source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael GILLAM, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D05-3405.
    District Court of Appeal of Florida, First District.
    April 18, 2006.
    Rehearing Denied May 12, 2009.
    Michael Gillam, Pro Se, for appellant.
    Chris Korn, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for appellee.
   PER CURIAM.

The appellant challenges the denial of his petition for writ of mandamus and the trial court’s denial of his motion to remove a lien imposed upon his inmate account for court costs relating to the petition. In accordance with our decisions in Hull v. Moore, 790 So.2d 560 (Fla. 1st DCA 2001), and Singletary v. Jones, 681 So.2d 836 (Fla. 1st DCA 1996), we affirm the denial of the petition. But because the trial court incorrectly concluded that the petition for writ of mandamus did not constitute a collateral criminal proceeding, we reverse the order by which the trial court denied the motion to remove the lien. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006), rev. granted sub nom. McDonough v. Cox, No. SC06-301, 924 So.2d 809 (Fla.2006). Accordingly, the denial of the petition for writ of mandamus is affirmed, the denial of the motion for removal of the lien is reversed, and this case is remanded with directions that the trial court remove the lien or direct the reimbursement of any funds that have been withdrawn from the appellant’s account to satisfy the lien. We again certify the question that we certified in Cox:

DOES THE HOLDING IN SCHMIDT V. CRUSOE, 878 So.2d 361 (Fla.2003), EXTEND TO ALL ACTIONS, REGARDLESS OF THEIR NATURE, IN WHICH, IF SUCCESSFUL, THE COMPLAINING PARTY’S CLAIM WOULD DIRECTLY AFFECT HIS OR HER TIME IN PRISON, SO TO PRECLUDE IMPOSITION OF A LIEN ON THE INMATE’S TRUST ACCOUNT TO RECOVER APPLICABLE FILING FEES?

ALLEN, PADOVANO and BROWNING, JJ„ concur. ■


text:
    Amanda JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1686.
    District Court of Appeal of Florida, First District.
    April 29, 2009.
    Rehearing Denied July 31, 2009.
    Amanda Jackson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

BARFIELD, KAHN, and WEBSTER, JJ., concur.


author: SALTER, J.

text:
    Norma BETANCOURT, Appellant, v. In re the ESTATE OF Victoria MISDRAJI, Appellee.
    No. 3D08-1910.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Rehearing and Rehearing En Banc Denied July 15, 2009.
    Norma Betancourt, in proper person.
    Martin R. Mallinger (former counsel), for appellee.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

Norma Betancourt, pro se, appeals a circuit court order denying her petition to open her mother’s estate and to appoint a new personal representative. The estate was closed in 2004 when the personal representative (another adult child of the decedent) was discharged. Ms. Betancourt did not appeal that order.

Ms. Betancourt filed written objections to the closing of the estate a month later, and her objections were denied in an order entered in February, 2005. Ms. Betanc-ourt did not appeal that order.

Ten months later, Ms. Betancourt filed a “petition for subsequent administration.” After receiving letters from her, the probate judge conducted a status conference on May 3, 2007. Absent a consensus or majority vote among all five adult children of the decedent, the court declined to reopen the estate for further administration. That very day, Ms. Betancourt filed a motion to disqualify the probate judge. The petition for subsequent administration and the motion to disqualify were denied in an order entered May 21, 2007. Ms. Betanc-ourt did not appeal that order.

Ms. Betancourt filed another petition to re-open the estate and to appoint a new personal representative on June 11, 2008, and this was denied on June 16, 2008. This appeal followed.

The estate did not file an' appellee’s brief. This seems logical, since the estate has been closed for several years and has no assets, personal representative, or attorney. The probate judge has been patient and gracious, but Ms. Betancourt must now realize that her claims, objections, petitions, grievances, and correspondence to the court regarding her late mother’s estate must stop. Those issues have been adjudicated and may not be asserted successively. See Jenkins v. Lennar Corp., 972 So.2d 1064, 1065 (Fla. 3d DCA 2008).

Affirmed.


author: WARNER, J.

text:
    Michael Hugh MOSES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1935.
    District Court of Appeal of Florida, Fourth District.
    May 27, 2009.
    Rehearing Denied Aug. 21, 2009.
    Michael Hugh Moses, Cross City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Michael Hughes Moses, moved to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court denied the motion, and we affirm. We write to address the scoring of a violation of probation on which Moses was sentenced at the same time he was sentenced for a primary offense. We hold that the trial court correctly scored the VOP as an additional offense on the scoresheet, and we recede from Adekunle v. State, 916 So.2d 950 (Fla. 4th DCA 2005), to the extent that it suggests that VOP offenses sentenced at the same time as a new, primary offense must be scored as a prior record and not as an additional offense.

Moses was convicted of aggravated assault and placed on probation. His probation was revoked when he entered into a plea agreement for subsequent charges of false imprisonment, lewd or lascivious battery of a person older than twelve but under sixteen, lewd or lascivious molestation of a person older than twelve but under sixteen, and contributing to the delinquency of a child. The trial judge sentenced Moses for all offenses simultaneously. If the aggravated assault conviction was scored as “prior record,” instead of an “additional offense,” it would have scored nine points instead of eighteen. The nine-point difference would have changed the minimum permissible sentence that Moses received, which was 15.4 years, to 14.8 years. Moses fíled a motion to correct an illegal sentence pursuant to rule 3.800(a), alleging that the aggravated assault conviction was improperly scored as an additional offense and not a prior record. He also raised several other issues. The trial court denied the motion, prompting this appeal.

In State v. Alberto, 847 So.2d 1091 (Fla. 4th DCA 2003), this court held where a conviction is set for sentencing upon revocation of probation with new offenses, all offenses pending for sentencing, if not scored as a primary offense, should be scored as additional offenses, including a violation of probation. We relied on State v. Lamar, 659 So.2d 262 (Fla.1995), to allow the scoring of such offense in any particular manner so long as the combination resulted in the most severe sanction. 847 So.2d at 1092. We used the definition of “additional offense” provided by section 921.0021(1), Florida Statutes, and Florida Rule of Criminal Procedure 3.704(d)(7) to support our reasoning that all offenses not scored as primary offense should be scored as additional offenses. Id.

Contrary to Alberto, although decided under a slightly different factual predicate, we later stated in Adekunle that “if the new offense is classified as the primary offense, then the VOP offense must be scored as a ‘prior record’ not as an ‘additional offense.’ ” 916 So.2d at 952 (emphasis supplied). Adekunle also relied on Lamar. Lamar, in turn, based its analysis on State v. Stafford, 593 So.2d 496 (Fla. 1992). In Stafford, the supreme court used a committee note to Florida Rule of Criminal Procedure 3.701(d)(5) to determine that a subsequent offense could be scored as a primary offense or an additional offense, and “when the subsequent offense is scored as the primary offense the earlier offense for which probation has been violated is scored as a prior record rather than as an additional offense.” Id. at 497. The committee note on which the court relied states:

For any offense where sentence was previously suspended pursuant to the imposition of probation and such offense is now before the court for sentencing, upon a revocation of that probation based upon a subsequent criminal offense (which subsequent offense is also before the court for sentencing at the same time), the earlier offense shall be scored as “prior record” and not as “additional offense.”

Because of the changes in the sentencing statutes and relevant rules, however, we conclude that Adekunle’s reliance on Lamar is incorrect. Lamar and Stafford involved crimes that occurred prior to the 1994 revisions of the sentencing guidelines, statutes, and respective rules.

Rule 3.703 was adopted to incorporate the 1994 sentencing guidelines and applied to offenses committed on or after October 1, 1995. The rule provided some different definitions of primary and additional offenses and, most importantly, of “prior record.” The rule states:

(7) “Primary offense” is the offense pending for sentencing that results in the highest number of total sentence points. Only one offense may be scored as the primary offense.
(8) “Additional offense” is any offense, other than the primary offense, pending before the court for sentencing. Sentence points for additional offenses are determined by the severity level and the number of offenses at a particular severity level....
(15) “Prior record” refers to any conviction for an offense committed by the offender prior to the commission of the primary offense, excluding any additional offenses pending before the court for sentencing....

Fla. R.Crim. P. 3.703(d) (emphasis supplied). As rule 3.703(b) states that “[existing caselaw construing the application of sentencing guidelines that is in conflict with the provisions of' this rule ... is superseded by the operation of this rule,” the new language defining “prior record” required that an offense which is being sentenced at the same time as a primary offense to be scored as an additional offense, because it would be specifically excluded from the definition of prior record. Thus, it superseded Stafford and Lamar to the extent that they stood for the proposition that an offense pending for sentencing based upon a violation of probation could be scored only as a prior record where there was another primary offense. Instead, the definitions compel a conclusion that under rule 3.703, an offense is scored as an additional offense where it is not the primary offense but is pending before the court for sentencing.

However, the present case involves an offense committed in 2003 for which probation was imposed and new offenses occurring in 2004. The 2003 offense was pending for sentencing at the same time as the 2004 offenses. Rule 3.704 applies to these offenses, as this sentencing rule implemented the Criminal Punishment Code and applies to offenses committed on or after October 1, 1998. This rule also changed the definitions and used the statutory definitions contained in section 921.0021, Florida Statutes. The rule now provides:

(7) “Primary offense” means the offense at conviction pending before the court for sentencing for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction recommended for any other offense committed by the offender and pending before the court at sentencing. Only one count of one offense before the court for sentencing shall be classified as the primary offense.
(8) “Additional offense” means any offense other than the primary offense for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.
(14) “Prior record” refers to any conviction for an offense committed by the offender prior to the commission of the primary offense....

Fla. R.Crim. P. 3.704(d).

The definition of “prior record” does not include the specific language in rule 3.703 excluding additional offenses. The omission of this language does not, however, resurrect the interpretation of the statute to that contained in the committee notes of rule 3.701 because rule 3.703 specifically superseded case law in conflict with its terms.

Instead, we conclude that the rule requires an offense pending for sentencing on violation of probation at the same time as a primary offense to be scored as an “additional offense.” The important categorizations in the rule and statute are those convictions which are pending for sentencing at the same time and those that are not. An offense pending for sentencing as a result of a probation violation could constitute a primary offense if it resulted in the most severe total sentence score. Therefore, if not a primary offense, it must be an additional offense. The rule and statute do not indicate that an offense pending for sentencing may be scored as a prior record. This interpretation is consistent with obtaining the most severe lowest permissible sentence possible for the defendant, which is clearly the intent of the statutes and rules. See Lamar, 659 So.2d at 265.

Where a new offense is treated as the primary offense on a scoresheet, a conviction which is pending for sentencing because of a violation of probation should be scored as an additional offense and not a prior record. We affirm the trial court’s denial of Moses’ motion for correction of an illegal sentence. We recede from Ade-kunle to the extent that it conflicts with this opinion.

GROSS, C.J., POLEN, FARMER, STEVENSON, TAYLOR, HAZOURI, MAY, DAMOORGIAN, CIKLIN, GERBER and LEVINE, JJ., concur.


author: WELLS, Judge.

text:
    Esther Ruth COBO, Appellant, v. Francisco SIERRALTA, Appellee.
    No. 3D08-616.
    District Court of Appeal of Florida, Third District.
    May 27, 2009.
    Rehearing and Rehearing En Banc Denied July 10, 2009.

      MaryJo A. Mosca, for appellant.
    Steven N. Abramowitz, for appellee.
    Before WELLS, ROTHENBERG and LAGOA, JJ.
   WELLS, Judge.

Esther Cobo appeals from a final judgment annulling her marriage to Francisco Sierralta, awarding custody of their almost

eight-year-old daughter to Sierralta, and denying enforcement of an earlier, but unsatisfied, temporary attorney’s fee award. We reverse the judgment and remand for immediate enforcement of the earlier entered temporary attorney’s fee award; for an award of additional temporary attorney’s fees; for an expedited hearing to set a visitation schedule for Cobo and the minor child; for a dissolution of marriage; and for application of Chapter 61 to all custody, visitation, support and property issues between these parties.

Facts

‘ The parties are Venezuelan citizens, who met in Venezuela in the late 1990’s. Their minor child was born out of wedlock in Venezuela on May 4, 2000. In March 2002, Sierralta obtained resident alien status and the following month Cobo and the minor child entered the United States on tourist visas. The parties were married in Florida in August 2002.

Eighteen months after the marriage, Si-erralta petitioned for dissolution seeking enforcement of a Marital Settlement Agreement between himself and Cobo. As part of that petition, Sierralta alleged under oath that shared parental responsibility, with Cobo as primary residential parent, was in the best interest of the minor child.

Shortly after this petition was filed, the parties rescinded their Marital Settlement Agreement. Almost predictably, the parties’ relationship deteriorated, culminating in domestic violence claims by Cobo and a temporary custody request by Sierralta. When Cobo threatened during an argument to leave the country with the child and claimed that she had never been divorced from her first husband, Sierralta amended his petition to secure an annulment and custody of the child.

Over the next four years, the parties litigated the validity of their marriage as well as who should have custody of their child. For this entire period, Cobo litigated this case without an award of temporary attorney’s fees. It was not until January 25, 2007, three years after this action commenced, that temporary attorney’s fees were finally awarded to Cobo, and then only in an amount that would permit her to litigate custody and visitation issues; no amount was awarded to permit her to contest Sierralta’s annulment claim:

Most of the prior litigation in this case has resulted from issues regarding the custody and visitation of the minor child. The court finds that 15% of this case has and will be spent litigating the issue of annulment.
Wife’s attorney’s prospective attorney’s fees and costs budget shall be reduced by 15% or the amount of litigation time to be spent litigating the annulment issue.
Wife’s attorney shall be awarded $15,000 in prospective attorney’s fees and $2,000 in costs for the purpose of litigating the custody and visitation issues in this case. Attorney’s fees and costs are not awarded for the litigation of the issues of annulment or equitable distribution.

Despite this order and Cobo’s repeated attempts to enforce it, no sums were paid to Cobo to secure her representation.

On February 11, 2008, a final judgment denying Cobo’s petition for dissolution of marriage and granting Sierralta’s petition for an annulment was issued. The judgment designated Sierralta as the primary residential parent, nullified the previously entered — but never paid — temporary fee award, and denied any additional fee award to Cobo because of her opposition to Sierralta’s demand for an annulment:

ATTORNEY’S FEES: The mother’s motion for award of attorney’s fees is DENIED. Any temporary orders granting to the mother an award of attorney’s fees are hereby vacated. The Court finds that mother’s opposition to an annulment when the mother had previously stipulated to the fact that there was no legal intact marriage amounts to meritless litigation as defined by Rosen v. Rosen, 696 So.2d 697 (Fla.1997).

We reverse this final judgment for two reasons: first, we conclude that Sierralta failed to present sufficient evidence to overcome the presumption of a valid marriage between these parties, and second because we conclude that the failure to award temporary attorney’s fees to litigate all issues in this case deprived Cobo of any meaningful opportunity to defend.

The Annulment

This action commenced when Sier-ralta filed a petition for dissolution of marriage in which he alleged under oath that he and Cobo were married. Although Si-erralta subsequently claimed that his marriage to Cobo was void because Cobo was still married to her first husband when he and Cobo were married, Sierralta has never denied that a marriage ceremony between himself and Cobo — which he believed to be valid — took place. On these facts, the court below was required to presume that Sierralta and Cobo were legally married until such time as Sierralta proved otherwise. See Stewart v. Hampton, 506 So.2d 70, 71 (Fla. 5th DCA 1987) (concluding that “[o]nce a marriage is shown to have been ceremonially entered into it is presumed to be legal and valid” and that that the party attacking the legality of such a marriage bears the burden of rebutting this presumption); Grace v. Grace, 162 So.2d 314, 317 (Fla. 1st DCA 1964) (“It is an elementary principle of domestic relations law that a marriage, once shown to have been ceremonially entered into ..., is presumed to be legal and valid” and that “the burden of proving the continuance of the previous marriage and the invalidity of the subsequent marriage is on the party attacking the validity of the latter”); see Teel v. Nolen Brown Motors, Inc., 93 So.2d 874, 876 (Fla.1957) (recognizing that “[a] presumption exists in favor of the validity of the last marriage,” which is “one of the strongest presumptions known to the law,” such that “[t]he burden of rebutting it rests upon the party attacking the legality of the last marriage”); In re Estate of Beacher, 177 So.2d 838, 839-40 (Fla. 3d DCA 1965) (recognizing that once prima facie evidence of a marriage is presented, the party asserting the illegality of that marriage bears the burden of proving that assertion). Sierralta failed to sustain this burden.

According to Sierralta, no valid marriage existed between the parties because Cobo could produce no documentation to prove that she was divorced from her first husband, and because Cobo claimed during an argument and in her deposition that she was still married to her first husband when she married Sierralta:

VOID MARRIAGE: The husband has now learned, through the admission of the wife herself, that her previous marriage to OSCAR FRANCISCO GAMEZ DELANEY was never terminated by a divorce in Venezuela. In the past, the husband has repeatedly requested that the wife furnish to him a certified or official document showing that the wife was divorced from her previous husband. The wife has never produced such a document. A request for production was filed by the husband in this cause on April 5, 2004, seeking such documentation, and no response was made thereto. However, the wife continued to advise the husband that she did indeed get a divorce in Venezuela from the previous husband and that she would find a way to get a hold of the documents and furnish them to the husband herein. Towards the end of April, 2005, when the parties were engaged in an argument about timesharing between the husband and the minor child of the parties, the wife threatened that she would leave the country with the minor child because she was illegally in the United States anyway and, further, she told the husband that she is still married to the previous husband at the present time and never procured a divorce from said previous husband. This makes the marriage between the parties void.

The fact that Cobo could produce no documentation during the early stages of these proceedings proving that her first marriage in Venezuela had been terminated (again in Venezuela) does not overcome the strong presumption that her marriage to Sierralta is valid. This is so because it was not her burden to prove the validity of the current marriage; rather, it was Sier-ralta’s burden to prove the invalidity of the current marriage. In any event, by the time of the final hearing, Cobo had procured evidence that her first marriage had been legally terminated. More specifically, although Cobo was unable to secure copies of documents confirming that her first marriage had been terminated, she was able to present a certified and sworn written declaration from her first husband, Oscar Delaney, in which he attested that: (1) he and Cobo were married in Venezuela in 1988; (2) after only ninety-two days, he had the marriage annulled in the “Seventh Tribunal of First Instance in Civil of the Judicial District of the State Merida” in Merida, Venezuela; and (3) because of a flood all of the documents confirming the annulment were destroyed. Cobo also presented documentary evidence that Delaney had remarried in Venezuela in 1994, a marriage which expert testimony confirmed would not have been authorized under Venezuelan law absent official confirmation by a Venezuelan notary that no legal impediment to Delaney’s remarriage existed. Accord Guelman v. Guelman, 453 So.2d 1159 (Fla. 3d DCA 1984) (“It is presumed that an official performing a marriage service, whether in a foreign or domestic jurisdiction would not have performed the service if there was any known impediment to the marriage.”). Because Sierralta did not sufficiently rebut this evidence at the final hearing, he did not overcome the strong presumption that the parties’ marriage is valid.

The presumption also was not overcome by Cobo’s purported statements that her first marriage had not been legally terminated. As Cobo explained at the final hearing, these statements stemmed from her mistaken belief that, absent documentation to prove that her first marriage had been legally terminated, she had to admit that it had not:

[SIERRALTA’S ATTORNEY]: Now, let’s talk about your previous marriage. Do you recall that in your deposition, you admitted you were still married to Mr. Gamez?
[COBO]: Yes.
[SIERRALTA’S ATTORNEY]: Why on earth would you say that under oath if you had procured a divorce from Mr. Gamez?
[COBO]: Simply because I did not have in my hands how to prove the annulment of my marriage.

Neither this mistaken belief, nor Cobo’s reliance on it, is sufficient to overcome the presumption of validity of the instant marriage between Cobo and Sierralta. The marriage between these parties should not, therefore, have been annulled. For this reason alone the final judgment must be reversed.

Attorney’s Fees

The judgment must also be reversed because the trial court’s failure to award and to enforce a temporary fee award deprived Cobo of any meaningful representation. Although four different attorneys appeared for short periods of time on Cobo’s behalf in these proceedings (one of whom was from the Legal Aid Society of Dade County Bar Association), Cobo for the most part litigated this action pro se. It was not, in fact, until late in the proceedings that a temporary fee award was entered, and then only for the limited purposes of litigating custody and visitation issues. No amount was awarded for litigating whether a valid marriage existed.

Despite the substantial disparity between these battling spouses’ abilities to secure representation and findings by the lower court that Cobo was in need of a temporary fee award, the lower court repeatedly refused to enforce the interim fee award. This effectively precluded Cobo from meaningful representation not only with regard to whether a valid marriage existed, but also with regard to who should enjoy custody of the child she bore two years before Sierralta — whether or not successfully — -married her.

To add insult to injury, the interim fee award was nullified in the final judgment on a finding that Cobo had engaged in meritless litigation by opposing an annulment after “stipulat[ing]” that her marriage to Sierralta was invalid. The record reveals that Cobo entered into no such “stipulation.” To the contrary, this “stipulation” came not from Cobo, but from an order entered by one of several judges who oversaw this action, following a hearing at which Cobo’s Legal Aid attorney of only a month mistakenly sought to amend Cobo’s pleading because Cobo could produce no proof of her prior divorce:

[COBO’S ATTORNEY]: Your Honor, I have been on this case for a month, and certain facts have come to light.... [A]nd I would like to give to your Honor right now — with your permission—
THE COURT: Yes.
[COBO’S ATTORNEY]: — an Emergency Motion Petition from dissolution of marriage to one of paternity because my client agrees that she was married to another man nineteen years ago, that this Petitioner knew about it, but that she cannot prove their divorce nor their death.
THE COURT REPORTER: Are you saying, death?
[COBO’S ATTORNEY]: Yes, she cannot prove their divorce or their death. So I am now amending from a dissolution of marriage to one of paternity.

(Emphasis added).

Given this former attorney’s mistaken belief that Cobo bore the burden of proving that her prior marriage had legally ended; the fact that Cobo’s subsequent attorney amended Cobo’s pleadings to once again reaffirm her marriage to Sier-ralta and seek a divorce; and that the primary issue litigated during the final hearing was validity of this marriage, we find the lower court erred in determining that Cobo had “stipulated” that no valid marriage existed and that Cobo had litigated the annulment issue in bad faith. This is especially so since a substantial portion of the. final hearing was devoted to expert testimony from both parties regarding whether Cobo’s prior marriage had been legally terminated in Venezuela. In short, Cobo’s purported “stipulation” regarding validity of the instant marriage provides no basis for denying a fee award to her.

In these proceedings, Cobo was entitled to a fee award to litigate all custody and visitation issues. See § 61.16(1), Fla. Stat. (2008) (providing that “[t]he court may from time to time, after considering the financial resources of the parties, order a party to pay a reasonable amount for attorney’s fees, suit money and the cost to the other party of maintaining or defending any proceeding under this chapter”); § 61.514, Fla. Stat. (2008) (stating that “a court of this state has jurisdiction to make an initial child custody determination” where “[t]his state is the home state of the child on the date of the commencement of the proceeding”); Rodriguez v. Williams, 911 So.2d 170 (Fla. 3d DCA 2005) (applying the factors set forth in chapter 61 for evaluating the welfare and best interests of the child to a custody determination between an unmarried couple).

She was also entitled to a fee award to litigate all issues relating to whether this marriage should be dissolved. As this court confirmed in Pefaur v. Pefaur, 617 So.2d 425, 425-26 (Fla. 3d DCA 1993), where one spouse contests the validity of a current marriage on a claim that a prior marriage had not been validly terminated, the other spouse may be awarded fees to litigate the validity issue:

Florida’s matrimonial statute ... provide[s] specifically for the award of interim attorney’s fees for “the cost ... of maintaining or defending any proceeding under this chapter....” § 61.16, Fla. Stat. (1991); see also id. § 61.071. The leading case, Nichols v. Nichols, 519 So.2d 620 (Fla.1988), emphasizes the importance of an interim award where it is needed “to mitigate the harm an impecunious spouse would suffer where the other spouse’s financial advantage accords him or her an unfair ability to obtain legal assistance.” Id. at 621-22; Robbie v. Robbie, 591 So.2d 1006, 1008-09 (Fla. 4th DCA 1991).... As Judge Donner observed, “[T]he law does not permit one party with substantial means to overpower the other by denying that party the right to equal representation.”
The public policy here is that where there is a bona fide dispute as to the validity or invalidity of the marriage, there should be a judicial resolution of that dispute and the interrelated estop-pel and equitable issues — especially in a case where there are minor children. The trial court correctly awarded interim attorney’s fees and costs so that the wife can have a full and fair opportunity to be heard on these matters.
The award is supported by ... the terms of section 61.16 and the considerations announced in Nichols.

Id. at 425-26; see also Gilvary v. Gilvary, 648 So.2d 317, 318 (Fla. 3d DCA 1995) (concluding that where there is a question in an annulment action as to whether the parties have a valid marriage based on a prior marriage by one of the parties to another person, a party may still be entitled an equitable award of temporary attorney’s fees so that he/she can litigate the question).

In this case, Cobo was entitled to a temporary fee award to permit her to litigate all of the issues raised below. As the record before us clearly demonstrates, the failure to award such fees to her, and certainly the failure to enforce the only limited award made, deprived Cobo of any meaningful representation not only with regard to whether a valid marriage existed, but also to where and with whom the parties’ child should live. See Robbie v. Robbie, 591 So.2d 1006, 1009 (Fla. 4th DCA 1991) (confirming that the purpose of a fee award in dissolution actions “is to ensure that both parties ... have similar access to counsel and can thus fight the action on a nearly equal footing”); see also Rosen v. Rosen, 696 So.2d 697, 699 (Fla. 1997) (reiterating the standard announced in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), that the purpose of a fee award in dissolution action is to ensure that both parties have “a similar ability to obtain competent legal counsel”); Young v. Young, 898 So.2d 1076, 1077 (Fla. 3d DCA 2005) (confirming that the purpose of a fee award in dissolution actions is to “ensure that both parties to a dissolution case have similar access to counsel and that neither has an unfair ability to obtain legal assistance because of the other’s financial advantage”) (emphasis supplied).

Custody and Visitation

Finally, we would be remiss if we did not address the issues of custody and visitation. The parties’ minor child was born in Venezuela two years before the parties were married. After her birth, Sierralta had Cobo and the child brought to America. Cobo, who apparently has no legal right to remain here, has now been forced to return to Venezuela. Custody has been awarded to Sierralta, with only infrequent telephone contact between mother and child. All of this was accomplished without Cobo having adequate representation and without explanation in the final judgment or otherwise.

Needless to say, section 61.13 of the Florida Statutes expressly requires consideration of a number of factors when making a custody determination. See Velazquez v. Millan, 963 So.2d 852, 854 (Fla. 3d DCA 2007). While section 61.13(3) does not mandate written findings justifying a custody award, the record must at least demonstrate that section 61.13 factors were considered in making the award. Peacock v. Peacock, 973 So.2d 501, 502 (Fla. 3d DCA 2007); Velazquez, 963 So.2d at 854; Decker v. Lyle, 848 So.2d 501, 503 (Fla. 2d DCA 2003) (confirming that while there is no requirement that a trial court make specific written findings in awarding custody, either “the record or the final judgment must reflect that the custody determination was made in the best interests of the child”). We cannot discern that any of these factors were considered in this case. And, in light of the fact that Cobo had no adequate representation to advocate her position, we cannot conclude that the decision on which parent should have primary residential custody of the minor child was made with the full consideration of the statutory factors.

Further, we cannot conclude with any degree of certainty that the trial judge’s misconception of Cobo’s position regarding an annulment of her marriage to Sierralta did not affect the ultimate custody determination. Accordingly, on remand, the issue of custody must be reconsidered in the context of a dissolution of a valid marriage, with both parties having similar access to counsel. Moreover, on remand the issue of visitation with Cobo must be addressed on an expedited basis to provide meaningful visitation between Cobo and the parties’ child (either here or in Venezuela) during the upcoming summer months and otherwise.

Conclusion

Accordingly, the final judgment on review is reversed and remanded for dissolution of the parties’ marriage and for consideration of all matters as required by Chapter 61 of the Florida Statutes, including distribution of assets and liabilities, custody, visitation and support. On remand, the January 25, 2007 order on temporary attorney’s fees shall be promptly enforced and consideration given to an additional fee award for Cobo’s representation in the prior trial and at future legal proceedings. The issue of summer visitation with Cobo should be addressed immediately, without delay, and will not be postponed for consideration of any motions for rehearing filed herein.

Reversed and remanded with instructions.

      . Cobo, pointing to numerous visits to Venezuela, claimed that Florida's courts lacked jurisdiction to adjudicate custody issues. However, it is clear that Florida was the home state of the parties’ child, that the child had resided in Florida a majority of the time, and that the child had lived here for six months immediately before this action was brought. See § 61.514(l)(a), Fla. Stat. (2008) (stating that "a court of this state has jurisdiction to make an initial child custody determination” where "[tjhis state is the home state of the child on the date of the commencement of the proceeding”); see also % 61.503(7), Fla. Stat. (2008) (defining "home state” as "the state in which a child lived with a parent ... for at least 6 consecutive months immediately before the commencement of a child custody proceeding,” and providing that "[a] period of temporary absence of any of the mentioned persons is part of the period”); § 61.506(1), Fla. Stat. (2008) (providing that "[a] court of this state shall treat a foreign country as if it were a state of the United States for purposes of applying ss. 61.501-61.523”); Karam v. Karam, 6 So.3d 87, (Fla. 3d DCA 2009) (finding that, under the Uniform Child Custody Jurisdiction and Enforcement Act, sections 61.501-.542, Florida Statutes (2008), jurisdictional priority over child custody proceedings lies in the child's "home state”). -

      . Although Sierralta was ordered to pay a portion of this fee award to Cobo within thirty days, he did not do so. When Cobo moved to enforce the order, a successor judge ordered Sierralta to comply with the fee order within ten days. Sierralta again failed to comply. When Cobo filed yet another motion to secure compliance, Sierralta was excused from complying with the order to pay temporary attorney's fees.

      . Sierralta’s attorney admitted at oral argument that Sierralta had spent well over $100,000 on this matter. Cobo, on the other hand, with no skills, and according to Sierral-ta, working illegally as a hairdresser, had no funds to join the fight.

      . We acknowledge that, effective October 1, 2008, the Florida Legislature amended various sections of Chapter 61, including section 61.13, to remove the references therein to "custody,” "primary residence,” "primaiy residential parent,” and "visitation” in favor of a "parenting plan” that includes "time sharing.” See Ch. 2008-61, s. 8 at 793-802, Laws of Fla.; In re Amendments to the Florida Family Law Rules, 995 So.2d 445 (Fla.2008). The statutory revisions do no alter our analysis in this case, as section 61.13 still requires the lower court to consider factors to determine the best interests of the child.


text:
    Larry FORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-0007.
    District Court of Appeal of Florida, First District.
    May 29, 2009.
    Rehearing Denied July 31, 2009.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Geraee, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation but remand with directions to the trial court to enter an amended order listing the conditions of probation that appellant violated. See Robinson v. State, 963 So.2d 339 (Fla. 1st DCA 2007). We affirm appellant’s sentence.

BARFIELD, WEBSTER, and THOMAS, JJ., concur.


author: ROTHENBERG, J.

text:
    A.M., a juvenile, Petitioner, v. The STATE of Florida, and Vershawn Berry, Superintendent, Miami-Dade Regional Juvenile Detention Center, Respondents.
    No. 3D09-1494.
    District Court of Appeal of Florida, Third District.
    June 4, 2009.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for petitioner.

      Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for respondents.
    Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

A.M., a juvenile, filed an emergency petition for a writ of habeas corpus seeking his release from secure detention. We remand for further proceedings consistent with this opinion.

A.M. was charged with aggravated assault with a firearm and obstruction by resisting a police officer without violence. The State alleged that A.M. and an armed co-respondent drove to the victim’s home and confronted the victim in an attempt to obtain a Sony Playstation the victim had allegedly stolen from A.M. The trial court initially placed A.M. in secure detention, and over A.M.’s objection, at a hearing on May 27, 2009, continued A.M.’s placement in secure detention.

In this petition, A.M. argues that the risk assessment instrument (“RAI”) used by the trial court impermissibly added three points for the possession of a firearm by way of double scoring, and that in the absence of written clear and convincing reasons for A.M.’s continued secure detention, A.M. must be discharged. In its response, the State appears to concede that the RAI score of 13 — indicating secure detention — is incorrect, and is more appropriately scored as 10 — indicating that non-secure or home detention is the appropriate placement for A.M. However, the State contends that the correct RAI score of 10 is irrelevant, and that A.M.’s continued secure detention is legal, based upon the involvement of a firearm.

The State relies on section 985.255(l)(f), Florida Statutes (2008), which provides that a child’s continued secure detention is appropriate where:

The child is charged with a capital felony, a life felony, a felony of the first degree, a felony of the second degree that does not involve a violation of chapter 893, or a felony of the third degree that is also a crime of violence, including any such offense involving the use or possession of a firearm.

While this is true, the statute also provides that where a juvenile is detained pursuant to section 985.255(1), at the mandatory detention hearing where the need for continued detention is determined: “Unless a child is detained under paragraph (l)(d) or paragraph (l)(e), the court shall use the results of the risk assessment performed by the juvenile probation officer and, based on the criteria in subsection (1), shall determine the need for continued detention.” § 985.255(3)(a), Fla. Stat. (2008) (emphasis added).

A.M. was not detained under paragraph (l)(d) or paragraph (l)(e) of section 985.255, he was detained under paragraph (l)(f). Therefore, according to the unambiguous language of the statute quoted above, the trial court was required to use the results of A.M.’s RAI in determining whether A.M. should continue in secure detention. Furthermore, as the State has apparently conceded, A.M.’s RAI was incorrectly scored, and should have been 10 — indicating non-secure or home detention.

However, paragraph (3)(a) does not end this Court’s analysis. Section 985.255 provides a legal basis for the continued secure detention of a respondent in A.M.’s situation: “If the court orders a placement more restrictive than indicated by the results of the risk assessment instrument, the court shall state, in writing, clear and convincing reasons for such placement.” § 985.255(3)(b), Fla. Stat. (2008). Perhaps in reliance upon the improperly scored RAI, the trial court did not provide clear and convincing written reasons for the continued secure detention of A.M.

Accordingly, based upon the statutory authority detailed above, and based upon what appears to be an incorrect RAI, we remand this case to the trial court with instructions to either immediately release A.M. from secure detention, or provide, in writing, clear and convincing reasons for A.M.’s continued secure detention. See T.S. v. Clemons, 770 So.2d 197, 200 (Fla. 2d DCA 2000).

This opinion shall take effect immediately, notwithstanding the filing of any motion for rehearing.

Remanded.


text:
    Akeem MUHAMMAD, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D08-3637.
    District Court of Appeal of Florida, First District.
    June 9, 2009.
    Rehearing Denied July 31, 2009.
    Akeem Muhammad, pro se, Appellant.
    Bill McCollum, Attorney General, Carrie McNair, Assistant Attorney General, and Joy A. Stubbs, Assistant Attorney General, Office of the Attorney General, Tallahassee; Kathleen Von Hoene, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Akeem Muhammad is a Sunni Muslim serving a life sentence at Florida State Prison. On May 10, 2007, he filed a civil rights complaint under 42 U.S.C. § 1983 in Leon County Circuit Court claiming, among other things, that the prison’s refusal to accommodate his needs during Ramadan and to house him in a single cell ■with a flush toilet violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), § 42 U.S.C. 2000cc; the free-exercise clause of the First Amendment, the cruel-and-unusual-punishment clause of the Eighth Amendment, and the equal-protection clause of the Fourteenth Amendment of the U.S. Constitution. After Muhammad amended the complaint several times, the circuit court issued an order dismissing the complaint and another order sanctioning Muhammad by limiting him from filing pro se pleadings in the future. We affirm in part, reverse in part, and remand for further proceedings.

We find that Muhammad did state a prima facie case for declaratory and in-junctive relief and for nominal damages under both the RLUIPA and § 1983, by alleging that appellees are denying him a non-meat diet during Ramadan in violation of the First Amendment. See, e.g., Smith v. Allen, 502 F.3d 1255 (11th Cir.2007), rehearing denied, 277 Fed.Appx. 979 (11th Cir.2008) (RLUIPA); Cary v. McNeil, 2009 WL 631230 (N.D.Fla.2009) (§ 1983). Muhammad may sue appellees in their official capacity only under the RLUIPA and individually under § 1983. Smith, 502 F.3d at 1272-75; Jones v. Kirkland, 696 So.2d 1249, 1253 (Fla. 4th DCA 1997); Connor v. Halifax Hosp. Med. Ctr., 135 F.Supp.2d 1198, 1223 (MD.FIa.2001). Whether the government is justified in imposing a substantial burden on Muhammad under the RLUIPA is a question of fact for the circuit court. See, e.g., Linehan v. Crosby, 2008 WL 3889604 (N.D.Fla. 2008). Whether appellees are entitled to qualified immunity for the § 1983 claim is also a factual issue for the lower court. See, e.g., O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Colquitt v. Camp, 2006 WL 2792894 (M.D.Fla.2006); Saleem v. Evans, 866 F.2d 1313 (11th Cir.1989). We do not intend by this opinion to preclude the court from considering any other valid defenses that may be raised.

We affirm the remaining issues without comment.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings.

BARFIELD, WEBSTER, and PADOVANO, JJ., concur.


author: SUAREZ, J.

text:
    Anthony BRAGGS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2372.
    District Court of Appeal of Florida, Third District.
    June 10, 2009.
    Rehearing Denied July 31, 2009.

      Carlos J. Martinez, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   On Motion for Rehearing

SUAREZ, J.

Upon consideration of the State of Florida’s timely Motion for Rehearing, we grant the motion, withdraw our previously issued opinion dated June 11, 2008 and substitute the following opinion in its place:

Anthony Braggs appeals his convictions and sentence for sexual battery and petit theft. We affirm his convictions and sentence.

Braggs was charged with the sexual battery, armed robbery, carjacking and kidnapping of a victim. Prior to the alleged sexual battery, Braggs and the victim had been drinking together in a bar. Braggs convinced the victim to give him a ride home. He then proceeded to rape her in her car, left her behind, and took her cash, jewelry, cell phone and credit cards. The victim drove to the nearest turnpike toll booth, called the police and when the officer arrived, hysterically reported what had happened to her. The officer’s testimony as to what the victim told him was admitted at trial. The jury convicted Braggs of sexual battery as charged, and of the lesser offense of petit theft.

Braggs claims the trial court erred in denying his peremptory strike of juror Gray. During the voir dire of the jury, defense counsel struck juror Gray peremptorily. The prosecutor requested a race-neutral reason for the strike. Defense counsel first responded that juror Gray’s brothers were alcoholics. Defense counsel then proffered the race-neutral reason that juror Gray had friends who were police officers. In a lengthy colloquy that followed, the trial judge further inquired of defense counsel as to how the fact that juror Gray’s brothers were alcoholics would be related to the case. The trial judge denied the strike. Braggs asserts on appeal that the reasons given by the defense for its peremptory strike of juror Gray, that her two brothers were alcoholics and that she had friends who were police officers, were facially race-neutral.

When this Court initially examined the issue, we agreed that, under Melbourne v. State, 679 So.2d 759 (Fla.1996), where the proffered reason for the peremptory strike is facially race-neutral, the trial court must then determine whether the strike is pretextual before it can be disallowed. We found that, based on the transcripts supplied in the original appeal, the trial court was required, but failed, to conduct the third step in that inquiry as to the genuineness of the explanation for the strike of juror Gray. This Court observed that as to other State- and defense-exercised peremptory strikes, the record clearly demonstrated that the trial judge repeatedly made findings both on race-neutrality and on genuineness for each of the individual strikes, and was obviously aware that a three-step analysis was required under Melbourne. The transcripts before us at the time, however, indicated that the trial judge discontinued the Melbourne analysis as to juror Gray after the second step. We agreed with Braggs because — based on the transcripts before us at that time — the reasons for the strike were determined incorrectly by the trial judge not to be race-neutral, the trial judge never addressed the issue of pretext, and improperly disallowed the peremptory challenge, thus seating the juror.

Subsequent to the issuance of our opinion, the State discovered that the transcripts of the voir dire of juror Gray had been incorrectly transcribed, and immediately filed for rehearing based on the corrected transcripts. The Public Defender concedes that the corrected version is, indeed, accurate but objects to the motion. The corrected transcript shows that the trial court did, in fact, conduct the required Melbourne steps with Juror Gray. We acknowledge the general proscription against considering new claims raised for the first time on rehearing. We consider this circumstance, even though it has been brought for the first time on rehearing, not only because the discovery of the transcription errors is dispositive of the issue on appeal, but also because the justice of the cause persuades us to do so. See Perez v. State, 717 So.2d 605 (Fla. 3d DCA 1998) (holding that the court will consider new arguments made for the first time on rehearing when the justice of the cause is persuasive); Cauley v. State, 444 So.2d 964 (Fla. 1st DCA 1984) (allowing dispositive issue to be brought for the first time on rehearing); accord Walker v. State, 284 So.2d 415 (Fla. 2d DCA 1973); Delmonico v. State, 155 So.2d 368 (Fla.1963) (holding that compelling legal issue presented on rehearing and for the first time should be considered); see also O’Steen v. State, 92 Fla. 1062, 111 So. 725 (1927). The issue of an accurate transcript is not so much a “new claim” raised for the first time on rehearing, as the trial court’s Melbourne analysis concerning the Defendant’s attempt to strike juror Gray was and is the only issue on appeal with merit, but rather a correction of a misleading record that is critical to the clarification and disposition of the legal claim originally put to this Court on appeal.

As is plainly shown by the corrected transcripts, the trial court did, in fact, reach the third step of the Melbourne analysis and concluded that the reasons proffered for the strike were race-neutral, but were not genuine. Therefore, the trial court correctly denied the peremptory strike of juror Gray. “A trial court’s genuineness inquiry involves consideration of factors which tend to show whether the proffered reason is pre-textual.” Scott v. State, 920 So.2d 698, 700 (Fla. 3d DCA 2006). In deciding this issue, a trial court’s decision on the ultimate issue of pretext will be affirmed on appeal unless clearly erroneous. See Melbourne, 679 So.2d at 764-65. We thus conclude that no error in jury selection occurred below and affirm.

Affirmed.

      . The Supreme Court held in Melbourne, that "[a] party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike.” Melbourne, 679 So.2d at 764 (footnotes omitted). When these initial requirements are met, the court then must ask the proponent of the strike to explain the reason for the strike. It is the proponent's burden to come forward with a race-neutral explanation. If the explanation for the reason for the strike is facially race-neutral, and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained. Step three focuses on the genuineness of the explanation.

      . The State’s Motion for Rehearing states, “Upon issuance of this Court's opinion, the Assistant State Attorney sent a request to the court reporter assigned to this Trial ... to double-check her notes, specifically pertaining to the portion where the trial court conducted the Melbourne analysis regarding Juror Gray. The court reporter affirms that she dictated the transcript and 'farmed out' the work to a typist. Upon closer review of her own trial notes, she found words that were left out of the transcript, even lines were missing when compared to the hard notes.... [The court reporter] has since corrected the transcript and highlighted the portions that were left out or added because of sound obstruction on the tape.”

      . The uncorrected transcript excerpts are bracketed, while the corrected transcript excerpts are underlined:
      MR. TREVILLA [Defense Counsel]: Strike Barbara Gray, juror number 18.
      MS. HILL [State]: Barbara Gray is a member of a protected class, and I would ask for a race neutral reason.
      MR. TREVILLA: Sure. Both brothers are alcoholics and-
      THE COURT: There is an issue of drugs in this case?
      MR. TREVILLA: I’m saying that the alcoholic issue may, and it kind of twists [it’s kind of twisted into] my defense.
      THE COURT: Mr. Trevilla, it may be twisted into your defense that she was so inebriated that she did not consent. I'm not sure if that's a legal defense to the argument. I’m waiting to hear what it is.
      MR. TREVILLA: She's got friends who were police officers. That would affect her as a race neutral reason.
      THE COURT: Anything said is [as] a race neutral reason request, whether I believe you use it pretextually [potentially] or your original motivation — she can be a woman from the moon, that is [not] a race neutral reason, and if genuine or not, that is not my inquiry. The one [if] you gave me cause me [or] concern based on where we are headed. You questioned the jury about alcohol and drugs.
      THE COURT: Mr. Trevilla, how does the facts of the case, with regard to the juiy, what they’re going to hear and how is the fact that what the jury is going to hear relevant to the defense, the fact that she was inebriated? I don’t understand.
      THE COURT: Too close for comfort is not a legal defense. The court finds it is a race neutral reason and not genuine. [[I]t is not a race neutral reason,] and the Court will disallow it. Enough of this nonsense.

      . We find that the other issues raised on appeal, whether the trial court erred in allowing Officer Green to testify as to the details of the statement given to him by the victim, and erred in not declaring a mistrial for comments made by the State in closing, are without merit and need not be addressed.


text:
    STATE FARM FIRE AND CASUALTY COMPANY, Petitioner, v. GABLES INSURANCE RECOVERY, INC., a/a/o Lizel Lujan, Respondent.
    No. 3D09-99.
    District Court of Appeal of Florida, Third District.
    June 10, 2009.
    Clark, Robb, Mason Coulombe & Busch-man, and James K. Clark, Miami, for petitioner.
    Billbrough & Mark, and G. Bart Billb-rough, Coral Gables, for respondent.
    Before RAMIREZ, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Denied. See Gables Ins. Recovery, Inc. v. Seminole Cas. Ins. Co., 10 So.3d 1106 (Fla. 3d DCA 2009).


text:
    M.B., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 3D08-1912.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.

      Dana M. Gallup, Hollywood, for appellant.
    John D.C. Newton, II, General Counsel, and Jonathan D. Grabb, Tallahassee, Agency for Persons with Disabilities, for appellee.
    Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

M.B. appeals a final administrative order in favor of the Florida Agency for Persons with Disabilities (APD), upholding APD’s denial and reduction of services that had previously been provided M.B. for over five years. We affirm in part and reverse in part.

M.B. is a forty-two year-old woman with spastic cerebral palsy and associated quadriplegia. She has received services from the Florida APD Medicaid Waiver Program for many years, including personal care attendant services in her home for 18 hours per day and assistance from a supported living coach. Although she requires assistance during all waking hours and whenever she moves or changes position, the administrative law judge found, and there is no dispute, that:

M.B.’s physical abilities do not impact her mental abilities. M.B. is bright, intelligent, and assertive and can make life decisions on her own. M.B. has difficulty speaking because of neurological conditions. However, she is able to communicate all her concerns, likes, and dislikes. Due to her cerebral palsy, she does have difficulty pronouncing all words, but one can understand her. M.B. has a bachelor’s degree in social work.

M.B. lives alone in her own apartment and values her privacy. The record indicates that she usually slept about four of the six hours that personal care attendants were not in the apartment to assist her (under her supported living plan in place through 2007). A supported living coach helps M.B. with her correspondence, phone calls, banking, and other paperwork.

In mid-2007, APD’s third-party vendor “Maximus” conducted a review of M.B.’s service plan. Maximus denied or reduced three categories of service and supplies previously provided to M.B., and M.B.’s administrative appeals from these determinations were largely unsuccessful: (1) APD reduced M.B.’s in-home personal care attendant services from 18 hours per day (paid at rates of $12.50 per hour during the week and $11.00 per hour on weekends) to a daily rate of $129 promulgated for 24-hour “live-in” support, plus three hours of care per day at hourly rates to assist with transition to the new arrangement; (2) APD denied M.B. continued reimbursement for a personal emergency response system; and (3) APD denied M.B. certain medically-prescribed “consumable medical goods,” principally artificial tears to prevent corneal ulcerations.

As the administrative law judge correctly acknowledged, APD had the burden of proving by a preponderance of the evidence that these three categories of services, though previously provided, should be reduced or eliminated. Wiggins v. Fla. Dep’t. of Children & Families, 919 So.2d 619 (Fla. 1st DCA 2006); Fla. Admin. Code R. 65-2.060(1).

Personal Care Attendant Services

APD’s coverage and limitations rules are detailed in a “Florida Medicaid Developmental Disabilities Waiver Services Coverage and Limitations Handbook” that is updated from time to time and is referred to as the “Waiver Handbook.” The Waiver Handbook has been adopted as an administrative rule under Florida Administrative Code Rule 59G-13.080.

The Waiver Handbook specifies that an “in-home live in daily rate” will apply to in-home support services if more than eight hours a day are required. During the applicable period, the approved hourly rate for an in-home support or personal care assistant was $15.66 per hour, while the in-home live in daily rate was $129 per day. Although M.B. has been able to obtain hourly care for $11 to $12.50 per hour, the record does not disclose any list of vendors or attendants who would agree to live in M.B.’s apartment and be on call eighteen or twenty-four hours per day for $129 per day. Also, the in-home daily rate does not appear to vary with regional differences in cost of living in the different parts of Florida.

Additionally, M.B. has argued that she does not want her support attendants to be roommates; she values her privacy during the hours her attendants are not in the apartment assisting her. One of the primary goals of APD and the Medicaid Waiver program is the avoidance or mitigation of “institutionalization,” and APD genuinely strives to encourage independent living when practicable.

The administrative law judge found that APD had carried its burden to justify the change from 18 hours per day of personal care assistance at the hourly rate to the in-home daily rate. APD had also agreed to allow up to three additional hours per day at hourly rates to assist in transition to the new arrangement, and this was not disturbed. Financially, this left M.B. with a budget of between $162 and $176 per day (depending on the hourly rates billed by the personal care attendants, and whether those rates fell below the allowable maximum rate), versus her prior budget of $198 (weekends) and $225 per day (weekdays).

APD did not, and apparently does not now, dispute the medical necessity of eighteen to twenty-four hour-per-day personal care assistance for M.B.; the change proposed by Maximus based on the Waiver Handbook actually increased the covered hours from eighteen to twenty-four per day by requiring M.B. to take on a roommate who would (in theory) also be a personal care attendant. As is so often the case, the Waiver Handbook’s limitation is based on dollars and cents, and on the need to lower the daily cost of the requisite care. It is not based on any finding that M.B. needed a reduced number of hours of personal care assistance.

M.B. argues that APD’s proposed imposition of the Waiver Handbook limitation and the in-home daily rate is an impermissible change in policy without the required adoption of a rule, citing Courts v. Agency for Health Care Administration, 965 So.2d 154 (Fla. 1st DCA 2007). M.B. also contends that an agency may not simply “change its mind” or implement a “radical turnabout from its prior interpretations and practices,” relying upon Cleveland Clinic Florida Hospital v. Agency for Health Care Administration, 679 So.2d 1237, 1239 (Fla. 1st DCA 1996). In this case, however, the Waiver Handbook was in effect and was a binding rule well before APD and Maximus reviewed MJB.’s service plan in 2007. Concepts of estoppel and “regulatory certainty” are inapplicable on this record. The benefits in question here are subject to very detailed rules and limitations, and there is no vested right to continue receiving services that were not actually authorized.

Accordingly, we affirm the final order’s determination that APD was required to use the live-in daily rate rather than an hourly rate for M.B.’s service plan. APD supplemented that rate with an authorization for up to three hours per day of additional personal care assistance for M.B. One part of the Waiver Handbook provides authorization for additional hours above the daily live-in rate if the recipient has “intense behavioral challenges” or is recovering from a temporary “medical condition, procedure, or surgery.” Another section allows greater latitude, however:

When periodic additional staff assistance is required for in-home live in services, an in-home hourly support service may be billed for up to six hours a day in addition to the live in support if approved by the APD Area Office with concurrence from the APD Central Office.

In M.B.’s case, APD did not provide evidence that M.B. could obtain in-home live in services at the specified daily rate. M.B. provided evidence that with the daily rate and six hours per day of additional personal care assistance, she could obtain adequate coverage. We therefore reverse that portion of the final order approving APD’s authorization of three hours per day of additional personal care assistance and remand with instructions to increase this to six hours per day.

Personal Emergency Response System

APD’s decision to eliminate reimbursement for M.B.’s emergency “call button” system is based on the assumption that M.B. would have twenty-four hour live-in support services. As noted, this assumption is something of a “legal fiction” in the sense that no one has been identified who would actually provide round-the-clock services at the allowed daily rate, and no one has explained how a single attendant could provide the services and live in the apartment with M.B. 168 hours per week. It is more reasonable to assume that multiple attendants would have to provide the daily services, with only one of them actually living in the apartment.

M.B.’s quadriplegia, her need for assistance with so many activities of daily living, and APD’s inability to assure twenty-four hour-per-day, seven days a week attendant coverage, all combine to make it self-evident that M.B. needs a personal emergency response system. The Waiver Handbook limitations provide:

A personal emergency response system is limited to those recipient’s [sic] who live alone, or who are alone for significant parts of the day, and have no regular caregiver for extended periods of time, and otherwise require extensive routine supervision.

Because M.B. and her counsel have made it clear that they intend to use the available APD reimbursements to cobble together a care plan and attendant schedule that will come as close as possible to the previous 18 hour per day coverage, and because that intention is plainly consistent with APD’s overarching mandate to foster independent living to the extent practicable, APD did not carry its burden to prove by a preponderance of the evidence that the emergency response system should be eliminated from M.B.’s service plan. We reverse on this point, finding that the record in this case shows that M.B. will continue to live alone, will be without a caregiver for extended periods of time (generally at night), and regularly requires extensive routine supervision.

Consumable Medical Supplies

The administrative law judge concluded that the record required her to uphold APD’s disallowance of the “artificial tears” (products known as Visine, Hy-potears, and Celluvisc), supplies previously included and reimbursed as part of M.B.’s service plan. The Waiver Handbook limitation regarding consumable medical supplies states:

A prescription submitted for supplies, diets, over-the-counter medications, vitamins, herbs, etc., which has general utility or is generally available to the general population without a prescription, does not change the character of the item for purposes of coverage in this category. For example, a physical therapist, occupational therapist or physician recommending or prescribing items like Tylenol, Ginkgo Biloba, vitamins, gluten-free foods, cotton balls or Q-tips, does not convert that item from general utility items to consumable medical supplies covered under the DD waiver. Items covered in this category generally include only those items that are specifically designed for a medical purpose, and are not used by the general public or other general utility uses. It is the general character and not specific use of the item that governs for purposes of coverage under this category.

The Waiver Handbook also identifies a number of categories of consumable medical supplies that are covered even though they are “generally available to the general population without a prescription,” such as diapers, disposable gloves, hearing aid batteries, and other items obviously necessary for use in providing health care to a disabled recipient of APD assistance. The Waiver Handbook explains that other such items may be approved through “exception” by APD:

To request an exception, a physician must prescribe the item. The statement from the physician must delineate how the item is medically necessary, how it is directly related to the recipient’s developmental disability, and without which the recipient cannot continue to reside in the community or in his [sic] current placement. Items specifically excluded in this handbook will not be approved through exception.

In this case, M.B.’s physician’s prescription dated May 9, 2007, was admitted into evidence. The prescription, which is almost entirely legible, states:

[M.B.] suffers from chronic corneal disease as a direct result of her spastic [illegible word] cerebral palsy. She must have continual, permanent, artificial tears and lubricants to prevent corneal ulcerations.

Additionally, neither “artificial tears” nor the three products requested are “specifically excluded” in the Waiver Handbook. It does not require a medical degree to appreciate that corneal ulcerations are painful, debilitating, and worthy of an immediate medical intervention. This being so, corneal ulcerations would jeopardize M.B.’s ability to live in her apartment. M.B.’s physician and the prescription established the other requirements for an exception to the “general utility items” classification — medical necessity and the relationship of the treatment to her underlying diagnosis. The administrative law judge’s denial of M.B.’s request for the artificial tears and lubricants as consumable medical supplies is therefore reversed.

Conclusion

We recognize that APD’s provision of services to persons with developmental disabilities is limited by the resources committed to those services and by the constraints established with the force of administrative rule in the Waiver Handbook. The parties and their counsel in this case are to be congratulated on the care and professionalism exhibited in the record and in their presentations to this Court.

We affirm the final administrative order under review insofar as it substitutes the daily live-in rate for personal care attendants of $129 per day versus the previously-approved 18 hours per day at approved hourly rates, and insofar as it approves M.B.’s request for supported living coach services; we reverse the previously-allowed three hours per day of “additional in-home supports above the live-in rate,” and remand for an allowance of six additional in-home support hours per day; and we reverse the disallowance of M.B.’s personal emergency response system and artificial tears.

Reversed and remanded for further proceedings consistent with this opinion.

      . Maximus reviews high-dollar annual service plans for participants in the Medicaid Waiver Program. The authorization reviewers working for Maximus are typically skilled and experienced service providers themselves.

      . Other modifications to M.B.'s service plan have been adjusted to the parties’ satisfaction and are not a part of this appeal. Modifications to M.B.'s plan for 2008 are also on appeal to this Court as our Case No. 3D09-962 (not consolidated). As acknowledged by counsel for the parties during argument, the rulings in this case should assist the parties in attempting to resolve the other case.

      .The in-home live in daily rate ascribes an unspecified value to the occupancy costs saved by an attendant who lives with the APD client.

      . During the service plan year, the Waiver Handbook "additional staff assistance” authorized in this section was reduced from eight hours per day to six hours per day.

      . As the administrative law judge found, "M.B. needs assistance to lift, transfer, bathe, dress, and toileting,” and M.B. has "severe scoliosis and uncontrolled muscular movements that are generalized throughout her body.” None of this subtracts from M.B.'s remarkable accomplishments — her physical limitations simply must be acknowledged in assessing her need for a personal emergency response system.

      . Counsel for M.B. is a cousin of hers who has provided extensive and excellent representation without charge. Counsel for APD provided exemplary representation to his client, but also prefaced his legal arguments with an acknowledgment of concern for M.B.'s disabilities and respect for her accomplishments.


author: DAMOORGIAN, J.

text:
    Gregory SCHLICHER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3003.
    District Court of Appeal of Florida, Fourth District.
    June 17, 2009.
    Rehearing Denied Aug. 17, 2009.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Gregory Schlicher timely appeals his judgment of conviction and sentence on drug-related charges. Schlicher argues that the trial court reversibly erred by denying his motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c), motion for judgment of acquittal, and motion to sever. We find merit to Schlicher’s claim that the trial court reversibly erred by denying his motion for judgment of acquittal on Counts 1-3 and ■5-8, and reverse his convictions and sentences on those counts. We affirm Schlicher’s conviction and sentence on Count 4 without discussion.

This case arises from a lengthy drug investigation by the Martin County Sheriffs Office. During the investigation, the police discovered Schlicher’s involvement in a drug ring. Ultimately, Schlicher was arrested and charged with six counts of Conspiracy to Purchase Cocaine (Counts 1-3 and 6-8), one count of Soliciting the Sale or Delivery of Cocaine (Counts 4) and one count of Soliciting the Purchase of Cocaine (Count 5). The eight counts related to eight separate dates during the months of December 2006 and January 2007 on which drug transactions allegedly took place.

After his arrest, Schlicher filed a motion to dismiss the information pursuant to Florida "Rule of Criminal Procedure 3.190(c), arguing that the charges in the information were vague and indistinct. The motion to dismiss was followed by a motion to sever the eight charges on the grounds that Schlicher would be prejudiced by a single trial on all eight charges. The trial court heard and denied both of these motions.

During the trial, the State presented a number of police witnesses who testified that the police were conducting an investigation, primarily through wiretaps, of a cocaine trafficking organization headed by Jose Tzoc-Caxaj (Jose). Schlicher was not the target of the investigation, but came to be known to police when he purchased cocaine from Jose. Schlicher admitted to police that he had purchased cocaine consistently from Jose for his own use, but maintained that he was not a drug dealer. The State also introduced recordings of the wiretapped conversations between Jose and Schlicher. These conversations are, in large part, the basis of the charges against Schlicher.

At the close of the State’s evidence, Schlicher moved for a judgment of acquittal. After the jury returned a guilty verdict on the charges, Schlicher moved for a new trial arguing that the verdict was contrary to the weight of the evidence. The trial court denied these motions.

Schlicher now appeals the denial of his motion for judgment of acquittal. “In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002). If there is competent, substantial evidence of each element of the charged crime, the denial of a motion for judgment of acquittal will be affirmed. Johnson v. State, 969 So.2d 938, 955 (Fla. 2007).

First, Schlicher incorrectly contends that the State’s case against him was purely a circumstantial evidence case, which requires a more stringent standard of review. See State v. Law, 559 So.2d 187, 188 (Fla.1989) (“Where the only proof of guilt is circumstantial ... a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.”). At trial, the State introduced recorded conversations allegedly between Jose and Schlicher. The recorded conversations are direct evidence, not circumstantial evidence. Moreover, Schlicher’s argument that the State could not prove that one of the voices belonged to him goes to the sufficiency of the evidence, not whether it was circumstantial. Thus, the heightened standard does not apply. See Pagan, 830 So.2d at 803.

Schlicher next argues that the State failed to prove that he committed the crime of conspiracy to purchase cocaine, for which he was charged in Counts 1-3 and 6-8 of the information. A conspiracy exists where there is an express or implied agreement between two or more persons to commit a criminal offense, and an intention to commit the offense. Leigh v. State, 967 So.2d 1102, 1104 (Fla. 4th DCA 2007); Pino v. State, 573 So.2d 151, 152 (Fla. 3d DCA 1991). The agreement may be inferred from the circumstances; direct proof is not necessary. Leigh, 967 So.2d at 1104; Pino, 573 So.2d at 152. Florida courts have generally affirmed convictions for conspiracies to buy or sell drugs where the “defendants are involved in a series of meetings, arrangements and negotiations to sell or buy illegal drugs that lead to such sale or purchase.” Leigh, 967 So.2d at 1104 (citing Pino, 573 So.2d at 152).

Logic demands that the agreement that constitutes the conspiracy must be an agreement to commit the same criminal offense. Cf. Green v. State, 999 So.2d 1098, 1098 (Fla. 5th DCA 2009) (where the court affirmed the defendant’s conviction for conspiracy to purchase cocaine because the co-conspirators had a common purpose to commit the crime of purchase of cocaine). In a buy-sell transaction, that agreement usually does not exist because the buyer and seller each intend to commit a different criminal offense. As a result, there is no criminal conspiracy to pursue a common goal. Such is the case here, where Schlicher and Jose were on opposite sides of the drug transactions. Accordingly, there was no evidence of an express or implied agreement between Schlicher and Jose to commit the common criminal offense of purchase of cocaine.

The State relies on Leigh to support its argument that Schlicher’s conspiracy convictions should be upheld. This case, however, is factually distinguishable from the present case. In Leigh, two or more defendants were engaged in the sale or purchase of drugs from a third party. Leigh, 967 So.2d at 1103-04; see also Pino, 573 So.2d at 152. The defendants were convicted based on their conspiracies with co-defendants who were on the same side of the transactions. Leigh, 967 So.2d at 1105; see also Pino, 573 So.2d at 152. This Court reasoned that, in order to carry out either the joint purchase or the joint sale of drugs, there must have been a prior agreement among the defendants to achieve that sale, or else the sale would not have occurred. Leigh, 967 So.2d at 1105 (citing Pino, 573 So.2d at 152). Here, there was no such agreement between Schlicher and a co-conspirator on the same side of the transaction.

The First District Court of Appeal has expanded the notion of a conspiracy to purchase drugs, although it is not clear how far. In Pallin v. State, 965 So.2d 1226 (Fla. 1st DCA 2007), the court upheld a conviction for conspiracy to purchase cocaine where the defendant knew that his suppliers were engaged in an ongoing agreement between themselves to purchase cocaine and then to supply the defendant with cocaine. Id. at 1227. “This relationship necessarily required [the defendant’s] suppliers to purchase and possess cocaine so that he could then purchase or possess a smaller portion of the cocaine.” Id. The court determined that this was sufficient to prove that the defendant and his suppliers shared a common objective to purchase or possess cocaine with the intent to purchase. Id. The court reasoned that the defendant could not purchase cocaine from his suppliers unless his suppliers purchased that cocaine from someone else. Id. The court agreed with the view of the United States Court of Appeals for the Eighth Circuit that “ ‘evidence of multiple sales of resale quantities of drugs is sufficient in and of itself to make a submissible case of conspiracy to distribute.’ ” Id. at 1228 (citing United States v. Miller, 91 F.3d 1160, 1162 (8th Cir.1996) (quoting United States v. Eneff, 79 F.3d 104, 105 (8th Cir.1996))). The court then held that the evidence that the seller had sold resale quantity cocaine to the buyer on multiple occasions was sufficient to sustain the conviction for conspiracy to purchase cocaine. Id.

In plain language, the First District has created a rule of law that a repeat buyer and repeat seller almost always have an implicit agreement that the seller will continue to purchase drugs from his supplier so that he can continue to sell drugs to the buyer. This is a broad expansion of conspiracy, and we are unable to find any other Florida court that has applied the reasoning from Pallin. We do not have to decide whether to accept the reasoning from Pallin, however, because the State did not produce any evidence that Schlicher knew that Jose was engaged in an ongoing relationship with a supplier to purchase cocaine so that he could sell the cocaine to Schlicher. Moreover, the State never argued such a theory during the trial.

A detailed description of each recorded conversation between Schlicher and Jose that was introduced at trial and the undercover officers’ observations about those conversations would unduly burden this opinion. However, suffice it to say that viewing the evidence in the light most favorable to the State, we hold that the State did not produce sufficient evidence that Schlicher and Jose had an express or implied agreement to purchase cocaine, and that both shared the common intent to purchase cocaine. Rather, the State’s evidence established that the alleged co-conspirators had different criminal intents. Accordingly, the trial court erred in denying Schlicher’s motion for a judgment of acquittal on Counts 1-3 and 6-8, the conspiracy charges.

We also reverse Schlicher’s conviction and sentence on Count 5, in which he was charged with soliciting the purchase of cocaine on December 22, 2006. At trial, the State played a recorded conversation between Schlicher and Jose that took place on December 22, 2006. Schlicher called Jose several times and Jose did not answer his phone. When Schlicher finally reached Jose, they agreed to meet up around 1:00 p.m. At 4:16 p.m., Schlicher called Jose back and asked him “[wjhat’s the chances of you giving me some work until after— until Monday so that we don’t run out over this big weekend?” Jose responded, “[y]ou know I can’t do that bro.” A few hours later, Schlicher called Jose again and asked if Jose could “hook up eight ball powder” for him.' Jose said “no” and Schlicher replied “Okay. I had to try. Thank you.” A detective from the Martin County Sheriffs Office identified the voices in the recordings as those of Schlicher and Jose. He also testified that “work” was a code word meaning either the sale of cocaine or the cocaine itself, and that an “eight ball powder” is an eighth of an ounce of cocaine powder.

Viewing this evidence in the light most favorable to the State, there was no competent, substantial evidence that Schlicher solicited Jose to purchase cocaine. The trial court instructed the jury that, in order to prove solicitation of the purchase of cocaine, the State had to prove two elements beyond a reasonable doubt: (1) that Schlicher solicited another person or persons to commit the purchase of cocaine; and (2) that, during the solicitation, Schlicher commanded, encouraged, hired or requested another person or persons to engage in specific conduct which would constitute the commission of the purchase of cocaine or attempt to commit the purchase of cocaine. The State did produce evidence that Schlicher solicited the sale of cocaine, but this was not the crime with which Schlicher was charged in Count 5.

Affirmed in part; Reversed in part.

WARNER and STEVENSON, JJ., concur.

      . We had to infer the identity of Schlicher’s co-conspirator because, with the exception of Count 8, the State did not identify the co-conspirator in the information or during the trial. A review of the information charging both Schlicher and Jose reveals that, on the same dales and presumably for the same transactions, Schlicher was charged with conspiracy to purchase cocaine while Jose was charged with conspiring with Schlicher to sell cocaine.


text:
    Willie E. ISAAC, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2004.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.

      Willie E. Isaac, in proper person.
    Bill McCollum, Attorney General, and Lunar Alvey, Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ, and CORTIÑAS, JJ.
   ON MOTION TO ENFORCE MANDATE

SUAREZ, J.

We affirm the trial court’s denial of Defendant Willie E. Isaac’s Rule 3.850 motion claiming ineffective assistance of trial counsel. Further, the record shows that on January 17, 2008, the trial court on remand from this Court corrected the defendant’s sentence by granting credit for all time served and gain time arising out of the original charges. See Isaac v. State, 971 So.2d 908 (Fla. 3d DCA 2007).

Affirmed.


text:
    Dwain D. WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-35.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Dwain D. Wright, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   On Motion for Rehearing

PER CURIAM.

We grant appellant’s motion for rehearing. The opinion issued on March 25, 2009, is withdrawn and the following opinion is substituted in its place.

Dwain D. Wright appeals the summary denial of his motions for post-conviction relief. We reverse the order only as to Wright’s contention that the trial court improperly sentenced him as a prison re-leasee reoffender (“PRR”) on his two convictions for felony battery on a person sixty-five years of age or older. See § 784.08(2)(c), Fla. Stat. (2003) (reclassifying misdemeanor battery of the first degree to felony battery of the third degree based on the victim’s age). Wright may not be sentenced as a PRR because a conviction for battery on a person sixty-five years of age is not a qualifying offense. See § 775.082(9)(a)l., Fla. Stat. (2003). Under the PRR statute, this felony battery offense is not an enumerated felony and it does not fall within the catchall provision for forcible felonies. Nelson v. State, 987 So.2d 1261, 1262 (Fla. 5th DCA 2008) (holding that the defendant may not be sentenced as a PRR for a conviction of battéry on a person sixty-five years of age or older); see State v. Hearns, 961 So.2d 211 (Fla.2007). Accordingly, we affirm the summary denial except as to the PRR sentencing claim. As to that claim, we reverse and remand with directions that the PRR designation be stricken as to count two in case number 03-20844, and stricken as to count one in case number 03-20845.

Affirmed in part, reversed in part, and remanded.


text:
    David S. SIMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-634.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    David S. Sims, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   ON MOTION FOR REHEARING

SUAREZ, J.

We grant David S. Sims’ Motion for Rehearing, withdraw our previously issued per curiam opinion dated April 29, 2009, and replace it with the following:

David S. Sims appeals from the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct his sentence to reflect eighty-four days of credit for time served for criminal contempt of court. Because the record now before us fails to conclusively refute the appellant’s claim, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this Court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded for further proceedings.


text:
    Roberto NIEVES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1062.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.

      Roberto Nieves, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See § 775.051, Fla. Stat. (2007); Montero v. State, 996 So.2d 888 (Fla. 4th DCA 2008).


author: COPE, J.

text:
    Brian WILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1231.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Brian Wilson, m proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, CORTINAS, and ROTHENBERG, JJ.
   COPE, J.

This is an appeal of an order denying the motion of Brian Wilson for postconviction relief under Florida Rule of Criminal Procedure 3.850 claiming entitlement to additional credit for time served. We remand for further proceedings.

The defendant entered into a plea agreement wherein he admitted to a violation of probation in exchange for a four year sentence with credit for all time served. Twice during the plea colloquy, the court stated that the defendant would receive credit for all time served. At the conclusion of the plea colloquy and after defendant was sentenced, the judge, in response to a question, said, “You have been sentenced to four years in state prison with credit for all time served which will be from February what?” In response, the corrections officer stated “February 1st.” Thereafter, the court stated, “From February 1st to the present day you will receive credit for all that time that you have been incarcerated.” The court then awarded defendant 46 days credit for jail time. In reality, however, the defendant was previously incarcerated on the same cases.

In his Rule 3.850 motion, the defendant claims he is entitled to a total of 274 days credit for time served. The trial court denied relief, and the defendant has appealed.

When the plea agreement was accepted by the court, the court twice said the defendant would receive credit for all time served. At the conclusion of the plea colloquy, the court made an erroneous assumption that the calculation should be performed for the time defendant was in custody since February. In reality, defendant had been incarcerated at earlier stages of the case and under the plea agreement was entitled to credit for all time served.

We distinguish Joyner v. State, 988 So.2d 670 (Fla. 3d DCA 2008), Johnson v. State, 974 So.2d 1152 (Fla. 3d DCA 2008), and Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005). In those cases, the negotiated plea agreements called for credit for time served from a date certain. Where that is the case, the plea agreement is enforceable as such a contract amounts to a waiver of time served prior to a negotiated date. In this case, the agreement contemplated credit for all time served. The judge simply made an error in calculation. Therefore, we remand with instructions to the trial court to determine, and award, the total amount of credit for all time served. In light of this ruling, the defendant’s second point is moot.

Reversed and remanded for further proceedings consistent herewith.

       While a motion seeking additional credit for time served is normally brought pursuant to Florida Rule of Criminal Procedure 3.800(a), the claim is also cognizable under Rule 3.850 where it is filed within two years of the date of sentencing. Here, the defendant's Rule 3.850 motion was timely filed.


text:
    William RAMIREZ, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D09-1302, 3D09-1328.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Rehearing Denied July 28, 2009.
    William Ramirez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

We grant Ramirez’s Motion for Request for Consolidation of Appeals. On the merits, we affirm the trial court order denying his Florida Rule of Criminal Procedure 3.850 motion.

Affirmed.


author: PER CURIAM. COPE, J.

text:
    Randolph HURLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-891.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Rehearing Denied Aug. 11, 2009.
    Randolph Hurley, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Chandler v. State, 1 So.3d 284 (Fla. 2d DCA 2009).

COPE, J.

(concurring).

In his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, Randolph Hurley states that he pled guilty to the offense of first-degree murder in 1993. Based on the trial court case number, apparently the 1991 Florida Statutes are applicable. Under the 1991 statutes, a defendant sentenced to life imprisonment for first-degree murder is eligible for parole after serving twenty-five years. § 775.082(1), Fla. Stat. (1991).

The defendant’s motion confuses parole (for which he apparently is eligible) with control release (for which he is apparently not eligible). See id. § 947.146(4)(i). The defendant should contact the Parole Commission regarding his parole eligibility.


text:
    Wilbert WHYMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1663.
    District Court of Appeal of Florida, First District.
    June 18, 2009.
    Wilbert Whyms, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003).

WEBSTER, BENTON, and ROBERTS, JJ., concur.