text:
    William M. ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0859.
    District Court of Appeal of Florida, First District.
    May 19, 2009.
    William M. Robinson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and William M. Robinson is hereby afforded a belated appeal from judgment and sentence in Duval County Circuit Court case number 2008-CF-3367. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court with directions that it be treated as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The circuit court is directed to appoint counsel to represent petitioner in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

BENTON, LEWIS, and CLARK, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brendan HORAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2867.
    District Court of Appeal of Florida, First District.
    June 30, 2009.
    Rehearing Denied Aug. 7, 2009.
    Brendan Horan, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: BROWNING, J.

text:
    Jason BORAKOVE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and AUCC, Inc., Appellees.
    No. 1D09-97.
    District Court of Appeal of Florida, First District.
    July 8, 2009.

      Jason Borakove, pro se, for Appellant.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellees.
   BROWNING, J.

Jason Borakove (Appellant) appeals a final order of the appellee, Florida Unemployment Appeals Commission, affirming the appeals referee’s findings and conclusions that Appellant is disqualified from receiving emergency unemployment compensation benefits because Appellant voluntarily quit work without “good cause,” as this term is used in section 443.101(l)(a), Florida Statutes (2008). See § 443.031, Fla. Stat. (2008) (providing for liberal construction of the unemployment compensation chapter “in favor of a claimant ... who is unemployed through no fault of his or her own”). Because Appellant has not provided a sufficient reeoi’d to overcome the presumption of correctness of the administrative rulings, we affirm the final order and take this opportunity to explain our decision.

A notice of determination was issued stating that unemployment compensation benefits would not be payable because Appellant had quit his job due to a disability, without a showing that the disability required him to do so. Appellant appealed that decision, asserting that, given his self-described emotional handicap and poor coordination, he had felt physically and emotionally overwhelmed by the stress of training for the position he was offered. This matter was set for a telephonic healing during which Appellant testified.

Subsequently, the appeals referee made the following findings of fact. Appellant began working for his employer on August 22, 2008, and was sent to the employer’s client company, AICS. Appellant attended vocational rehabilitation through Goodwill Industries due to an emotional handicap. He has difficulty dealing with stress. Appellant accepted an offer of training for a position with AICS, completed three days’ training, and accepted a position requiring him to count inventory items and to enter the price and number of items into a hand-held electronic device. After working only one day, Appellant concluded that the other employees were working faster than he was and that he was not doing a good job. He was neither reprimanded at work nor told that he was not meeting performance expectations. At the end of the first day’s shift, Appellant told his supervisor that he (Appellant) felt frustrated and did not think the job was a good match. Appellant quit after one day on the job.

The appeals referee found 1) that Appellant’s testimony describing the stressful work environment and his having to leave the job for health reasons related to his emotional handicap was “vague and inconclusive”; 2) that Appellant had failed to show that, after only one day of employment there, the work environment was sufficiently stressful to impair his ability to function and to perform his duties; and 3) that Appellant had not given his employer a reasonable opportunity to address Appellant’s concerns and to offer accommodations or solutions before quitting.

“The employer has the initial burden to establish that the employee voluntarily left employment.” Willick v. Unemployment Appeals Comm’n, 885 So.2d 440, 442 (Fla. 2d DCA 2004). “If the employer meets this burden, then the employee must present evidence to prove that he or she left the employment for good cause attributable to the employer.” Id,.; see Uniweld Prods., Inc. v. Indus. Relations Comm’n, 277 So.2d 827, 829 (Fla. 4th DCA 1973). In such circumstances, the proper inquiry is whether an illness or disability renders the individual physically unable to perform the job duties. See Stanick v. T & B Metal Works, Inc., 867 So.2d 523 (Fla. 1st DCA 2004). The appeals referee concluded as a matter of law that Appellant voluntarily had left work without good cause and, thus, was disqualified from receiving emergency unemployment compensation benefits. The appeals referee deemed “good cause” to be “only cause attributable to the employing unit or illness or disability of the claimant requiring separation from the work.” Cf. Brown v. Unemployment Appeals Comm’n, 633 So.2d 36, 38 (Fla. 5th DCA 1994) (en banc) (stating that determination of “good cause” for voluntarily quitting employment “focuses on whether the circumstances would have impelled the average, able-minded, qualified worker to give up her employment,” and noting that “[t]he standard is not that of the highly emotional, super sensitive employee”). The facts demonstrated that Appellant had not exercised due diligence in attempting to maintain employment; he failed to show that he was unable to perform the work and was required to quit for health reasons. “Whenever feasible, an individual is expected to expend reasonable efforts to preserve his employment.” Glenn v. Fla. Unemployment Appeals Comm’n, 516 So.2d 88, 89 (Fla. 3d DCA 1987).

In its final order, Appellee stated that Appellant had submitted evidence that was not presented first to the appeals referee, and that it was not newly discovered, material evidence that could not have been discovered prior to the evidentiary hearing through due diligence. See Rule 60BB-7.005(1), Fla. Admin. Code (allowing a party to request Appellee to consider newly discovered evidence not previously discoverable through due diligence). Alternatively, Appellant requested a second hearing before the appeals referee to present additional evidence. Both requests were denied. Appellee found competent substantial evidence to support the appeals referee’s conclusion that Appellant had not made a reasonable effort to preserve the employment relationship before leaving the job after one day. Concluding that the appeals referee’s decision comports with the requirements of Florida law, Appellee affirmed the ruling.

It is well-established that an appellant challenging an administrative final order affirming the appeals referee’s findings of fact and conclusions of law has the burden to demonstrate reversible error. See Wolfson v. Unemployment Appeals Comm’n, 649 So.2d 363 (Fla. 5th DCA 1995). Appellant contends that the appeals referee failed to realize the severity of his handicap and refused to allow Appellant to present all of his evidence. Appellant does not state specifically what that additional evidence is.

To bring a successful challenge to the ajopeals referee’s finding(s) of fact, Appellant must show that no competent substantial evidence in the record supports the finding(s). See § 120.57(1)((), Fla. Stat. (2008); Smith v. Krugman-Kadi, 547 So.2d 677, 678 (Fla. 1st DCA 1989). The appropriate means for a party to demonstrate the character of the evidence presented at the hearing is specific references to the transcript of the proceedings. See Fla. R. App. P. 9.210(b)(3). Appellant’s complaints raise factual questions that we cannot adequately review from this record on appeal. A copy of the transcript of Appellant’s evidentiary hearing before the appeals referee was not included in the record on appeal. To facilitate proper appellate review, we issued an order pursuant to Florida Rule of Appellate Procedure 9.200(f)(2) and Contrera v. Florida Unemployment Appeals Commission, 894 So.2d 269 (Fla. 1st DCA 2004), affording Appellant additional time to supplement the record with the hearing transcript, but we received none. Where the crux of Appellant’s argument relates to the appeals referee’s findings of fact and other evidentia-ry matters, the absence of a copy of the transcript as part of the appellate record “is fatal.” Wolfson, 649 So.2d at 363; see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). That is, we have no proper basis to question the findings of fact made by the appeals referee and adopted and approved by Appellee. Appellant cannot overcome the presumption that the appeals referee’s factual findings are correct. See Applegate, 377 So.2d at 1152; Lopez v. Unemployment Appeals Comm,’n, 680 So.2d 1144 (Fla. 3d DCA 1996); Dominguez v. Unemployment Appeals Comm’n, 679 So.2d 835 (Fla. 3d DCA 1996). The record does not demonstrate that the appeals referee or Appellee misconstrued or misapplied its organic law to the findings of fact.

Accordingly, we are constrained to AFFIRM the final order pursuant to Apple-gate and Wolfson.

THOMAS, J., concurs; DAVIS, J., concurs in result only.


text:
    Levinston E. GRIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2839.
    District Court of Appeal of Florida, First District.
    July 8, 2009.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Levinston E. Grier appeals the summary denials of his motion to withdraw his plea and motion for conflict-free counsel. Grier argues that the trial court reversibly erred by failing to appoint conflict-free counsel upon his pro se post-sentence motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(i). This Court has consistently held that trial courts must appoint conflict-free counsel once a defendant indicates his desire to avail himself of the rule 3.170G) procedure. Lester v. State, 820 So.2d 1078, 1078 (Fla. 1st DCA 2002); see also Norman v. State, 897 So.2d 553, 553 (Fla. 1st DCA 2005); Mosley v. State, 932 So.2d 1239, 1239 (Fla. 1st DCA 2006); Mullins v. State, 981 So.2d 1281, 1282 (Fla. 1st DCA 2008). Accordingly, the trial court was required to appoint conflict-free counsel upon Grier’s facially sufficient and timely filed rule 3.170(0 motion. Therefore, we reverse the trial court’s order denying Grier’s motions to withdraw the plea and for conflict-free counsel. Upon remand, conflict-free counsel shall be appointed to assist Grier in this cause.

REVERSED and REMANDED with instructions.

BARFIELD, PADOVANO, and LEWIS, JJ., concur.


text:
    Ruffino RODRIGUEZ (deceased), Appellant, v. SEDANO’S SUPERMARKETS and PMA Management Corp. and John Eastern Company, Appellees.
    No. 1D09-1910.
    District Court of Appeal of Florida, First District.
    July 16, 2009.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, and Jason G. Barnett, Fort Lauderdale, for Appellant.
    Barbara Case of Agnones, McClure & Garcia, P.A., Miami, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s June 8, 2009, order to show cause, we DISMISS this appeal for lack of jurisdiction. See BEC Constr. Corp. v. Gonzalez, 383 So.2d 1093, 1094 (Fla. 1st DCA 1980) (holding if no proper claim is filed, judge of compensation claims has no jurisdiction, and therefore this court has none). Consequently, Appellant’s motion for substitution is denied as moot.

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


text:
    Robert FLAMILY, Appellant/Cross-Appellee, v. CITY OF ORLANDO and City of Orlando Risk Management, Appellees/Cross-Appellants.
    No. 1D04-2453.
    District Court of Appeal of Florida, First District.
    July 16, 2009.
    Geoffrey Bichler of Bichler & Kelley, P.A., Winter Park, for Appellant/Cross-Appellee.
    Danni Lynn Germano, Michael Brous-sard and Barbara Eagan of Broussard, Cullen, DeGailler & Eagan, P.A., Orlando, for Appellees/Cross-Appellants.
   PER CURIAM.

We review this case on remand from the Florida Supreme Court. See Sanders v. City of Orlando, 997 So.2d 1089 (Fla.2008). Claimant raises one issue on appeal, while the City raises four cross-appeal issues.

Claimant argues that the JCC erred in ruling the City was not estopped from denying compensability. We conclude that the JCC did not err in rejecting Claimant’s estoppel argument. Further, we affirm the issues raised on cross-appeal without discussion.

The JCC’s final order is AFFIRMED.

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


author: POLEN, J.

text:
    Thomas L. STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2396.
    District Court of Appeal of Florida, Fourth District.
    July 22, 2009.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

Appellant, Thomas L. Stephens, timely appeals the trial court’s entry of his guilty plea and denial of his motion to correct sentence on the charge of aggravated battery with a deadly weapon. We affirm the trial court’s entry of appellant’s guilty plea without further discussion; however, as to the second issue, we reverse and remand this case for resentencing.

Appellant was charged in connection with an incident in which he threw a broken glass bottle at a woman, and struck her in the face. The broken bottle lacerated and permanently blinded the woman’s left eye.

After accepting appellant’s guilty plea, the trial court sentenced him to 15 years of probation with 51.45 months in prison as a condition of probation. In appellant’s 3.800(b)(2) motion to correct sentence, he moved to eliminate the “condition of probation” language in the imprisonment order and to strike the additional 15 year probationary term. Fla. R.Crim. P. 3.800(b)(2). In response, the trial court resentenced appellant to 14 years and 5 months probation with 51.45 months in prison as a special condition of probation. The sentence is illegal under Florida statutory law. The State correctly agrees that resentencing is necessary.

Section 948.03(2) of the Florida Statutes (2007) provides:

[I]f the court withholds adjudication of guilt or imposes a period of incarceration as a condition of probation, the period shall not exceed 364- days, and incarceration shall be restricted to either a county facility, a probation and restitution center under the jurisdiction of the Department of Corrections, a probation program drug punishment phase I secure residential treatment institution, or a community residential facility owned or operated by any entity providing such services.

(Emphasis added.) Here, the imposed 51.45 month jail sentence exceeds 364 days and is thus improper, as appellant argues and the State concedes. The Florida Supreme Court has given guidelines for correcting sentences of this nature. See Beech v. State, 436 So.2d 82 (Fla.1983) (instructing that a trial judge may impose a sentence of imprisonment no longer than the originally ordered combined period of incarceration and probation in correcting a voidable order of punishment for a criminal offense).

Accordingly, we reverse and remand for resentencing consistent with this opinion.

WARNER and TAYLOR, JJ., concur.


author:
PER CURIAM.
      LAWSON, J.,

text:
    Jason WINDHAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2127.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2009.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jason Windham timely appeals his conviction by jury verdict for aggravated assault with a deadly weapon and twenty-year minimum mandatory prison sentence imposed pursuant to the 10-20-Life statute. We find no error in the trial court’s denial of Windham’s motion to suppress his confession, and find all other claimed errors related to Windham’s conviction to be harmless in light of his confession. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.

LAWSON, J., concurring specially, with opinion.

LAWSON, J.,

concurring specially.

I agree with the majority’s resolution of this case as to the issues raised. When reviewing the record, however, I noted that all parties at sentencing clearly believed that the court had no discretion to do anything but impose the twenty-year minimum mandatory sentence. This may not have been true. Windham was born on May 6, 1987, and was nineteen years old at the time he committed the offense, a third degree felony, on July 6, 2006. If Windham has not previously been classified as a youthful offender, it appears that he would have qualified for a youthful offender sentence. See § 958.04(1), Fla. Stat. (effective to Sept. 30, 2008) (“The court may sentence as a youthful offender any person: (a) Who is at least 18 years of age ...; (b) Who is found guilty of ... a crime which is, under the laws of this state, a felony if such crime was committed before the defendant’s 21st birthday; and (c) Who has not previously been classified as a youthful offender.... ”). The minimum mandatory sentencing provisions of the 10-20-life statute do not supersede the youthful offender sentencing provisions. Darrow v. State, 789 So.2d 552 (Fla. 5th DCA 2001); State v. Wooten, 782 So.2d 408 (Fla. 2d DCA 2001). Therefore, it appears that the trial court could have imposed a lesser penalty by sentencing Windham as a youthful offender. Id. This point can be argued in connection with a motion to mitigate sentence under Florida Rule of Criminal Procedure 3.800(c), filed anytime within 60 days after issuance of our mandate. See Cummings v. State, 888 So.2d 732 (Fla. 5th DCA 2004) (Torpy, J., concurring specially).

      . § 775.087(2)(a), Fla. Slat. (2008).

      . The statute later excludes defendants found guilty of capital or life felonies from consideration for youthful offender sentencing. § 958.04(l)(c), Fla. Stat. (2006).


author: ORFINGER, J.

text:
    Robert J. AUMILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1211.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2009.
    Robert J. Aumiller, Blountstown, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Robert J. Aumiller appeals the trial court’s summary denial of his motion for additional jail credit filed under Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s summary denial of the motion and remand for further consideration.

On July 5, 1994, Aumiller was sentenced to twelve years in prison followed by ten years probation. After being released from prison, Aumiller violated his probation and was resentenced to seventeen years in prison with “credit for all Department of Corrections time previously served, together with credit for 109 days county jail served pending sentencing [on the violation of probation].” In his motion to correct sentence, Aumiller claims that while he was awarded 327 days of jail credit at the time of his 1994 sentencing, he was not awarded this jail credit when he was resentenced after violating his probation.

In denying Aumiller’s motion, the trial court concluded that its directive that the Department of Corrections (“DOC”) give Aumiller credit for all time previously served would have included any presen-tence jail credit. If DOC included the time that Aumiller spent in the county jail prior to his 1994 sentencing in its time-served calculation, then the trial court is correct. However, whether DOC included Aumiller’s jail time credit in its calculations cannot be determined from the record before us. Consequently, we reverse the trial court’s summary denial of Aumil-ler’s rule 3.800 motion seeking additional credit and remand for further review of this matter. On remand, the trial court shall determine if DOC properly included the time that Aumiller spent in the county jail between October 1993 and his original sentencing on July 5, 1994, in calculating his jail time credit.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

GRIFFIN and TORPY, JJ., concur.

      . In doing so, we note that Aumiller claims entitlement to an additional 327 days of jail credit. Aumiller's calculations appear to be incorrect. Although we do not know the date in October 1993 that Aumiller was arrested, if we assume that it was on October 1, 1993, and that he was sentenced on July 5, 1994, only 277 days would have elapsed, not the 327 days that he alleges.


author: COHEN, J.

text:
    Richard BOZZUTO, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-555.
    District Court of Appeal of Florida, Fifth District.
    July 24, 2009.
    Richard A. Bozzuto, Lake City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Appellant, Richard Bozzuto, challenges the trial court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

Bozzuto pled guilty to attempted sexual battery on a child under the age of twelve in violation of section 794.011(2), Florida Statutes. At sentencing, Bozzuto appeared for two separate cases: attempted sexual battery and corruption by threat. Bozzuto was sentenced to twenty years’ incarceration followed by fifteen years’ sex offender probation, for a total sentence of thirty-five years for the attempted sexual battery. He received a concurrent five-year sentence for his corruption by threat conviction. Bozzuto subsequently filed the instant rule 3.800(a) motion, asserting that his sentence for attempted sexual battery was illegal because it exceeded the maximum penalty under section 777.04(4)(b), Florida Statutes (2006), of thirty years. According to Bozzuto, his thirty-five year sentence could only have been legal if he was given the maximum sentence for attempted sexual battery, thirty years, plus five years on the corruption by threat charge, with the sentences to run consecutively.

The trial court denied the motion, ruling that, under Florida Rule of Criminal Procedure 3.704, the statutory maximum could be exceeded when the Criminal Punishment Code scoresheet provided for a greater sentence. However, this is only the case when the lowest permissible sentence under the Criminal Punishment Code exceeds the statutory maximum. Fla. R.Crim. P. 3.704(d)(5); Leduc v. State, 803 So.2d 898, 899 (Fla. 5th DCA 2002); Cillo v. State, 913 So.2d 1233, 1234 (Fla. 2d DCA 2005).

In this case, the lowest permissible sentence under the Criminal Punishment Code scoresheet was 97.8 months’ (or 8.15 years) incarceration. The maximum sentence that could be imposed was thirty years. Because the lowest permissible sentence under the Criminal Punishment Code did not exceed the statutory maximum, the trial court erred by imposing a sentence that exceeded the maximum provided by section 777.04(4)(b). Id. We therefore reverse the order denying relief and remand for resentencing, or to allow the State to withdraw from the plea agreement. See Thomas v. State, 932 So.2d 1221 (Fla. 5th DCA 2006).

REVERSED and REMANDED for further proceedings.

ORFINGER and TORPY, JJ., concur.


text:
    Kenneth McFATTEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1794.
    District Court of Appeal of Florida, First District.
    July 24, 2009.
    Kenneth McFatten, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Kenneth McFatten is hereby afforded a belated appeal of the judgment and sentence entered after the finding of violation of probation in Suwannee County Circuit Court case number 06-173CF. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). Counsel shall be appointed for the appeal if petitioner qualifies for such an appointment.

PETITION GRANTED.

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


author: GERSTEN, J.

text:
    Irvin J. LIGHTCAP, Appellant, v. Betty Jean LIGHTCAP, Appellee.
    No. 3D08-1655.
    District Court of Appeal of Florida, Third District.
    July 29, 2009.
    Roberta Fine, Candida A. Cobb, and Stephen Isherwood, Key West, for appellant.
    Richard J. Fowler, Key West, for appel-lee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   GERSTEN, J.

Irvin J. Lightcap (“the former husband”) appeals the portion of the final judgment of dissolution that awards Betty Jean Lightcap (“the former wife”) nominal alimony of $1.00 per year. We affirm.

In this case, the parties were married for over thirty years. For most of the marriage, the husband was highly skilled and well paid. Concomitantly, the former wife worked in clerical positions, until the end of the marriage when she secured a well paying job. Subsequently, the former husband retired and contended that he is unable to work.

The trial court, however, found that the former husband was highly skilled and employable, but he voluntarily chose not to work despite his ability to do so. The trial court found that the former husband was capable of earning from $40,000 per year to $200,000 per year. The trial court entered final judgment and awarded the former wife nominal alimony of $1.00 per year.

On appeal, the former husband contends that the trial court abused its discretion in awarding the former wife nominal alimony of $1.00 per year. He argues that the former wife has a much higher post-dissolution income and should not be entitled to any type of alimony. He further contends that he is unable to work due to medical reasons.

The former wife asserts that the former husband has no medical reason prohibiting him from employment. She also maintains that she has a right to nominal alimony in light of the long-term marriage. She asserts that this would give her the right to seek increased alimony should the former husband’s future income change and her financial condition deteriorate. We agree with the former wife.

Because this is a long-term marriage, permanent alimony is normally appropriate. See Schlagel v. Schlagel, 973 So.2d 672 (Fla. 2d DCA 2008) (stating that in the context of a long-term marriage, there is an initial presumption in favor of permanent, periodic alimony). Permanent alimony can be in the form of a nominal amount. 973 So.2d at 676.

A trial court’s decision on whether to award permanent, periodic alimony is subject to an abuse of discretion standard of review. 973 So.2d at 676. A trial court may consider the historic incomes of the parties, the length of the marriage, the marital assets, and the former wife’s needs when awarding a nominal amount of permanent alimony. See Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001).

Here, the trial court did not abuse its discretion when it granted the former wife nominal alimony. Over the course of this thirty-year marriage, the former husband earned more than the former wife. Although the former wife currently earns more than the former husband, the former husband has the ability to find employment. Nominal alimony would permit her to apply for modification upon a proper showing if and when the former husband achieves his full earning potential in the future. See Wing v. Wing, 429 So.2d 782, 783 (Fla. 3d DCA 1983).

Accordingly, we find that the trial court did not abuse its discretion in awarding the former wife nominal alimony.

Affirmed.


author: SHEPHERD, J.

text:
    STRATEGIC EMPOWERMENT FOR ECONOMIC DEVELOPMENT, INC., Appellant, v. SOUTH DADE REALTY, INC., Appellee.
    No. 3D08-2995.
    District Court of Appeal of Florida, Third District.
    July 29, 2009.
    Gregory Martin, for appellant.
    Rex E. Russo, Coral Gables, for appel-lee.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

Strategic Empowerment for Economic Development, Inc. (SEED), the seller in a commercial real estate transaction, appeals an interlocutory order granting its motion to dissolve a lis pendens filed by broker, South Dade Realty, Inc. (SDR), to the extent it purports to encumber or cloud title to the real property subject to the contract for sale, see § 475.42(l)(j), Fla. Stat. (2008) (prohibiting real estate brokers and salesmen from encumbering real property to collect a commission), but in the same breath ordering that “The Notice of Lis Pendens shall constitute an equitable lien upon the net proceeds from the sale of any or all of the above-described real property, to secure payment of the real estate brokerage commission allegedly owed to [SDR] by [SEED], pending the resolution of this action.”

Setting aside the highly improbable proposition that a lis pendens can reach, affect, or in any way encumber the cash proceeds of a real estate closing that has yet to occur', see § 48.23(l)(a), Fla. Stat. (2008) (stating that the filing of a lis pen-dens in an action in this state operates solely upon “real or personal property involved therein or to be affected thereby”); De Pass v. Chitty, 90 Fla. 77, 80, 105 So. 148, 149 (1925) (“[A]s applied in our time [the doctrine of lis pendens] seems to have originated in the common[ ]law rule obtaining in real actions to the effect that, if the defendant alienated during the pendency of the suit, the judgment in the real action overreached the alienation.”); see also Med. Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 675 So.2d 915, 917 (Fla.1996) (citing DePass, 90 Fla. at 80, 105 So. at 149) (“While the term ‘lis pendens’ literally implies a pending suit, it is defined as the jurisdiction, power, or control which courts acquire over property involved in a pending suit.”), the scant record in this case — an unsworn complaint, a lis pendens signed by counsel alone, and an answer and affirmative defenses to the complaint — does not satisfy even the most rudimentary of conditions for entry of a mandatory injunction without written or oral notice to the adverse party, see Fla. R. Civ. P. 1.610, which most assuredly is what SDR intended by the filing of its lis pen-dens in this case. See We’re Assocs. VI Ltd. P’ship v. Curzon Dev. Corp., 738 So.2d 440, 442 (Fla. 4th DCA 1999) (“This court has found no authority in the mortgage contract or in Florida law to support the trial court’s granting of what amounts to temporary injunctive relief in the absence of a legally sufficient motion requesting that relief in compliance with Florida Rule of Civil Procedure 1.610.”).

In this respect, the case before us is not at all analogous to either Cohen Financial LP v. KMC/EC II, LLC, 967 So.2d 224 (Fla. 3d DCA 2007), or Riverland & Indian Sun L.C. v. L.J. Melody & Co., 879 So.2d 1271 (Fla. 3d DCA 2004), both of which proceeded upon a filed motion for the entry of a temporary injunction. For this reason, we summarily reverse the order on appeal with the direction that any prejudgment interdiction of the real estate proceeds of the closing of this real estate transaction by the trial court in this case be abandoned forthwith.

This opinion will take effect immediately, notwithstanding the filing of any motions for rehearing.

Reversed and remanded with directions.


author: TUTER, JACK, Associate Judge.

text:
    Johnny R. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2126.
    District Court of Appeal of Florida, Fourth District.
    July 29, 2009.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, and Johnny R. Johnson, Carrabelle, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   TUTER, JACK, Associate Judge.

The Defendant timely appeals his judgment and conviction for grand theft. The Defendant was adjudicated and sentenced for both grand theft and dealing in stolen property. Section 812.025, Florida Statutes (2006), prohibits convictions for both crimes where a single charging document chai-ges “theft and dealing in stolen property in connection with one scheme or course of conduct.” See Toson v. State, 864 So.2d 552, 554 (Fla. 4th DCA 2004). Therefore, adjudicating and sentencing the Defendant on both of these counts violates section 812.025, Florida Statutes (2006).

The judgment and conviction for grand theft (L.T. Case No. 06-695) is reversed with directions to vacate the judgment and conviction only as to Count I. Because the Defendant was sentenced well below the maximum possible sentences for the other crimes of which he was adjudicated, we find no error as to the sentence imposed.

Affirmed in part, Reversed in part and remanded with directions to vacate the judgment for grand theft.

MAY and DAMOORGIAN, JJ., concur.


author: GERBER, J.

text:
    Rooney S. DERISMA, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1982.
    District Court of Appeal of Florida, Fourth District.
    July 29, 2009.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

In this direct appeal from a conviction, the appellant alleges that his trial counsel was ineffective. We affirm, finding that the appellant has not shown any basis to raise ineffectiveness of counsel on direct appeal.

The State charged the appellant with cocaine possession and cannabis possession. The State also alleged that those offenses violated the appellant’s probation on an earlier case. At the final violation of probation hearing, the appellant, through counsel, presented witnesses and evidence seeking to show that the appellant did not possess the illegal substances. The trial court found that the appellant violated his probation by committing the new offenses, and sentenced the appellant to prison. However, at the jury trial on the new offenses, the appellant’s counsel did not present the defense raised at the final violation of probation hearing. The jury found the appellant guilty and the trial court sentenced the appellant to incarceration concurrent with the violation of probation sentence. In this direct appeal, the appellant alleges that his trial counsel was ineffective in not presenting the defense raised at the final violation of probation hearing.

The appellant has not shown any basis to raise ineffectiveness of counsel on direct appeal. In Smith v. State, 998 So.2d 516 (Fla.2008), the supreme court stated:

Claims of ineffective assistance of trial counsel are usually presented in a post-conviction motion under Florida Rule of Criminal Procedure 3.850. Under that rule, the circuit court can be specifically presented with the claim, and apply the Strickland standard with reference to the full record and any evidence it may receive in an evidentiary hearing, including trial counsel’s testimony. Thus, ineffective assistance claims are not usually presented to the judge at trial, and we have repeatedly stated such claims are not cognizable on direct appeal.... We recognize that ‘[tjhere are rare exceptions where appellate counsel may successfully raise the issue on direct appeal because the ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue.’ Thus, in the rare case, where both prongs of Strickland — the error and the prejudice — -are manifest in the record, an appellate court may address an ineffective assistance claim.

Id. at 522-23 (internal citations omitted); see a ho Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002) (“[Ineffective assistance of counsel will only be addressed on direct appeal for the first time when the facts giving rise to the claim are apparent from the face of the record, a conflict of interest is shown, or prejudice to the defendant is shown.”).

The appellant’s claim does not meet any of these criteria. We therefore decline to address that claim on this direct appeal. This opinion, however, is without prejudice to the appellant raising his claim in an appropriate 3.850 motion. We make no comment on whether such a motion would have merit or not.

Affirmed.

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


author: DAMOORGIAN, J.

text:
    Harold W. MORIAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1979.
    District Court of Appeal of Florida, Fourth District.
    July 29, 2009.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Affirmed without prejudice to Morían to file a motion to withdraw his plea for ineffective assistance of counsel pursuant to Florida Rule of Criminal Procedure 3.850.

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


text:
    Erik MASTERS, Appellant, v. MIAMI ENTERTAINMENT TELEVISION, INC., et al., Appellees.
    No. 4D08-784.
    District Court of Appeal of Florida, Fourth District.
    July 29, 2009.
    Erik Masters, Estill, South Carolina, pro se.
    Eric C. Pinkard of Robbins Equitas Lawyers and Counsellors, St. Petersburg, for appellee William O’Callaghan.
   PER CURIAM.

The appellant appeals a final summary judgment on multiple counts against several defendants. As to the final summary judgment entered in favor of appellee O’Callaghan, we affirm, as the trial court correctly concluded that no material issues of fact remain. As to the final summary judgment against the remaining defendants, appellant failed to appeal the summary judgment entered in their favor. Therefore, to the extent that the appellant’s brief raises challenges to that summary judgment, we do not consider those issues.

GROSS, C.J., WARNER and CIKLIN, JJ., concur.


text:
    Moses TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-719.
    District Court of Appeal of Florida, Fourth District.
    July 29, 2009.

      Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

The defendant below appeals his conviction for solicitation to purchase cocaine because the State charged and proved solicitation to deliver cocaine. The State confesses error. We concur and, therefore, reverse and remand for a new trial on the proper charge.

The State’s information titled the charge as “Solicitation to Purchase Cocaine,” but alleged that the defendant “did unlawfully command, encourage, hire or request another person, tó-wit: Detective J. Riche to deliver to him a controlled substance, to-wit: Cocaine, contrary to F.S. 893.03(2)(a)(4), F.S. 893.13(2)(a) and F.S. 777.04(2).” (emphasis added). Section 893.13(2)(a), to which the information refers, addresses the purchase of controlled substances, while section 893.13(l)(a), to which the information does not refer, addresses the sale, manufacture, or delivery of controlled substances. Despite these patent discrepancies, the defendant did not object to or move to dismiss the information.

At trial, the State presented evidence that the defendant approached an undercover officer posing as a street-level drug dealer and asked for “twenty ... hard.” After the officer gave the defendant fake crack cocaine in exchange for twenty dollars, officers arrested the defendant for solicitation to purchase cocaine. After the State rested, the defendant moved for a judgment of acquittal, but on grounds unrelated to the discrepancy between the solicitation to purchase and the solicitation to deliver. The trial court denied the motion.

The State submitted proposed jury instructions which included an instruction that the State had accused the defendant of “Solicitation to Purchase Cocaine.” Another proposed instruction stated:

To prove the crime of criminal solicitation, the State must prove the following two elements beyond a reasonable doubt:
1. Moses Lee Terry solicited J. Riche to commit to purchase of cocaine [sic],
2. During the solicitation, Moses Lee Terry commanded, encouraged, hired, or x-equested J. Riche to engage in specific conduct, which would constitute the commission of purchase of cocaine or an attempt to commit purchase of cocaine ....
To solicit means to ask earnestly or to try to induce the person solicited to do the thing solicited.

The State also submitted a proposed verdict form which asked the jury to find the defendant guilty of “Solicitation to Pui'chase Cocaine, as charged in the In-foraiation” or not guilty. The defendant appi-oved both the jury instimctions and verdict foi’m. The jury found the defendant guilty of solicitation to purchase cocaine. The judgment adjudicated the defendant guilty of solicitation to pui-chase cocaine, but the scoresheet indicated that the defendant had been convicted of solicitation to deliver cocaine.

The defendant then filed this appeal, realizing after tidal that the information’s wording charged solicitation to deliver cocaine, and that the State’s evidence did not prove solicitation to pui'chase, but rather solicitation to deliver. See Castillo v. State, 929 So.2d 1180, 1182 (Fla. 4th DCA 2006) (“When a ‘discrepancy exists between the offense designated in the information heading and the cidme depicted in the body of the instrament, the offense desci’ibed in the body is the one with which the defendant is charged.’ ”) (citation omitted).

The defendant does not challenge the information’s eonti*adictory language. See Perley v. State, 947 So.2d 672, 674 (Fla. 4th DCA 2007) (“So-called technical deficiencies in a charging instrument are waived if the defendant does not l'aise them before the state rests its ease.”), citing Castillo, 929 So.2d at 1181. Rather, the defendant alleges the trial coux-t fundamentally erred by instructing the jury on solicitation to purchase cocaine when the State charged and proved solicitation to deliver cocaine. “It is a basic tenet of constitutional law that due process is violated when an individual is convicted of a cx-ime not charged in the charging instrument.” Castillo, 929 So.2d at 1181. “Fundamental defects ... can be raised for the first time on appeal.” Id.

The State agrees that the infoi’-mation should have been read to charge the defendant with solicitation to deliver cocaine. However, because of the information’s discrepancies, the parties inadvertently led the trial court to errantly instraet the juxy on solicitation to purchase instead, and the defendant was convicted of a crime not charged in the in-fonnation. The parties agree that the defendant should receive a new trial, for which the charge should be solicitation to deliver cocaine. We concur.

Reversed and remanded.

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


text:
    Micheline DAIUJUST, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1457.
    District Court of Appeal of Florida, Third District.
    July 29, 2009.

      Fisher & Lawrence and Joshua L. Fisher, North Miami Beach, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See State v. Green, 944 So.2d 208, 218 (Fla.2006).


text:
    Leonard TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1014.
    District Court of Appeal of Florida, Third District.
    July 29, 2009.
    Leonard Taylor, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Bureau Chief, for respondent.
    Before RAMIREZ, C.J., and CORTINAS and SALTER, JJ.
   PER CURIAM.

We grant Leonard Taylor’s petition for writ of mandamus to compel the trial court to rule on his Motion for Post Conviction Relief, filed on or about September 4, 2007.

As we are confident that the lower court will comply forthwith, we withhold issuance of the formal writ for thirty (30) days.


text:
    Tony RANDALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-66.
    District Court of Appeal of Florida, Fourth District.
    July 29, 2009.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Gilbert v. State, 789 So.2d 426 (Fla. 4th DCA 2001).

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Alvaro PUIG, Appellant, v. ALL MOTORS, INC., Appellee.
    No. 3D08-2676.
    District Court of Appeal of Florida, Third District.
    July 29, 2009.
    James M.- Loren, for appellant.
    Nathan & Hauser and Martin L. Nathan, Miami, for appellee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Aztec Med. Servs., Inc. v. Burger, 792 So.2d 617 (Fla. 4th DCA 2001) (holding that claims under Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) are arbitrable); cf. Hialeah Auto., LLC v. Basulto, 34 Fla. L. Weekly D248, D250, - So.3d -, -, 2009 WL 187584 (Fla. 3d DCA Jan. 28, 2009) (concluding that claims for declaratory or injunctive relief were not arbitrable where arbitration clause contained provision that arbitration award “shall be issued without a written opinion”).


text:
    Keijo T. STOVALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-5962.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Keijo Stovall, pro se, Petitioner.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal of the judgment and sentence rendered on March 7, 2007, in Bay County Circuit Court case number 2005-2447-CFMA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

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


author: WOLF, J.

text:
    Cassius BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-0958.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant seeks review of his convictions for trespass and criminal mischief. Specifically, appellant asserts that the trial court erroneously denied appellant’s requested jury instruction on the defense of necessity. For the following reasons, we affirm.

The facts adduced at trial included in relevant part that just after midnight on June 6, 2007, Thelma Harvey heard her screen door open and the alarm on that door going off, and then heard appellant at her front door. When appellant began banging at the door, Harvey called 911 and hid inside a utility room. Appellant then kicked through a panel on the front door, reached in and unlocked the door, and entered the home. Two officers arrived at the scene with a K-9 unit and proceeded to enter the home, finding appellant in the first bedroom down the hallway. Officer Haire testified that appellant complied with him when he took appellant into custody. Appellant was not wearing shoes. Upon examining her house, Harvey found that nothing was missing. However, Harvey noticed that a shoebox in her bedroom closet had been stepped on, the covering of a nearby safe had been removed, and her dresser drawer was opened.

Appellant was charged with burglary of an occupied dwelling and criminal mischief. Appellant’s defense at trial was that he acted out of necessity in breaking into Harvey’s home. To support this claim, appellant introduced the testimony of La-rinda Partridge, the next-door neighbor of Harvey. Partridge testified that on the night in question, appellant rang her doorbell, told her that men were chasing him, and asked her to call the police. Partridge thought that appellant looked very afraid and that he was looking around, as if to make sure no one was following him. In explaining why appellant was running, James Johnson testified as to the events that occurred earlier that night at a party nearby. Johnson testified that at that party, he was slapped by a man to whom he owed money. Johnson had seen appellant at that party but stated that he had not witnessed anyone hit or chase appellant and that there was no yelling or commotion before or after the slap.

Based on this evidence, appellant asked for a necessity instruction. The trial court denied the requested instruction and, subsequently, the jury found appellant guilty of the lesser-included offense of trespass as well as criminal mischief.

A criminal defendant is entitled to have the jury instructed on his theory of defense if there is any evidence to support that defense. See Chavers v. State, 901 So.2d 409, 410 (Fla. 1st DCA 2005); Mathis v. State, 973 So.2d 1153, 1157 (Fla. 1st DCA 2006). A trial court’s

failure to give a requested jury instruction constitutes reversible error where the complaining party establishes that: (l)[t]he requested instruction accurately states the applicable law, (2) the facts in the case support giving the instruction, and (3) the instruction was necessary to allow the jury to properly resolve all issues in the case.

Langston v. State, 789 So.2d 1024, 1026 (Fla. 1st DCA 2001) (quoting Alderman v. Wysong & Miles Co., 486 So.2d 673, 677 (Fla. 1st DCA 1986)). The standard necessity instruction requested in this case accux*ately states the applicable law. However, the trial court did not err in denying appellant’s requested instruction as there was insufficient evidence to support giving the instruction.

Specifically, to be entitled to a necessity instruction, appellant must show evidence of each element required to establish the defense of necessity. Williams v. State, 937 So.2d 771, 772 (Fla. 1st DCA 2006) (citing Bozeman v. State, 714 So.2d 570, 572 (Fla. 1st DCA 1998)). These elements include:

(1) the defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others; (2) the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct; (3) there existed no other adequate means to avoid the threatened harm except the criminal conduct; (4) the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it; and (5) the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended.

Id.

In determining the appropriateness of the instruction, the trial court should “examine the evidence in the light most favorable to the defendant to decide whether the necessary elements of the defense have been placed before the jury.” Mickel v. State, 929 So.2d 1192, 1196 (Fla. 4th DCA 2006); see also Mathis, 973 So.2d at 1157 (Fla. 1st DCA 2006).

In the instant case, however, no evidence was presented establishing appellant’s reasonable belief that there was an immediate threat of serious bodily injury to him. First, all witnesses at trial testified that they did not observe anyone actually chasing appellant. Second, appellant did not testify as to his alleged belief. Third, the testimony regarding appellant’s prior action at a party that evening did not establish that appellant was placed in fear for his safety. Because insufficient evidence was presented establishing that appellant’s actions were the result of a reasonable fear for his safety, all elements of the necessity defense were not established, and thus, the trial court did not err in denying the requested instruction. We therefore affirm.

AFFIRMED.

ALLEN and DAVIS, JJ., concur.


text:
    Marvin NATION, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2015.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Marvin Nation, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This timely sworn petition seeks belated appeal of a judgment and sentence rendered on February 12, 2009. This court relinquished jurisdiction to the circuit court to conduct proceedings and issue a written report and recommendation concerning petitioner’s entitlement to belated appeal pursuant to Staley v. State, 12 So.3d 778, (Fla. 1st DCA 2009).

The Special Master’s report reflects that petitioner wrote a letter to the clerk of the circuit court wherein he stated that he had asked his trial counsel to file an appeal. This letter was filed in the circuit court on February 13, 2009, which would be timely to invoke petitioner’s right to appeal the judgment and sentence. Fla. R.App. P. 9.110(d). Accordingly, the clerk of the circuit court is directed to certify the correspondence filed by petitioner on February 13, 2009, as a timely notice of appeal to review the judgment and sentence rendered on February 12, 2009, in Okaloosa County Circuit Court case number 2008-CF-2028-C. The notice of appeal shall be certified and transmitted to this court. Fla. R.App. P. 9.040(g).

The petition for belated appeal is denied as moot.

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


text:
    Marcus GLOVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1781.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Marcus Glover, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the January 30, 2008, order denying motion for postconviction relief in Alachua County Circuit Court case numbers 01-2005-CF-004469-A, 01-2005-CF-004470-A, 01-2005-CF-004471-A and 01-2005-CF-004472-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

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


text:
    Oler J. JONES, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D09-1111.
    District Court of Appeal of Florida, First District.
    July 29, 2009.
    Oler J. Jones, pro se, Appellant.
    Kathleen Von Hoene, General Counsel, and Sheron L. Wells, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

This proceeding is hereby converted to an appeal of a final order pursuant to Green v. Moore, 111 So.2d 425 (Fla. 1st DCA 2000). Here the trial court denied Jones’ petition for habeas corpus without requiring a response. The trial court characterized the petition as “facially insufficient” because it did not allege exhaustion of administrative remedies. We have recently held such to be error in the context of a petition for habeas corpus where the affirmative defense of exhaustion has not been raised by a response to the petition. See Santana v. Henry, 12 So.3d 843 (Fla. 1st DCA 2009). Accordingly, we REVERSE the trial court’s order dismissing the petition for writ of ha-beas corpus and REMAND for further proceedings consistent -with this court’s opinion in Santana.

KAHN, BENTON, and VAN NORTWICK, JJ., concur.


author: EVANDER, J.

text:
    Michael Ray CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-143.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2009.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Chapman appeals the denial of his motion to correct an illegal sentence. The written judgment reflects that Chapman was sentenced to 30.375 months in prison followed by five years probation. He contends that the probationary part of his sentence was illegal because it was not specifically pronounced during his sentencing hearing. We affirm. The trial court’s original oral pronouncement was ambiguous and that ambiguity was subsequently clarified at the time the trial court denied Chapman’s motion.

Chapman was initially charged with trafficking in methamphetamine and possession of a firearm by a convicted felon. The State agreed to nolle prosequi the drug offense if Chapman pled to the firearm charge. Pursuant to the plea offer, Chapman would be sentenced to 30.5 months in prison. (The new scoresheet provided for a minimum guideline sentence on the firearm charge of 30.375 months.) Upon reviewing Chapman’s lengthy criminal record, the trial court refused to accept the plea agreement. After some discussion, the trial court gave Chapman three options: (1) he could agree to a 30.375 month prison sentence followed by five years probation; (2) he could agree to a five year prison sentence with no probation to follow; or (3) he could maintain his not guilty plea and proceed to trial on both charges. Chapman chose the first option.

The trial court then conducted a plea colloquy, during which Chapman was advised, inter alia, that if he violated his probation he “fac[ed] up to 15 years, less any credit time served.” After accepting the plea, the trial court adjudicated Chapman guilty on the firearm charge and orally pronounced that he was to serve 30.375 months in the Department of Corrections. The trial court also imposed fines, costs, and attorney’s fees and permitted Chapman to pay these monies during the period of his probation. In apparent response to an earlier statement made by Chapman that he intended to move out of Florida, the trial judge advised the defendant that he could seek to transfer his probation by “making application.” However, the trial judge failed to specifically state that Chapman was to be placed on five years probation after completion of the incarcerative portion of his sentence. The State then announced a nolle prosequi on the drug offense and the sentencing hearing was concluded.

Chapman subsequently filed his motion to correct illegal sentence, contending that the written judgment was in conflict with the trial court’s oral pronouncement. He requested that the trial court strike the probationary portion of his sentence. The trial court denied Chapman’s motion, aptly observing that “it was the court’s intention, and the State and defendant’s understanding, that the sentence in the instant case included five years of probation.”

Chapman contends that Ashley v. State, 850 So.2d 1265 (Fla.2003); Shepard v. State, 940 So.2d 545 (Fla. 5th DCA 2006); and Comtois v. State, 891 So.2d 1130 (Fla. 5th DCA 2005) require reversal in this case. We disagree. Those cases stand for the proposition that when a trial court orally pronounces a legal and tmambiguous sentence, and the sentencing hearing has been concluded, double jeopardy principles preclude the sentence from being increased. The instant case is distinguishable because the trial court’s oral pronouncement was ambiguous.

The trial judge twice referenced Chapman’s probationary obligations. Where there is an ambiguity in the oral pronouncement, the proper remedy is for the trial court to clarify the sentence imposed. Franklin v. State, 969 So.2d 399 (Fla. 4th DCA 2007) (where record demonstrates that during oral pronouncement of sentence, trial court made inconsistent statements, matter must be remanded to clarify sentence imposed and enter such corrected sentencing orders as may be appropriate); see also Coleman v. State, 898 So.2d 997 (Fla. 2d DCA 2005). Here, in its written order denying Chapman’s motion to correct illegal sentence, the trial court clarified the sentence imposed.

AFFIRMED.

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

      . §§ 893.135(l)(f) and 893.03(2)(c)(2), Fla. Slat. (2008).

      . § 790.23(1) and (2), Fla. Stat. (2008).


text:
    Joyce HINZ and Steven Hinz, Appellant, v. Rebecca Ann JOHNSON, Appellee.
    No. 5D08-3898.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2009.
    Billy M. Thomas, W. Melbourne, for Appellant.
    No Appearance for Appellee.
   EVANDER, J.

Joyce and Steven Hinz appeal from an order denying their petition for primary residential custody of their grandson. The child’s mother was alleged to have consented to the Hinzes’ request and the child’s father was alleged to be unknown. The trial court denied the petition, finding that it could not grant permanent residential custody to the Hinzes “absent findings made pursuant to Chapter 39, Florida Statutes, or an adoption order entered pursuant to Chapter 63.” We reverse.

Trial courts have inherent jurisdiction to determine issues of custody. Richardson v. Richardson, 766 So.2d 1036, 1043 (Fla.2000); see also Cone v. Cone, 62 So.2d 907 (Fla.1953), implied overruling other grounds, Richardson. That jurisdiction is not dependent on the case having originated under a particular statute. Waters v. Waters, 578 So.2d 874 (Fla. 2d DCA 1991); see also Padgett v. Pettis, 445 So.2d 633 (Fla. 1st DCA 1984); Golstein v. Golstein, 442 So.2d 330 (Fla. 4th DCA 1983). The Hinzes were not obligated to seek relief pursuant to chapter 39 because they were not alleging that their grandson was dependent, nor were the Hinzes required to seek an adoption order to obtain primary residential custody of the child.

In denying the Hinzes’ petition, the trial court relied upon the following language from Richardson:

[E]ven though a court determines that the grandparent has standing ... to seek custody, the court may still not intervene in a parent-child relationship or determine whether custody with a grandparent is in the best interest of the child, unless it has been established that the parent abandoned the child, that the parent is unfit or that harm would result to the child if the parent were to be awarded custody.

Richardson, 766 So.2d at 1040.

In Richardson, the Florida Supreme Court found section 61.13(7), Florida Statutes (1999), to be unconstitutional. That statute purported to place a grandparent with whom a child was actually residing in a stable relationship on equal footing with a parent for purposes of evaluating the child’s custody arrangements. The Court found that the statute impermissibly infringed on a natural parent’s fundamental right to raise his or her child. Id. at 1038-39. Richardson is readily distinguishable because it involved a disputed custody proceeding. Here, the Hinzes have alleged that the child’s only known parent consented to placement of the child with the grandparents. If true, there would be no infringement on the parent’s aforesaid fundamental right because the court would not be acting contrary to the parent’s wishes. See, e.g., Waters.

The trial court also relied upon language from Davis v. Weinbaum, 843 So.2d 290, 293 (Fla. 5th DCA 2003), in which we stated that in the absence of an adoption order, grandparents cannot be considered “custodial parents.” There is no conflict between Davis and our decision today. Should the trial court grant the petition, the- Hinzes would not become “custodial parents.” They would have primary residential custody of the child while remaining his legal grandparents.

REVERSED and REMANDED.

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


text:
    Gary J. HALL, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1377.
    District Court of Appeal of Florida, Fifth District.
    July 31, 2009.

      Gary J. Hall, Daytona Beach, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Gary Hall appeals from an order summarily denying his Rule 3.800(a) motion to correct illegal sentence. We affirm, in part, and reverse, in part.

In 2004, pursuant to a plea agreement, Hall pled no contest to burglary of a dwelling while armed, two counts of grand theft — statutory property, five counts of grand theft, two counts of burglary of a dwelling/structure/conveyance, and one count of burglary of a dwelling. With regard to sentencing, the trial court’s order reflects:

[Hall] was sentenced to 12 years in the Department of Corrections, 10 years minimum/mandatory on the Burglary of a Dwelling While Armed convictions, with credit for time served, and to 5 years on each of the other convictions, followed by 5 years probation. The sentences were ordered to run concurrently one with the other and with any other sentence [Hall] was serving. He was assessed financial requirements of $1,000.00 fines, $342.85 costs, plus 5% fee, $40.00 Public Defender fee, and $50.00 per day cost of incarceration.

No documents were attached to the trial court’s order.

In his motion, Hall raised two points. First, he alleged that the trial court lacked the authority to impose costs for his incarceration. The trial court properly found this argument to be without merit. See Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371 (Fla.1998) (statute authorizing imposition of $50.00/day charge for costs of incarceration is constitutional).

Second, Hall alleged that the sentence on his second-degree felony convictions exceeded the statutory maximum. While this argument would appear to be without merit, the State concedes that reversal and remand is required because the trial court did not attach any documents to its order. See Friss v. State, 881 So.2d 38 (Fla. 5th DCA 2004) (holding that the trial court has the burden of attaching portions of the record which conclusively refute a Rule 3.800(a) claim). We suggest that upon remand the trial court also review the sentences for the third degree felony convictions to determine if the maximum permitted sentences were exceeded.

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

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

      . Fla. R.Crim. P. 3.800(a).


text:
    MORTELLARO & SINADINOS, PLLC, Appellant, v. COUNTRYWIDE HOME LOANS, Servicing LP Countrywide Home Loans, Servicing LP, James Tucker; Gail A. Tucker; Unknown Tenant # 1; Unknown Tenant # 2; Consolidated City of Jacksonville a Municipal Corporation of the State of Florida; Michael Smith, and any unknown heirs, devisees, grantees, creditors and other unknown persons or unknown spouses claiming by, through and under any of the above-named Defendants, Appellees.
    No. 1D09-0239.
    District Court of Appeal of Florida, First District.
    July 31, 2009.
    Gina M. Sinadinos and Michelangelo Mortellaro, Mortellaro & Sinadinos, PLLC, Tampa, pro se, Appellant.
    Thomas M. Beverly, Assistant General Counsel, Jacksonville; Kimberly A. Humphrey, Butler & Hosch, P.A., Orlando; Stephen J. Berlinsky, The Elkin Law Firm, P.A., Clermont, for Appellees.
   PER CURIAM.

The appellant seeks review of two orders entered by the lower court in a post-judgment proceeding in a mortgage foreclosure case. The first of these is an order entered on November 18, 2008, vacating and setting aside a previous order directing the clerk of the court to distribute surplus funds. The second is an order entered on December 12, 2008, denying a motion for rehearing, or in the alternative an order denying a motion for relief from the November 18th order. This court lacks jurisdiction to review either order.

The notice of appeal is untimely as to the November 18th order vacating the prior order directing the clerk to distribute the surplus funds, because it was filed more than thirty days from the date of rendition of the order. See Fla. R. App. P. 9.110(b). Rendition can be suspended by an “authorized motion.” Fla. R. App. P. 9.020(h). A motion for rehearing is an authorized motion only when it is directed to a previous final order. Because the November 18th order was not a final order, the subsequent motion for rehearing was not an authorized motion and it did not have the effect of suspending the jurisdictional time limit for taking an appeal. See Wagner v. Bieley, Wagner Assocs., Inc., 263 So.2d 1 (Fla.1972).

Nor does the court have jurisdiction to review the December 12, 2008 order styled as an “Order Denying Motion for Rehearing, Reconsideration, and/or Clarification or, in the Alternative, Motion for Relief from the November 18, 2008 Order.” An order on a motion for rehearing is not appealable in its own right. See Grant v. Jones, 933 So.2d 32 (Fla. 1st DCA 2006); Cole v. State, 905 So.2d 905 (Fla. 1st DCA 2005). An authorized and timely motion for rehearing merely suspends the date of rendition of the order to which it was directed; it does not set in motion another controversy that will become the subject of a separate appeal.

The appellant argues that because its motion also sought to set aside the lower court’s November 18, 2008 order under Florida Rule of Civil Procedure 1.540(b), the order denying that motion is appeal-able pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). This would be a valid argument if the motion to vacate had been directed to a previous final order. See Bennett’s Leasing, Inc. v. First Street Mortgage Corp., 870 So.2d 93, 98 (Fla. 1st DCA 2003). But in this case, the appellant sought to vacate a post-judgment order that could only be characterized as a nonfi-nal order in the post-judgment proceeding. The November 18, 2008 order vacated a prior order directing the clerk to distribute the surplus funds. This order did not finally adjudicate the rights of any party to the surplus funds. To the contrary, it had the effect of re-opening the post-judgment proceeding. When that proceeding is completed in the trial court any party aggrieved by the trial courts final decision may file an appeal. All we have at present is an order denying a previous nonfinal order in a post-judgment proceeding that is not yet concluded. Because the December 12, 2008 order denied a motion to vacate a previous nonfinal order, it does not qualify as an order under rule 1.540 and it is not appealable under rule 9.130(a)(5).

Dismissed.

PADOVANO, BROWNING, and THOMAS, JJ., concur.


text:
    MORTELLARO & SINADINOS, PLLC, Appellant, v. WASHINGTON MUTUAL BANK, F.A. successor by merger to Washington Mutual Home Loans, Inc., f/k/a PNC Mortgage Corporation of America f/k/a Sears Mortgage Corporation; Raymond R. Deckard and Atolla M. Deckard, his wife; Bank of America N.A.; Unknown Parties in Possession #; Unknown Parties in Possession # 2; If Living, and All Unknown Parties Claiming By, Through, Under and Against the Above Named Defendant(s) Who Are Not Known To Be Dead or Alive, Whether Said Unknown Parties May Claim an Interest as Spouses, Heirs, Devisees, Grantees, or Other Claimants, Appellees.
    No. 1D09-0251.
    District Court of Appeal of Florida, First District.
    July 31, 2009.
    Gina Sinadinos, Mortellaro & Sinadinos, PLLC, Tampa, for Appellant.
    Shapiro & Fishman, LLP, Tampa, for Appellees.
   PER CURIAM.

DISMISSED. See Mortellaro & Sinadinos, PLLC v. Countrywide Home Loans, Servicing LP, et al., 14 So.3d 278 (Fla. 1st DCA 2009).

PADOVANO, BROWNING, and THOMAS, JJ., concur.


text:
    MORTELLARO & SINADINOS, PLLC, Appellant, v. BENEFICIAL FLORIDA, INC., A Delaware corporation, Stephen K. Moonly, _ Unknown Spouse of Stephen K. Moonly, All Unknown Heirs, Devisees, Grantees, Assignees, Creditors, Trustees, Successors in Interest, or Other Parties Claiming an Interest in the Subject Property by, Through Under, or Against any of the Said Defendants, Whether Natural or Corporate, Who Are Not Known to be Alive or Dead, Dissolved or Existing; John Doe and Jane Doe, Unknown Tenants, Appellees.
    No. 1D09-0250.
    District Court of Appeal of Florida, First District.
    July 31, 2009.
    Gina M. Sinadinos, Mortellaro & Sinadi-nos, PLLC, Tampa, for Appellant.
    Carl M. Sugarman, Miami, for Appel-lees.
   PER CURIAM.

DISMISSED. See Mortellaro & Sinadinos, PLLC v. Countrywide Home Loans, Servicing LP, et al., 14 So.3d 278 (Fla. 1st DCA 2009).

PADOVANO, BROWNING, and THOMAS, JJ., concur.


text:
    Todd TEAL, a/k/a Walter A. Smith, a/k/a Snuffy Smith, Appellant, v. STATE of Florida, DEPARTMENT OF LEGAL AFFAIRS, Appellee.
    No. 1D08-1454.
    District Court of Appeal of Florida, First District.
    July 31, 2009.
    Todd Teal, pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

The circuit court’s March 7, 2008 order was entered after an appeal to this court from a September 24, 2007 interlocutory order was dismissed, and before that appeal was reinstated. This comports with Florida Rule of Civil Procedure 9.130(f), and the reinstatement of the interlocutory appeal does not affect the validity of the March 7 order.

AFFIRMED.

ALLEN, PADOVANO, and BROWNING, JJ., concur.


text:
    S.L.U., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0772.
    District Court of Appeal of Florida, First District.
    July 31, 2009.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Giselle Denise Lylen and Brooke Poland, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, S.L.U., appeals from an order committing her to a moderate-risk residential program and argues that the trial court erred in departing from the Department of Juvenile Justice’s recommendation of supervised probation. When the trial court entered its order, it did not have the benefit of the Florida Supreme Court’s new, more rigorous analysis in which trial courts must engage prior to departing from the Department’s recommendation. See E.A.R. v. State, 4 So.3d 614 (Fla.2009).

Accordingly, we REVERSE the order and REMAND to provide the trial court an opportunity to enter an order in compliance with E.A.R. See M.J.S. v. State, 6 So.3d 1268 (Fla. 1st DCA 2009); E.E. v. State, 7 So.3d 1140 (Fla. 4th DCA 2009).

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


author: CRENSHAW, Judge.

text:
    PRESTIGE VALET, INC., f/k/a A & A of Tampa, Inc., Appellant, v. Louis J. “Duke” MENDEL, III, Michael D. Malatin, and Healthcare Parking Systems, Inc., Appellees.
    No. 2D08-41.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 2009.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, and Michael D. La-Barbera of LaBarbera & Campbell, Tampa, for Appellant.
    Richard J. McIntyre and Justin D. Eleff of McIntyre, Panzarella, Thanasides, Eleff & Hoffman, P.L., Tampa, for Appellee Louis J. “Duke” Mendel, III.
    No appearance for Appellees Michael D. Malatin and Healthcare Parking Systems, Inc.
   CRENSHAW, Judge.

Prestige Valet, Inc. (Prestige) appeals a final order denying its motion to set aside a settlement agreement Prestige entered with Louis J. Mendel (the Prestige-Mendel agreement) and an order enforcing the settlement agreement and awarding Mendel attorney’s fees. We reverse and conclude the trial court erred in requiring Prestige to file a motion to set aside a codefendant’s settlement agreement as a condition precedent to granting the motion to set aside the Prestige-Mendel agreement, because each agreement constituted a separate and distinct contract.

The underlying dispute arose from Prestige’s prior business relationship with co-defendants Mendel, who served as president of Prestige, and Michael D. Malatin. In 1996, while working for Prestige, Mala-tin formed Healthcare Parking Systems, Inc., and he and Mendel entered into a profit-sharing agreement based on this competing business. In 2001, Prestige’s new president discovered documents implicating Mendel and Malatin in stolen trade name use, payments of the competing company’s expenses, and missing revenue. Prestige subsequently filed suit against Mendel, Malatin, and Healthcare Parking Systems, Inc., seeking $3.2 million for tor-tious interference, conversion and use of Prestige’s business opportunities and trade name “Healthcare Parking,” breach of duties to their employer, and civil conspiracy.

Relying on several misrepresentations made by the defendants, the trial court severely limited discovery. Consequently, Prestige was unable to sustain the allegations and entered into an $11,000 settlement agreement with Mendel.

Following the Prestige-Mendel agreement, Malatin’s participation in a federal investigation revealed the defendants’ fraud on the court and misrepresentations that resulted in limited discovery. Prestige then entered into an $800,000 settlement agreement with Malatin and Healthcare Parking Systems, Inc. (the Prestige-Malatin agreement), and filed a motion to set aside the Prestige-Mendel agreement because the agreement was based on fraud and misrepresentation.

The court entered an order denying Prestige’s motion to set aside the Prestige-Mendel agreement but providing Prestige with túne to refile the motion in connection with a motion to set aside the Prestige-Malatin agreement. When Prestige failed to do so, the trial court entered a final order enforcing the Prestige-Mendel agreement and an order awarding attorney’s fees to Mendel pursuant to the Prestige-Mendel agreement. This appeal followed.

We conclude that the trial court erred in denying Prestige’s motion to set aside the Prestige-Mendel agreement based upon Prestige’s failure to file a motion to set aside the Prestige-Malatin agreement because each agreement was separate and distinct. This court reviews for an abuse of discretion a ruling on a motion to set aside based on fraud. Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002). Settlement agreements are highly favored by the law and are construed following principles of contract interpretation. Bateski v. Ransom, 658 So.2d 630, 631 (Fla. 2d DCA 1995). The contracting parties’ intent is determined from within the four corners of the document and construed in accordance with the agreement’s plain meaning. Barakat v. Broward County Hous. Auth., 771 So.2d 1193, 1195 (Fla. 4th DCA 2000). “It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.” Id.; see Beach Resort Hotel Corp. v. Wieder; 79 So.2d 659, 663 (Fla.1955) (“It is well settled that courts may not rewrite a contract or interfere with the freedom of contract. ...”).

Here, the trial court misinterpreted the plain language of the Prestige-Mendel agreement when it linked it to the Prestige-Malatin agreement. No provision within the Prestige-Mendel agreement mentions or pertains to the Prestige-Mala-tin agreement. Similarly, the Prestige-Malatin agreement contains no reference to the Prestige-Mendel agreement. Thus, the trial court essentially rewrote the Prestige-Mendel agreement when it required Prestige to refile its motion in connection with a motion to set aside the separate agreement. The plain language of the Prestige-Mendel agreement fails to demonstrate any relation to the Prestige-Malatin agreement, and we therefore find the trial court abused its discretion when it treated the agreements as related.

Accordingly, we reverse the trial court’s order denying Prestige’s motion to set aside the Prestige-Mendel agreement and the order awarding Mendel attorney’s fees. We remand for further proceedings consistent with this opinion.

Reversed and remanded.

ALTENBERND and SILBERMAN, JJ., Concur.

      . This court also relied on the defendants' misrepresentations when it denied Prestige's petition for writ of certiorari contesting the limited discovery. Prestige Valet, Inc. v. Malatin, 2D05-1431 (Fla. 2d DCA Jun. 14, 2005) (unpublished order). The defendants' misrepresentations included statements under oath denying the parties' noncompete agreements with Prestige and asserting that Malatin's payments to Mendel were loan repayments.

      . Notably, counsel in the present proceeding for Mendel, Malatin, and Healthcare Parking Systems, Inc., were not involved in the proceedings giving rise to the allegations of misrepresentation and fraud upon the court.

      . In this proceeding, Mendel referred to the trial court's decision as ''unorthodox'' and did not contest Prestige's argument that the settlement agreements were two separate and distinct contracts.


author: WELLS, Judge.

text:
    Arthur D. LAKE, Appellant, v. Zeita Veronica LAKE, Appellee.
    No. 3D08-2525.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 2009.
    Arthur D. Lake, in proper person.
    Dennis A. Koltun, South Miami, for ap-pellee.
    Before RAMIREZ, C.J., and WELLS, and SUAREZ, JJ.
   WELLS, Judge.

Confession of Error

Arthur D. Lake appeals from a final judgment of dissolution of marriage as well as an order awarding his former wife attorneys fees and costs. Based on the former husband’s failure to file a conformed copy of the final judgment and our subsequent dismissal of the appeal as to that judgment, we are left to consider only the order awarding fees and costs. On our independent review of the record, as well as the former wife’s confession of error, we reverse the fee order and remand for further proceedings.

The parties entered into a marital settlement agreement which was incorporated into a final judgment of dissolution of marriage. When a post-judgment dispute arose over each party’s responsibilities under the final judgment, the former wife moved to enforce the final judgment. Citing the trial judge’s conduct during the hearing held on the matter, the former husband filed a motion to disqualify. This motion was granted, and the trial judge recused himself. Thereafter the same judge entered an order awarding attorneys fees and costs to the former wife’s counsel.

Once the trial judge recused himself, he had no further authority to enter orders. See Bolt v. Smith, 594 So.2d 864, 864 (Fla. 5th DCA 1992) (“Florida case law is well settled that once a trial judge has recused himself, further orders of the recused judge are void and have no effect.”).

On this authority and the former wife’s confession of error, we reverse the fee order and remand for further proceedings before a successor judge.


text:
    Sterling GRINNON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-637.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Sterling Grinnon, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the denial of appellant’s motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), upon the state’s concession of error that the order denying relief did not include attachments to show that appellant is not entitled to relief. Fla. R.App. P. 9.141(b)(2)(D); see also Bradley v. State, 3 So.3d 1168 (Fla.2009); State v. Sousa, 903 So.2d 923 (Fla.2005); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

WARNER, HAZOURI and MAY, JJ„ concur.


text:
    Michelle HEAVENER, Appellant, v. Robert HEAVENER, Appellee.
    No. 4D08-1333.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Siobhan Helene Shea, of Siobhan Helene Shea Appellate Practice, Palm Beach, for appellant.
    Ralph Mabie, Jr., of Vernis & Bowling of Palm Beach, P.A., North Palm Beach, for appellee.
   PER CURIAM.

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

STEVENSON, MAY and LEVINE, JJ., concur.


text:
    Ronald BEALS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4192.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Ronald Beals, Florida City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Ronald Beals appeals an order summarily denying his rule 3.850 motion for post-conviction relief. We affirm the summary denial of the first ground as successive to Beals’s prior rule 3.850 motion, and also agree with the trial court that the double jeopardy issue it raised was without merit. We reverse the summary denial of grounds two and three. In his second ground, Beals claimed that his open plea was involuntary because the imposition of drug offender probation for the offense of carrying a concealed weapon rendered the sentence illegal, as section 790.01, Florida Statutes, does not authorize drug offender probation for the offense of carrying a concealed weapon or firearm. As a claim of involuntary plea, this ground also could be denied as successive; however, it also could be reviewed as a claim of illegal sentence, pursuant to rule 3.800(a).

The imposition of drug offender probation, when the court lacks authority to do so, is cognizable in a rule 3.800(a) motion. See Anderson v. State, 941 So.2d 446 (Fla. 4th DCA 2006); Ackermann v. State, 962 So.2d 407 (Fla. 1st DCA 2007) (reversing summary denial of rule 3.800(a) motion; defendant may not be sentenced to drug offender probation unless convicted of enumerated chapter 893 offense or has specifically agreed to such probation in plea agreement); Parker v. State, 839 So.2d 736 (Fla. 1st DCA 2003).

The opinions on which the state relies, in which either the drug offender probation was part of a plea agreement, or the defendant did not challenge the legality of a condition until after the probation was revoked due to a violation of the condition, are inapposite to the facts of this case.

“Drug offender probation” is defined as “a form of intensive supervision which emphasizes treatment of drug offenders in accordance with individualized treatment plans administered by officers with restricted caseloads.” § 948.001(4), Fla. Stat. (2004) (emphasis added). A court may place a defendant on drug offender probation if “the defendant is a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a) or (6)(a).” § 948.20, Fla. Stat. (2004) (emphasis added). Section 938.034 also provides for the conditions of drug offender probation. “A court may not impose drug offender probation other than for the violation of a drug related offense listed in the drug offender probation statute, section 948.034.” Epperson v. State, 955 So.2d 642, 643 (Fla. 4th DCA 2007).

As the supreme court has explained, however, “[t]here are three avenues in which the trial court may order a probationer to complete a drug treatment program: (1) as a special condition of ordinary probation; (2) as a condition of drug offender probation under section 948.20, Florida Statutes (2005); or (3) as part of a ‘treatment based drug court program’ under section 397.334, Florida Statutes (2005).” Lawson v. State, 969 So.2d 222, 231 (Fla.2007). Here, Defendant claimed that the trial court imposed the drug conditions as terms of drug offender probation, for which the offense of carrying a concealed firearm did not qualify him, and nothing in the summary record refuted that allegation.

As we did in Andrew v. State, 988 So.2d 158, 159-60 (Fla. 4th DCA 2008), we reverse the denial of this ground, but with leave for the trial court to substitute, for the drug offender probation, a term of probation with or without special conditions related to substance abuse, provided those special conditions satisfy the test of Biller v. State, 618 So.2d 734 (Fla.1993):

In determining whether a condition of probation is reasonably related to rehabilitation, we believe that a condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.

Id. at 734-35 (quoting Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2d DCA 1979)).

In his third ground, Beals claimed his sentences were null and void because the trial court failed to adjudicate him guilty. While the trial court’s order of denial attached a state response, and the state’s response indicated that the court record includes a written adjudication of guilt, no such written adjudication was in-eluded in the summary record. The state agrees that this ground should be remanded for the trial court to attach to its order of denial a copy of the judgment. We accordingly reverse and remand this ground for further proceedings.

Affirmed in part, Reversed in part, and Remanded.

POLEN, FARMER and STEVENSON, JJ., concur.


text:
    Lazaro VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4839.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Carla Lowry of Lowry at Law, P.A., Fort Lauderdale, and Brooke V. Elvington of The Law Office of Brooke Elvington, P.A., Tampa, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant, Lazaro Vazquez, appeals the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The state concedes that an evidentiary hearing is required on three of the four grounds raised in the motion, but misinterprets the nature of the fourth ground. We reverse and remand for an evidentiary hearing on all four grounds raised in the motion.

Reversed and remanded.

TAYLOR, MAY and LEVINE, JJ., concur.


text:
    Henry J. BENJAMIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-264.
    District Court of Appeal of Florida, Fourth District.
    Aug. 5, 2009.
    Henry J. Benjamin, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Henry J. Benjamin appeals an order dismissing, as to one of two lower tribunal cases, his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for the trial court to consider the motion on the merits.

Appellant’s motion was filed in connection with both a 2001 case and a 2003 case. The trial court dismissed the motion in connection with the 2001 case based on a state response arguing that all of the grounds pertained to his trial in the 2003 case.

The state now acknowledges that appellant’s violation of probation (VOP) in his 2001 case was based upon the guilty verdict in his 2003 case. It asks us to affirm the dismissal as to two grounds and remand as to the others, noting that the trial court has ordered an evidentiary hearing on two of the grounds of the motion with respect to the 2003 case.

We agree with the state that even if appellant obtains a new trial in the 2003 case and is acquitted, that will not necessarily entitle him to relief in his VOP case due to the lower standard of proof necessary to establish a VOP. Coney v. State, 995 So.2d 1038, 1042 (Fla. 4th DCA 2008). However, it certainly will call into question the reliability of the revocation of probation such that the posteonviction motion should be considered with respect to both cases.

As the trial court did not consider any of the grounds below, we reverse the dismissal and remand the amended motion for consideration by the trial court on the merits as to the 2001 lower tribunal case number.

Reversed and remanded.

GROSS, C.J., WARNER and HAZOURI, JJ., concur.


text:
    L.D.S.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3873.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2009.

      Nancy Daniels, Public Defender, David P. Gauldin, Assistant Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, and Katina L. Durost, Assistant Public Defender, Pensacola, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order revoking his probation where he entered a plea without the assistance of counsel. Appellant claims the trial court failed to determine whether he knowingly and intelligently waived his right to counsel, and failed to conduct a thorough inquiry into the voluntariness of his waiver of counsel. We agree with Appellant, and therefore reverse the trial court’s order revoking his probation and remand the case for further proceedings consistent with this opinion.

Rule 8.165, Florida Rules of Juvenile Procedure, provides that counsel is required at each stage of a juvenile proceeding; a juvenile defendant must be advised of his right to counsel; and if the juvenile defendant chooses to waive counsel, the trial court must conduct a thorough inquiry to determine whether the waiver was freely and intelligently made. State v. T.G., 800 So.2d 204, 210-11 (Fla.2001). Waiver of counsel can occur only after the child has had a meaningful opportunity to confer with counsel regarding the child’s right to counsel, the consequences of waiving counsel, and any other factors that would assist the child in making the decision to waive counsel. A knowing and intelligent waiver of the right to counsel in a delinquency proceeding requires the court to (1) inform the juvenile of the benefits he or she would relinquish and the danger and disadvantages of self-representation; (2) determine whether the juvenile’s choice was made voluntarily and intelligently; and (3) determine whether any unusual circumstances existed which would preclude the juvenile from exercising the right of self-representation. C.K. v. State, 909 So.2d 602, 604 (Fla. 2d DCA 2005); D.C.W. v. State, 775 So.2d 363, 364 (Fla. 2d DCA 2000); B.F. v. State, 747 So.2d 1061, 1065 (Fla. 5th DCA 2000).

In the instant case, Appellant declined the assistance of counsel and pled guilty to having violated the terms of his probation. The record is devoid of any discussion regarding whether Appellant had an opportunity, and whether that opportunity was meaningful, to confer with an attorney regarding his right to counsel, as required by rule 8.165(a). Furthermore, the trial court failed to inquire about the child’s comprehension of the offer of counsel, his capacity in making the choice of whether to waive counsel, or about the existence of any unusual circumstances which would preclude the juvenile from exercising the right of self-representation. In an apparent attempt to assuage the trial court’s error in failing to make the proper inquiries, the State argued that at the hearing, the trial court had the benefit of knowing that Appellant was one month away from his eighteenth birthday and that the child had previous contact with the judicial system. This knowledge did not alleviate the tidal court’s duty to make the proper inquiries into the intelligence and voluntariness of Appellant’s waiver.

The State further argued that Appellant and his mother had signed a written waiver of rights form. Rule 8.165(b)(3), requires a written waiver of counsel to be “submitted to the court in the presence of a parent, legal custodian, responsible adult relative, or attorney assigned by the court to assist the child, who shall verify on the written waiver that the child’s decision to waive counsel has been discussed with the child and appears to be knowing and voluntary.” Here, it appears Appellant’s parent or legal guardian signed the form indicating she agreed with the child’s waiver of his right to an attorney. However, she did not state, nor did the form stipulate, that she or anyone else discussed with Appellant the decision to waive his right to counsel or that Appellant made a knowing and voluntary decision to waive that right. In addition, although someone present at the revocation hearing orally indicated he had reviewed the form with Appellant, this person was never identified by name, position, relationship or otherwise. This unidentified person cannot be said to have been a parent, legal custodian, responsible adult relative, or attorney assigned by the court to assist the child, as required by the rule. In any event, the trial court had an obligation to ensure the child intelligently and voluntarily waived his right to counsel, which the trial court failed to do. S.S. v. State, 744 So.2d 600 (Fla. 2d DCA 1999) (holding that mother’s signing of waiver form did not excuse the trial court’s failure to advise the juvenile of his right to counsel).

Because the trial court failed to make the proper inquiries in determining that Appellant’s waiver of counsel was knowing and voluntary, we reverse the order revoking Appellant’s probation and remand to the trial court for a new plea hearing after either appointing counsel for Appellant or obtaining a waiver of counsel after conducting a thorough inquiry in accordance with rule 8.165.

REVERSED AND REMANDED.

KAHN, DAVIS, and CLARK, JJ., concur.