author: GERBER, J.

text:
    Theodore Stanley SIUDA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2562.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals from a restitution order arising from his sentences for burglary of a dwelling, grand theft, and false verification of ownership to a pawn broker following his guilty plea and agreement to pay restitution. The defendant argues that the circuit court erred in ordering restitution for four categories of items stolen from the victim: (1) a silver dollar collection; (2) a large coin bank’s contents; (3) four gold chains; and (4) coin collection books and their contents. As in the circuit court, the defendant argues that the state did not present competent, substantial evidence of the items’ value.

We agree with the defendant’s argument. As to the value of the silver dollars, the victim testified: “There were thirty silver dollars.... [T]hey were worth about a hundred twenty dollars. I can’t give you an exact [amount] because we had been collecting them for about thirty years.” (emphasis added). As to the contents of the large coin bank, the victim testified that the coin bank “was full”; she “couldn’t get any more coins in it”; and it contained “about six hundred dollars.” (emphasis added). As to the four gold chains, the victim testified that two chains were fourteen karat gold and two chains were eighteen karat gold; they had lengths of “thirteen, twenty, twenty-four, and thirty”; and she would have to “guesstimate” their worth as “about sixty-five hundred dollars.” (emphasis added). As to the coin collection books and their contents, the victim testified that there were “probably four” books; each book was “about three-quarters full” of quarters; and the value “was probably a hundred dollars.” (emphasis added).

“A victim is generally qualified to testify as to the value of his or her property.” Gonzalez v. State, 40 So.3d 86, 88 (Fla. 4th DCA 2010). Here, however, as the victim’s emphasized words show, her mere opinion testimony regarding the items’ value was speculative. Such speculative opinion testimony does not constitute competent, substantial evidence to support a restitution order as to those items. See Hunter v. State, 48 So.3d 174, 175 (Fla. 4th DCA 2010) (“Restitution must be proved by substantial, competent evidence and this evidence must be greater than mere speculation.”) (citation omitted); Gonzalez, 40 So.3d at 89 (“[A] victim’s mere opinion testimony on the value of stolen property is insufficient. A victim must have a sufficient predicate upon which to base his or her opinion on the value of items stolen.”) (internal citations omitted); Bennett v. State, 944 So.2d 524, 526 (Fla. 4th DCA 2006) (“Guesstimates and speculative testimony are inappropriate evidence on which to base an award of restitution.”); Miller v. State, 833 So.2d 318, 319 (Fla. 2d DCA 2003) (state failed to establish the amount of the victim’s coin collection based on the victim’s son’s “speculative opinion testimony” that “[t]he collection had never been appraised or insured, and ... [although he knew what denominations of coins made up the collection, he was unaware of the amounts of each particular coin and whether the bags contained similar amounts”).

Based on the foregoing, we reverse the restitution order to the extent it includes amounts for the items discussed above, and remand for a new evidentiary hearing on those items. See, e.g., Bennett, 944 So.2d at 526 (“We reverse the award of restitution and remand to the trial court with instructions to conduct an evidentiary hearing to determine the appropriate amount of restitution.”). We note that the defendant does not contest the restitution order to the extent it includes amounts for the victim’s gold coins and twenty rolls of quarters, which totaled $300.

As for the defendant’s argument that the circuit court fundamentally erred by conducting a restitution hearing in his absence based on his counsel’s waiver of his presence, we affirm as to that argument. See Schotsch v. State, 670 So.2d 127, 128 (Fla. 4th DCA 1996) (‘Without an objection to defendant’s absence having been raised at the restitution hearing, and in light of defendant’s plea agreement and defense counsel’s affirmative waiver, defendant did not properly preserve the issue. Due process is not implicated ... where there has been an agreement by defendant to pay restitution, notice and an opportunity to be heard, and an affirmative waiver.”) (internal citations omitted).

Affirmed in part, reversed in part, and remanded.

MAY, C.J., and TAYLOR, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Derrick SHARPE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1140.
    District Court of Appeal of Florida, First District.
    May 28, 2013.
    Derrick Sharpe, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Simmons v. State, 104 So.3d 1185 (Fla. 1st DCA 2012).

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


text:
    John Richard CLAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0892.
    District Court of Appeal of Florida, First District.
    May 28, 2013.

      John Richard Clayton, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Simmons v. State, 104 So.3d 1185 (Fla. 1st DCA 2012).

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


text:
    Jaqueal Edward HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5418.
    District Court of Appeal of Florida, Second District.
    May 29, 2013.
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to Jaqueal Harris’s right, if any, to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850. See Harris v. State, 100 So.3d 1213 (Fla. 2d DCA 2012).

NORTHCUTT, KHOUZAM, and CRENSHAW, JJ., Concur.


text:
    ROCKET GROUP, LLC, Petitioner, v. Ariel JATIB, Respondent.
    No. 4D13-134.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.

      Peter J. Sosin of Sosin & Hsu, P.L. Boca Raton, for petitioner.
    Jeremy Friedman of Dows Law Group, P.A., Coconut Grove, for respondent.
   PER CURIAM.

Rocket Group, LLC (Defendant), the defendant in business litigation pending in the circuit court, seeks certiorari review of a nonfinal order granting the plaintiffs motion to compel better responses to a first request for production, which provided that “[n]o documents shall be required to be filed under seal.” We grant the petition.

Ariel Jatib (Plaintiff) sued Defendant, the company he and another individual founded, after the two had disputes which allegedly led to a deadlock in management. His amended complaint asserted counts for (1) breach of the company’s operating agreement and (2) dissolution of the company based on deadlock.

Plaintiff requested the production of numerous documents, including the company’s corporate income tax returns, financial statements, and internal documents concerning corporate governance. With respect to each request, Defendant responded that confidential business information was being sought, and objected to producing any of the requested documents until the court entered a mutually acceptable confidentiality order. It was willing to produce all the documents requested, conditioned upon such protections.

Plaintiff moved to compel better responses, representing that he had agreed to sign a stipulation of confidentiality allowing him to use the documents only for purposes of this litigation; however, Defendant would not agree and insisted on a court order.

At the hearing on Plaintiff’s motion, Plaintiff agreed that it had requested confidential documents. However, the parties disagreed on the necessity of filing documents with the court under seal. The trial court referenced the burdensomeness of the applicable rule and ruled that it would not allow the filing of anything under seal. Plaintiff took the position that the trial court could satisfy Defendant’s confidentiality interest if the trial court merely ordered that the information used for trial not be disseminated to third parties (other than experts and individuals in the case). Defendant countered by explaining that if a confidential document were attached to a court filing, such as a pleading, it would be available to the public, thereby necessitating a confidentiality order providing for filing documents under seal. Nevertheless, the court made it clear it was “not sealing anything.”

The trial court granted Plaintiffs motion in a written order, providing as follows:

The Defendant shall produce responsive documents within 20 days of this order. No documents shall be disclosed to anyone other than counsel, parties, witnesses, and experts and may be used for trial. No documents shall be required to be filed under seal.

(Emphasis added). This order is the subject of the instant petition.

We agree with Defendant that compelling the production of documents that the parties agreed were confidential, without including a provision to protect them from exposure in the public record, merits cer-tiorari relief. See Columbia, Hosp. (Palm Beaches) Ltd. P’ship v. Hasson, 33 So.3d 148, 151 (Fla. 4th DCA 2010) (granting in part petition challenging order requiring non-party hospital to produce confidential information, to the extent trial court did not take protective measures; discovery should have been stayed until parties had opportunity to negotiate confidentiality agreement); Laser Spine Inst., LLC v. Makanast, 69 So.3d 1045, 1046 (Fla. 2d DCA 2011) (granting certiorari relief in part; while trial court’s determination that trade secret documents had to be disclosed was proper, it should have stayed production until parties had opportunity to negotiate protective order or confidentiality agreement); Fla. R. Civ. P. 1.280(c)(7) (allowing courts to protect a party from whom discovery is sought by ordering “that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way”).

Ordinarily, it is not necessary to file with the court that which a party obtains in response to a request for production. Fla. R. Civ. P. 1.350(d); Fla. R. Civ. P. 1.280(g). However, because the claims in this case involve the defendant company’s ownership, internal corporate governance, and value, Defendant maintains that its confidential documents will be key items of evidence and will be incorporated into court filings. By precluding the parties from filing documents under seal, the trial court’s order threatens Defendant’s interest in the confidentiality of its documents.

Except as provided in Florida Rule of Judicial Administration 2.420, concerning “Public Access to Judicial Branch Records,” “[t]he public shall have access to all records of the judicial branch of government.” Fla. R. Jud. Admin. 2.420(a). “Confidential” information, which is exempt from public access, includes “information that is confidential ... under a court order entered pursuant to this rule.” Fla. R. Jud. Admin. 2.420(b)(4). Subdivision (c) of the rule lists records that are required to be kept confidential. Confidential business documents are not specifically included, but any court record may be determined to be confidential if doing so is necessary to “avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed[,]” Fla. R. Jud. Admin. 2.420(c)(9)(A)(vi), or to “comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law[J” Fla. R. Jud. Admin. 2.420(c)(9)(A)(vii).

A person filing confidential information with the court may file with it a “Notice of Confidential Information within Court Filing,” or another party or affected nonparty may file such a notice when the confidential information fits within the limited parameters described in subdivision (d)(1)(B) of the rule, Fla. R. Jud. Admin. 2.420(d)(2), which are not relevant here. Otherwise, a “Motion to Determine Confidentiality of Court Records” may be filed. Fla. R. Jud. Admin. 2.420(d)(3). The procedmre for determining such confidentiality is described in subdivision 2.420(e).

That subdivision requires a hearing, unless all parties agree; however, even if the parties agree, the court may still hold a hearing at its discretion. Fla. R. Jud. Admin. 2.420(e)(2). Even if all parties were to agree to the sealing of documents, the trial court still must make the determination; because of the presumption of openness in court proceedings, denial of access “ ‘may not be based solely upon the wishes of the parties to the litigation.’” BDO Seidman, LLP v. Banco Espirito Santo Intern., Ltd., — So.3d -, 34 Fla. L. Weekly D739, 2009 WL 928484, *1 & *2 n. * (Fla. 3d DCA Apr.8, 2009) (quoting Friend v. Friend, 866 So.2d 116, 117 (Fla. 3d DCA 2004)); Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113, 118-19 (Fla.1988). And even if a court allows confidential documents to be filed under seal, such an order merely establishes a way to file them pending the trial court’s determination that they are entitled to be exempt from public disclosure. See Carter v. Conde Nast Publ’ns, 983 So.2d 23, 26-27 (Fla. 5th DCA 2008).

We hold the trial court departed from the essential requirements of law in compelling Defendant to produce all the requested documents without first entering a confidentiality order that would provide a means for the parties to handle those confidential documents that they may attach to court filings, and in declining to allow any such documents to be filed under seal, pending the prompt filing of a rule 2.420 motion to determine the confidentiality of records.

We therefore grant the petition for writ of certiorari, and quash the trial court’s order.

MAY, C.J., GROSS and STEVENSON, JJ., concur.


author: TAYLOR, J.

text:
    CITIBANK (SOUTH DAKOTA), N.A., Appellant, v. Leo W. DESMOND, Appellee.
    No. 4D12-1745.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.
    Joey E. Schlosberg and Kenneth M. Curtin of Adams and Reese LLP, St. Pe-tersburg, for appellant.
    Douglas F. Eaton of Eaton & Wolk, PL, Miami, for appellee.
   TAYLOR, J.

The case below began as a credit card debt collection action filed by Citibank (South Dakota), N.A., against Leo Desmond. Desmond filed a counterclaim alleging that Citibank violated the Florida Security in Communications Act, Chapter 934, Florida Statutes, by electronically recording conversations with its customers. Citibank moved to compel arbitration pursuant to the credit card agreement, which contained an arbitration clause with a class-action waiver. Relying upon our decision in McKenzie v. Betts, 55 So.3d 615 (Fla. 4th DCA 2011), the trial court denied the motion after determining that the class-action waiver violated Florida public policy. Subsequently, the Florida Supreme Court quashed our decision based on the United States Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion, - U.S. -, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). See McKenzie v. Betts, 112 So.3d 1176, 2013 WL 1457843 (Fla. April 11, 2013). Accordingly, we reverse the trial court’s order denying Citibank’s motion to compel arbitration.

At the hearing on Citibank’s motion to compel arbitration, Desmond contended that the arbitration agreements should be invalidated as against public policy because the class action prohibition prevented him and others from vindicating their statutory rights under Chapter 934, Florida Statutes. To support his claim, Desmond, a licensed lawyer, submitted his own affidavit averring that he cannot afford to hire counsel and experts to prove his claim because their costs would exceed his potential recovery of $1000. He also submitted the affidavits of several attorneys who attested that Desmond would not be able to obtain effective representation if he could not proceed as part of a class. The trial court found the affidavits persuasive and determined that Desmond had provided competent, substantial evidence that his statutory rights would not be vindicated through individual arbitration. Citing our reasoning in McKenzie regarding the preeminence of Florida public policy over the general policy favoring arbitration, the trial court agreed with Desmond that the inability to bring a class action against Citibank would frustrate the Florida public policy that prompted the Legislature to enact the Florida Security in Communications Act.

In McKenzie, we affirmed a trial court’s denial of a motion to compel arbitration in a case wherein a borrower brought a putative class action against a payday lender under the state usury and interest statutes and various other consumer protection laws. 55 So.3d at 617. We concluded that “[b]ecause payday loan cases are complex, time-consuming, involve small amounts, and do not guarantee adequate awards of attorney’s fees, individual plaintiffs cannot obtain competent counsel without the procedural vehicle of a class action. The class action waiver prevents consumers from vindicating their statutory rights, and thus violates public policy.” Id. at 629. Due to the increasing use of such class-action waivers in consumer contracts, we certified to the Florida Supreme Court the issue of whether an arbitration agreement’s class-action waiver violates public policy when a claim is asserted under a remedial statute and the trial court is persuaded by evidence that such waiver prevents consumers from obtaining competent counsel. Id.

In denying Citibank’s arbitration motion, the trial court relied on McKenzie and attempted to distinguish the United States Supreme Court’s recent decision in Concepcion. In Concepcion, the Court held that the Federal Arbitration Act (“FAA”) preempted state public policy concerns that invalidated class-action waivers in arbitration agreements. 131 S.Ct. at 1747-49. The trial court found, however, that Concepcion did not extend the preemptive effect of the FAA to “the generally applicable contract defenses” and that Concepcion did not expressly overrule precedent with respect to invalidating an arbitration agreement on public policy grounds where the arbitration agreement prevents a claimant from vindicating his statutory cause of action. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).

On appeal, Desmond urges us to affirm the trial court’s denial of Citibank’s motion to arbitrate, arguing that Concepcion does not apply where an arbitration agreement containing a class action prohibition violates public policy by preventing a claimant from vindicating his or her statutory rights. In quashing our McKenzie decision, however, the Florida Supreme Court rejected this very argument. The court stated:

Kelly’s primary argument for why Concepcion does not apply in this case is based on her assertion that Concepcion does not disturb long-standing Supreme Court precedent dating back to Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), that statutory claims are arbitrable only if the prospective litigant effectively may vindicate his or her statutory cause of action in the arbitral forum. See Mitsubishi Motors, 473 U.S. at 637, 105 S.Ct. 3346 (stating that “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function”); Green Tree Fin. Corp.-Ala v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (stating that “even claims arising under a statute designed to further important social policies may be arbitrated because ‘so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum,’ the statute serves its functions” (quoting Mitsubishi Motors, 473 U.S. at 637, 105 S.Ct. 3346)); see also Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995); EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). Kelly asserts that because Concepcion did not overrule this line of precedent, the only way to harmonize Concepcion with these cases is to hold that a' class action waiver cannot be enforced if it would prevent parties from vindicating statutory rights.
The case law, however, does not support Kelly’s argument. The Supreme Court cases cited by Kelly involved the FAA and claims brought under federal statutes, whereas Concepcion involved the issue of whether state law was preempted by the FAA. Compare Mitsubishi Motors, 473 U.S. at 627-28, 105 S.Ct. 3346 (“Just as it is the congressional policy manifested in the Federal Arbitration Act that requires courts liberally to construe the scope of arbitration agreements covered by that Act, it is the congressional intention expressed in some other statute on which the courts must rely to identify any category of claims as to which agreements to arbitrate will be held unenforceable .... We must assume that if Congress intended the substantive protection afforded by a given statute to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history. Having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” (citation omitted)): Green Tree Fin. Corp.-Ala., 531 U.S. at 90, 121 S.Ct. 513 (“[W]e first ask whether the parties agreed to submit their claims to arbitration, and then ask whether Congress has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.”); with Concepcion, 131 S.Ct. at 1744 (“We conclude whether the FAA prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of class-wide arbitration procedures.”); id. at 1753 (“States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”).
Because Mitsubishi Motors and its progeny addressed federal statutory claims and the effectuation of Congress’s intent in those federal statutes, there was no need for the Supreme Court in Concepcion to overrule the Mitsubishi Motors line of cases. We reject the suggestion that the fact that the Supreme Court did not recede from those cases in Concepcion is indicative of an unstated intent to create an exception to Concepcion when the parties are unable to vindicate rights under a state statute.

McKenzie, 112 So.3d 1176, 2013 WL 1457843 at *7-*8 (alterations in original) (bold emphasis added).

Accordingly, we reverse the trial court’s denial of Citibank’s motion to compel arbitration. We conclude that the other grounds raised by Desmond for opposing arbitration lack merit and remand with instructions to grant the motion and stay the matter pending arbitration pursuant to the parties’ arbitration agreement.

Reversed and Remanded.

MAY, C.J., and GERBER, J., concur.

      . The United States Supreme Court issued its decision in Concepcion after our court decided McKenzie.


author: WARNER, J.

text:
    Scotty GOLDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4062.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

During appellant’s trial for driving with a revoked license and resisting a police officer without violence, the state elicited testimony from the arresting officer that, at the arrest scene, appellant’s children identified appellant as their father, which went to prove the identity of the driver of the vehicle that the officer had stopped. Because the children did not testify at trial, this statement constituted inadmissible hearsay. We reverse, as we cannot conclude that the admission of the evidence was harmless beyond a reasonable doubt.

An officer of the Fort Lauderdale Police Department testified that he saw a vehicle being driven by a driver who was not wearing a seatbelt. The officer made a U-turn so that he could make a traffic stop. He turned on his lights and siren. By the time he caught up to the vehicle, it was stopped and the driver had stepped out and was walking towards the back of the vehicle. The officer asked the driver to get back in the vehicle, but he did not comply. The officer asked for his license, registration and insurance. The driver said that he didn’t have his license with him but that it was in the house where he had stopped. The officer then asked for the driver’s name. The driver gave his first name, “Scotty,” but hesitated to give his last name. The officer then changed the question and asked for his social security number. The driver gave a social security number which the officer wrote down. The officer wanted to verify the driver’s identity, but the driver started walking away. The officer asked him to stop, but the driver didn’t comply and instead ran into the house and locked the door. The officer pursued and tried to open the door of the house but couldn’t. A resident of the house came out when he knocked and gave him permission to check the home. He did not find the driver inside the house.

There were children in the vehicle with the driver. Although the appellant filed a motion in limine and objected at trial to any testimony from the officer as to what the children said, the court allowed the officer to tell the jury that the children in the vehicle were appellant’s children. The officer did not have personal knowledge of their parentage but learned it from what the children told him at the scene.

The officer also used the DAVID (Driver and Vehicle Information Database) to identify appellant. He put in the social security number given to him by the driver, and appellant’s driver’s license picture appeared. The officer was able to identify appellant in court. Nevertheless, the defense challenged the officer’s identification by noting that the officer had noted on his police report that appellant did not have gold teeth, when in fact he did.

In closing argument, the prosecutor referred at least three times to the children’s identification of the appellant as their father and driver of the car to refute the appellant’s theory that the officer’s identification was faulty. The prosecutor stated:

[The Officer] told you that it was determined that the three children who were inside of that vehicle were the children of this defendant....
Does [the officer] coming in here and saying this is the man that I saw on April 10th of 2010, does that agree with Mr. Golden’s children saying that that was their father? I submit to you, yes....
Defense counsel talked about corroborating evidence, things to corroborate what [the officer] testified to. So, let’s talk about the evidence that we have that corroborates his testimony, specifically the fact that Mr. Golden was the man on the scene-There was testimony that the three passengers in the vehicle identified themselves as the children of Mr. Scotty Golden.

The jury found the appellant guilty, and the court convicted and sentenced him, prompting this appeal.

Appellant argues that the court allowed the officer to testify to inadmissible hearsay when he testified that the children had identified appellant as their father. We review a ruling on the admissibility of evidence for abuse of discretion as limited by the rules of evidence. Bryant v. State, 17 So.3d 713, 715 (Fla. 4th DCA 2009) (citing Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001)).

Section 90.801(2)(c) deals with identification testimony. It provides: “[a] statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [o]ne of identification of a person made after perceiving the person.” (Emphasis added). Appellant contends that in order for a statement to be non-hearsay the declarant must testify at trial.

In Hayes v. State, 581 So.2d 121, 124 (Fla.1991), our supreme court determined that section 90.801(2)(c) requires the de-clarant to testify at trial. There, Hayes plotted with two others to rob a taxi driver and kill him. Hayes succeeded in robbing, shooting, and killing the driver, causing the taxi to crash in the process. When the taxi crashed, a thirteen-year-old boy recognized one of the codefendants as he was fleeing the scene and told his father who it was. At trial the father was allowed to testify as to what his son had told him— that he had recognized one of the other codefendants who was with Hayes at the crime scene. The defense objected that the evidence was inadmissible under section 90.801(2)(c), because the declarant (the son) did not testify at trial. The state argued that the statement was admissible because it was one of identification made after perceiving the defendant. The court overruled the objection and admitted the father’s statement of what the thirteen-year-old son had said. The Florida Supreme Court ruled that section 90.801(2)(c) allowed admission of statements of identification, and thus excluded them from the definition of hearsay, only if the declarant also testified at trial. Id. See also Valley v. State, 860 So.2d 464, 467 (Fla. 4th DCA 2003) (detective’s testimony that co-worker had identified man in surveillance tape as defendant was hearsay when co-worker did not testify at trial).

This case is similar to Hayes. The officer’s testimony of what the children said (identifying appellant as their father and the driver of the vehicle) was inadmissible hearsay, because the children did not testify. Contrary to the state’s contention that the officer had other knowledge that the children were those of the appellant, it is clear that the officer was testifying based only on what the children told him. The officer was asked, “How do you know they were [appellant’s] children?” To this he responded, “They told me that was [their] dad.” Thus, the court erred in permitting the officer to testify to the identification of appellant made by the children.

The state has not proved the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (error is harmless if the state proves beyond a reasonable doubt that the error did not contribute to the verdict, or alternatively stated, that there is no reasonable possibility that the error contributed to conviction). Although the officer said that he used the social security number to pull up the defendant’s picture, in his report he noted that the defendant did not have gold teeth when it was apparent that he did. Therefore, there was some evidence which would suggest misidentifi-eation. The prosecutor used the children’s identification for corroboration. Admission of that testimony was not harmless error.

Reversed and remanded for a new trial.

GROSS and CIKLIN, JJ., concur.

      . At trial prior to the officer testifying, the court again told the defense: “We already went over this. Identification is an exception to the hearsay rule, is it not? I've already ruled[.]” Section 90.104(1), Florida Statutes, provides, "If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”


text:
    Victor M. HERNANDEZ, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D12-1322.
    District Court of Appeal of Florida, Third District.
    May 29, 2013.

      Victor M. Hernandez, in proper person.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for appellee Reemployment Assistance Appeals Commission.
    Before LAGOA, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Appellant, Victor Hernandez (“Hernandez”), appeals a decision from the Reemployment Assistance Appeals Commission (the “Commission”) affirming the findings of the appeals referee (“referee”), which denied unemployment benefits to Hernandez. Because we find that Hernandez’s conduct did not meet the statutory definition of misconduct under section 443.036(30), Florida Statutes (2011), we reverse.

I. STANDARD OF REVIEW

This Court must accept a referee’s findings of fact if supported by competent, substantial evidence in the record. Hialeah Hous. Auth. v. Fla. Unemployment Appeals Comm’n, 16 So.3d 216, 217 (Fla. 3d DCA 2009). The determination of whether the employee committed misconduct connected with work under section 443.036(30), is a question of law reviewed de novo. Id. at 217; Saunders v. Unemployment Appeals Comm’n, 888 So.2d 69, 71-72 (Fla. 4th DCA 2004).

II. ANALYSIS

The Commission contends that Hernandez’s employment discharge was for misconduct connected with work as defined in the unemployment compensation law, which disqualifies an individual from receiving unemployment benefits if he or she has been discharged for misconduct.

The relevant portions of section 443.036(30) state as follows:

(a) Conduct demonstrating conscious disregard of an employer’s interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee.
(b) Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.
(e) A violation of an employer’s rule, unless the claimant can demonstrate that:
1. He or she did not know, and could not reasonably know, of the rule’s requirements;
2. The rule is not lawful or not reasonably related to the job environment and performance; or
3. The rule is not fairly or consistently enforced.

§ 443.036(30), Fla. Stat. The employer has the burden of showing misconduct by a preponderance of the evidence and must show that the discharged employee’s conduct was more than “inefficiency, unsatisfactory conduct, or failure to perform in the work-place.” Doyle v. Unemployment Appeals Comm’n, 635 So.2d 1028, 1031 (Fla. 2d DCA 1994).

In the instant case, Hernandez’s written warnings were for: failure to properly double check drain plug causing customer to need new car engine, damage to shock on customer handicap-equipped vehicle, broken wheel center, and non-completion of a tire repair.

Generally, inadvertencies or isolated instances of ordinary negligence are not misconduct under the statute. See Miller v. Barnett Bank of Broward Cnty., 650 So.2d 1089 (Fla. 3d DCA 1995); Spaulding v. Fla. Indus. Comm’n, 154 So.2d 334 (Fla. 3d DCA 1963). Furthermore, misbehavior serious enough to warrant the termination of an employee is not necessarily serious enough to preclude unemployment compensation. See Barnes v. Unemployment Appeals Comm’n, 717 So.2d 120, 122 (Fla. 4th DCA 1998).

We conclude that the cited incidents concerning Hernandez are isolated incidents involving poor judgment, inattention, or failure to perform in the workplace. The record fails to reveal that Hernandez acted in “deliberate violation or disregard” of his employer’s reasonable standard of behavior or with a carelessness manifesting “culpability or wrongful intent.” § 443.036(30)(a)-(b); see Morales v. Fla. Reemployment Assistance Appeals Comm’n, 106 So.3d 81 (Fla. 3d DCA 2013).

III. CONCLUSION

Because the employer did not show that Hernandez’s conduct met the statutory definition of misconduct under section 443.036(30), the order denying Hernandez unemployment benefits is reversed.

Reversed and remanded.


text:
    Desmon HALLMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2538.
    District Court of Appeal of Florida, Third District.
    May 29, 2013.
    Desmon Hallman, in proper person.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before FERNANDEZ and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Desmon Hallman appeals the trial court’s summary denial of his motion for post-conviction relief filed pursuant to rule 3.850(a), Florida Rules of Criminal Procedure. Because the trial court summarily denied the motion without attaching the portions of the record that refute Hall-man’s claims raised in his motion, we reverse and remand for an evidentiary hearing or other appropriate relief. See Fla. RApp. P. 9.141(b)(2)(A),(D).

Reversed and remanded.


text:
    JA & M DEVELOPING CORPORATION, Petitioner, v. Luis Orlando PEREZ, Respondent.
    No. 3D13-552.
    District Court of Appeal of Florida, Third District.
    May 29, 2013.
    Quintamos, Prieto, Wood & Boyer, P.A., and Franklin G. Cosmen, Jr. and Lars 0. Bodnieks, Miami, for petitioner.
    Billbrough & Marks, P.A., and Geoffrey B. Marks, Coral Gables, for respondent.
    Before, WELLS, C.J., LOGUE, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Petitioner, JA & M Developing Corporation, files a petition for writ of certiorari which seeks to quash two trial court orders: (1) a January 29, 2013 order, which denied JA & M’s motion to compel a neurological independent medical examination (“IME”); and (2) a February 22, 2013 order, which denied JA & M’s motion in limine with respect to opinions on neurological issues to be offered by an expert hired by respondent, Luis Orlando Perez. Because, as respondent concedes, our recent opinion in Gomez v. Rendon, — So.3d - (Fla. 3d DCA 2013), requires an IME under the circumstances presented, we grant the petition with respect to the January 29, 2013 order, quash the order, and remand for further proceedings consistent with this opinion. With respect to the February 22, 2013 order, however, we deny the petition, finding that the stringent standard for certiorari review has not been satisfied with respect to this order. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995).


text:
    Douglas Marshall JACKSON, etc., et al., Appellants, v. The STATE of Florida, Appellee.
    No. 3D12-2778.
    District Court of Appeal of Florida, Third District.
    May 29, 2013.
    Douglas Marshall Jackson and Cedric-Arnez McGee, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before EMAS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Fla. RApp. P. 9.315(a).


text:
    K.Q., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D13-587.
    District Court of Appeal of Florida, Third District.
    May 29, 2013.
    Thomas J. Butler, Miami Beach, for appellant.
    Karla Perkins, for appellee, Department of Children and Families; Hillary S. Kambour, Miami, for appellee, Guardian Ad Litem Program.
    Before SUAREZ and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See S.A. v. Dep’t of Children & Family Servs., 961 So.2d 1066 (Fla. 3d DCA 2007); N.S. v. Dep’t of Children and Families, 36 So.3d 776 (Fla. 3d DCA 2010).


text:
    Pedro Infante RUIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1018.
    District Court of Appeal of Florida, Third District.
    May 29, 2013.

      Pedro Infante Ruiz, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before C0RTIÑAS, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Napolitano v. State, 875 So.2d 1290 (Fla. 3d DCA 2004).


author: SUAREZ, J.

text:
    SOUTHERN OAK INSURANCE COMPANY, Appellant, v. Armando and Elizabeth RODRIGUEZ, Appellees.
    No. 3D12-875.
    District Court of Appeal of Florida, Third District.
    May 29, 2013.
    Diaz Briscoe Medina and Maria Medina; Elizabeth K. Russo and Susan S. Lerner, Miami, for appellant.
    Kenneth R. Duboff, North Miami, for appellees.
    Before SUAREZ, FERNANDEZ and LOGUE, JJ.
   SUAREZ, J.

Affirmed. Cheetham v. Southern Oak Ins. Co., 114 So.3d 257 (Fla. 3d DCA 2013); Old Dominion Ins. Co. v. Elysee, Inc., 601 So.2d 1243 (Fla. 1st DCA 1992).


text:
    J.J., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2111.
    District Court of Appeal of Florida, Third District.
    May 29, 2013.
    Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellee.
    Before SHEPHERD, LAGOA and EMAS, JJ.
   PER CURIAM.

Affirmed. See G.W. v. State, 106 So.3d 83 (Fla. 3d DCA 2013); C.J. v. State, 106 So.3d 1010 (Fla. 3d DCA 2013).


text:
    Bruno ANDRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-563.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.
    Bruno Andre, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant was charged with multiple offenses, including luring or enticing a child under the age of twelve (count 1) and lewd or lascivious molestation on a victim under 12 (count 5). A jury found defendant guilty as charged on all offenses and the court convicted and sentenced him. Defendant filed a rule 3.850 motion raising eight claims, all of which were summarily denied. Except as to claim 7, we affirm the denial of defendant’s claims upon the finding that Defendant did not satisfy his burden under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to claim 7, however, we find that defendant was entitled to an evi-dentiary hearing, as the record did not refute the prejudice prong under Strickland.

In claim 7, defendant argued that counsel was ineffective for failing to file a motion to sever the charges for lewd and lascivious molestation (count 5) and luring or enticing a child (count 1). He claimed that by consolidating the charges, the jury was confronted with his criminal history and prior conviction for a sexual offense, which were admitted to prove count 1.

We reverse on this issue and remand for an evidentiary hearing, as the state’s arguments do not conclusively demonstrate that defendant was not prejudiced by counsel’s failure to move to sever counts 1 and 5.

Affirmed in part, reversed in part, and remanded for an evidentiary hearing consistent with this opinion.

WARNER, TAYLOR and GERBER, JJ., concur.

      . The judgment and sentence on one count were reversed on appeal. See Andre v. State, 13 So.3d 103 (Fla. 4th DCA 2009).


author: STEVENSON, J.

text:
    Jesse THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-132.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

The defendant, Jesse Thompson, was serving a concurrent one-year probationary sentence on each of three first degree misdemeanor charges. Approximately eight months into his sentence, the defendant pled guilty to violating probation and the trial court sentenced him to a year of probation, with the special condition of nine months in county jail. No credit was given the defendant for the time he had already served on probation. The defendant argues that the sentence imposed following his violation of probation is illegal as the combination of the probation he had already served and the newly-imposed probationary sentence exceeds the statutory maximum penalty for the underlying offenses. We find merit in the defendant’s argument and reverse.

Each of the defendant’s underlying crimes is a first degree misdemeanor and thus carries a statutory maximum penalty of a term of imprisonment not exceeding one year. See §§ 316.193(2)(b)2. (DUI impairment with priors), 316.1939(1) (refusal to submit to breathalyzer), 322.34(2)(b) (driving with suspended license, with prior conviction), 775.082(4)(a) (first degree misdemeanor punishable by term of imprisonment not exceeding one year), Fla. Stat. (2010). The combination of the more than eight months the defendant had already served on probation and the new one-year probationary term exceeds the statutory maximum for his offenses, which were ordered to run concurrently both at the original sentencing and at the hearing on the violation of probation. See State v. Summers, 642 So.2d 742, 744 (Fla.1994) (“[Ujpon revocation of probation credit must be given for time previously served on probation toward any newly-imposed probationary term for the same offense, when necessary to ensure that the total term of probation does not exceed the statutory maximum for that offense.”). We thus reverse the sentence imposed and remand for resentencing.

Reversed and Remanded.

DAMOORGIAN and CONNER, JJ„ concur.


text:
    Thomas MEEKINS, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
    No. 1D13-1834.
    District Court of Appeal of Florida, First District.
    May 29, 2013.
    Thomas Meekins, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DISMISSED. See Crumby v. State, 41 So.3d 1092 (Fla. 1st DCA 2010).

WOLF, PADOVANO, and LEWIS, JJ., concur.


text:
    Patrick L. BURWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1249.
    District Court of Appeal of Florida, First District.
    May 29, 2013.
    Patrick L. Burwell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

WOLF, PADOVANO, and LEWIS, JJ., concur.


text:
    Willie TUCKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0424.
    District Court of Appeal of Florida, First District.
    May 29, 2013.
    Willie Tucker, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

WOLF, PADOVANO, and LEWIS, JJ., concur.


text:
    Fredrick COLSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0424.
    District Court of Appeal of Florida, First District.
    May 30, 2013.

      Fredrick Colson, pro se; Melissa Joy Ford, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant was convicted of robbery and sentenced to 15 years as a prison releasee reoffender (PRR). Following this Anders appeal, we affirm the appellant’s conviction, but reverse and remand for resentencing.

The appellant argues that he should be resentenced without the PRR designation. He alleges that the State’s document used to support the PRR sentence shows that he was released from prison over three years before the underlying robbery was committed. See § 775.082(9)(a)l, Florida Statutes (a PRR designation requires that the defendant commit or attempt to commit certain enumerated felonies “within 3 years after being released from a state correctional facility operated by the Department of Corrections....”). The record on appeal suggests that the date relied upon by the State in seeking the PRR designation was not the date the appellant was released from prison, but rather from temporary confinement, which will not support a PRR sentence. See e.g., Brinson v. State, 851 So.2d 815, 816 (Fla. 2d DCA 2003). Accordingly, we remand for further consideration of the matter.

We also strike portions of the judgment for fines, costs, fees, and surcharges. The trial court orally pronounced “costs and fines” of $1522.50 without delineating the specific costs and fines included in this amount. The written judgment and sentence included a discretionary fine of $1050 pursuant to section 775.083, Florida Statutes, and an associated five-percent surcharge pursuant to section 938.04, Florida Statutes. As the fine was discretionary, it was error of the trial court to impose the fine without specifically pronouncing it at sentencing. Because the fine was erroneously imposed, the surcharge under section 938.04, which is based on the amount of the fine, must also be reversed. See Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012). We also strike the $100 indigent legal assistance lien imposed pursuant to section 938.29, Florida Statutes, as the appellant was not provided with notice or advised of his right to contest this amount. See McCarthan v. State, 91 So.3d 268, 269 (Fla. 1st DCA 2012). On remand, the trial court may reimpose the stricken fine, surcharge, and fee after giving the appellant notice and following the proper procedure. See Kirkland v. State, 106 So.3d 4 (Fla. 1st DCA 2013) (indigent legal assistance fee); Nix, 84 So.3d at 426 (discretionary fines and surcharges).

We further instruct the court on remand to correct the scrivener’s error in the Criminal Punishment Code score sheet reflecting that the appellant entered a plea; the document should reflect that he was found guilty by jury verdict. See Drayton v. State, 89 So.3d 287 (Fla. 1st DCA 2012).

AFFIRMED in part, REVERSED in part, and REMANDED.

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The appellant also raised the issues in a Florida Rule of Criminal Procedure 3.800(b)(2) motion that was not ruled on below and is deemed denied. Pursuant to State v. Causey, 503 So.2d 321 (Fla.1987), the State was given the opportunity to respond and conceded to the case being reversed and remanded for a new sentencing hearing.

      . The judgment and sentence contains a scrivener’s error listing the five-percent surcharge as $420 when it should have been $52.50.

      . Previously, the $20 assessment for the Crime Stoppers Trust Fund imposed pursuant to section 938.06, Florida Statutes, would have been stricken as well. However, effective July 1, 2010, section 938.06 was amended to provide, that the $20 assessment for the Crime Stoppers Trust Fund is a mandatory cost rather than an additional surcharge on any fine imposed. See Spear v. State, 109 So.3d 232 (Fla. 1st DCA Jan.16, 2013) (en banc). As the amendment took effect before the date of the appellant's offense, the $20 cost should not be stricken.


text:
    John V. CLARK, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1059.
    District Court of Appeal of Florida, First District.
    May 30, 2013.
    John Clark, III, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he alleges that the trial court orally pronounced a twenty-year sentence for his robbery conviction, but the written judgment incorrectly states the sentence is twenty-five years’ imprisonment. See Ashley v. State, 850 So.2d 1265 (Fla.2003) (holding that oral pronouncement of sentence controls over written documents). The record does not include any attachments demonstrating that the appellant’s claim is meritless. Accordingly, we reverse and remand for the trial court to either grant relief or attach portions of the record conclusively refuting the claim.

LEWIS, ROBERTS, and ROWE, JJ„ concur.


text:
    Richard S. HAGANS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4750.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    Richard S. Hagans, Sanderson, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Richard S. Hagans appeals from a trial court order denying his motion to correct an illegal sentence pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. Upon the State’s proper concession of error, we reverse.

Hagans was sentenced to incarceration after he violated the probationary portion of his split sentence. He was not awarded any jail credit for time served. As a result, Hagans filed a rule 3.800(a) motion, seeking jail credit for: (1) the time originally served on his incarcerative portion of his split sentence, and (2) the time spent in jail awaiting sentencing on his violation of probation conviction. The trial court treated the motion as facially sufficient and denied relief with a reference to the digital recording of the sentencing hearing transcript, but failed to attach the plea agreement or the transcript of the plea and sentencing hearing to the denial order.

Although Hagans could have waived both his credit for time served in prison on the original sentence and his credit for time served before sentencing as part of his negotiated plea agreement, such waiver must be clearly shown on the record and cannot be presumed. Smith v. State, 52 So.3d 781, 783 (Fla. 5th DCA 2010); Briggs v. State, 929 So.2d 1151, 1153 (Fla. 5th DCA 2006); Isaac v. State, 992 So.2d 304, 305 (Fla. 3d DCA 2008). Because the present record now before us fails to refute Hagans’s facially sufficient claim, we reverse the order and remand this cause to the trial court for the attachment of documentation evidencing Ha-gans’s waiver of entitlement to credit for time served; alternatively, if Hagans did not clearly waive this right on the record, then he is entitled to the award of such. Fla. R.App. P. 9.141(b)(2)(D); Fla. R.App. P. 9.140(i); Foster v. State, 106 So.3d 6, 7 (Fla. 3d DCA 2013); Shea v. State, 97 So.3d 861, 862 (Fla. 4th DCA 2012).

REVERSED and REMANDED for further proceedings.

SAWAYA, PALMER and BERGER, JJ., concur.

      . The holding in this matter is not inconsistent with our decision in Jarrett v. State, 89 So.3d 293 (Fla. 5th DCA 2012). Jarrett was denied relief because he filed a facially insufficient motion; he failed to specifically identify where the face of the record demonstrated his entitlement to relief. Id. at 294; see Boyd v. State, 57 So.3d 268 (Fla. 5th DCA 2011). Here, by contrast, Hagans’s motion is facially sufficient.


text:
    Kary Joseph RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2158.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Kary Joseph Russell was convicted of two counts of first degree murder, aggravated assault with a firearm, armed burglary of a dwelling, and kidnapping with intent to commit a felony (tampering with evidence). We reverse Russell’s kidnapping conviction, but otherwise affirm.

Although the evidence was sufficient to establish false imprisonment, we conclude that competent, substantial evidence did not exist to support the jury verdict for kidnapping with intent to tamper with evidence. On remand, pursuant to section 924.34, Florida Statutes (2009), the trial court is directed to enter judgment for false imprisonment, and to resentence Russell accordingly. Crain v. State, 894 So.2d 59, 76 (Fla.2004).

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

ORFINGER, C.J., EVANDER and JACOBUS, JJ., concur.

      . Section 924.34 provides:
      When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.


author: PALMER, J.

text:
    STATE of Florida, Appellant, v. Ryan C. KREMER, Appellee.
    No. 5D12-3490.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock Mcguigan, Assistant Attorney General, Daytona Beach, for Appellant.
    John J. Albert, of Albert & Donnelly LLC, Melbourne, for Appellee.
   PALMER, J.

The State appeals the downward departure sentence imposed on Ryan Kremer (defendant), following his guilty plea to a charge of driving under the influence of alcohol (DUI) manslaughter. Determining that the defendant’s sentence is illegal because it does not include the mandatory minimum term required by statute, we reverse.

Following the defendant’s entry of an open plea of guilty to the charge of DUI manslaughter, the trial court sentenced the defendant to a downward departure sentence consisting of two years’ imprisonment followed by two years’ community control followed by eleven years’ probation. The State contends that the trial court reversibly erred in failing to impose the mandatory minimum four-year sentence required by statute for the defendant’s conviction for DUI manslaughter. We agree.

In State v. Schumacher, 99 So.3d 632 (Fla. 1st DCA 2012), the State appealed a sentence imposed on the defendant after his conviction for DUI manslaughter, arguing that the sentence was illegal because it did not include a four-year mandatory minimum prison sentence. The First District agreed:

Section 316.193(3), Florida Statutes (2009), states, “A person who is convicted of DUI manslaughter shall be sentenced to a mandatory minimum term of imprisonment for 4 years.”
The legislative language is unambiguous. The sentence imposed is, therefore, illegal. See State v. Strazdins, 890 So.2d 334, 335 (Fla. 2d DCA 2004) (“When a trial court imposes a sentence that is shorter than the required mandatory minimum sentence, ‘the sentence is not within the limits prescribed by law and is properly viewed as an ‘illegal’ sentence.’” (quoting State v. R.F., 648 So.2d 293, 294 n. 1 (Fla. 3d DCA 1995))).

The First District thereafter affirmed its ruling in State v. Schroff, 103 So.3d 225 (Fla. 1st DCA 2012).

Our court has similarly held that mandatory minimum sentencing enhancements are nondiscretionary and, therefore, trial courts lack the authority to refuse to apply them. State v. Moore, 854 So.2d 832, 833-34 (Fla. 5th DCA 2003). See also Termitus v. State, 86 So.3d 1179 (Fla. 5th DCA 2012); Dunbar v. State, 46 So.3d 81, 82 (Fla. 5th DCA 2010), rev’d on other grounds, 89 So.3d 901 (Fla.2012). Furthermore, when a sentence is illegal, the error is fundamental. State v. Valera, 75 So.3d 330, 332 (Fla. 4th DCA 2011), and a sentence is illegal when it is shorter than the required mandatory minimum sentence. State v. Strazdins, 890 So.2d 334, 335 (Fla. 2d DCA 2004).

Accordingly, the defendant’s sentence is reversed, and this matter is remanded for re-sentencing to include the statutory four-year mandatory minimum term of imprisonment.

REVERSED and REMANDED.

ORFINGER, C.J. and BERGER, J„ concur.

      . §§ 316.193(1); 316.13(3)(c)3.a„ Fla. Stat. (2009).


text:
    STATE of Florida, Appellant, v. Andrew Joseph FOSTER, Appellee.
    No. 5D12-4131.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    Paula C. Coffman, and Jeffrey D. Deen, Office of Criminal Conflict & Civil Regional Counsel, Orlando, for Appellee.
   PER CURIAM.

The State appeals the trial court’s order withholding adjudication on Andrew Joseph Foster’s first-degree felony conviction. The withhold of adjudication was entered after Foster entered an open no-contest plea to the sale or possession of a controlled substance with intent to sell within 1000 feet of a school or child care facility. See § 402.302, Fla. Stat. (2010). Commendably, Foster concedes error, based upon the plain language of section 775.08435(l)(a), Florida Statutes (2012), which prohibits a court from withholding an adjudication of guilt upon a defendant who commits a first-degree felony, and State v. Joseph, 995 So.2d 1182 (Fla. 2nd DCA 2008) (recognizing that section 775.08435(l)(a) prohibits trial courts from withholding an adjudication of guilt on a defendant convicted of a first-degree felony). See also State v. Ketchum, 111 So.3d 197 (Fla. 3d DCA 2013).

Accordingly, we reverse the trial court’s withhold of adjudication and remand for entry of an adjudication of guilt.

REVERSED and REMANDED.

GRIFFIN, PALMER and TORPY, JJ., concur.

      . Appellate review is authorized under rule 9.140(c)(l)(L) of the Florida Rules of Appellate Procedure.


text:
    Fernando TROCHE-VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4367.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    Fernando Troche-Vazquez, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Fernando Troche-Vazquez (defendant) appeals the order entered by the trial court denying his rule 3.800(a) motion claiming additional jail credit. The defendant has failed to present a facially sufficient claim since the alleged additional credit cannot be ascertained from the face of the record. See Cabrera v. State, 62 So.3d 1171 (Fla. 4th DCA 2011). Accordingly, we affirm the trial court’s order without prejudice to the defendant’s presenting his claim in a rule 3.850 motion.

AFFIRMED.

PALMER, LAWSON and COHEN, JJ., concur.

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

      . We note that the Florida Supreme Court has recently adopted a new procedure for seeking corrective jail credit, rule 3.801 of the Florida Rules of Criminal Procedure, effective July 1, 2013. Rule 3.801 requires motions for jail credit to be filed within one year of the date a sentence becomes final. We express no opinion as to the effect of the new rule on claims that would have been timely under rule 3.850’s filing limit but will be untimely under the new one-year filing limit.


text:
    Terry L. NORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-262.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    Terry Norris, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Terry L. Norris (defendant) appeals the trial court’s order summarily denying his motion for post-conviction relief, filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. We affirm in all respects, except one.

In ground four of his motion, the defendant argued that his sentence of 25-years incarceration for robbery exceeded the statutory maximum of 15 years. Specifically, he claimed he was sentenced as a prison releasee reoffender (PRR) and, therefore, the trial court could not exceed the 15-year statutory maximum for a second-degree felony. The trial court denied this ground, stating that the defendant’s scoresheet authorized a maximum sentence of 35 years’ imprisonment. However, the court did not attach documents conclusively refuting the defendant’s claim. Accordingly, we reverse the trial court’s order and remand for reconsideration of ground four.

On remand, we direct the court’s attention to the fact that it appears that the defendant may have received an unlawful habitual felony offender (HFO) sentence for the third-degree felony of grand theft, and he also may have been sentenced to equal HFO and PRR sentences in violation of Grant v. State, 770 So.2d 655 (Fla.2000).

AFFIRMED in part, REVERSED in part, REMANDED.

ORFINGER, C.J., PALMER and GRIFFIN, JJ., concur.

      . § 812.13(2)(c), Fla. Stat. (2010).


text:
    Pedro Juan Rodriguez COLON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-968.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    Pedro Juan Rodriguez Colon, Crawford-ville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order on Petitioner’s Motion to Correct Sentence in Case No. 09-2028-CFA, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, EVANDER and COHEN JJ., concur.


author: NORTHCUTT, Judge.

text:
    Robert J. GARCIA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2510.
    District Court of Appeal of Florida, Second District.
    May 31, 2013.

      Christopher H. Brown of Brown, Suarez & Rios, P.A., Punta Gorda, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Robert Garcia, Jr., and four others planned and undertook a home-invasion robbery. But the endeavor went wildly awry, and by the end of it, two of the perpetrators were dead. For his part, Garcia was tried before a jury and convicted of armed home-invasion robbery, second-degree felony murder, and aggravated battery, and he filed this appeal. We reverse the felony murder conviction; otherwise we affirm.

The evidence at trial reflected that Garcia was one of five friends who were hanging out one afternoon, socializing and doing cocaine. At one point, one of them complained that a man named Cody Foeh-ner had sold him substandard drugs. As the afternoon progressed, the topic came up again. Eventually, the group decided to rob Foehner of drugs and cash. They borrowed a car and some guns and went to the home Foehner shared with his girlfriend. Two of the men, including Foeh-ner’s disappointed customer, knocked on the door and were invited in. They immediately attacked Foehner with a stun gun and subdued his girlfriend; then they let their confederates into the home. One of the latter, Aaron Mayo, was armed with a short-barrel shotgun fitted with a pistol grip.

As described by the State’s witnesses, chaos ensued. The intruders set upon Foehner, beating and tasing him and demanding the location of his safe, while one or two of the men dragged the girlfriend to another room to look for it. Foehner struggled against his tormentors to little avail — until his pit bulls joined the fray and attacked them. Someone shot one of the dogs, whereupon Foehner began resisting with renewed vigor. Mayo, the one with the short-barrel shotgun, attempted to subdue Foehner. Wielding the gun like a hammer, he grasped its barrel and struck Foehner’s head with the pistol grip. When he did so, the gun discharged.

The gunshot struck Mayo’s thigh. He hopped on one foot and screamed that he had shot himself. At that, the robbers panicked. They rushed from the home and sped away in the borrowed car, Mayo bleeding in the back seat. A state trooper observed the speeding car and gave chase. The trooper pursued the car until he found it stopped beside the road. It was abandoned save for Mayo, who had bled out from a ruptured femoral artery and lay dead on the back seat.

When Mayo’s compatriots left the car, they fled on foot through some woods to a canal. The men plunged into the water and swam for the other bank. Once there, one of them stopped. Wet and exhausted, he lay on the ground until a police canine found him. Garcia and another of the robbers were apprehended shortly thereafter. The hunt for the last perpetrator ended nine days later, when he was found floating in the canal, drowned.

As mentioned, we reject most of Garcia’s assertions on appeal. By and large, the rulings he complains about either were not erroneous or were harmless, and we affirm on those points without further discussion. The one exception is Garcia’s conviction on the second-degree felony murder charge, which was predicated on Mayo’s death. Garcia contends that this self-inflicted death did not constitute second-degree felony murder. Although this argument was not raised at trial, we agree with Garcia’s assertion that the felony-murder conviction was fundamental error.

Generally, to be cognizable on appeal an argument must be first raised in the trial court. F.B. v. State, 852 So.2d 226, 229 (Fla.2003). “The requirement of contemporaneous objection ... not only affords trial judges the opportunity to address and possibly redress a claimed error, it also prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client’s tactical advantage.” Id. (citing J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998)). The preservation requirement is excused for a narrow class of errors deemed to be fundamental. One such error occurs when an accused is convicted even though the evidence is insufficient to show that a crime was committed at all. Id. at 230. That is what happened here.

Garcia was charged with second-degree felony murder. We start with the language of the statute defining this crime. “Because Florida does not recognize common law felonies, no felony can exist under Florida law unless it is created by a valid statute properly approved by the legislature.” State v. Waiso, 788 So.2d 1026, 1029 (Fla. 2d DCA 2001). Second-degree felony murder is defined by section 782.04(3), Florida Statutes (2008), which provides as follows: “When a person is killed in the perpetration of, or in the attempt to perpetrate, any” of a list of felonies, including home-invasion robbery, “by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony is guilty of murder in the second degree....”

Applying the statute to the facts of this case, a person (Mayo) was killed in the perpetration of a home-invasion robbery. But he killed himself; he was not killed “by a person other than the person engaged in the perpetration of ... such felony.” Tracing the evolution of the felony murder statutes, the supreme court has concluded that “second-degree felony murder as defined in section 782.04(3) requires that the killing be done by a nonprincipal.” State v. Dene, 533 So.2d 265, 270 (Fla.1988). The language of the statute at issue in Dene was essentially the same as the 2008 version applicable in this case, the only change being the list of qualifying felonies. Compare Dene, 533 So.2d at 268 (quoting § 782.04(3), Fla. Stat. (1975)), with § 782.04(3), Fla. Stat. (2008).

The State impliedly acknowledged this nuance at trial, when the prosecutor argued that the shotgun was discharged in Foehner’s struggle with Mayo. Using the standard instructions, the trial court instructed the jury, in part, that the crime was committed if “the person who actually killed Aaron Mayo was not involved in the commission or the attempt to commit the home invasion robbery or burglary.” We view the evidence in the light most favorable to the State, resolving all conflicts and reasonable inferences in favor of the verdict. See F.B., 852 So.2d at 230 (citing Tibbs v. State, 397 So.2d 1120, 1128 (Fla.1981)). Even so, there was no testimony or other evidence to show that Foehner touched the trigger in a struggle for the gun or that, in any other way, he caused the gun to fire. The evidence was clear and undisputed that Mayo caused the gun to discharge by striking it against Foeh-ner’s head.

Because there was no evidence that Mayo was killed by a nonprincipal to the underlying felony, Garcia’s conviction for second-degree felony murder was fundamental error. Therefore, we reverse Garcia’s conviction and sentence for that offense.

Affirmed in part; reversed in part.

SILBERMAN, C.J., and DAVIS, J., Concur.