author: PER CURIAM. SHEPHERD, J.,

text:
    The STATE of Florida and Office of Criminal Conflict and Civil Regional Counsel, Third District Court of Appeal Region, Appellants, v. PUBLIC DEFENDER, ELEVENTH JUDICIAL CIRCUIT, Appellee.
    Nos. 3D08-2272, 3D08-2537.
    District Court of Appeal of Florida, Third District.
    May 13, 2009.

      Bill McCollum, Attorney General, and Scott D. Makar, Solicitor General, and Louis F. Hubener, Charles B. Upton, II, and Courtney Brewer, Deputy Solicitors General, Tallahassee, for appellant, The State of Florida; Joseph P. George, Jr., and Nancy C. Wear, for appellant, Office of Criminal Conflict and Civil Regional Counsel.

      Hogan & Hartson and Parker D. Thomson and Alvin F. Lindsay and Julie E. Nevins and Matthew R. Bray, Miami, for appellee, Public Defender, Eleventh Judicial Circuit.
    Public Defender Association and James Marion Moorman, Public Defender Tenth Judicial Circuit, and Robert A. Young, General Counsel for the Florida Public Defender, Tenth Judicial Circuit, as ami-cus curiae.
    Florida Prosecuting Attorneys Association and Arthur I. Jacobs, General Counsel for the Florida Prosecuting Attorneys Association, as amicus curiae.
    Before SHEPHERD, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

We review an order of the Circuit Court of the Eleventh Judicial Circuit permitting the Public Defender for Florida’s Eleventh Judicial Circuit (“PD11”) to decline representation in all future third-degree felony cases.

I. Background

In twenty-one criminal cases, PD11 filed motions seeking permission to be relieved of its statutory obligation to represent indigent defendants in noncapital felony cases. Each motion was accompanied by a certificate of conflict wherein PD11 claimed that underfunding led to excessive caseloads, which has prevented it from carrying out its legal and ethical obligations to indigent defendants. The twenty-one motions were consolidated and heard by the trial court. The State Attorney’s Office (“the State”) was denied standing to oppose PDll’s motions, but was allowed to participate as amicus curiae.

After an evidentiary hearing, the trial court found that PDll’s excessive caseload permitted only minimally competent representation and ordered that PD11 may decline all future representation of indigent defendants charged with third-degree felonies. The trial court ordered the Office of Criminal Conflict and Civil Regional Counsel for the Third District (“Regional Counsel”) to represent the affected indigent defendants.

On appeal, the State requested a stay of the trial court’s order and PD11 suggested that the order be certified to our Supreme Court as either an issue of great public importance or as having a great effect on the proper administration of justice throughout the state. As this case implicates not only the manner in which the criminal justice system is structured and funded, but also constitutional separation of powers principles as well as the Sixth Amendment right to counsel in criminal cases, we granted the stay and certified the order to the Florida Supreme Court, which, in turn, dismissed for lack of jurisdiction. State v. Pub. Defender, Eleventh Judicial Circuit of Fla., 996 So.2d 213 (Fla.2008). We then set an expedited hearing schedule and invited amici curiae to submit briefs.

II. Standing

The trial court first addressed whether the State had standing to oppose PDll’s motion. We review de novo the issue of standing. Sanchez v. Century Everglades, LLC, 946 So.2d 563, 564 (Fla. 3d DCA 2006); Payne v. City of Miami, 927 So.2d 904, 906 (Fla. 3d DCA 2005). Generally, standing “requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly.” Hayes v. Guardianship of Thompson, 952 So.2d 498, 505 (Fla.2006).

In ruling against the State’s standing, the trial court relied on In re Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So.2d 1130 (Fla.1990) (“In re Prosecution ”) and Escambia County v. Behr, 384 So.2d 147, 150 (Fla.1980). These cases address the unrelated issue of whether a county’s financial stake in the withdrawal of an assistant public defender is sufficient, to grant the county standing to oppose a motion to withdraw. In re Prosecution, 561 So.2d at 1138 (“[T]he county need not be given an opportunity to be heard before the appointment of counsel, even though it will be the responsibility of the county to compensate private counsel.”). Under the former law, counties were required to fund the private attorneys, who were appointed by courts to replace assistant public defenders. Id. at 1137 (“The legislative history of ... Florida, makes it clear that the legislature never intended to relieve the counties of the obligation of paying for court-appointed attorneys in noncapital conflict cases.”). The counties’ obligation to fund replacement counsel has since shifted to the State of Florida. See Art. V, § 14(c), Fla. Const.; Crist v. Fla. Ass’n of Criminal Defense Lawyers, Inc., 978 So.2d 134, 138 (Fla.2008).

Here, unlike Behr and In re Prosecution, the State sought standing as a party to each of the twenty-one criminal cases. The State, as a party to the criminal cases, is treated by statute differently than the counties. Section 27.02, Florida Statutes, provides in pertinent part, “[t]he state attorney shall appear in the circuit and county courts within his or her judicial circuit and prosecute or defend on behalf of the state all suits, applications, or motions, civil or criminal, in which the state is a party.... ” § 27.02(1), Florida Statutes (2004). The State’s status as a party to the criminal cases, as well as its statutory obligation under section 27.02, distinguishes this case from Behr and In re Prosecution. Therefore, we hold that the State had standing to challenge the motions filed by PD11.

III. Excessive by any Reasonable Standard

The trial court determined that PDll’s caseload was excessive by any reasonable standard. Much of the evidentia-ry hearing was spent trying to ascertain the maximum number of cases a public defender should handle in a single year. The record indicates that there are a number of different ways to count such cases, and that they involve different workloads as some eases go on to an early plea, some are transferred when a private attorney is retained by the defendant, and others are ultimately assigned to drug court. Thus, even if the threshold for withdrawal could be defined as a certain number of open cases per attorney — and we do not believe it can be — no such figure was proven in this record. Nevertheless, the order on review did not select a particular standard, and instead found that, under any reasonable standard, PDll’s caseload was excessive.

We acknowledge the difficulty in selecting a single “correct” standard and do not believe that a magic number of cases exists where an attorney handling fewer than that number is automatically providing reasonably competent representation while the representation of an attorney handling more than that number is necessarily incompetent. See In re Certification of Conflict in Mots, to Withdraw Filed by Pub. Defender of the Tenth Judicial Circuit, 636 So.2d 18, 21-22 (Fla.1994) (“In re Certification 1991 ”) (“[W]e do not believe that courts are obligated to permit the withdrawal automatically upon the filing of a certificate by the public defender reflecting a backlog in the prosecution of appeals.”). Moreover, even if such a number could be divined, it would certainly only have meaning when applied to an individual attorney and not an office as whole.

A. Aggregate Withdrawal

Determining conflicts of interest for an entire Public Defender’s Office based on aggregate calculations is extremely difficult without first having considered individual requests for withdrawal in particular cases. See In re Prosecution, 561 So.2d at 1138 (concluding that when a backlog of cases is so excessive that assistant public defenders cannot possibly handle their assigned cases, it is the responsibility of the affected public defender to individually move the court to withdraw). The conclusion in the aggregate, that a conflict of interest exists, inherently lacks the meaningful individualized information required by such a determination.

While it is well within the province of a trial court to determine whether counsel is sufficiently competent, this determination must occur on a case-by-case basis. “If the public defender deems it necessary to be relieved from other appeals, he [or she] should file a motion to withdraw in this court promptly upon [appointment]. Such motions will be considered on a case-by-case basis.... ” Crow v. State, 500 So.2d 171, 172 (Fla. 1st DCA 1986); Haggins v. State, 498 So.2d 958, 954 (Fla. 2d DCA 1986) (“The circuit courts can better determine on a case-by-case basis the possible prejudice to the defendants resulting from any delays....”). We find this reasoning persuasive and equally applicable to motions to withdraw made at the trial level.

Although our Supreme Court has previously approved of an order prohibiting prospectively the appointment of assistant public defenders, that case is distinguishable because relief was granted only after individual assistant public defenders had first been removed from representation and a backlog of cases had caused the delayed filing of appeals for almost all defendants in the Public Defender’s Office. In re Pub. Defender’s Certification of Conflict & Mot. to Withdraw Due to Excessive Caseload & Mot. for Writ of Mandamus, 709 So.2d 101 (Fla.1998) (“In re Ceiiification 1998”). Unlike In re Certification 1998, here, there has been no initial attempt at individualized withdrawal. Instead, PDll’s first attempt at withdrawal was by way of a motion to withdraw en masse.

In re Certification 1998 is also distinguishable from the present case by the type of harm claimed. The In re Certification 1998 Court was attempting to stem the tide of delayed appeals. Id. at 103. In contrast, PD11 presented evidence of excessive caseload and no more. To be sure, whenever an attorney is burdened with an excessive caseload, there exists the possibility of inadequate representation. The possibility of these harms was discussed at the hearing below. However, there was no showing that individual attorneys were providing inadequate representation, nor do we believe this could have been proven in the aggregate,' simply based on caseload averages and anecdotal testimony. Brown v. State, 894 So.2d 137, 149 (Fla.2004) (“[T]he finding as to whether counsel was adequately prepared does not revolve solely around the amount of time counsel spends on the case ... and ... is a case-by-case analysis.”) (citing State v. Lewis, 838 So.2d 1102, 1113-14 n. 9 (Fla.2002)).

B. Rules Regulating The Florida Bar

PD11 posits that the only standard controlling whether assistant public defenders should withdraw is set forth in the Rules Regulating The Florida Bar (“RRFB”). R. Regulating Fla. Bar 4-1.1, 4-1.3, 4-1.4, 4-1.7, 4-1.16, and 4-3.2. The rules of professional conduct, however, are only meant to apply to attorneys, individually, and not the office of the Public Defender as a whole.

Several problems develop when an office of attorneys seeks to avoid future appointments on grounds that the office, on average, is already laboring under an excessive caseload. First, by viewing the claim of excessive caseload in the aggregate, a court fails to consider the particular skills and expertise of individual attorneys, thereby treating each attorney the same. Such analysis ignores the fact that varying education and experience enable each attorney to handle differing caseloads. Add to this, the disparity of time demanded depending on the type and complexity of a particular case, and an aggregate determination becomes even less meaningful. Second, an aggregate determination violates the spirit, if not also the express language, of the RRFB. See, e.g., R. Regulating Fla. Bar 4-1.7(a) (“a lawyer shall not represent a client if ....”) (emphasis added); R. Regulating Fla. Bar 4-1.7(b)(l) (“the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation ....”) (emphasis added); R. Regulating Fla. Bar 4-1.16 (“a lawyer shall not represent a client ....”) (emphasis added). Therefore, under the facts of this case, the determination of whether or not a conflict exists under the RRFB, must be made on an individual basis.

C. Section 27.5303, Florida Statutes (2007)

In 1990, the Florida Supreme Court determined that “[w]hen excessive caseload forces the public defender to choose between the rights of the various indigent criminal defendants he [or she] represents, a conflict of interest is inevitably created.” In re Prosecution, 561 So.2d at 1135. In 2004, the legislature promulgated, and in 2007 amended, section 27.5303, which permits assistant public defenders to withdraw from representation based on a conflict of interest. § 27.5303(l)(a), Fla. Stat. (2007).

If, at any time during the representation of two or more defendants, a public defender determines that the interest of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his or her staff without a conflict of interest ... then the public defender shall file a motion to withdraw and move the court to appoint other counsel.

Id. The obligation to withdraw, however, is not without exception. “In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel.” § 27.5303(l)(d), Fla. Stat. (2007). Within section 27.5303, the Legislature provided guidance as to what constitutes a conflict of interest.

In determining whether or not there is a conflict of interest, the public defender or regional counsel shall apply the standards contained in the Uniform Standards for Use in Conflict of Interest Cases found in appendix C to the Final Report of the Article V Indigent Services Advisory Board dated January 6, 2004.

§ 27.5303(l)(e), Fla. Stat. (2007). The only conflicts addressed in appendix C are conflicts involving codefendants and certain kinds of witnesses or parties. Conspicuously absent are conflicts arising from underfunding, excessive caseload, or the prospective inability to adequately represent a client.

We must assume that when the Legislature drafted section 27.5303, it was aware of the prior state of the law. Williams v. Jones, 326 So.2d 425, 435 (Fla.1975) (noting the “principle of statutory construction which provides that the Legislature is presumed to know the existing law when it enacts a statute and is also presumed to be acquainted with the judicial construction of former laws on the subject concerning which a later statute is enacted”) (citing Collins Inv. Co. v. Metro. Dade County, 164 So.2d 806 (Fla.1964)).

Thus, when the Legislature promulgated a law, which prohibited withdrawal based on excessive caseload and which stated that the “conflict of interest” contemplated by section 27.5303 included only the traditional conflicts arising from the representation of codefendants, we must assume that the Legislature understood the existing law and intended to modify it. Here, PD11 failed to submit to the trial court any evidence that a “conflict of interest,” as described by section 27.5303(l)(e), existed.

The trial court did not reach the question of whether PD11 had presented evidence sufficient to prove a statutory conflict of interest, determining instead that section 27.5303(l)(d) did not apply because it addressed withdrawal from representation, rather than what PD11 sought, which was to have other counsel appointed in the first instance. We find this distinction unpersuasive for two reasons.

First, permitting PD11 to withdraw by merely couching its requests as motions to decline future appointments, would circumvent the plain language of section 27.5303(l)(d). We cannot allow such an exercise in semantics to undo the clear intent of the statute. Gannett Co. v. Anderson, 947 So.2d 1, 8 (Fla. 1st DCA 2006). If we did, section 27.5303(l)(d) would be rendered meaningless. Forsythe v. Longboat Key Beach Erosion Control Dist, 604 So.2d 452, 456 (Fla.1992) (“[C]ourts should avoid readings that would render part of a statute meaningless.”).

Second, given that the trial court’s order requires PD11 to accept appointments at first appearances and continue representation until arraignment, it is fanciful to suggest that the subsequent appointment of alternate counsel is anything other than a withdrawal.

That is not to say that an individual attorney cannot move for withdrawal when a client is, or will be, prejudiced or harmed by the attorney’s ineffective representation. However, such a determination, absent individualized proof of prejudice or conflict other than excessive caseload, is defeated by the plain language of the statute. § 27.5303(l)(a) and (d), Fla. Stat. (2007).

D. Funding

PDll’s complaint that it receives inadequate funding is not novel. See, e.g., In re Certification 1998; In re Certification 1991; Flatten v. State, 561 So.2d 562 (Fla. 1990); In re Prosecution. Nor is our response.

[Wjhile it is true that the legislature’s failure to adequately fund the public defenders’ offices is at the heart of this problem, and the legislature should live up to its responsibilities and appropriate an adequate amount for this purpose, it is not the function of this Court to decide what constitutes adequate funding and then order the legislature to appropriate such an amount. Appropriation of funds for the operation of government is a legislative function.

In re Prosecution, 561 So.2d at 1136 (citing Art. VII, § 1(c), Fla. Const.).

Finally, we note that since 2005, PD11 has not filled at least sixteen full-time attorney positions that were funded by the legislature. For example, during the 2005-06 fiscal year, PD11 accepted $401,572, but did not fill seven full-time attorney positions. During the 2006-07 fiscal year, PD11 accepted $338,843, but did not fill six full-time attorney positions. During fiscal year 2007-08, PD11 accepted $138,602, but did not fill three full-time attorney positions. During the hearing, Public Defender Bennett H. Brummer acknowledged that he opted to increase employee salaries rather than hire additional staff. Similarly, statewide funding figures for the Public Defender Offices similarly reveal an increased funding of 14% from 2004-2008, while their full-time employees increased by only 2%.

Although PDll’s budget decreased during the past fiscal year, the record does not demonstrate any correlation between the State budget reductions and a complete inability on the part of PD11 to handle any third-degree felony cases. For example, the act of withdrawing from representation in approximately 11,693 third-degree felony cases (the result of the ruling below), which constitutes 60% of the post-arraignment cases handled by PDll’s 94 noncapital felony attorneys, is entirely disproportionate to the amount of the budget reductions. There is simply insufficient evidence to support such a drastic remedy.

TV. Conclusion

We understand the difficulties faced by PD11. With an ever-increasing quantity of cases and a tight budget, their important task is certainly made more difficult. The office-wide solution to the problem, however, lies with the legislature or the internal administration of PD11, not with the courts.

“We believe that within the existing statutory framework there exists a method for resolving the problem of excessive caseload.” In re Prosecution, 561 So.2d at 1134. Only after an assistant public defender proves prejudice or conflict, separate from excessive caseload, may that attorney withdraw from a particular case. § 27.5303(l)(a), Fla. Stat. (2007) (“The court shall deny the [assistant public defender’s] motion to withdraw if the court finds the grounds for withdrawal are insufficient or the asserted conflict is not prejudicial to the indigent client.”).

Reversed.

CORTIÑAS and SALTER, JJ., concur.

SHEPHERD, J.,

specially concurring.

I concur in the decision announced by the majority. Even setting aside the knotty, but judicially important and legally technical question concerning whether PD-ll’s twenty-one filed “Motion[s] to Appoint Other Counsel in Unappointed Non-capital Felony Cases,” create a “case or controversy” under Florida law, see Dep’t of Revenue v. Kuhnlein, 646 So.2d 717, 720 (Fla.1994) (noting “every case must involve a real controversy as to the issue or issues presented”), this action is nothing more than a political question masquerading as a lawsuit, and should be dispatched on that basis.

Twelve years ago, in a case in which an assemblage of public school parents, students, and education providers sought to prosecute a complaint alleging the state was failing in its obligation to allocate adequate resources to the public school system as mandated by the people of the state in Article IX, section 1, of the Florida Constitution (1996), our supreme court announced six criteria by which to gauge whether a case involves a political question, namely does there exist:

(1) a textually demonstrable commitment of the issue to a coordinate political department; (2) a lack of judicially discoverable and manageable standards for resolving it; (3)[an] impossibility of deciding [the question] without an initial policy determination of a kind clearly for nonjudicial discretion; (4) the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; (5) an unusual need for unquestioning adherence to a political decision already made; and lastly (6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Coal, for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So.2d 400, 408 (Fla.1996) (citing Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). Employing these criteria, the Court approved the decision of the trial court that adjudication of the parents’ and education providers’ claims for relief was beyond its power. Coal., 680 So.2d at 408 (“[Appellants have failed to demonstrate in their allegations, or in their arguments on appeal, an appropriate standard for determining ‘adequacy1 that would not present a substantial risk of judicial intrusion into the powers and responsibilities assigned to the legislature, both generally (in determining appropriations) and specifically (in providing by law for an adequate and uniform system of education).”).

Applying these same criteria to the case at bar, our ease likewise fails to present a justiciable issue. As in Coalition, the gravamen of PD-ll’s complaint in this case is inadequate funding. Id. As was the case in Coalition, there exists in the Florida Constitution a “textually demonstrable commitment” of the issue before us to a “coordinate political department,” in this case the Florida legislature. Id.; see Art. VII, § 1(c), Fla. Const. (“No money shall be drawn from the treasury except in pursuance of appropriation made by law.”); Chiles v. Children A, B, C, D, E & F, 589 So.2d 260, 264 (Fla.1991) (holding the power to appropriate is legislative). It is not for us to intrude upon those powers. See Art. II, § 3, Fla. Const. (“No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”). Nor, as the majority well explains, is there any judicially discoverable and manageable standard to establish what is an “excessive caseload.” As presented, this case cannot be adjudicated absent policy determinations of a kind clearly for nonjudicial discretion.

I empathize -with PD-ll’s argument that its attorneys are overworked and under-resourced. Such appears to be the natural condition of the public servants who serve clients before the judicial branch of this state. Absent individual proof of constitutional injury to those clients, however, empathy or lack thereof is for the legislature.

On these premises, I join the judgment of the Court.

      . Originally, the trial court allowed PD 11 to decline all "C” cases. Upon motion for clarification, the trial court explained that by "C" cases, it meant third-degree felony cases.

      . Eight days after the trial court issued its order, Regional Counsel moved to intervene. The trial court denied its motion as untimely. Regional Counsel appealed that order, consol-¡dated here as Case No. 3D08-2537. We affirm the trial court’s denial of Regional Counsel's motion to intervene as it was filed eight days after the trial judge's order, which is the subject of this appeal.

      .The State of Florida is represented by the Florida Attorney General's Office on appeal.

      . We note, as the State did at the hearing below, that contrary to PDll’s claim that its attorneys are providing inadequate representation, as recently as 2007, PD 11 has received national recognition for its representation of indigent defendants.

      . While the anecdotal claims of prejudice made by one assistant public defender who testified at the hearing below might be an important part of an individualized determination that a particular assistant public defender is providing inadequate representation, it falls far short of proving that each attorney at PD 11 is providing inadequate representation.

      . PDl 1 has created a system whereby one set of PD 11 attorneys, the Early Representation Unit (“ERU”), represents defendants from first appearance until arraignment, at which time representation shifts to a different set of PD 11 attorneys. The order under review leaves undisturbed this system. Where, in the normal course of events, the representation of a defendant passed at arraignment from an ERU attorney to another PDl 1 attorney, there was no withdrawal because representation remained at all times with PD 11. Here, however, the transfer of representation to a non-PD11 attorney inevitably requires the PD 11 attorney to withdraw.

      .During the same time period, the State Court System and the Offices of the State Attorneys each received funding increases of 13%, which they used to increase the number of full-time employees by 4% and 5%, respectively.

      . The budget for the entire PD 11 office (excluding trust funds) actually increased from fiscal year 2004-05 through fiscal year 2007-OS.

      . According to a September 15, 2008 affidavit filed in this case, PD 11 identified that it handled approximately 19,488 noncapital felony cases, of which 11,693 were third-degree felony cases.

      . Remember, not a single client of PD-11 has objected to the representation being received by him or her on anything close to the grounds being urged by PD-11 to shift representation outside its offices. The parties to this proceeding — all governmental in nature— have had little to say about the procedural aspects of this case.

      . At the time, Article IX, section 1 read:
      Adequate provision shall be made by law for a uniform system of free public schools and for the establishment, maintenance and operation'of institutions of higher learning and other public education programs that the needs of the people may require.
      There have been several revisions and additions made to Article IX, section 1 since that time. Compare id. with Art. IX, § 1, Fla. Const. (2003); Art. IX, § 1, Fla. Const. (1999).


source: Caselaw Access Project

author: GERSTEN, C.J.

license: Public Domain

text:
    MARBELLA PARK HOMEOWNERS ASSOCIATION, INC., Appellant, v. MY LAWN SERVICE, INC., Appellee.
    No. 3D07-3278.
    District Court of Appeal of Florida, Third District.
    May 13, 2009.

      Mager & Mager, LLC, Scott A. Mager, and S. Antonio Jimenez, Ft. Lauderdale, for appellant.
    Fein & Meloni, Edo Meloni, Steven A. Fein, and Shelley J. Murray, Plantation, for appellee.
    Before GERSTEN, C.J., and CORTIÑAS and SALTER, JJ.
   GERSTEN, C.J.

Marbella Park Homeowners’ Association, Inc. (“Marbella Park”) appeals a final summary judgment entered in favor of My Lawn Service, Inc. (“My Lawn”) in a breach of contract action. We reverse, and remand for an evidentiary hearing on damages.

Marbella Park contracted with My Lawn for yearly landscape maintenance for five years. The contract provided for services twenty-eight times per year, at a cost of $2,750.00 per visit. Marbella Park was to pay My Lawn monthly. After My Lawn performed for four months without Marbella Park’s payment, My Lawn sued for breach of contract.

The complaint sought $385,000.00 in damages, which was the full and gross amount due under the five-year contract. Subsequently, My Lawn moved for summary judgment. In support of its motion, My Lawn filed two affidavits, both of which addressed only the contract’s validity. The trial court granted final summary judgment in favor of My Lawn for $355,711.10, which properly included a set-off for partial payments made during litigation. Marbella Park appealed.

Marbella Park asserts that the trial court erred in awarding the full amount of gross payments as damages, without holding an evidentiary hearing. My Lawn contends that the trial court properly determined damages according to the contract. We agree with Marbella Park.

The measure of damages for breach of a services contract is the non-breaching party’s lost profits. Physicians Reference Lab., Inc. v. Daniel Seckinger, M.D. & Assocs., P.A., 501 So.2d 107, 108 (Fla. 3d DCA 1987). Lost profits are calculated by subtracting the non-breaching party’s performance costs from the contract price. 501 So.2d at 109; see also RKR Motors, Inc. v. Associated Uniform Rental & Limn Supply, Inc., 995 So.2d 588 (Fla. 3d DCA 2008).

Further, the burden of proving lost profits is on the non-breaching party. Indian River Colony Club, Inc. v. Schopke Constr. & Eng’g, Inc., 619 So.2d 6 (Fla. 5th DCA 1993). Generally, proof of performance costs necessitates an evidentiary hearing. See, e.g., Berlant v. Nat’l Bank of Fla., 527 So.2d 910 (Fla. 3d DCA 1988).

Here, although the contract price could be easily ascertained, My Lavra failed to produce evidence of its costs and expenses in performing the five-year contract. This evidence is necessary to determine My Lavra’s lost profit.

Accordingly, we reverse the judgment entered below, and remand for an eviden-tiary hearing to determine My Lawn’s lost profits.

Reversed and remanded with instructions.


text:
    HARRIS SPECIALTY CHEMICALS, INC., et al., Appellants, v. PUNTO AZUL S.A. de C.V., etc., Appellee.
    No. 3D08-1340.
    District Court of Appeal of Florida, Third District.
    May 13, 2009.
    Bilzin Sumberg Baena Price & Axelrod, Stanley B. Price, Michael N. Kreitzer, David N. Arizmendi, and Shawn A. Heller, for appellants.
    Zarco Einhorn Salkowski & Brito, Robert Zarco, and Robert Salkowski; Hagans Burdine Montgomery Rustay & Winchester, Kendal C. Montgomery, and Vincent Lee Marable, III (Houston, Tex.); Davis, Cedillo & Mendoza, Inc., and Ricardo G. Cedillo (San Antonio, Tex.), for appellee.
    Before GERSTEN, C.J., and CORTINAS and SALTER, JJ.
   GERSTEN, C.J.

Harris Specialty Chemicals, Inc., together with other defendants (collectively “Harris”) appeal the trial court’s order denying them motion for attorney’s fees under section 768.79, Florida Statutes (2007), and Florida Rule of Civil Procedure 1.442, the offer of judgment statute and rule, in favor of plaintiff, Punto Azul S.A. de C.V. (“Punto Azul”). We reverse.

Harris asserts that the trial court erred in finding the settlement proposal ambiguous and unenforceable. Punto Azul contends that the trial court properly found the settlement proposal invalid because it failed to apportion an amount to one of the defendants. We agree with Harris and determine that upon de novo review, the settlement proposal is unambiguous, and thus, attorney’s fees should have been granted pursuant to the proposal.

A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. See Fla. R. Civ. P. 1.442(c)(3); see also § 768.79, Fla. Stat. (2007). The rule does not require that a settlement proposal cover all claims between all parties involved, or that it settle all claims between the parties to the proposal. Jacksonville Golfair, Inc. v. Grover, 988 So.2d 1225, 1227 (Fla. 1st DCA 2008). The rule merely requires that a settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. Carey-All Transp., Inc. v. New-by, 989 So.2d 1201, 1206 (Fla. 2d DCA 2008). Further, courts are urged to “use reason and common sense and interpret the offer as a whole to avoid unreasonable results.” Jacksonville Golfair, 988 So.2d at 1227.

Here, we find Harris’ offer was unambiguous. Accordingly, we reverse the trial court’s order denying attorney’s fees.

Reversed and remanded.


author: ROTHENBERG, J.

text:
    Jorge GUERRERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-91.
    District Court of Appeal of Florida, Third District.
    May 13, 2009.

      Jorge Guerrero, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and SALTER, JJ.
   ROTHENBERG, J.

The defendant filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) on or about May 7, 2008. On October 7, 2008, he filed a motion to dismiss the May 7, 2008 motion to correct an illegal sentence. The trial court subsequently issued two orders: (1) an order dated November 13, 2008, which was filed on December 3, 2008, denying the defendant’s motion to dismiss dated October 7, 2008; and (2) an order dated November 21, 2008, stating that defendant’s motion to correct illegal sentence dated May 7, 2008, was withdrawn per defendant’s request. Thus, the trial court entered conflicting orders — one denying the motion to dismiss and one granting the motion to dismiss.

In an abundance of caution, the defendant filed a notice of appeal and has sought clarification of the trial court’s rulings. Because the trial court granted the defendant’s motion to dismiss his May 7, 2008 motion to correct an illegal sentence on November 21, 2008, and subsequently entered an order denying his motion to dismiss on December 3, 2008, we treat the December 3, 2008 order as issued in error and a nullity.

Because the trial court granted the defendant’s motion to dismiss the May 7, 2008 motion to correct an illegal sentence, we dismiss the instant appeal as moot. However, we note that defendant alleges that he filed a subsequent rule 3.800(a) motion to correct illegal sentence on or about October 23, 2008, that is still pending. The trial court is instructed to rule on the defendant’s pending rule 3.800(a) motion, and if it cannot be located, to notify the defendant so that he can resubmit the motion.

Appeal dismissed.


author: PER CURIAM.

text:
    Todd SCHULTHEIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4922.
    District Court of Appeal of Florida, First District.
    May 13, 2009.

      Todd Schultheis, pro se.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

When the postconviction court denied appellant Todd Schultheis’s motion for postconviction relief, the court concluded the record of Schultheis’s trial refuted some claims, but the court did not attach any record excerpts supporting the denial of relief. With respect to the second, fifth, seventh, ninth, and tenth claims in appellant’s motion alleging ineffective assistance of counsel, this omission requires reversal. See Gay v. State, 995 So.2d 541, 542 (Fla. 2d DCA 2008); Miller v. State, 905 So.2d 981, 982 (Fla. 3d DCA 2005). We remand the order denying relief as to these claims and direct the postconviction court to either attach supportive record excerpts or conduct an evidentiary hearing. See Fla. R. App. P. 9.141(b)(2)(D).

We also reverse the denial of relief as to appellant’s first claim, in which he argued trial counsel was ineffective for failing to raise the issue of competency to stand trial. As the postconviction court explained, a defendant cannot cloak an argument of incompetency, which should be raised on direct appeal, as an ineffective-assistance claim. See Patton v. State, 784 So.2d 380, 393 (Fla.2000). A narrow argument that counsel was ineffective for failing to raise the competency issue, however, is cognizable in the postconviction posture. See generally Carroll v. State, 815 So.2d 601, 610 (Fla.2002). The argument as phrased in appellant’s motion is, at its heart, an ineffective-assistance claim and was not procedurally barred, as the postconviction court concluded. Accordingly, we reverse the denial of relief as to this claim and remand for the postconviction court to address it on the merits. We affirm the order in all other respects.

AFFIRMED in part; REVERSED in part.

KAHN, DAVIS and CLARK, JJ., concur.


author: COHEN, J.

text:
    Darryl W. ROBERSON and Leslie A. Hardy Roberson, Appellants, v. Larrie A. KITCHEN and Julie A. Kitchen, Appellees.
    No. 5D08-2218.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2009.
    W.C. Airth, Jr., of W.C. Airth, Jr., P.A., Orlando, for Appellants.
    Matthew G. Brenner and Ronald D. Edwards, Jr., of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appel-lees.
   COHEN, J.

ON MOTION FOR CLARIFICATION

We grant Appellants’ motion for clarification and substitute the following in lieu of the original opinion.

Darryl Roberson and Leslie Hardy Roberson are neighbors of Larrie and Julie Kitchen. The Robersons and Kitchens share a common gated entrance and driveway leading to their respective properties. Prior to either party’s ownership, the lots were once a single parcel. In 1973, the land was subdivided, and an easement for ingress and egress was created benefiting the servient estate, the lot currently owned by the Kitchens. The Kitchens purchased their home in 1986, the Robersons in 2002. Included within the legal description of the Robersons’ property was an express easement described as:

[Tjogether with an Easement for Ingress and Egress described as follows: The East 50 feet of the West 183 feet of the North 203.8 feet and also the South 50 feet of the North 253.8 of the East 80.645 feet of the West 213.645 feet of said Lot 76.

In 2007, the Robersons undertook construction at their home. During this time, large trucks traversed the easement to deliver construction supplies. Although the turn from the drive easily accommodated automobiles, it was too tight for larger trucks and they apparently drove onto the Kitchens’ property for ease of navigation. In response, the Kitchens installed railroad ties in an effort to keep the trucks off their property. The ties were placed within the boundaries of the easement.

During this entire time, neither the Kitchens nor the Robersons went to the trouble of calling or visiting each other to informally resolve what was a temporary problem. Instead, the Robersons reacted to the railroad ties by filing a lawsuit seeking injunctive relief. The Kitchens immediately removed the railroad ties and other small plants within the easement. Nonetheless, the case proceeded to trial. At trial, contrary to the relief sought in the complaint, the Robersons did not seek removal of the brick and wrought iron gate or large trees lining the roadway within the easement, all of which pre-existed the Robersons’ purchase of their property. When the smoke cleared, the trial court gave the Robersons the relief they requested at trial. The final judgment prohibited removal of the gate or trees within the easement, and enjoined the Kitchens from placing any posts or permanent obstructions that would encroach upon the Robersons’ ingress and egress, but allowed the Robersons to trim or remove any tree or bush to the extent it impeded their ingress and egress. By this, the trial judge meant reasonable and customary ingress and egress. We find no error in the relief fashioned by the court’s judgment. See Johnson v. Killian, 157 Fla. 754, 27 So.2d 345 (1946); Davis v. Joyner, 409 So.2d 1193 (Fla. 4th DCA 1982).

However, the trial court’s interpretation of the extent of the easement created was error. We conclude the easement, as written, is unambiguous, encompasses the entirety of the described tract, and is not merely descriptive of the property over which the Robersons had a right of ingress or egress. See Sand Lake Shoppes Family Ltd. P’ship v. Sand Lake Courtyards, L.C., 816 So.2d 143 (Fla. 5th DCA 2002). Upon remand, the trial court shall enter an amended final judgment consistent with the foregoing.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . The parties agreed the Robersons could remove one pine tree at the turnoff to the Roberson home.

      . The written judgment is somewhat vague on this issue. However, the trial court's oral findings and rehearing order clearly found the easement was descriptive in nature.


text:
    Elis E. SAN PEDRO, Appellant, v. TACO BELL/YUM! BRANDS and Gallagher Bassett, Appellees.
    No. 1D08-3995.
    District Court of Appeal of Florida, First District.
    May 19, 2009.
    Rehearing Denied June 22, 2009.

      Richard J. Dolan, II, Hialeah, and Bill McCabe, Longwood, for Appellant.
    Ara A. Gechijian and Stephen A. Smith of Pallo, Marks, Hernandez, Gechijian & DeMay, P.A., Palm Beach Gardens, for Appellees.
   PER CURIAM.

Claimant appeals the Judge of Compensation Claims’ (JCC) dismissal of his petition for benefits based on the Employer/Carrier’s motion for summary final order. For the following reasons, we reverse.

The opposing party is required to file a response to a motion for summary final order within 30 days of service, plus five days for mailing. See Fla. Admin. Code R. 60Q-6.108(6), -6.120(3). Here, the motion for summary final order considered by the JCC included a May 19, 2008, certificate of service date. Evidence in the record indicates that appellant may not have received the motion for summary final order with an appropriate certificate of service. In Claimant’s timely filed motion to vacate the JCC’s order of dismissal, she alleged she did not receive a copy of the motion for summary final order with the May 19, 2008, certificate of service date until June 24, 2008, more than 35 days after May 19, 2008. The JCC failed to address the motion to vacate.

Chapter 440, Florida Statutes, and basic due process considerations require a party be given proper notice. Cf. City of Hollywood v. Pisseri, 504 So.2d 1262, 1264 (Fla. 1st DCA 1986) (holding that affirmative notice of a hearing must be demonstrated). Without proper notice, a party is not afforded due process and a meaningful opportunity to participate. See J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060, 1062 (Fla.2000).

Here, if Claimant’s allegation is correct, she was not afforded proper notice of the motion for summary final order and a meaningful opportunity to respond to the motion. The JCC’s order is reversed and remanded with directions to consider Claimant’s motion to vacate on its merits.

REVERSED and REMANDED for proceedings consistent with this opinion.

WOLF, BENTON and BROWNING, JJ., concur.


text:
    Burt G. MASSEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-866.
    District Court of Appeal of Florida, Fifth District.
    May 19, 2009.
    Rehearing Denied June 29, 2009.
    Burt Massey, Lowell, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Taylor v. State, 969 So.2d 489, 491 (Fla. 5th DCA 2007) and Coughlin v. State, 932 So.2d 1224 (Fla. 2d DCA 2006).

LAWSON, EVANDER, JJ., and COBB, W., Senior Judge, concur.


author: TAYLOR, J.

text:
    Andrew ROLLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-728.
    District Court of Appeal of Florida, Fourth District.
    May 20, 2009.
    Rehearing Denied June 18, 2009.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant was convicted of first degree premeditated murder in the beating death of Jim Wellman. He contends that the trial court erred in denying his motion for judgment of acquittal because the evidence was insufficient to support premeditation. We disagree. Although the evidence showed that appellant may have initially acted in self-defense, the evidence also showed that appellant, along with his co-defendant, forcefully and repeatedly delivered blows to the victim’s head and face with a wooden table over a period of ninety minutes to two hours, while the victim was lying defenseless on the floor. The victim suffered skull fractures and extensive lacerations on his head and face. He was found dead in his bedroom with two pieces of cord tying his ankles together.

Viewing the facts in a light most favorable to the state supports finding premeditation and refutes appellant’s hypothesis of innocence that he was merely defending himself and had no preconceived plan to kill Wellman. See Miller v. State, 770 So.2d 1144, 1148-49 (Fla.2000) (holding that evidence was sufficient in first-degree murder trial to find premeditation based on the nature of the weapon used, repetition and force of blows that fractured victim’s skull, absence of provocation, and sufficiency of time for reflection as to the nature and probable result of his act).

Affirmed.

HAZOURI and MAY, JJ., concur.


author: PER CURIAM. WALLACE, J.,

text:
    Chad DURBROW, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-806.
    District Court of Appeal of Florida, Second District.
    May 22, 2009.
    Chad Durbrow, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Chad Durbrow appeals the portion of the postconviction court’s order that denied his claim of scoresheet error in his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). He also challenges the sentences imposed after the postconviction court granted his motion in part and resen-tenced him. We affirm the postconviction court’s order without discussion to the extent that it denied Mr. Durbrow’s claim of scoresheet error. But we agree that the postconviction court erred when a successor judge resentenced Mr. Durbrow without a showing that the substitution of judges was necessary or dictated by emergency. Accordingly, we reverse the new sentences imposed on Mr. Durbrow by the postconviction court and remand for resen-tencing.

I. THE RELEVANT PROCEDURAL HISTORY

In January 1999, Mr. Durbrow pleaded nolo contendere to two counts of lewd and lascivious act, section 800.04(2), Florida Statutes (1997), second-degree felonies; one count of procuring a person under sixteen for prostitution, section 796.03, Florida Statutes (1997), a second-degree felony; and one count of sexual battery by multiple perpetrators, sections 794.011(5) and 794.023, Florida Statutes (1997), a second-degree felony punishable as if it were a first-degree felony, in accordance with a plea agreement negotiated with the State. Under the agreement, Mr. Durbrow was to receive a sentence of eighteen years’ imprisonment. Mr. Durbrow’s sentencing scoresheet indicated a minimum sentence of 171 months’ imprisonment. The circuit court sentenced Mr. Durbrow to concurring [sic] sentences of [eighteen] years to the Florida State Prison with credit for time served on all four of the charged offenses without imposing a separate sentence for each offense. The judgments and sentence were affirmed on appeal. See Durbrow v. State, 748 So.2d 270 (Fla. 2d DCA 1999) (unpublished table decision).

In November 2007, Mr. Durbrow filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), claiming that his sentencing scoresheet contained an error and that the circuit court had erred by imposing a general sentence. On January 24, 2008, the postconviction court denied Mr. Durbrow’s claim of scoresheet error and granted relief to correct the general sentence. A successor judge resentenced Mr. Durbrow to concurrent sentences of eighteen years’ imprisonment on each count. The post-conviction court did not conduct a new sentencing hearing, and Mr. Durbrow was not present for resentencing. This appeal followed.

After filing his notice of appeal, Mr. Durbrow filed a motion to correct illegal sentence under rule 3.800(b)(2). In this motion, Mr. Durbrow argued that he had been improperly resentenced by a successor judge. In particular, Mr. Durbrow claimed that he was resentenced improperly because the record did not show that the substitution of judges was necessary or dictated by an emergency. We note that Mr. Durbrow did not claim in this motion that the term of any of his new sentences exceeded the statutory maximum. The postconviction court denied Mr. Durbrow’s rule 3.800(b)(2) motion.

II. DISCUSSION

On appeal, Mr. Durbrow argues that the postconviction court erred when a successor judge resentenced him without a showing of either necessity or an emergency situation requiring the substitution of judges. We agree. Florida Rule of Criminal Procedure 3.700(c)(1) provides:

In any case, other than a capital case, in which it is necessary that sentence be pronounced by a judge other than the judge who presided at trial or accepted the plea, the sentencing judge shall not pass sentence until the judge becomes acquainted with what transpired at the trial, or the facts, including any plea discussions, concerning the plea and the offense.

This court has held that rule 3.700(c)(1) makes it improper for a successor judge to sentence a defendant unless the record shows that the substitution of judges is necessary or dictated by an emergency. Baskin v. State, 898 So.2d 266, 267 (Fla. 2d DCA 2005). Here, the record does not indicate that the substitution of judges was necessary or dictated by an emergency. For this reason, Mr. Durbrow’s resentenc-ing by the successor judge was not proper under rule 3.700(c)(1). See Gay v. State, 898 So.2d 1203, 1204 (Fla. 2d DCA 2005); Baskin, 898 So.2d at 267; Clemons v. State, 816 So.2d 1180, 1182 (Fla. 2d DCA 2002).

Mr. Durbrow was not required to demonstrate harm or prejudice resulting from the fact that a successor judge performed the resentencing. “Where sentence is improperly imposed by a successor judge, the sentence will be reversed even without a specific showing of how the sentencing by the successor judge caused prejudice to the defendant. In effect, the improper sentencing by a successor judge is treated as prejudicial per se.” Baskin, 898 So.2d at 267 (citations omitted); see also Clemons, 816 So.2d at 1182. Because the record does not demonstrate that re-sentencing by the successor judge was necessary or dictated by an emergency, Mr. Durbrow is entitled to resentencing.

III. CONCLUSION

To summarize, we affirm the postconviction court’s denial of Mr. Durbrow’s rule 3.800(a) motion with respect to his claim of scoresheet error. However, we reverse Mr. Durbrow’s sentences and remand for Mr. Durbrow to be resentenced once again. We note that a defendant need not always be present at a resentencing hearing that is intended to correct a general sentence. See Brazley v. State, 871 So.2d 986, 987 (Fla. 3d DCA 2004); Awad v. State, 364 So.2d 516, 516 (Fla. 4th DCA 1978). Nevertheless, in light of the unusual circumstances arising in this case, we require that Mr. Durbrow shall be entitled to be present and represented by counsel at the resentencing hearing. Mr. Durbrow should be resentenced by the original sentencing judge unless the State can show that resentencing by a different judge is necessary or dictated by an emergency.

Affirmed in part, reversed in part, and remanded with instructions.

ALTENBERND and DAVIS, JJ„ Concur.

WALLACE, J., Concurs specially.

WALLACE, J.,

Concurring specially.

I concur fully in the court’s opinion. I write separately to note that the eighteen-year sentences that the postconviction court imposed on Mr. Durbrow for the two counts of lewd and lascivious act and one count of procuring a person under sixteen for prostitution exceeded the statutory maximum. These offenses were second-degree felonies punishable by no more than fifteen years’ imprisonment. See §§ 775.082(3)(c), 796.03, 800.04(2), Fla. Stat. (1997). However, Mr. Durbrow did not raise this issue in his 3.800(b)(2) motion. On remand, the postconviction court and counsel should take note of the maximum sentences permitted under the pertinent statutes before proceeding with the resentencing of Mr. Durbrow.

      . Because we reverse Mr. Durbrow’s sentences and remand for a new resentencing hearing at which Mr. Durbrow shall be entitled to be present and represented by counsel, we do not address his other arguments about the manner in which the postconviction court conducted the resentencing.


text:
    J.D.D., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5100.
    District Court of Appeal of Florida, First District.
    May 22, 2009.
    Nancy A. Daniels, Public Defender, Joel Arnold, Assistant Public Defender, for Appellant.
    Bill McCollum, Attorney General, Jennifer J. Moore, Assistant Attorney General, for Appellee.
   PER CURIAM.

Appellant, a minor, pled guilty to two counts of lewd and lascivious molestation and one count of lewd and lascivious exhibition. The circuit court entered a Disposition Order sentencing him to probation and releasing him into his mother’s custody pending placement with a more adequate caregiver. Eventually, the court placed Appellant with a caregiver, where he continued serving his probation. Soon thereafter, the court determined the caregiver was unable to satisfactorily supervise Appellant. The court entered a Modified Disposition Order adjudicating Appellant delinquent, revoking his probation and re-sentencing him to commitment in a high risk residential program to be followed by a term of post-commitment probation. The court did not conduct a violation of probation hearing prior to issuing the Modified Disposition Order.

Generally, a trial court has authority to modify or rescind the terms or conditions of probation it imposes. See § 948.03(2), Fla. Stat. (2007); see also State v. Springer, 965 So.2d 270 (Fla. 5th DCA 2007). However, the constitutional guarantees of due process and protection from double jeopardy prohibit a trial court from revoking or enhancing probation without first determining the probationee violated probation. See § 948.06, Fla. Stat. (2007); see also Burkhart v. State, 974 So .2d 1203 (Fla. 1st DCA 2008). Absent proof of a violation, a trial court cannot alter an order of probation by revoking or enhancing the terms thereof. See Clark v. State, 579 So.2d 109, 110-11 (Fla.1991); see also Burkhart, 974 So.2d at 1204-05.

Here, the circuit court committed fundamental error by revoking Appellant’s probation and resentencing him without determining he violated the terms of his probation. We therefore reverse the court’s final order and remand for further proceedings consistent with this opinion.

Additionally, the Modified Disposition Order incorrectly states Appellant was convicted of three counts of lewd or lascivious molestation. Appellant was actually convicted of two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition. We remand with directions that the circuit court’s final order reflect that Appellant pled guilty to two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition.

REVERSED and REMANDED.

HAWKES, C.J., VAN NORTWICK, and BROWNING, JJ„ concur.


text:
    Jimmie L. NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-160.
    District Court of Appeal of Florida, Fifth District.
    May 26, 2009.
    Jimmie Lee Nelson, Lake Butler, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Elliott v. State, 9 So.3d 660 (Fla. 5th DCA 2009).

SAWAYA and MONACO, JJ., and COBB, W., Senior Judge, concur.