author: WELLS, Chief Judge.

text:
    Willie FOSTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2575.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2013.
    Willie Foster, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and LAGOA, JJ.
   ON MOTION FOR REHEARING

WELLS, Chief Judge.

We grant the State’s motion for rehearing, withdraw the opinion issued on November 7, 2012, and substitute the following opinion in its stead.

Willie Foster appeals an order denying his Florida Rule of Criminal Procedure 3.800 motion for credit for time served. Because the record before us fails to conclusively refute Foster’s claim that he is entitled to an additional 357 days of pre-sentencing jail time credit, we reverse and remand for further proceedings.

In his Rule 3.800 motion, Foster alleged that he was incarcerated in the county jail for a total of 934 days before sentencing on case numbers F09-105547, F09-22090 and F11-13853B, but that he received only 577 days of jail credit for his sentences on those case numbers. Foster set forth the date of his presentence incarceration and his calculation of the credit to which he believes he is entitled. Foster did not attach any documents to the motion, but further alleged that the court file and jail records would conclusively demonstrate the error in jail credit that he had received. Upon treating the motion as facially sufficient, the trial court summarily denied relief without explanation or attachment of any portion of the record to support its finding, and instead referred the matter to the Department of Corrections to determine the proper amount of presen-tencing jail time credit that Foster should receive. Foster appealed.

“The trial court, not the Department of Corrections, is responsible for pre-sentencing jail time credit.” See Monroe v. State, 842 So.2d 265, 265 (Fla. 2d DCA 2003). Moreover, on appeal from a summary denial of a Rule 3.800 motion, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the defendant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D). The limited record before us-which consists only of Foster’s motion and the brief order-fails to show that Foster is not entitled to relief. For these reasons, we reverse and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that Foster is not entitled to any relief.

Reversed and remanded for further proceedings.

      . In its motion for rehearing, the State suggests that the defendant's motion was not facially sufficient in light of the Florida Supreme Court’s opinion in Johnson v. State, 60 So.3d 1045 (Fla.2011). In light of the fact that the court below treated the motion as legally sufficient and the limited record before us, we decline to address this issue.

      . On November 27, 2012, while the State's motion for rehearing was still pending, the lower court entered a new order denying the defendant's Rule 3.800 motion in an attempt to comply with this court’s November 7th opinion which we are now withdrawing. Setting aside the fact that an additional order was entered on this very matter before we resolved the motion for rehearing, we note that the latest order also fails to attach certain portions of the record (from the Criminal Justice Information System) relied upon in denying relief.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Hernando WATERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5429.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2013.
    Rehearing Denied Feb. 7, 2013.

      Hernando Waters, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.141(c)(5)(A).

THOMAS, CLARK, and SWANSON, JJ., concur.


text:
    Demetrius Alexander BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5530.
    District Court of Appeal of Florida, First District.
    Jan. 3, 2013.
    Rehearing Denied Feb. 7, 2013.
    Demetrius Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

THOMAS, CLARK, and SWANSON, JJ., concur.


author: VAN NORTWICK, J.

text:
    BOARD OF TRUSTEES OF THE JACKSONVILLE POLICE & FIRE PENSION FUND, Appellant, v. Joseph KICKLIGHTER, Appellee.
    No. 1D12-0300.
    District Court of Appeal of Florida, First District.
    Jan. 4, 2013.
    Rehearing Denied Feb. 6, 2013.

      Robert D. Klausner, Stuart A. Kaufman and Shaun H. Malvin of Klausner, Kaufman, Jensen & Levinson, Plantation, for Appellant.
    T.A. “Tad” Delegal, III, of the Delegal Law Offices, P.A., Jacksonville; and D. Gray Thomas of the Law Offices of D. Gray Thomas, Jacksonville, for Appellee.
   VAN NORTWICK, J.

The Board of Trustees of the Jacksonville Police & Fire Pension Fund appeals a final judgment awarding damages and attorney’s fees to Joseph Kicklighter, appel-lee, a former lieutenant in the City of Jacksonville Fire and Rescue Department who was disabled as a result of a heart attack suffered while in the course of his employment. The trial court’s ruling was based on its finding that appellant unreasonably delayed approving Kicklighter’s pension causing a substantial reduction in his pension rate, failed to adequately inform Kicklighter regarding necessary information concerning the calculation of his pension benefits, and failed to provide him a reasonable time to avoid prejudice by making payment of the deficit in the pension. We affirm.

Kicklighter applied for disability pension benefits with the Pension Fund in July 2006. The Pension Fund’s medical director determined that Kicklighter could no longer perform the duties of a firefighter and could only be employed with the fire department if an administrative or light duty position was available. In August 2006, the Fire and Rescue Department informed the Pension Fund that there were no positions available to accommodate Kicklighter. Subsequently, the Pension Fund’s advisory committee unanimously voted to recommend approval of Kicklighter’s application. Despite the recommendation of its advisory committee and the lack of light-duty positions, the Board of Trustees of the Pension Fund deferred the approval of Kicklighter’s application while unsuccessfully attempting to find Kicklighter a light-duty position with the fire department. While the Pension Fund deferred its determination of Kicklighter’s application, Kicklighter continued to be paid by the fire department at a lower rate of pay than his pre-injury rate of pay. This lower rate of pay was then utilized to calculate his pension benefits, resulting in a substantial reduction of pension benefits. No light duty positions were ever offered to Kicklighter and, after a four month delay, Kicklighter’s pension benefits were eventually approved by the Pension Board.

Although the approval of benefits was entered into the Pension Board’s minutes, Kicklighter did not receive written notice of his entitlement to benefits or a determination as to the actual amount of benefits. Following the approval of benefits, Kicklighter met with an employee of the Pension Fund to address calculation of benefits. It was discovered that Kicklighter was to receive a substantially smaller sum of benefits as the contributions from his paycheck were being deducted at a lower rate from his post-injury pay. Section 121.303, Jacksonville Municipal Code, provided Kicklighter with the opportunity to make-up the difference in contributions to receive full retirement benefits. The trial court heard conflicting testimony from the parties concerning whether Kick-lighter requested to be allowed to make up any deficit. The trial court accepted Kick-lighter’s testimony that he requested, but never received, the amount required to make up the deficit in the pension contribution or the benefit to be derived from such a payment. The trial court found that the Pension Fund’s delay in approving Kicklighter’s application and failure to provide Kicklighter with the amounts required to make up contribution deficits caused Kicklighter to receive a reduction in his monthly pension benefits. Based upon these findings, the trial court awarded relief based upon Kicklighter’s claims for breach of contract, breach of fiduciary duty, and declaratory relief.

We affirm the trial court’s determination that a contractual relationship existed between the Pension Fund and Kicklighter. Our opinion in Bishop v. State, Division of Retirement, 413 So.2d 776 (Fla. 1st DCA 1982), is controlling. In Bishop, retired teachers appealed a final order of the Florida Division of Retirement denying their request for adjustments in their annuity payments under the teachers retirement system. The Division was the administrator of the teacher’s retirement plan. This court concluded that “the legal relationship between the appellants and the Division of Retirement is that of contract,” id. at 777, and that “[tjhe terms of the agreement are to be found in the statute” governing the retirement plan. Id. at 778.

Here, the trial court’s ruling was based upon a finding that the Pension Fund, as administrator of the pension fund, had breached its contractual relationship with Kicklighter arising out of the pension ordinance and the Jacksonville City Charter. The trial court found that the Pension Fund breached the contract under multiple theories, including its failure to identify the amount of contribution payable by Kicklighter to receive his full pension benefit.

Section 22.04 of the Jacksonville Charter, outlines the general powers of the Pension Fund’s Board. Section 22.04(a) clearly indicates that the Board has the authority to “[b]e the sole entity responsible for administering the Jacksonville Police and Fire Pension Fund.” Section 22.04(g) also makes clear that the Board has the power to “[djetermine all facts with regard to any participant’s age, normal retirement date, disability, amount of compensation, length of service and credited service, and date of initial coverage under the pension plan, and, by application of the facts so determined and other facts deemed material, determine a participant’s amount of benefit.” (emphasis added.)

Here, there is competent substantial evidence to support the trial court’s finding of a breach of contract based upon the Pension Fund’s failure to provide Kicklighter with information as to the amount necessary to make up the deficit in his contributions to receive his full pension benefit. Although the Pension Fund asserted that its employees did not provide Kicklighter with the calculations on the amount required to make up the shortfall in his contributions because Kicklighter refused to make up any deficit, the trial court rejected this testimony and accepted Kick-lighter’s testimony that he had requested information on the amount he would need to contribute to make up for the shortfall in his contributions and requested information on the actual benefit to be derived from making the full contributions. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976) (holding that “[i]t is not the function of the appellate court to substitute its judgment for that of the trial court through reevaluation of the testimony and evidence from the record on appeal before it.”). Based upon the foregoing, we affirm the trial court’s final judgment finding a breach of contract. We also affirm the trial court’s award of attorney’s fees as the Pension Fund has conceded that the cap on attorney’s fees, see section 768.78, Florida Statutes, does not apply to contract actions.

We also note that, although the normal procedure would be to appeal the Board’s order determining benefits to the circuit court, here the Board never took final action; so there was no final action to appeal. Specifically, the Board’s final minutes approving Kicklighter’s application do not constitute a final order, for which cer-tiorari review could have been sought, because the minutes failed to address what Kicklighter disputed, i.e. the amount of benefits he was to receive. Thus, the trial court had subject matter jurisdiction.

CLARK, J., concurs, and WOLF, J., concurs in result.


author: MORRIS, Judge.

text:
    Eddie BOYD, Appellant, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3550.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 2013.

      Eddie Boyd, pro se.
   MORRIS, Judge.

Eddie Boyd challenges the summary dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, as untimely. Boyd correctly asserts that his sentencing order was not rendered until August 30, 2011, and thus his postconviction motion filed on May 9, 2012, was timely.

The procedural history of Boyd’s case is admittedly confusing; the following account is somewhat abridged. After Boyd successfully challenged the prison releasee reoffender (PRR) designation on one of his sentences in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), on direct appeal this court remanded for resentencing because Boyd had been illegally resentenced by a successor judge without a showing that the original sentencing judge was unavailable. Boyd v. State, 988 So.2d 1242 (Fla. 2d DCA 2008), abrogated on procedural grounds by Pifer v. State, 59 So.3d 225 (Fla. 2d DCA 2011). As a result of that proceeding, the original sentencing judge orally resentenced Boyd on November 17, 2008, again removing the PRR designation from the battery on a law enforcement offieer charge. However, no written sentence was filed at that time. The relevant date for finality of a sentencing order is the date the written order is filed, not the date on which the sentence is orally pronounced. See Weiss v. State, 720 So.2d 1113, 1114 (Fla. 3d DCA 1998); see also Fla. R.App.P. 9.020(i).

Boyd then filed a motion for post-conviction relief on January 2, 2011, and appealed the order denying his motion. This court dismissed the appeal as premature after ascertaining that Boyd’s written sentences were not filed with the circuit court clerk until August 30, 2011, and specifically ruled that Boyd could file a rule 3.850 motion within two years of the date that the sentences became final. Boyd v. State, 83 So.3d 719 (Fla. 2d DCA 2011). Boyd’s postconviction motion filed on May 9, 2012, was well within the time limit. Therefore, we reverse and remand for the postconviction court to address the merits of Boyd’s motion for postconviction relief.

Reversed and remanded.

DAVIS and VILLANTI, JJ., Concur.

      . Formerly Florida Rule of Appellate Procedure 9.020(h).


author: LaROSE, Judge.

text:
    DUKE’S STEAKHOUSE FT. MYERS, INC., Appellant, v. G5 PROPERTIES, LLC, and South Florida Water Management District, Appellees.
    No. 2D11-4467.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2013.

      Joshua A. Harrow of Michael A. Linsky, P.A., Tampa, for Appellant.
    Matthew D. Uhle of Law Office of Matthew D. Uhle, LLC, Fort Myers, for Ap-pellee G5 Properties, LLC.
    Douglas H. MacLaughlin, West Palm Beach, for Appellee South Florida Water Management District.
   LaROSE, Judge.

Duke’s Steakhouse Fort Myers, Inc., appeals the South Florida Water Management District’s (SFWMD) final “order approving an Environmental Resource Permit (ERP) for G5 Properties, LLC. Duke’s argues that SFWMD erroneously approved the permit after an administrative law judge recommended denial. SFWMD properly construed the Florida Administrative Code to allow issuance of a permit where the proposed project results in a “net improvement” to water quality. We affirm.

G5 acquired two adjacent parcels of property — a north parcel and a south parcel — just north of Duke’s’ property. G5 planned to redevelop the property primarily by constructing a two-story medical office building on the south parcel. To proceed, G5 had to comply with Florida Administrative Code Rule 40E-4.301, that provides, in pertinent part, as follows:

40E-4.301. Conditions for Issuance of Permits.
(1) In order to obtain a standard general, individual, or conceptual approval permit under this chapter or Chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, operation, maintenance, removal or abandonment of a surface water management system:
(a) Will not cause adverse water quantity impacts to receiving waters and adjacent lands;
(b) Will not cause adverse flooding to on-site or off-site property;
(c) Will not cause adverse impacts to existing surface water storage and conveyance capabilities;
(e) Will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., incorporated by reference in paragraph 40E-4.091(l)(d), F.A.C., including any antidegradation provisions of paragraphs 62-4.242(l)(a) and (b), subsections 62-4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated;
(f) Will not cause adverse secondary impacts to the water resources;
(i) Will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed;
(j) Will be conducted by an entity with the sufficient financial, legal and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued....
(2) If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, the applicant must comply with the requirements set forth in subsection 4.24.5 of the “Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District,” incorporated by reference in paragraph 40E-4.091(l)(a), F.A.C.

In assessing an applicant’s compliance, SFWMD looks to the “standards and criteria, including the mitigation provisions, and the provisions for elimination or reduction of impacts,” set forth in. the Basis of Review for Environmental Resource Permit Applications (BOR) incorporated by reference in Florida Administrative Code Rule 40E-4.091(l)(a). Fla. Admin. Code R. 40E-4.30K3).

SFWMD approved G5’s application and issued the ERP. After G5 completed its project, Duke’s contested issuance of the ERP; asked SFWMD to deny, revoke, or modify the permit; and requested a formal administrative hearing. See § 120.569(2)(a), Fla. Stat. (2011); Fla. Admin. Code R. 28-106.201. Following a hearing before the Department of Administrative Hearings, see § 120.569(2)(a), the Administrative Law Judge (ALJ) submitted a recommended order to SFWMD. See §§ 120.669@)(O(2), 120.57(l)(k). SFWMD staff, G6, and Duke’s also submitted recommended orders.

The ALJ concluded that G5 provided reasonable assurances that its surface water management system functioned properly. See R. 40E-4.301(l)(i). He also found that the redevelopment did not cause standing water on the Duke’s property; rather, Duke’s’ failure to maintain its own stormwater drains caused flooding. See R. 40E-4.301(l)(b). Because G5 added water quality storage and treatment for the southern parcel and filters for the drains on its northern parcel, the ALJ observed that the redevelopment resulted in a net improvement in water quality, storage, and treatment.

The ALJ found that G5 met all permitting requirements except BOR sections 5.2.1(a) (onsite volumetric detention requirements for water quality) and 7.4 (stormwater wet retention/detention areas dimensional criteria). G5 and SFWMD staff contended that the ERP should issue because, by effecting a net improvement in water quality, the project did not violate water quality standards. The ALJ, however, recommended denial of the permit for “failure to meet BOR requirements as to water quality storage and treatment.” He concluded that neither G5 nor SFWMD staff cited sufficient authority for a “net improvement” standard or other exception to the BOR requirements. G5 and SFWMD staff filed exceptions to the recommended order. See § 120.57(l)(k); Fla. Admin. Code R. 40E-1.564 (repealed May 27, 2012); Fla. Admin. Code R. 28-106.217.

The SFWMD board rejected the ALJ’s recommendation and issued a final order approving the ERP. On appeal, Duke’s argues that SFWMD improperly reweighed the evidence before the ALJ and improperly rejected or modified the ALJ’s factual findings. See § 120.57(l)(i) (prohibiting agency from modifying or rejecting ALJ’s findings of fact unless it explains why they were not based on competent, substantial evidence). We conclude that Duke’s improperly labels conclusions of law as findings of fact.

SFWMD’s board did not reweigh the evidence or modify the ALJ’s findings of fact. Rather, it rejected the ALJ’s interpretation of the applicable Florida Administrative Code — specifically, the ALJ’s conclusion of law that G5 did not meet BOR section 5.2.1(a) water quality requirements. Section 120.57(1)(J) provides that an agency may reject or modify the ALJ’s conclusions of law and interpretation of administrative rules, so long as its determination is as or more reasonable than those of the ALJ. Beyond peradventure, an agency bears the primary responsibility to interpret statutes and rules within its regulatory expertise and jurisdiction. See, e.g., Pub. Emps. Relations Comm’n v. Dade Cnty. Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985). An agency’s interpretation of such statutes and rules does not have to be the only reasonable interpretation — only a permissible one, see, e.g., Suddath Van Lines, Inc. v. Dep’t of Envtl. Prot., 668 So.2d 209, 212 (Fla. 1st DCA 1996), and should not be overturned unless clearly erroneous. See, e.g., Collier County Bd. of County Comm’rs v. Fish & Wildlife Conservation Comm’n, 993 So.2d 69, 72 (Fla. 2d DCA 2008).

SFWMD concluded, as a matter of law, that “[r]ule 4.301 (l)(e) (no adverse affect on quality of receiving waters violating quality standards), and BOR sections 1.3 (district may consider alternative performance criteria in particular cases) and 5.2.1(a), allow [SFWMD] to approve ERP applications involving redevelopments provided there are reasonable assurances of net improvement to water quality treatment” meeting the overall objectives of Chapter 373. These BOR sections provide as follows:

Section 1.3 Criteria Objectives

The criteria contained herein were established with the primary goal of meeting District water resource objectives as set forth in Chapter 373, F.S. Performance criteria are used where possible. Other methods of meeting overall objectives and which meet the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302, F.A.C., will be considered by staff or presented to the District Governing Board, or its designee, for consideration. Compliance with the criteria herein constitutes a presumption that the project proposal is in conformance with the conditions for issuance set forth in Rules 40E-^4.301 and 40E-4.302, F.A.C.
5.2.1 Volumetric Requirements
(a) Retention, detention, or both retention and detention in the overall system, including swales, lakes, canals, greenways, etc., shall be provided for one of the three following criteria or equivalent combinations thereof:
2. Dry detention volume shall be provided equal to 75 percent of the above amounts computed for wet detention.
3. Retention volume shall be provided equal to 50 percent of the above amounts computed for wet detention. Retention volume included in flood protection calculations requires a guarantee of long term operation and maintenance of system bleed-down ability. Example of such guarantee include evidence of excellent soil percolation rates, such as coastal ridge sands, or an operations entity which specifically reserves funds for operation, maintenance and replacement (example: Orange County MSTU). (NOTE: Orange County subdivision regulation criteria for retention — published by Orange County in Orange County Subdivision Regulations — may be utilized for Orange County MSTU projects in lieu of District retention criteria where retention volumes exceed one half inch. This information is hereby published by reference and incorporated into this rule.)

SFWMD correctly concluded that BOR section 7.4 did not apply because the G5 project included only a dry stormwater detention system.

SFWMD properly construed the Florida Administrative Code to allow issuance of a permit where the proposed redevelopment project results in a “net improvement” to water quality. We affirm SFWMD’s final order granting G5’s ERP.

Affirmed.

KHOUZAM and MORRIS, JJ., Concur.

      . 40E-4.091 Publications, Rules and Inter-agency Agreements Incorporated by Reference.
      (1) The following publications, rules and interagency agreements are incorporated by reference into this chapter, Chapters 40E-40, 40E-4I and 40E-400, F.A.C.:
      (a) "Basis of Review for Environmental Resource Permit Applications within the South Florida Water Management District-7-22-07”.

      . The standards and criteria, including the mitigation
      provisions, and the provisions for elimination or reduction of impacts, contained in the "Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District,” incorporated by reference in paragraph 40E-4.091(l)(a), F.A.C., shall determine whether the reasonable assurances required by subsection 40E-4.301(1) and Rule 40E-4.302, F.A.C., have been provided.
      Fla. Admin. Code R. 40E-4.301(3).

      .Duke’s asserted that its petition was timely because it had no notice of the permit applications until SFWMD had already approved them. See § 373.116(2), Fla. Stat. (2011) (requiring SFWMD notice in newspaper); § 373.118(3) (allowing SFWMD to establish alternative notice requirements taking into account proposed project’s effect on other persons, in lieu of publication); Gardner v. Sch. Bd. of Glades Cnty., 73 So.3d 314, 315 (Fla. 2d DCA 2011) (holding affected party must receive sufficient notice to commence running of the time period to seek review) (citing Henry v. Dep’t of Admin., Div. of Retirement, 431 So.2d 677, 680 (Fla. 1st DCA 1983)). This assertion was not challenged.

      . Paragraph 7 of G5’s Exception to Recommended Order cited section 1.3 of the BOR as authority providing SFWMD with the flexibility to use a "net improvement” standard for water quality on redevelopment projects.


author: KHOUZAM, Judge.

text:
    Dennis COOLEY, Appellant, v. Amy Lynn COOLEY, Appellee.
    No. 2D12-2257.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2013.
    John D. Hawkins of Grimes Goebel Grimes Hawkins Gladfelter & Galvano, P.L., Bradenton, for Appellant.
    R. Laine “Lainie” Wilson Harris of Dickinson & Gibbons, P.A., Sarasota, for Appellee.
   KHOUZAM, Judge.

Dennis Cooley (the Former Husband) timely appeals the final judgment of dissolution of his marriage to Amy Lynn Cooley (the Former Wife). We reverse for the circuit court to correct the period of the durational alimony award to reflect the length of the marriage. We affirm as to the remaining issues.

The circuit court awarded durational alimony of $3000 per month for a period of 192 months. However, the court appears to have intended to award alimony for a period representing the length of the marriage. The marriage in this case lasted approximately 150 months — not 192 months. The Former Husband and the Former Wife agree that this was error. Accordingly, we reverse and remand for the circuit court to correct the period of the durational alimony award to reflect the length of the marriage.

Reversed and remanded with directions.

MORRIS and BLACK, JJ., Concur.


text:
    Vince BODDISON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1109.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2013.
    Vince Boddison, pro se.
   KHOUZAM, Judge.

Vince Boddison appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm. We write only to clarify that ground one should have been considered under the version of section 775.21(4)(b), Florida Statutes, that was in effect at the time Boddison committed the crime.

In ground one, Boddison asserts that his designation as a sexual predator was illegal because he did not have any qualifying offenses within the last ten years. In summarily denying this claim, it appears that the postconviction court applied the current version of section 775.21(4)(b), which allows qualifying offenses to be counted “regardless of the date of offense of the prior felony.” But because Boddison’s offense occurred between April 1, 2003, and June 11, 2003, the 2002 version of the statute applies to Boddison’s designation as a sexual predator. Section 775.21(4)(b), Florida Statutes (2002), states, in relevant part:

If the offender’s prior enumerated felony was committed more than 10 years before the primary offense, it shall not be considered a prior felony under this subsection if the offender has not been convicted of any other crime for a period of 10 consecutive years from the most recent date of release from confinement, supervision, or sanction, whichever is later.

However, it is not apparent on the face of the record whether the present offense occurred more than ten years after Boddi-son’s most recent date of release from confinement, supervision, or sanction. An erroneous sexual predator designation may only be corrected via a motion to correct illegal sentence if the error is apparent on the face of the record. See Saintelien v. State, 990 So.2d 494, 497 (Fla.2008). Accordingly, we affirm the denial of ground one.

Affirmed.

DAVIS and MORRIS, JJ„ Concur.


text:
    STATE of Florida, Appellant, v. Manuel JOHNSON, Appellee.
    No. 2D11-4921.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    Peter Lombardo of Law Office of Peter Lombardo, Bradenton, for Appellee.
   PER CURIAM.

The State appeals from the order dismissing the charge against Manuel Johnson for the sale or delivery of oxycodone on the ground that section 893.13, Florida Statutes (2010), is unconstitutional. We reverse on the basis of State v. Adkins, 96 So.3d 412 (Fla.2012) (rejecting constitutional challenges to section 893.13).

Reversed and remanded.

SILBERMAN, C.J., and KELLY and VTLLANTI, JJ„ Concur.


text:
    Jodi V. VINSON, Appellant, v. STATE Of Florida, Appellee.
    No. 2D11-2475.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2013.

      Ita M. Neymotin, Regional Counsel, Second District, and Jeffrey Sullivan, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Jodi V. Vinson appeals forty-three convictions relating to child pornography. We affirm her convictions in all respects but write to address her argument that the sentencing enhancement as to count forty-three was improper.

Vinson’s sentencing enhancement argument was not raised below, either at sentencing or via motion filed pursuant to Florida Rule of Criminal Procedure 8.800(b). Because Vinson did not challenge the sentencing enhancement below, her argument is unpreserved. See Brannon v. State, 850 So.2d 452, 456 (Fla.2003) (“[F]or defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2), the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal”). We make no comments on the merits of Vinson’s claim, as Vinson must first present it below if she is to receive any relief.

Affirmed.

LaROSE and CRENSHAW, JJ., Concur.


text:
    SEMINOLE TRIBE OF FLORIDA, Petitioner, v. HENDRY COUNTY, Florida, a Political Subdivision of the State of Florida; FLorida Power & Light CO.; and McDaniel Reserve Realty Holdings, LLC, a Florida Limited Liability Company, Respondents.
    No. 2D12-1657.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2013.

      Kenneth G. Spillias, Andrew J. Bau-mann, Tara Duhy, and James E. Charles of Lewis, Longman & Walker, P.A., West Palm Beach, for Petitioner.
    Douglas S. Roberts, Dan R. Stengle, Vinette D. Godelia, and Jacob T. Cremer of Hopping Green & Sams, P.A., Tallahassee, for Respondent Florida Power & Light Co.; Mark F. Lapp, Hendry County Attorney’s Office, LaBelle, for Respondent Hendry County, a Political Subdivision of the State of Florida; and Charles B. Upton II of Upton Law Firm, P.L., Tallahassee, for Respondent McDaniel Reserve Realty Holdings, LLC, a Florida Limited Liability Company.
   KHOUZAM, Judge.

On September 14, 2011, the Seminole Tribe of Florida filed a petition for writ of certiorari in the circuit court seeking to quash Ordinance 2011-07 adopted by Hen-dry County on May 24, 2011. The Ordinance rezoned 3127 acres of land from general agriculture to a Planned Unit Development (PUD) for the purpose of constructing a natural gas power plant and solar energy farm. The Seminole Tribe argued that the County’s adoption of the Ordinance departed from the essential requirements of the law because it violated the Local Development Code (LDC) and because the County had avoided its responsibility to review the project’s compatibility with the Big Cypress Seminole Indian Reservation and consistency with the County’s Comprehensive Plan. The circuit court denied the petition, and the Seminole Tribe now seeks second-tier cer-tiorari review in this court. We deny the petition.

Our review in this case is limited to determining whether the circuit court afforded procedural due process and applied the correct law in denying the Seminole Tribe’s petition:

“[W]here full review of administrative action is given in the circuit court as a matter of right, one appealing the circuit court’s judgment is not entitled to a second full review in the district court. Where a party is entitled as a matter of right to seek review in the circuit court from administrative action, the circuit court must determine [1] whether procedural due process is accorded, [2] whether the essential requirements of the law have been observed, and [3] whether the administrative findings and judgment are supported by competent substantial evidence. The district court, upon review of the circuit court’s judgment, then determines whether the circuit court [1] afforded procedural due process and [2] applied the correct law.”

Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla.2000) (quoting City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982)). Notably, “the district court on second-tier certiorari review may not review the record to determine whether the agency decision is supported by competent substantial evidence.” Id. at 1093.

As a preliminary matter, we note that the circuit court incorrectly determined the Ordinance was not subject to certiorari review because the Seminole Tribe could not show irreparable injury. However, despite making that determination, the circuit court went on to provide a full review of each of the Seminole Tribe’s arguments. Therefore, as will be shown below, the circuit court afforded procedural due process and applied the correct law.

CONSISTENCY WITH COMPREHENSIVE PLAN

First, the Seminole Tribe argues that the Ordinance was not consistent with the comprehensive plan, in violation of LDC section 1-53-5.4(1) (2010). That section provides as follows: “Only uses which are consistent with the comprehensive plan ... may be approved as a PUD.” The circuit court properly found that section 163.3215, Florida Statutes (2011), would preclude the Seminole Tribe from raising this issue in a petition for writ of certiora-ri. That section states that it provides the exclusive methods for a party to challenge the consistency of a development order with a comprehensive plan. § 163.3215(1). It provides that an adversely affected party may maintain a de novo action for declaratory or other relief to challenge a development order. § 163.3215(3). The Seminole Tribe filed a separate action under this subsection along with its certiorari petition. Though section 163.3215(4) provides that an adversely affected party may challenge a development order solely by filing a petition for writ of certiorari if the local government has adopted an ordinance establishing various requirements, the parties have not identified and we have been unable to locate all of these requirements in the Hendry County Code. Consequently, the circuit court afforded procedural due process and applied the correct law in refusing to hear the issue of comprehensive plan consistency on certiorari review.

APPROVAL OF INCOMPATIBLE USES

Second, the Seminole Tribe argues that the Ordinance approved uses incompatible with the adjacent Big Cypress Reservation, in violation of LDC section 1-53-5.4. Specifically, the Seminole Tribe was concerned with the impact that the approved uses would have on water, ecotourism, and wildlife on the Reservation. LDC section 1-53-5.4(1) provides as follows: “Only uses which ... are deemed by the board of county commissioners to be compatible with adjacent land uses may be approved as a PUD.” Section 163.3164(9), Florida Statutes (2011), defines “compatibility” as “a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” However, LDC section l-53-5.3(c) also allows for the County to establish further requirements or conditions to ensure compliance with the comprehensive plan or the LDC.

The circuit court determined that the County has sufficiently addressed the issue of water use by conditioning the Ordinance on the approval of the South Florida Water Management District (SFWMD). The circuit court concluded that the water usage issues are within the exclusive jurisdiction of the Department of Environmental Protection or its successor, SFWMD. To support this proposition, the court pointed to section 373.217, Florida Statutes (2010), which authorizes the Department of Environmental Protection to provide programs for the issuance of permits for the consumptive use of water; states that the Florida Water Resources Act of 1972, sections 373.203-373.249, Florida Statutes (2010), provides the exclusive authority for requiring permits for the consumptive use of water; and establishes that the Florida Water Resources Act of 1972 supersedes any conflicting law or ordinance. Additionally, section 373.023, Florida Statutes (2010), provides:

(1) All waters in the state are subject to regulation under the provisions of this chapter unless specifically exempted by general or special law.
(2) No state or local government agency may enforce, except with respect to water quality, any special act, rule, regulation, or order affecting the waters in the state controlled under the provisions of this act, whether enacted or promulgated before or after the effective date of this act, until such special act, rule, regulation, or order has been filed with the department.

These statutory sections indicate that the water impact will be addressed by SFWMD and that the County ensured compatibility by conditioning the Ordinance on SFWMD’s approval.

As to ecotourism, the circuit court found that there was competent, substantial evidence to support the County’s determination that the power plant project and the Seminole Tribe’s use of the Reservation “can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by” the other. See § 163.3164(9).

As to wildlife, the circuit court determined that the County had satisfied its obligation to ensure compatibility by requiring approval by the appropriate state and federal agencies having jurisdiction over water, wetlands, and wildlife habitat. The court pointed to article IV, section 9, of the Florida Constitution, establishing the Fish and Wildlife Conservation Commission to exercise the regulatory and executive powers of the state with respect to wild animal life and fresh water aquatic life. Establishing this condition was an appropriate way to ensure compatibility regarding wildlife. See LDC § 1-53-5.3(c). The circuit court afforded due process and applied the correct law as to these issues of compatibility.

The Seminole Tribe also argues in this court that the circuit court improperly reweighed the evidence regarding compatible uses. Specifically, the Seminole Tribe points to the following statement in the circuit court’s order:

Despite the lack of evidence as to the exact condition of visibility the court is of the opinion that given the distance of the stacks [from] the Tribe’s property, over 2 miles, and the buffering imposed as a condition of use, there is competent substantial evidence to support the County’s conclusion, express or implied, that the uses are compatible and the Tribe’s use will not be unduly negatively impacted.

The Seminole Tribe is asking this court to re-examine the record to determine whether the County’s conclusion was supported by competent, substantial evidence. We are unable to do so because of the limited scope of second-tier certiorari review. See Fla. Power & Light Co., 761 So.2d at 1093. But we are satisfied that the court afforded procedural due process and applied the correct law.

ACCOMMODATION OF ALL PROPOSED USES

The Seminole Tribe further argues that the rezoning does not include sufficient land area to properly accommodate all proposed uses as required by LDC sections 1-53-5.4(5) and (6). Section 1-53-5.4(5) provides as follows:

The land area included within the PUD development [sic] shall be of such proportions as to properly accommodate all proposed uses in keeping with the general requirements of the county and the established objectives and policies of the adopted comprehensive plan.

Section 1-53-5.4(6) provides:

There shall be no specific lot requirements for individual uses; provided, however, that the area designated for any particular use shall be of sufficient size and proportion so as to properly accommodate said use and to provide for adequate open space and buffering between it and an adjacent use.

The circuit court determined that, even though the magnitude of possible water use had probably not been considered by the drafters, these sections did not require the water needs for the PUD to be entirely self-contained. Therefore, the circuit court afforded due process and applied the correct law.

TERMINATION OF PUD REZONE

Finally, the Seminole Tribe argues that the Ordinance violates LDC section 1-53.5.4(9), which provides as follows:

A planned unit development rezone will terminate within three years of the date of approval if either a site development plan or preliminary subdivision plat application is not filed with the county. If one of these applications is not filed within the specified time frame, the land shall revert back to the previous zoning district.

Section 2(b) of the Ordinance states that “[t]he PUD zoning shall remain in effect provided the landowner diligently pursues all regulatory approvals/licenses and shall be permanently vested upon approval of Phase I by the State of Florida Siting Board.” The circuit court determined that section 2(b) of the Ordinance did not comply with LDC section 1-53.5.4(9) but that there was competent, substantial evidence to support a variance allowing for section 2(b). The court noted that the applicant had not specifically requested a variance but had requested that the County modify the standard termination provision to accommodate the process for licensing under the Florida Electrical Power Plant Siting Act, sections 403.501-.518, Florida Statutes (2012). The court pointed out that the same formalities required for variance applications were followed in the process of adopting the Ordinance. Alternatively, the court determined that section 2(b) of the Ordinance was a condition as allowed under LDC section l-53-5.3(e). We conclude that the circuit court afforded due process and applied the correct law.

CONCLUSION

Though the circuit court incorrectly determined that the Ordinance was not subject to certiorari review, we conclude that the circuit court ultimately afforded procedural due process and applied the correct law in denying the Seminole Tribe’s petition. Accordingly, we deny the Seminole Tribe’s petition for writ of certiorari.

Petition denied.

ALTENBERND and BLACK, JJ„ Concur.

      . The circuit court believed that the Seminole Tribe could not show irreparable injury because the planned unit development, which involves the creation of a large solar and natural gas power plant, is subject to the Florida Electrical Power Plant Siting Act. §§ 403.501-.518, Fla. Stat. (2012). Thus, in addition to the forums provided to the Seminole Tribe by the Hendry County Commission, the circuit court, and this court, the law provides for an administrative forum. The Seminole Tribe is a "substantially affected person” entitled to contest these matters before an administrative law judge. See § 403.50665(4), Fla. Stat. (2012). However, the option of the administrative hearing under the Florida Electrical Power Plant Siting Act is not a circumstance that should prevent the Seminole Tribe from seeking certiorari review in either the circuit court or this court.

      . Though the Seminole Tribe raised additional issues of compatibility in the circuit court, such as public safety and transportation, it has not raised these arguments in this court and they will not be addressed here. See David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So.2d 275, 281 (Fla. 2d DCA 2008).


author: ALTENBERND, Judge.

text:
    Gloria Tawnda GARVIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2541.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2013.
    Gloria Tawnda Garvin, pro se.
   ALTENBERND, Judge.

Gloria Tawnda Garvin appeals the order that partially granted and partially denied her postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging that her sentence was illegal. We affirm the order except for its denial of relief regarding the condition of probation requiring the payment of restitution.

Ms. Garvin entered an open plea in two cases, case number 2007-CF-4103 and case number 2008-CF-2243. The 2007 case involved fleeing and eluding as a second-degree felony and felony petit theft as a third-degree felony. The 2008 case involved another felony petit theft. At sentencing in April 2009, the trial court imposed concurrent terms of five years’ imprisonment for each of these three felonies. For the fleeing and eluding in case number 2007-CF-4103, the court imposed a split sentence by including a four-year term of probation.

Ms. Garvin did not appeal these sentences. Instead, more than two years later, she filed a motion claiming that her order of probation is illegal. She objected to several special conditions of probation. The trial court provided relief on one of those conditions, but it denied relief on all of the rest. The only issue that concerns this court is Ms. Garvin’s claim that restitution in the 2008 case was made a special condition of probation in the 2007 case. She claims that there is an insufficient relationship between the offenses for restitution in the latter case to be a condition of probation in the former case. See Ochoa v. State, 596 So.2d 515 (Fla. 2d DCA 1992).

We decline to decide whether such a condition of probation would constitute an illegal sentence for purposes of a motion filed pursuant to rule 3.800(a). In reviewing the record, it is clear that the written order of probation does not conform to the oral pronouncement. The assistant state attorney at the sentencing hearing brought up this restitution as “one other thing.” He asked that the restitution of $570 be reduced to judgment. When sentencing Ms. Garvin, the trial court imposed the terms of imprisonment and then recited the special conditions of probation. At the end, the court resolved the “one other thing” by stating: ‘You will have to pay restitution in the amount of $570 to [the victim] in case number 2008-CF-2243.” The clerk who prepared the order of probation simply misunderstood the trial judge and added the restitution as the final special condition of probation in case number 2007-CF-4103.

The oral pronouncement of sentence controls over the written sentence, and a discrepancy between the two can be addressed by a motion to correct illegal sentence. See Watts v. State, 790 So.2d 1175, 1176 (Fla. 2d DCA 2001). Accordingly, we reverse the order on appeal. On remand, the trial court shall correct the order of probation to remove the special condition concerning restitution. In the event that the restitution was not reduced to judgment, the trial court has the authority to enter that order.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and DAVIS, JJ., Concur.

      . See § 316.1935(3)(a), Fla. Stat. (2007).

        . See § 812.014(3)(c), Fla. Stat. (2007).


text:
    Shaftney D. McMULLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4192.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.
    Shaftney D. McMullen, Avon Park, pro se.
    Pamela J. 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 Denying Motion For Clarification of Sentence in case numbers 2008-CF-3792-B and 2010-CF-2371, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Joseph SEBULSKI, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4450.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.
    Joseph Sebulski, Lake Butler, pro se.
    Pamela J. 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 judgment and sentence in case no. 11-801-CF-53, in the Circuit Court in and for Putnam County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, LAWSON and EYANDER, JJ., concur.


text:
    Marcus B. WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4605.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.
    Marcus B. Walker, Wewahitchka, pro se.
    Pamela J. 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 denying Petitioner’s motion for post conviction relief in case no. 2008-CF-11831, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, PALMER and BERGER, JJ., concur.


author: JACOBUS, J.

text:
    Claudia Vergara CASTANO, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2032.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.
    Rehearing Denied Jul. 19, 2011.
    H. Manuel Hernandez of H. Manuel Hernandez, P.A., Longwood, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
    Prior report: — So.3d-.
   ON REMAND

JACOBUS, J.

We reconsider this matter on remand from the Florida Supreme Court following its decision in Castano v. State, — So.3d - (Fla.2012), which quashed our decision in Castano v. State, 65 So.3d 546 (Fla. 5th DCA 2011). The Florida Supreme Court has now confirmed that Padilla v. Kentucky, 559 U.S. 356, -, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010), is not retroactive, but has nonetheless held that this is a case to which Padilla applies.

The offense committed by Castaño is an offense which clearly subjects her to deportation. See 8 U.S.C. § 1227(a)(2)(E)® (“Any alien who at any time after admission is convicted of a crime of ... child neglect ... is deportable.”); 8 U.S.C. § 1229b(b)(l) (providing that attorney general can cancel removal under certain circumstances, but not if alien had been convicted under 8 U.S.C. § 1227(a)(2)). Because the deportation consequences were clear, we agree with Castaño that the standard deportation warning she was given during the plea colloquy fails to satisfy Padilla’s requirement that she be given clear advice regarding the deportation consequence. 180 S.Ct. at 1483. The deportation warning during the plea colloquy was also insufficient to cure the prejudice arising from her counsel’s failure to comply with the requirements of Padilla. Hernandez v. State, — So.3d-(Fla. 2012); Oropesa v. State, 104 So.3d 1183 (Fla. 2d DCA 2012). Thus, we reverse and remand with instructions to reconsider Castano’s motion.

REVERSED and REMANDED WITH INSTRUCTIONS.

LAWSON and BERGER, JJ., concur.


text:
    Ervin Rommell TISBY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-6174.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2013.
    Ervin Rommell Tisby, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Merlin WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5865.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2013.
    Merlin Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Homer MURRAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5752.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2013.
    Homer Murray, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Craig CUMMINGS, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D12-5431.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2013.
    Craig Cummings, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. See Lopez v. McDonough, 935 So.2d 47 (Fla. 1st DCA 2006).

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Adrian Francis WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5100.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2013.
    Adrian Francis Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.141(c)(5)(A).

WOLF, THOMAS, and CLARK, JJ., concur.


text:
    Derrick KIRKLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4902.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2013.
    Derrick Kirkland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Montrail COOK, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5790.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2013.
    Montrail Cook, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Dismissed without prejudice to the appellant’s right to file a facially sufficient petition for belated appeal in this Court pursuant to Florida Rule of Criminal Procedure 9.141(c). All pending motions are denied as moot.

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


text:
    Nakishia SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5717.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2013.
    Nakishia Sullivan, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the appellant’s untimely notice of appeal failed to invoke this Court’s jurisdiction, the appellee’s motion to dismiss, filed in this Court on December 4, 2012, is hereby granted and the appeal is Dismissed.

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


text:
    Arther COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4974.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2013.
    Arther Cooper, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of a motion to reduce or suspend sentence filed pursuant to section 921.186, Florida Statutes (2010). The state moved to dismiss the appeal on the ground that the order is not appealable. We agree and dismiss the case.

Section 921.186, Florida Statutes (2010), reads:

Notwithstanding any other law, the state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of violating any felony offense and who provides substantial assistance in the identification, arrest, or conviction of any of that person’s accomplices, accessories, cocon-spirators, or principals or of any other person engaged in criminal activity that would constitute a felony. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance, (emphasis added).

An order on a motion filed pursuant to section 921.186 is similar to an order entered on a motion to reduce sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c), in that the decision to reduce or suspend is addressed to the discretion of the trial court. Orders denying rule 3.800(c) motions are not ap-pealable because the decision to reduce a sentence in response to such a motion is entirely within the discretion of the trial court. See Daniels v. State, 568 So.2d 63 (Fla. 1st DCA 1990) (holding that, because a motion to reduce sentence was addressed to the discretion of the trial court, “this court ... has no jurisdiction to review the correctness of the trial court’s disposition of the motion”). Accordingly, we hold that orders denying motions filed pursuant to section 921.186, Florida Statutes, are not appealable. Because the trial court ruled on the merits of the motion we decline to treat the appeal as a petition for writ of certiorari. Therefore, the Appellee’s motion to dismiss is granted and the appeal is hereby dismissed.

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.

      . The appellant's motion for extension of time to file a response is granted, and the appellant’s response, filed December 27, 2012, is accepted as timely.


text:
    Horace CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3762.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2013.
    Horace Cummings, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that his 30-year sentences imposed for two counts of attempted armed robbery, a second-degree felony as set forth in sections 812.13(2)(a), and 777.04(4)(c), Florida Statutes (1997), exceed the statutory maximum of 15 years’ imprisonment. The trial court denied the motion, finding it to be untimely filed, and also noted that the appellant had been sentenced as a habitual felony offender. However, rule 3.800(a) provides in part that “[a] court at any time may correct an illegal sentence,” and thus the motion was not untimely. Furthermore, the court failed to attach any portion of the record indicating that the appellant was indeed sentenced as a habitual felony offender or to provide any other attachments conclusively refuting the appellant’s facially sufficient claim.

In response to this Court’s order issued pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the state has conceded that the order should be reversed and remanded for a record attachment conclusively refuting the appellant’s claim or for the appellant to be resentenced.

We therefore reverse and remand for the trial court to either attach the portion of the record conclusively refuting the appellant’s claim, or for the court to resen-tence the appellant. See, e.g., Ross v. State, 14 So.3d 1198 (Fla. 1st DCA 2009).

REVERSED AND REMANDED.

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


text:
    Walter KYSER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4841.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2013.
    Walter Kyser, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Walter Kyser petitions this court for a writ of prohibition. For the reasons set forth below, we grant the petition.

Kyser was tried and convicted in Bay County and sentenced to death. The conviction was reversed on appeal and remanded for a new trial. Kyser v. State, 588 So.2d 285 (Fla.1988). On remand, venue was transferred to Escambia County. There, Kyser was again convicted and sentenced to life in prison. This court affirmed. Kyser v. State, 576 So.2d 888 (Fla. 1st DCA 1991). Kyser recently filed a motion for postconviction relief in the Circuit Court for Escambia County. The clerk of that court sent the motion to Bay County. Kyser argues that this was incorrect and that Escambia County is the proper forum to consider the postconviction motion. The state concedes the correctness of this position. See Hernandez v. State, 64 So.3d 1175 (Fla.2011); Waterfield v. State 35 So.3d 60 (Fla. 2d DCA 2010). Accordingly, we grant the petition. The Circuit Court for Bay County is directed to return the motion and, if necessary, the record or portions thereof to Escambia County for further proceedings.

PETITION GRANTED.

BENTON, C.J., DAVIS and ROBERTS, JJ., concur.


author: FERNANDEZ, J.

text:
    Alejandro O. ANTON, Appellant, v. Beatriz Rodriguez ANTON, Appellee.
    No. 3D12-1508.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2013.

      David H. Freedman, for appellant.
    Michael H. Bloom, Miami, for appellee.
    Before SHEPHERD, CORTIÑAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Alejandro 0. Anton appeals a finding of indirect criminal contempt and order of commitment alleging that the trial court failed to comply with the requirements set forth in Florida Rule of Criminal Procedure 3.840. We agree and reverse.

Rule 3.840 sets forth the procedural safeguards that a court must enforce prior to the imposition of a sentence for indirect criminal contempt. The defendant must receive notice of the essential facts that constitute the criminal contempt and have an opportunity to show cause why the sentence should not be imposed.

Appellee Beatriz Rodriguez Anton initiated the contempt proceeding below in this dissolution of marriage case. The record reflects that she filed numerous motions for contempt, seeking compliance with a court order that prohibited the husband from having any direct or indirect contact with any of the tenants of a multi-unit residential apartment building, which is a marital asset. The husband appeared at the contempt hearing at which he admitted that he violated the terms of the court’s order. The court, however, did not issue a show cause order, and neither the notice of hearing on the wife’s various contempt motions nor the motions she filed placed the husband on notice that he potentially faced a criminal penalty at that contempt hearing. Thus, the court’s finding of indirect criminal contempt constituted fundamental error. See Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977); De Castro v. De Castro, 957 So.2d 1258 (Fla. 3d DCA 2007).

We therefore reverse the court’s finding of indirect criminal contempt without prejudice.

Reversed.

      . Rule 3.840 provides, in pertinent part, as follows:
      (a) Order to Show Cause. The judge, on the judge's own motion or an affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court.
      (g) Sentence; Indirect Contempt. Prior to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against the defendant and inquire as to whether the defendant has any cause to show why sentence should not be pronounced.


author: LOGUE, J.

text:
    Bryan SHACKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-256.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2013.
    Carlos J. Martinez, Public Defender, and Michael Mayer, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and FERNANDEZ and LOGUE, JJ.
   LOGUE, J.

Bryan Shacker appeals the trial court’s order revoking his probation and the resulting sentence. We affirm the revocation and sentence; we remand to have the written order of revocation amended to reflect the trial judge’s oral rulings.

In 2003, after a guilty plea, Shacker was adjudicated guilty of three counts of attempted sexual battery on a minor and three counts of lewd and lascivious assault on a child. He was sentenced to five years in prison followed by ten years’ probation. Seven years later, the State filed an amended affidavit alleging Shacker committed nine violations of his probation, relating to his failure to maintain contact with his probation officer.

Following an evidentiary hearing, the trial court announced from the bench that Shacker committed five of the nine alleged violations: violations two, three, four, six, and nine. The trial court also concluded that the State failed to prove that Shacker committed the remaining four alleged violations. The written order of revocation of probation, however, reflected that Shacker committed all nine alleged violations. As the State concedes, the written order should correctly reflect the oral pronouncement. See Smith v. State, 100 So.3d 258, 254 (Fla. 3d DCA 2012); see also Stark v. State, 712 So.2d 454, 455 (Fla. 2d DCA 1998); Reiter v. State, 674 So.2d 189, 190-91 (Fla. 2d DCA 1996).

Affirmed in part, reversed in part, and remanded to the Court below to strike those portions of the order finding that Shacker had committed violations 1, 5, 7 and 8.

      . Violation 1 reads “Violation of Condition (L.l) of the Order of Probation by failing to report to the probation office monthly and complete a written monthly report, in that the offender failed to report during his scheduled report period of July 6 or July 7, 2010, and has failed to report since July 15, 2010.”
      Violation 5 reads "Furthermore, the offender failed to follow the instructions of his probation officer, in that on July 14, 2010, at approximately 8:20 am, officer Kimberly Schultz instructed the offender in person, at his residence, that he needed to report to the probation office and as of July 15, 2010, the offender has failed to do so.”
      Violation 7 reads "Violation of Condition (1-7) of the Order of Probation by failing to pay the State of Florida the amount of $25.00 per month toward cost of supervision, plus a 4% surcharge, unless otherwise exempted, in accordance with Section 948.09, Florida Statutes, and as grounds for belief that the offender violated his probation, Officer Schultz states that the offender has failed to make a payment and owes $450.00 as of July 15, 2010.”
      Violation 8 reads "Violation of Special Condition (1-8) of the Order of Probation, by failing to make electronic monitoring fee payments to the probation officer as directed in accordance with the payment instructions of the court, and as grounds for belief that the offender violated his probation, Officer Schultz states the offender has failed to make a payment and owes approximately $2382.00 as of July 13, 2010.”


text:
    Steven Lathel JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2218.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2013.
    Steven Lathel Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the January 6, 2012, order denying the defendant’s amended petition for injunction or declaratory relief regard-mg designation as a sexual predator, in Nassau County Circuit Court case number 07-852-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

WOLF, THOMAS, and CLARK, JJ„ concur.


author: BLACK, Judge.

text:
    Joshua L. JEFFERS, Appellant, v. STATE Of Florida, Appellee.
    No. 2D11-1653.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.

      Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   BLACK, Judge.

On August 13, 2008, Joshua Jeffers pleaded guilty to one count of lewd and lascivious battery in violation of section 800.04, Florida Statutes (2007). The court sentenced Jeffers to two years in prison followed by ten years of sex offender probation. On March 17, 2011, Jeffers admitted to violating the terms of his probation. After a hearing pursuant to section 948.06(8)(d), Florida Statutes (2010), the court designated Jeffers as a violent offender of special concern and sentenced him to 115.5 months’ incarceration followed by 64.5 months’ probation. Jeffers raises two issues on appeal. First, he contends that the trial court erred in designating him as a violent offender of special concern because he committed the qualifying offense before section 948.06(8) became effective. Second, he argues that the trial court failed to award him proper credit for time previously served on probation. We review both issues de novo. See Moore v. State, 882 So.2d 977, 980 (Fla.2004); Flowers v. State, 899 So.2d 1257, 1259 (Fla. 4th DCA 2005).

Jeffers relies on this court’s opinion in Cherington v. State, 24 So.3d 658 (Fla. 2d DCA 2009), to argue that he does not qualify as a violent offender of special concern. In Cherington, this court stated in dicta that section 948.06(8) became effective on October 1, 2007. Id. at 663. Jef-fers argues that he committed a qualifying offense on September 22, 2007, a week prior to the effective date of the statute. However, as the State correctly argues in its brief, it is clear that section 948.06(8) became effective on March 12, 2007, and that this court misstated the effective date of the statute in its previous opinion. See ch.2007-2, § 13, at 105, Laws of Fla. Here, Jeffers committed a qualifying offense on September 22, 2007, six months after the effective date of section 948.06(8), and was on probation related to this offense at the time of the revocation proceeding. Pursuant to the statute, a violent offender of special concern is “a person who is on felony probation or community control related to the commission of a qualifying offense committed on or after the effective date of this act.” § 948.06(8)(b)(l). Accordingly, the trial court did not err in finding that Jeffers was subject to the statutory provision and we affirm Jeffers’ designation as a violent offender of special concern.

Jeffers also argues that the trial court erred in failing to award jail time credit for time previously served on probation. The State concedes that Jeffers’ current sentence without the correct application of jail time credit will result in Jeffers serving a sentence above the statutory maximum. When the court imposes a new split sentence after a revocation of probation, the law requires that the court give credit for any time previously served on probation if the new sentence of probation and incarceration equals the statutory maximum sentence. See Waters v. State, 662 So.2d 332, 333 (Fla.1995); Storey v. State, 684 So.2d 888, 889 (Fla. 2d DCA 1996); Edwards v. State, 59 So.3d 1177, 1177 (Fla. 5th DCA 2011). After revoking Jeffers’ probation, the trial court sentenced him to a split sentence of 115.5 months’ incarceration followed by 64.5 months’ probation, which totals fifteen years-the maximum sentence permissible for a second-degree felony. See § 775.082(3)(c), Fla. Stat. (2010). Since the failure to afford Jeffers proper credit results in Jeffers serving a sentence above the statutory maximum, we remand for resentencing where the trial court should credit Jeffers’ new probationary sentence with the amount of time he previously served on probation.

Affirmed in part, reversed in part, and remanded.

SILBERMAN, C.J., and CASANUEVA, J., Concur.

      . Lewd and lascivious battery in violation of section 800.04 is a qualifying offense under section 948.06(8)(c)(5).

      . We note that the trial court entered an order on March 19, 2012, granting Jeffers proper credit for time previously served on probation. However, because Jeffers’ appeal was pending in this court, the trial court lacked jurisdiction to consider Jeffers' motion to correct sentence and the trial court's order is a nullity. See Miran v. State, 46 So.3d 186, 188 (Fla. 2d DCA 2010).


author: SILBERMAN, Chief Judge.

text:
    Vincent YARN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2429.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.

      Howard L. Dimmig, II, Public Defender, and Brooke Elvington, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Chief Judge.

Dwight Vincent Yarn appeals his convictions and sentences for (1) robbery with a firearm, (2) aggravated battery on a law enforcement officer with a deadly weapon, (3) battery on a police dog, (4) possession of a firearm by a convicted felon, (5) second-degree fleeing or attempting to elude a law enforcement officer, and (6) trafficking in phenethylamines (MDMA). Yarn challenges the denial of his motion for judgment of acquittal on counts two and three and the denial of his motion to suppress. We affirm without further discussion the trial court’s denial of the motion to suppress. With respect to the denial of the motion for judgment of acquittal, we affirm as to the charge of aggravated battery on a law enforcement officer with a deadly weapon. Because the trial court should have granted the motion for judgment of acquittal on the charge of battery on a police dog, we reverse Yarn’s conviction and sentence for that offense. Otherwise, we affirm Yarn’s convictions and sentences.

Yarn contends that the trial court should have granted his motion for judgment of acquittal for the offenses of aggravated battery on a law enforcement officer with a deadly weapon and battery on a police dog because the State failed to prove Yarn’s specific intent. The State presented evidence that Yarn used his vehicle to ram Deputy Wolfinger’s police vehicle, a Chevy Tahoe K-9 unit. The State charged Yarn with battery on a police dog because the deputy’s dog, Rex, was in the Tahoe and was thrown inside his cage.

The State presented evidence that after a robbery Yarn fled from officers in a gold Toyota Camry and drove down a dead-end street where Deputy Wolfinger blocked in the Camry with his Tahoe. At the dead end the Camry turned into a vacant lot and made a U-turn. Just before the Camry got back on the road, it rapidly accelerated and struck the Tahoe head-on. Deputy Wolfinger was thrown against the steering wheel, and Rex was bounced off the wall of his cage. Yarn tried to push his way out by ramming the Tahoe. When Yarn hit Deputy Wolfinger’s Tahoe, Yarn was still attempting to accelerate and to push the Tahoe out of the way.

Yarn testified that he did not intend to hit the deputy’s vehicle. Rather, he was trying to turn around when another deputy came “out of nowhere” and the two collided. Yarn also testified that he did not know there was a dog inside the Tahoe.

With respect to the aggravated battery on Deputy Wolfinger, the trial court properly denied the motion for judgment of acquittal because the State presented sufficient evidence of Yarn’s intent to strike the deputy based on Yarn’s actions in ramming the Tahoe. A simple battery occurs when the defendant “[a]ctually and intentionally touches or strikes another person against the will of the other.” § 784.03(l)(a)(l), Fla. Stat. (2009). The battery becomes an aggravated battery when the defendant uses a deadly weapon, such as a motor vehicle. See § 784.045(1)(a)(2); Beard v. State, 842 So.2d 174, 175-76 (Fla. 2d DCA 2003). Intent is a required element of battery, and proof of intent is usually determined by the surrounding circumstances. Beard, 842 So.2d at 176; see also Miller v. State, 636 So.2d 144, 150 (Fla. 1st DCA 1994) (stating that battery on a law enforcement officer is a specific intent crime). And “to prove the offense of aggravated battery arising out of the defendant’s ramming of another vehicle, it is necessary for the State to show that the occupants of the rammed vehicle were at least jostled or moved about within their vehicle.” V.A. v. State, 819 So.2d 847, 849 (Fla. 3d DCA 2002).

Yarn argues that he did not intend to hit the deputy’s vehicle and that he was only trying to escape. However, the State’s evidence here was inconsistent with Yarn’s testimony that he did not intend to collide with the Tahoe. Although Yarn may have been attempting to escape, his method of escape was to intentionally ram the Tahoe to attempt to push it out of the way. Further, Yarn did not suggest that he was unaware that a law enforcement officer was in the Tahoe. In fact, he claimed that the vehicle just “came out of nowhere”; thus, he knew that someone was driving the police vehicle. Therefore, the trial court was correct to deny the motion for judgment of acquittal on the ground that the State failed to prove Yarn’s intent to commit battery on the deputy.

With respect to the charge of battery on a police dog, we agree with Yam that the trial court should have granted his motion for judgment of acquittal because the State failed to present evidence of Yarn’s intent to commit a battery on the dog. Section 843.19(3), Florida Statutes (2009), provides that “[a]ny person who actually and intentionally maliciously touches, strikes, or causes bodily harm to a police dog” commits a first-degree misdemeanor. Thus, the State had to prove that Yarn intentionally struck or caused harm to the police dog.

To prove that Yarn intended to strike or harm the dog, it would be necessary to prove that Yarn knew a police dog was in Deputy Wolfinger’s Tahoe. Yarn testified that he did not know there was a dog in the Tahoe he struck. He further testified that he did not pay attention to any markings on the vehicle and that he could not even see markings because all he could see were “lights flashing everywhere.” He knew the vehicles were patrol cars, but he did not know what was in the vehicle he hit.

The- State’s evidence showed that Yarn caused a head-on collision with the Tahoe. Deputy Wolfinger testified that his Chevy Tahoe had “ “warning police K-9’ on the side windows and back and rear window.” But there is no evidence that Yarn ever saw the side or back of Deputy Wolfinger’s Tahoe. Rather, Yarn hit the Tahoe head on, and there was no evidence that there were K-9 markings on the front. Yarn’s testimony that he did not see any markings on the Tahoe because there were lights flashing everywhere is consistent with the State’s evidence that the deputies’ vehicles had their lights flashing. Based on the evidence presented, the State failed to prove that Yarn knew that there was a police dog in the vehicle he struck and that he intended to strike or cause harm to the police dog.

Therefore, because the State failed to prove Yarn’s intent to harm a police dog, the trial court should have granted Yarn’s motion for judgment of acquittal on count three. We reverse Yarn’s conviction and sentence for the misdemeanor of battery on a police dog. We recognize that this will provide little actual relief to Yarn because he has already served the sentence for this offense and he is serving a life sentence on the robbery with a firearm conviction.

Affirmed in part and reversed in part.

WALLACE and BLACK, JJ„ Concur.


text:
    STATE Of Florida, Appellant, v. Veronica CISNEROS, Appellee.
    Nos. 2D11-2682, 2D11-2703.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellee.
   MORRIS, Judge.

The State appeals an order dismissing charges in two separate cases of a violation of RICO, conspiracy to commit RICO, trafficking in cocaine, and conspiracy to traffic in cocaine. We affirm in part and reverse in part.

Cisneros was apprehended with a trafficking amount of cocaine in Lee County, Florida. In the informations filed against her in Hillsborough County, the State charged her with committing RICO and conspiracy to commit RICO in Hillsbor-ough and Lee Counties and with committing trafficking and conspiracy to traffic in Hillsborough, Lee, Sumter, and Escambia Counties. After Cisneros filed motions to dismiss based on improper venue, the State filed a traverse. In the traverse, the State alleged that Cisneros and the purported ringleader of a drug trafficking organization engaged in telephone conversations to discuss a drug shipment. The State also alleged that in conversations between the ringleader and an unidentified person, there was discussion about Cisne-ros’s and her codefendant’s travelling on 1-75 in Florida. Thus the State contended that Cisneros’s “path of travel ... included travelling through Hillsborough County to reach th[e] final destination in Lee County.” The State proffered that the ringleader had a known address in Hills-borough County, his cell phone was subscribed in Hillsborough County, and he had been identified as a major drug supplier to Hillsborough County. The State finally alleged that although the ringleader may not have been in Hillsborough County at the time of the phone calls between himself and Cisneros, his phone lines were intercepted in Hillsborough County.

Our standard of review of an order on a pretrial motion to dismiss is de novo. State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002) (citing Styron v. State, 662 So.2d 965 (Fla. 1st DCA 1995)).

We hold that the State’s traverse was insufficient to warrant an automatic denial of the motions to dismiss because it did not create a material factual dispute. See State v. Carroll, 404 So.2d 844, 845 (Fla. 5th DCA 1981) (finding that State’s traverse “set out certain ‘disputed’ facts which [were] irrelevant and inadmissible at trial ... and which d[id] not effectively traverse the appellee’s motion”). The fact that the ringleader may have been known to be a drug supplier to Hillsborough County, had an address there, and had a cell phone subscribed there does not mean Hillsborough County was the proper venue to try Cisneros, especially where there was no proof that the ringleader was even in Hillsborough County at the time he spoke with Cisneros. Indeed, the State’s traverse suggests that he was not. Further, the fact that an unidentified person referenced Cisneros’s travelling on 1-75 does not prove that Hillsborough County was the proper venue as Cisneros could have strayed off of 1-75 at any time on her way to Lee County. Simply put, the State’s traverse did not deny the material facts alleged in Cisneros’s motions to dismiss.

For the same reasons, we reject the State’s arguments on the merits. The State is correct that where a person commits a crime in more than one county, a trial may be held in any county in which the crime occurred. See §§ 910.05 & 910.06, Fla. Stat. (2007); see also § 910.02 (providing that when an offense is committed while in transit and it is not known in which county the offense is committed, “the accused may be tried in any county through which the ... vehicle has traveled”). But here, there was no proof offered to tie Cisneros to Hillsborough County. The State simply failed to prove that the ringleader was in any of the counties alleged in the informations at the time he spoke with Cisneros or that Cisneros travelled through any of the counties alleged prior to her apprehension in Lee County. The State points to a response it filed to Cisneros’s codefendant’s motion to dismiss, wherein the State asserted that some of the recorded phone calls “included discussions about transporting a portion of the cocaine from F[ort] Myers to [the ringleader] in Tampa.” However, within that same response, the State also alleged that it was the ringleader and an unidentified male who discussed “skirts” and whether the unidentified male would be “bringing them up here.” Thus there is no allegation that it was Cisneros who discussed transporting the drugs from Fort Myers to Tampa. The State’s reliance on Jackson v. State, 37 So.3d 370 (Fla. 2d DCA 2010), is unavailing because in that case, the appellant conceded his conspiracy charge was properly brought in Hillsborough County. That concession was based on the fact that the other people involved in the conspiracy were in Hillsborough County at the time they formed the conspiracy. Id. at 371. Those are not the facts of this case.

In fact, Jackson actually supports the dismissal of the RICO, conspiracy to commit RICO, and conspiracy to traffic in cocaine charges here. Because there was no proof that the ringleader was in Hills-borough County at the time Cisneros spoke to him and because the State otherwise failed to prove that Cisneros had ties to Hillsborough County, the circuit court correctly determined that Hillsbor-ough County was an improper venue. See Jackson, 37 So.3d at 372 (holding that where evidence failed to prove appellant committed trafficking by possession in Hillsborough County, trial court erred by denying his motion for judgment of acquittal).

The State maintains that it could file an information under the authority of the Office of the Statewide Prosecutor pursuant to section 16.56, Florida Statutes (2006-2007). The State argues that the statewide prosecutor may pursue charges against a defendant anywhere in the state as long as the crimes involved two or more judicial circuits. But such authority does not apply in this case where the State failed to prove Cisneros had ties to any county outside of Lee County.

Consequently, we affirm the dismissal of the charges of RICO, conspiracy to commit RICO, and conspiracy to traffic in cocaine.

For the reasons already addressed herein, we could affirm the dismissal of the trafficking charge as well. However, “[a]s a general principle, a transfer, rather than a dismissal is the preferred remedy for improper venue.” State v. Kotecki, 82 So.3d 1150, 1152 (Fla. 2d DCA 2012) (citing Bush v. State, 945 So.2d 1207, 1214-15 (Fla.2006)). The State argued below and here on appeal that the trafficking charge could be transferred to Lee County. We agree. Accordingly, the trial court erred by dismissing the trafficking charge rather than transferring it to Lee County, and we reverse and remand the dismissal of that charge only.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, J„ and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . Racketeer Influenced and Corrupt Organization Act.

      . Based on this same fact, we reject without further comment the State’s argument that Cisneros could be charged as an aider and abettor pursuant to section 910.12.


text:
    Kiefer Ruben FILPPULA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3274.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2013.

      Cameron W. Eubanks of Brownstone, P.A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ralph F. Guerra, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Kiefer Filppula entered a plea of nolo contendere to the following crimes: (1) possession of a prescription drug without a prescription in violation of section 499.03, Florida Statutes (2009); (2) possession of cannabis with intent to sell in violation of section 893.13, Florida Statutes (2009); (3) possession of alprazolam in violation of section 893.13; and (4) possession of drug paraphernalia in violation of section 893.147. On appeal, Filppula argues that the court imposed illegal sentences on counts two and three. We agree and reverse.

For count three, the possession of alprazolam, the court orally sentenced Filppula to five years’ probation with two years in prison as a condition of his probation; however, the written sentence reflects that the probationary sentence follows the prison sentence. Although it is well settled that the court’s oral pronouncement of a sentence controls over a written document, Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003), the imposition of two years of incarceration in a state prison facility as a condition of probation is an illegal sentence. Section 948.03(2), Florida Statutes (2011), provides that if the court “imposes a period of incarceration as a condition of probation, the period shall not exceed 364 days.” Additionally, the statute provides that incarceration as a condition of probation must be completed in a county facility, a probation or restitution center, or a community residential facility. § 948.03(2); see also Williams v. State, 67 So.3d 249, 250 (Fla. 2d DCA 2010) (holding that sentence of forty-eight months in state prison as a condition of probation violated section 948.03(2) and was an illegal sentence). Here, the court imposed two years’ incarceration in Florida State Prison as a condition of probation. As a result, the sentence is illegal and should be corrected.

Although the written sentence imposed on count three is a nullity because it differs from the oral pronouncement, we also note the following. Possession of al-prazolam is a third-degree felony. The maximum permissible sentence for a third-degree felony is five years. § 775.082(3)(d), Fla. Stat. (2011). The written sentence imposed two years in prison followed by five years’ probation resulting in a total sentence of seven years. Because the sentence exceeds the statutory maximum for a third-degree felony, it is an illegal sentence. See Netkerly v. State, 804 So.2d 433, 439 (Fla. 2d DCA 2001) (holding that sentences of five years in prison followed by ten years’ probation were illegal sentences that exceeded the statutory maximum of five years for a third-degree felony); Smith v. State, 584 So.2d 154, 154 (Fla. 2d DCA 1991) (holding that “[t]he law is clear that when a defen dant is sentenced to a split sentence consisting of incarceration and probation ... the combined sanction cannot exceed the maximum period of incarceration provided by law”).

Finally, the order of probation states that Filppula was sentenced to probation on counts two and three. However, the court did not orally pronounce a probationary sentence as to count two, possession of cannabis with intent to sell. Rather, probation was only sentenced as to count three. Accordingly, the probationary sentence on count two is illegal and should be stricken. See Fla. R.Crim. P. 3.700(b) (“Every sentence or other final disposition shall be pronounced in open court....”); Ashley, 850 So.2d at 1267 (“Florida’s sentencing procedures prevent subsequent imposition of new terms to a previously announced sentence.”); State v. Hart, 668 So.2d 589, 591 (Fla.1996) (“[E]very sentence, which ... may entail the imposition of conditions of probation, must be pronounced in open court.”). Accordingly, we remand for resentencing in accordance with this opinion.

Reversed and remanded.

SILBERMAN, C.J., and CASANUEVA, J., Concur.