynum v. State, 932 So.2d 361 (Fla. 2d DCA 2006).

We also conclude that the summary denial of Ground Two was error. The court rejected this claim after concluding that Osteen’s counsel would have no basis to object to the forty-year sentence. This court has recognized that an allegation of counsel’s failure to object to a vindictive sentence presents a cognizable claim under rule 3.850. St. Pierre v. State, 966 So.2d 972, 975 (Fla. 2d DCA 2007). The sentencing hearing on the revocation shows that Osteen entered his admission after a lengthy discussion wherein Judge Shinhol-ser discussed whether he could modify Os-teen’s probation in accordance with the probation officer’s recommendation without an admission to the violation. Osteen entered his admission to the violation with the impression that the judge would consider modifying the probation as requested. However, after a number of witnesses spoke in Osteen’s favor, the court stated: “The real debate here today is not whether I should follow the recommendation of your attorney or follow the recommendation of the State Attorney but whether I should impose a Life sentence. That’s the real debate.” The court made this comment after the State argued at length that a ninety-six month sentence was appropriate because Osteen and the codefendant were equally culpable and the codefendant had received ninety-six months.

Given the disparity between the sentence imposed and the recommendations of the State and probation officer, we are unable to say that the record conclusively refutes the allegation that counsel was ineffective for failing to challenge the sentence on the basis of bias, prejudice, or vindictiveness. Therefore, we reverse the summary denial of this claim. Because Judge Shinholser has already ruled that Osteen’s claim is without merit and a reasonable person in Osteen’s position might well fear that Judge Shinholser would not fairly and impartially determine this claim, a different judge shall be assigned to the case on remand. Cf. St. Pierre, 966 So.2d at 975-76 (issuing writ of prohibition disqualifying judge from further participation in case).

We reject without discussion the other issues raised by Osteen on appeal.

Affirmed in part, reversed in part, and remanded for further proceedings.

KHOUZAM, J., and CASE, JAMES R., Associate Senior Judge, Concur.


author: POLEN, J.

text:
    Fred J. POPPER, Appellant, v. Karen T. FICARELLI a/k/a Karen Titone, Appellee.
    No. 4D08-2968.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.
    Ronald P. Gossett of Gossett & Gossett, P.A., Hollywood, for appellant.
    Anthony J. Titone of Law Office of Anthony J. Titone, Fort Lauderdale, for ap-pellee.
   POLEN, J.

Appellant, Fred J. Popper, appeals the trial court’s final judgment of injunction against repeat violence. This court has jurisdiction. Fla. R.App. P. 9.030(b)(1)(A).

Ficarelli petitioned for an injunction against repeat violence on June 5, 2008 alleging that in April 2008 and on May 13, 2008, Popper had run his car into her while she was jogging. The trial court found that Ficarelli’s allegations did not warrant the entry of a temporary injunction and set a hearing on the petition for June 18, 2008. Popper was served with notice of the petition and hearing on June 12, 2008.

Following the hearing and extensive testimony, the trial court entered an injunction prohibiting Popper from having any contact with Ficarelli, from using or possessing any firearms, and ordering Popper to surrender all firearms, ammunition and concealed weapons to the Sheriffs Department. Popper now timely appeals.

Popper argues that he was not given proper notice of the hearing, that the trial court erred in allowing evidence of conduct not alleged in the petition, that the court erred in admitting evidence of a similar act, and that the trial court erred in enjoining his use or possession of a firearm.

We write only to reverse the trial court’s prohibition of Popper’s use or possession of a firearm. Ficarelli concedes that she never sought to enjoin Popper’s use of firearms and that the issue was not presented during the hearing. Thus, the trial court erred in including the prohibition in its injunction. Blaylock v. Zeller, 932 So.2d 479, 481 (Fla. 5th DCA 2006). As to all other issues, we affirm without further discussion.

Affirmed in part, reversed in part, and remanded.

FARMER and GERBER, JJ., concur.


text:
    Joseph D. FARISH, Jr., Appellant, v. GUNN’S QUALITY GLASS & MIRROR, INC., a Florida corporation, Appellee.
    No. 4D08-3961.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.
    Joseph D. Farish, Jr. of Law Office of Joseph D. Farish, Jr., LLC, West Palm Beach, for appellant.
    John A. Turner of Arnstein & Lehr, LLP, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Lonnie D. Adams Bldg. Contractor, Inc. v. O’Connor; 714 So.2d 1178 (Fla. 2d DCA 1998); Prestige Dev. Group, Inc. v. Russell, 612 So.2d 691 (Fla. 1st DCA 1993).

GROSS, C.J., DAMOORGIAN and GERBER, JJ., concur.


text:
    Frank D. INSERRA, Appellant, v. STATE of Florida DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION, DIVISION OF PARIMUTUEL WAGERING, Appellee.
    No. 4D08-2402.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.
    Frank D. Inserra, Miramar, pro se.
    Garnett W. Chisenhall, Chief Appellate Counsel, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Conklin v. Dep’t of Revenue, 684 So.2d 328, 331 (Fla. 4th DCA 1996).

GROSS, C.J., DAMOORGIAN and GERBER, JJ., concur.