author: BENTON, J.

text:
    Alton HARTZOG, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0725.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2014.
    Rehearing Denied March 18, 2014.

      Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

In this Jimmy Ryce Act case, Alton Hartzog urges as error the denial of his motion for a new trial. After a jury determined that he qualified as a “sexually violent predator” as that term is defined in sections 394.912(10) and 775.21(4)(d), Florida Statutes (2012), he was committed to continued confinement in the Florida Civil Commitment Center (FCCC) in Arcadia, Florida, pursuant to section 394.917(2), Florida Statutes (2012). He argues that the expert testimony adduced by the state — two psychologists testified against him — was legally insufficient to support an order finding a need for indefinite confinement because the psychologists relied solely upon evaluations done in 2008, information which was too stale, as a matter of law. We reverse and remand for a new trial.

These proceedings began when, in May of 2008, the state attorney filed a petition in circuit court alleging that appellant was a “sexually violent predator.” The petition alleged that appellant had been interviewed on April 14, 2008, and evaluated by two psychologists, Drs. Falb and Kline. But appellant’s trial did not take place until January 29, 2013. At the trial, both psychologists testified and both recommended commitment, basing their testimony on the interviews they had conducted and reports they had prepared in April of 2008. Neither expert had had any contact with appellant since then.

On appeal, as below, appellant argues that the state failed to present clear and convincing evidence of two of the three elements it was burdened to prove, because the psychologists’ evaluations relied on were so old. Appellant’s motion for a new trial preserved this sufficiency of the evidence point. See Givans v. Ford Motor Credit Co., 82 So.3d 864, 865 (Fla. 4th DCA 2011) (“After the jury returned its verdict, Givans filed a motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial, arguing, among other things, that the verdict was contrary to the manifest weight of the evidence because FMCC failed to establish that it asked Givans for payment. Givans’ post-trial motion preserved her challenge to the sufficiency of the evidence[.]”); Scarfone v. Magaldi, 522 So.2d 902, 903 (Fla. 3d DCA 1988) (“First, we conclude that the above issue has been properly preserved for appellate review. Although the plaintiff made no motion for a directed verdict below, he did file a motion for new trial in which he challenged the sufficiency of the evidence to support the jury’s verdict.”); Yoder v. Adriatico, 459 So.2d 449, 451 (Fla. 5th DCA 1984) (“In response the Yoders, while admitting that they filed no motion for directed verdict, contend that the question of the sufficiency of the evidence to support the verdict was preserved by their motion for new trial, relying upon Ruth v. Sorensen, 104 So.2d 10 (Fla.1958).”).

On motion for new trial on grounds the verdict is against the manifest weight of the evidence, the trial court must determine whether or not “a greater amount of credible evidence supports” the verdict. Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2d DCA 2002). On appeal from an order granting or denying a motion for new trial based on manifest weight of the evidence, we review for abuse of discretion. See Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999). But appellant contends here primarily that the evidence was insufficient as a matter of law, because its obsolescence was incompatible with the Jimmy Ryce Act. On that premise, he argues persuasively, the proper standard of review is de novo. See Mistretta v. Mistretta, 31 So.3d 206, 208 (Fla. 1st DCA 2010) (recognizing “ ‘when a motion for new trial addresses only issues of law, the standard of review is essentially de novo ’”) (quoting State Farm Mut. Auto. Ins. Co. v. Williams, 943 So.2d 997, 999-1000 (Fla. 1st DCA 2006)).

In order to prove appellant was a sexually violent predator, the state was required to prove three elements by clear and convincing evidence: 1) that appellant had been convicted of a “sexually violent” offense, 2) that he suffers from a mental abnormality or personality disorder, and 3) that this makes him likely to engage in acts of sexual violence if not confined in a secure facility. See § 394.912(10), Fla. Stat. (2012). Appellant’s conviction for “promoting sexual performances by a child” by photographing two little girls (then 7 and 9 years old) in states of partial undress in sexually suggestive poses satisfied the first element, even though no violence was proven (or even suggested) as to either of the children.

But the state’s sole evidence that appellant currently suffers from a mental or personality disorder was the psychologists’ 2008 diagnosis, as documented in reports almost five years old, and their opinion that the diagnosis ought not to be changed in the absence of extensive treatment. The state offered no other evidence to prove factors two and three, ie., that appellant suffered from a mental abnormality or personality disorder in 2013, as opposed to five years earlier, much less that any such disorder makes it likely that he would commit a sexually violent offense.

Diagnoses almost five years old as the basis for a hold contested under section 394.917 do not comport with the legislative design of the Jimmy Ryce Act. Section 394.918(1) requires that a person who has been committed have a mental examination “once every year or more frequently at the court’s discretion.” A person who is ordered to be detained under the Jimmy Ryce Act may be entitled to a non-jury trial on the question of his release as often as once a year. See § 394.918(2), Fla. Stat. (2013). These provisions make clear, albeit implicitly, that a five-year-old evaluation is a legally insufficient basis for confining a citizen who is not, after all, under criminal sentence. Mr. Hartzog had not even had a prior (initial) adjudication under the Jimmy Ryce Act. A person facing an initial deprivation of liberty should be afforded at least the same level of procedural protection as detainees already determined to be appropriate subjects of preventive detention.

Based on an interview in 2008, Dr. Kline diagnosed appellant with pedophilia and paraphilia. Both psychologists conceded Mr. Hartzog had undergone physiological changes since 2008 that they did not take into account in formulating the opinions they offered at trial. Mr. Hartzog testified that, while at FCCC awaiting trial, he received therapy three to four times a week. Neither psychologist was aware of this therapy (which the state contended was not therapy for sexual disorders).

The other “tool” (in addition to the interview) used by Dr. Kline, he testified, was the “Static-99,” an actuarial program designed to measure the likelihood that adult male sex offenders will reoffend, by placing them on a scale from zero to twelve. Appellant scored a three in 2008, said to correlate with a “moderately low risk for reoffense.” But “Static-99” has since been updated to “Static-99R,” and Dr. Falb testified that, in his opinion, appellant would only score a one on the “Static-99R” today. Dr. Kline also diagnosed appellant with pedophilia and scored appellant at three using the “Static-99” in 2008. In his opinion, however, rescoring appellant in 2018 on the “Static-99R” would result in a score of zero. A score of zero supposedly correlates with a 7.2 percent chance of reoffending in five years, and a 12.5 percent chance of reoffending in ten years. As a 78-year-old diabetic survivor of vascular surgery, Mr. Hartzog’s chances of living another five or ten years were not taken into account.

We have addressed the use of outdated mental health evaluations in other legal contexts. We said in Duncan v. State, 115 So.3d 1121, 1121 (Fla. 1st DCA 2013), for example, that “[n]ew mental health evaluations should be performed prior to the [competency] hearing as the ones at issue are now over a year old.” There we cited to In re Commitment of Reilly, 970 So.2d 453, 456 (Fla. 2d DCA 2007), in which the Second District held that a six-month-old report from a mental health expert was too stale to be relevant to an adjudication of incompetency. In In re Commitment of Drayton, 27 So.3d 243, 245 (Fla. 2d DCA 2010), the court ruled that “experts’ observations dating back to 2003” used in an involuntary commitment hearing under section 393.11(8), Florida Statutes (2007) in 2007 and 2008 were not “competent substantial evidence,” citing Reilly.

Other jurisdictions have reached similar conclusions. The Supreme Court of California, for example, in Albertson v. Superior Court, 25 Cal.4th 796, 107 Cal.Rptr.2d 381, 23 P.3d 611 (2001), discussed the need for current information about a detainee’s mental state, relying on statutorily required annual mental examinations for committed persons not unlike those in the Jimmy Ryce Act:

The district attorney has an interest in obtaining information concerning the individual’s current mental state for two reasons: to avoid committing a person who does not currently suffer from a qualifying mental disorder, and to support the commitment of a person who does suffer from a qualifying mental disorder.
The SVPA also sheds light on what the Legislature considers to be “current” for purposes of the Act. Section 6605, subdivision (a), requires that each person actually committed as an SVP undergo a “current examination of his or her mental condition ... at least once every year.” (Italics added.) This suggests the Legislature’s recognition that diagnoses can change in light of treatment, severity of mental disorder, changed circumstances, and the passage of time. As observed in Butler v. Superior Court (2000) 78 Cal.App.4th 1171, 1180, 93 Cal.Rptr.2d 468, evaluations like those of Drs. Korpi and Hupka “performed at the initial commitment stage would not reflect the [petitioner’s] current medical condition” at a subsequent stage, well more than a year later. (Accord, Peters v. Superior Court (2000) 79 Cal.App.4th 845, 850, 94 Cal.Rptr.2d 350 [“the use of potentially stale reports subverts the manifest intent of the SVPA — the state must prove that the party suffers from a currently diagnosed mental disorder which predisposes him to engage in sexually violent criminal behavior”].)

Id. 107 Cal.Rptr.2d 381, 23 P.3d at 615-16. See also People v. Landau, 214 Cal. App.4th 1, 154 Cal.Rptr.3d 1, 27 (2013) (holding a mental evaluation a year old was “presumably stale,” citing Albertson).

Because, as a matter of law, the state did not meet its burden to prove clearly and convincingly that appellant suffered from a mental or personality disorder at the time of trial, we do not need to reach the perhaps more problematic question of the sufficiency of the evidence to establish the third element the state was required to prove — a present likelihood of reoffending on account of a disorder. The trial court erred in finding the five-year-old evaluations and 2008 reports relied upon by the psychologists were legally sufficient to prove clearly and convincingly appellant’s mental status at the time of his 2013 trial. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

PAD OVAN O and RAY, JJ., concur.

      . There were two stipulated continuances, a subsequent arrest, and a period of incompetency (before the court declared him competent to stand trial).

      . At the jury trial, appellant's trial counsel made very clear appellant’s position that the psychologists' reports and opinions, all predicated on five-year-old evaluations, were dramatically out of date and inadequate to satisfy the state's burden of proof. The point was first argued during opening statement, then made on cross-examination of both of the state's witnesses (Drs. Kline and Falb) and on direct examination of Mr. Hartzog himself, and again in closing. In closing argument, Crystal J. Marsh, appellant's trial counsel, argued:
      He has been confined at this commitment center receiving treatment since 2008, but he was never retested. You are being asked to decide that he needs more treatment based on a report from 2008, two reports from 2008. It is 2013.
      ... The expert’s reports that they gave you are old, out-dated, invalid.

      ... He served 10 years for a 5 year sentence and he's so debilitated he can’t walk a hundred feet ... I’m asking you to realize none of that was taken into consideration in the 2008 report and both psychologists said it should have been.
      Post verdict, appellant filed respondent's motion to set aside the verdict and judgment and motion for a new trial, contending that the verdict failed to comport with the manifest weight of the evidence; and specifically that the state failed to meet its burden to adduce clear and convincing evidence either of a mental abnormality or personality disorder or that he was likely to commit a sexually violent offense if not confined, because the evaluations from 2008 were outdated. On appeal, appellant argued that the trial court erred in denying his motion for new trial, while conceding that the motion to set aside the verdict and judgment and enter judgment in his favor was not well taken in the absence of any antecedent motion for directed verdict.

      .The criminal rules of procedure do not apply in cases like the present one. "The Florida Rules of Civil Procedure apply unless otherwise specified in this part.” § 394.9155(1), Fla. Stat. (2012). See Brown v. State, 940 So.2d 609, 610 (Fla. 4th DCA 2006) ("In a civil commitment proceeding filed under the Jimmy Ryce Act, the Florida Rules of Civil Procedure generally apply.”). See also Roosevelt v. State, 42 So.3d 293, 298 (Fla. 3d DCA 2010); Mwray v. State, 27 So.3d 781, 782 (Fla. 3d DCA 2010). To preserve for appeal the contention that the evidence was insufficient, a motion for new trial or another, appropriate post-verdict motion is necessary. See Roosevelt; Murray; Brown; Roeling v. State, 880 So.2d 1234, 1236 (Fla. 1st DCA 2004). But see J.T.A. Factors, Inc. v. Philcon Seivs., Inc., 820 So.2d 367, 371 (Fla. 3d DCA 2002) ("Under Florida law, there are two ways to challenge the sufficiency of the evidence before the trial court: (1) a defendant must move for a directed verdict at the close of the plaintiff’s case and at the close of all the evidence; or (2) a defendant must file a motion for a new trial in which he challenges the sufficiency of the evidence to support the jury's verdict.”) (citations omitted). Under Brown and similar cases, a pre-verdict motion for directed verdict does not itself preserve the point; after the verdict is returned, the movant must file another motion, e.g., a motion to set aside the verdict and enter judgment in accordance with the motion for directed verdict.
      In the present case, Mr. Hartzog, who did not file a motion for directed verdict at any time, is travelling under his motion for new trial. He now seeks reversal and remand for a new trial, having abandoned any claim of entitlement to reversal outright with remand for entry of judgment in his favor. Although it is true that he has certain rights to periodic judicial review, the right to trial by jury ends upon initial commitment. See § 394.918(3) and (4), Fla. Stat. (2013). A new trial may thus afford meaningful relief in cases like his.

      . As defined, sexually violent predators need not actually behave violently or even touch another person. A sexually violent offense includes a "lewd, lascivious, or indecent assault or act upon or in the presence of the child,” § 394.912(9)(b)2„ Fla. Stat. (2012), "including such charges as sexual performance of a child.” Section 394.912(10) provides:
      "Sexually violent predator” means any person who:
      (a) Has been convicted of a sexually violent offense; and
      (b) Suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.
      In the present case, appellant’s qualifying or "index” offense was “promoting sexual performance by a child” by photographing children in partial stages of undress in sexually suggestive poses in violation of section 827.071, Florida Statutes (2005).

      . Section 394.918(2), Florida Statutes (2013) provides:
      The department shall provide the person with annual written notice of the person's right to petition the court for release over the objection of the director of the facility where the person is housed. The notice must contain a waiver of rights. The director of the facility shall forward the notice and waiver form to the court.

      . Appellant testified that he now has an artificial aorta, continues to suffer from diabetes mellitus, and cannot walk more than 100 yards without stopping.

      . The "Static-99R” takes into account “historical factors” such as the number of prior offenses, and "dynamic factors,” notably the person’s age, conduct while in treatment, and "level of denial.” Advancing age serves to lower the score.

      . California’s sexually violent predator act requires proof beyond a reasonable doubt whereas Florida only requires proof by clear and convincing evidence. But the California court’s rationale does not hinge on the heavier burden.

      . Appellant's low risk status, based on the "Static-99R," his advanced age, and his health problems are, of course, all factors which should be taken into account in an updated assessment of appellant’s likelihood to reoffend, assuming he still suffers from mental or personality disorder.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Sharon FOWLER, Appellant, v. PARADISE LAKES CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 2D13-1444.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2014.
    David S. Oliver and Jessica L. Thorson of Morgan & Morgan, P.A., Orlando, for Appellant.
    Pamela Jo Hatley of Pamela Jo Hatley, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

Sharon Fowler appeals the trial court’s order dismissing her complaint against Paradise Lakes Condominium Association, Inc. We reverse.

According to the complaint, Ms. Fowler is visually impaired. She has a Labrador Retriever as a service animal. She rented a condominium unit at Paradise Lakes in August 2012. Her landlord was the unit owner, and he is not a party to this action.

After Ms. Fowler occupied the unit, the Association sent a letter to her landlord, as a unit owner, notifying him that the Labrador was an oversized pet in violation of the Association’s rules and regulations. The Association told him to “address this issue immediately.” Allegedly, the landlord informed Ms. Fowler that she must either give up the service dog or move from the unit.

In response, she provided documentation to her landlord, which she believes he gave to the Association. The documentation included her agreement with Southeastern Guide Dogs, Inc., by which she obtained possession of the Labrador. About two weeks later, Ms. Fowler checked with the Association’s manager who demanded further proof of her disability and need for a service animal. Ms. Fowler apparently provided no additional proof, and the Association did not withdraw its notice that the landlord was in violation of the regulations.

At this point of stalemate, Ms. Fowler filed her complaint. In her complaint, she claims that the Association has violated the Federal Fair Housing Act, 42 U.S.C. § 3604, and section 413.08, Florida Statutes (2012) (defining the “[r]ights of an individual with a disability; use of a service animal; discrimination in public employment or housing accommodations; penalties”). She seeks declaratory relief as well as monetary damages. The Association responded with a motion to dismiss, claiming that the complaint failed to state a cause of action because it failed to allege certain facts and because the Association never notified Ms. Fowler that she could not reside in the unit.

The trial court granted the motion to dismiss. In view of the bare allegations of the complaint, the order properly granted a dismissal. However, this complaint was Ms. Fowler’s first complaint, and the Association had only filed a motion to dismiss. The trial court did not have discretion to dismiss the action with prejudice. See Williams v. Gaffin Indus. Servs., Inc., 88 So.3d 1027, 1030 (Fla. 2d DCA 2012) (“[A] trial court does not have discretion to deny leave to amend on the basis that the complaint is not amendable until (1) the defendant has filed an answer or (2) the plaintiff has already exercised the right to amend once.”). Accordingly, we reverse to give Ms. Fowler the option to file an amended complaint.

Reversed and remanded.

LaROSE and MORRIS, JJ., Concur.


text:
    P.I.E., LLC, a Florida limited liability company, Appellant, v. DeSOTO COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 2D12-4812.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2014.

      James S. Mattson, Key Largo; and Andrew M. Tobin, Tavernier, for Appellant.
    Donald D. Conn of Pennington, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

P.I.E., LLC, appeals an order that dismissed its amended complaint with prejudice. We affirm the dismissal as to count II of the amended complaint but reverse the dismissal as to count I. Count I alleged a claim under the Bert J. Harris, Jr., Private Property Rights Protection Act. See § 70.001, Fla. Stat. (2007) (the “Bert Harris Act”). The trial court granted De-Soto County’s motion to dismiss this count, reasoning that the claim was untimely under the one-year period contained in subsection 70.001(11). That subsection states: “A cause of action may not be commenced under this section if the claim is presented more than 1 year after a law or regulation is first applied by the governmental entity to the property at issue.” § 70.001(11) (emphasis added). In light of the allegations of the complaint, we conclude that the action was not subject to dismissal as a matter of law based only on the content of the complaint. Accordingly, we reverse and remand for further proceedings.

P.I.E. allegedly purchased about fifty acres of undeveloped property in DeSoto County for $1,250,000 in September .2005. It planned to use the property initially as a borrow pit, excavating sand and shell material, and later as a portion of a development. It submitted an application for an excavation permit in October 2006. The application for the permit was scheduled for hearing on February 27, 2007. Apparently, the county’s development department recommended approval of this application, subject to twenty-nine listed conditions.

At the hearing on February 27, the county commission allegedly voted unanimously to deny the permit based on concerns about health, dust, noise, and increased traffic. P.I.E. alleges that the oral vote denying its permit application was not reduced to a written decision, i.e., DeSoto County Resolution 2007-12, until March 28, 2007.

The Bert Harris Act contains some relatively complex presuit requirements. The property owner must submit a claim in writing to the head of the governmental entity. § 70.001(4)(a). If the matter is not resolved during the presuit period, the property owner can file its lawsuit in circuit court. § 70.001(5). However, such a cause of action “may not be commenced under this section if the claim is presented more than 1 year after a law or regulation is first applied by the governmental entity to the property at issue.” § 70.001(11).

DeSoto County moved to dismiss the amended complaint, arguing that it was untimely on its face because the presuit claim was filed on March 26, 2008, with the DeSoto County Commission. Both below and in this appeal, DeSoto County has asserted that the law or regulation in this circumstance was “first applied” on the day that the commission voted, i.e., February 27, 2007, and not on the day when the commission actually signed the written ordinance. P.I.E., on the other hand, argues that “first applied” should be interpreted in the context of a legal system where orders on written pleadings and applications are reduced to writing, signed, and “rendered” by filing in an appropriate public record. See, e.g., Fla. R. App. P. 9.020(h). There is little question that section 70.001(11) would be easier to apply and interpret if it were written in more traditional legal language.

In Wendler v. City of St. Augustine, 108 So.3d 1141 (Fla. 5th DCA 2013), the Fifth District held that the one-year period commenced on the date that a permit was denied and that the lawsuit needed to be filed within four years of the date of denial. Wendler seems to assume that the denial was effective when issued in writing. Thus, the Fifth District did not resolve the issue raised by DeSoto County in this case.

We recognize that this court typically reviews de novo, as a question of law, an order dismissing a complaint as untimely. On the face of the complaint, there can be no question that P.I.E. alleges that March 28, 2007, was the effective date of County Resolution 2007-12 and the first date that this regulation applied to its property. Although that argument seems reasonable to us, we conclude that there is a factual dispute that must be resolved before the legal question can be answered.

From this record, we cannot determine when the applicable county code declares that a denial of a written application for a permit takes effect. From the positions taken at oral argument, there may even be a factual dispute as to when the written ordinance was executed. We conclude that, as a matter of law, on the face of this record we must accept P.I.E.’s position that the regulation “first applied” on March 28, 2007, which would render its legal action timely. Accordingly, we reverse the dismissal of this count. Our reversal does not preclude DeSoto County from developing a factual record and seeking summary judgment on this issue if it can establish that its ordinances take effect immediately upon oral vote of the commissioners or that the claim was not otherwise timely presented within the one-year period.

Count II of the complaint attempted to allege a cause of action for a taking under the theory announced in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). We affirm the trial court’s decision that count II does not state such a cause of action.

We have considered other timeliness arguments by DeSoto County and reject those arguments without discussion. De-Soto County has also suggested alternate grounds for dismissal that were not the basis for dismissal in the trial court. We decline to rule on those grounds, at least some of which appear to involve factual matters outside this record.

Reversed and remanded.

LaROSE and MORRIS, JJ., Concur.

      . As noted in Wendler, 108 So.3d at 1146 n. 5, this court’s opinion in Turkali v. City of Safety Harbor, 93 So.3d 493, 494 (Fla. 2d DCA 2012), could be read to establish a one-year statute of limitations. See Turkali, 93 So.3d at 494 (“The Act provides that the action must be filed within one year of the application of the ordinance to the subject property. § 70.001(11).”). In context, however, the sentence in Turkali, which could be read in this manner, uses the word "action” when it should have used the word "claim.”


author: PER CURIAM.

text:
    Randey DANIELS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3672.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2014.
    Randey Daniels, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Jacquan SHOOTES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5676.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2014.
    Jacquan Shootes, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    A.C. CAMPBELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-378.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2014.
    A.C. Campbell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Curtis ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0380.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2014.
    Curtis Robinson, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Akeem Leray MOFFETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0567.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2014.
    Akeem Leray Moffett, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(d)(5).

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Tyrone PAGE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0469.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2014.
    Tyrone Page, 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, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Ricky T. OLIVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0489.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2014.

      Ricky T. Oliver, 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, MAKAR, and OSTERHAUS, JJ., concur.


author: EVANDER, J.

text:
    Robert BARKER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-341.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2014.
    Robert Barker, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   EVANDER, J.

Robert Barker has filed a petition for writ of habeas corpus, alleging that he is entitled to immediate release because the trial court failed to grant him the proper amount of credit for time served. We grant the petition.

On April 16, 2012, Barker pled nolo con-tendere to aggravated assault with a deadly weapon. He was sentenced to 13.2 months in the Department of Corrections with credit for 118 days of jail time served, followed by one year of probation. Barker was released from prison on November 29, 2012 but arrested for violation of probation on February 22, 2013. Barker remained in jail until May 13, 2013, at which time he admitted to violation and was sentenced to 22.35 months’ incarceration.

A defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation unless such credit is waived. Mann v. State, 109 So.3d 1202, 1203 (Fla. 5th DCA 2013). Here, the State does not contend that Barker waived entitlement to credit for time served as part of a plea agreement.

Barker should have received credit for 426 days (345 days for combined jail and prison time served prior to his release from prison plus 81 days for time served between his violation of probation arrest and his May 13, 2013 plea/sentencing date.) Instead, Barker only received credit for 311 days. Because Barker has now completed his sentence, he is entitled to be released immediately.

PETITION GRANTED.

TORPY, C.J. and LAWSON. J., concur.

      . The record reflects that prior to filing the instant petition, Barker made several post-sentence attempts to have the trial court correct the error.


author: LaROSE, Judge.

text:
    Daniel D. PECK, as Trustee of the Irrevocable Declaration of Trust of Constance P. Simantob, a/k/a Constance L. Peck dated December 21, 1992, Appellant, v. Constance L. PECK, Appellee.
    No. 2D13-113.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2014.
    Daniel D. Peck, pro se.
    Joshua M. Bialek and Javier A. Pacheco of Porter, Wright, Morris & Arthur, LLP, Naples, for Appellee.
   LaROSE, Judge.

Daniel Peck, co-trustee of the Irrevocable Trust of Constance P. Simantob a/k/a Constance L. Peck (CLP Trust), appeals the trial court’s order terminating the CLP Trust. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We affirm.

Bernard Peck, Constance Peck’s father, executed a last vrill and testament that devised funds to a marital trust for the benefit of his wife, Marjorie Peck. Upon Marjorie’s death, the trustee was to transfer any remaining trust assets to a residual trust for distribution equally to Bernard’s children, Constance and Daniel Peck, in separate trusts established by each of them.

In December 1992, Bernard, a lawyer, prepared the CLP Trust for Constance and funded it with gifts he made to her over a period of years under the Florida Uniform Transfers to Minors Act. See §§ 710.101-.126, Fla. Stat. (Supp.1992). Constance was the grantor/settlor and co-trustee with Bernard of the CLP Trust. Daniel was designated as successor trustee. The CLP Trust provided that, during Constance’s life, the trustees were to pay all income to her. The CLP Trust gave Constance power of appointment to distribute any remainder in a last will and testament. The CLP Trust was “irrevocable and shall not be subject to amendment, and no portion of the Trust Estate may be withdrawn from the operation of this Trust except in accordance with the terms herein before set forth.”

The CLP Trust provided that Constance had the right to receive five thousand dollars per year from the trust principal, upon written request to the co-trustee, until the age of fifty. From age fifty to age fifty-five, the amount would be ten thousand dollars, and from age fifty-five until death, the amount was fifteen thousand dollars. Although the CLP Trust included a spendthrift clause, it included no language prohibiting Constance from withdrawing funds to make loans or gifts to anyone other than her descendants. It did not allow the co-trustee to withhold income distributions if the income was more than the co-trustee deemed to be in Constance’s best interests. Although the CLP Trust contained terms not necessarily consistent with the provisions of his will, Bernard transferred the initial assets into the CLP Trust, recognizing that it would later receive his residual trust assets. Those assets went into the CLP Trust upon Bernard’s death in 2009. Upon Bernard’s death, Daniel became co-trustee.

In her last will and testament, Constance exercised her power of appointment to distribute the CLP Trust remainder to her three children. The power of appointment allowed her to represent and bind contingent beneficiaries. See § 736.0802, Fla. Stat. (2012).

In 2012, Constance filed a petition to terminate the CLP Trust. Her children agreed to the termination. Daniel, as co-trustee, objected because Constance might unwisely dissipate the assets. Our record suggests that in crafting his estate plans, Bernard, too, had concerns about Constance’s ability to maintain financial stability. Daniel also argued that the trial court could not terminate the CLP Trust because under section 786.04113, Florida Statutes (2012), the trust’s purposes remained unfulfilled. Unpersuaded by Daniel’s arguments, the trial court terminated the CLP Trust. The trial court observed that section 736.04113 does not limit the trial court’s common-law authority to terminate a trust. See § 736.04113(4) (“The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts.”).

The order before us, citing Preston v. City National Bank of Miami, 294 So.2d 11 (Fla. 3d DCA 1974), states that Florida common law requires the trial court to allow modification or termination of a trust if the settlor and all beneficiaries consent, even if the trust is irrevocable and even if the trust’s purposes have not been accomplished.

Preston predates the enactment of statutes providing for both judicial and nonjudicial modification of irrevocable trusts. The facts are straightforward. Esther Weinkle created an irrevocable trust. Id. at 12 n. 2. She named her attorney as trustee, designated her daughter, Ernice Weinkle Preston, as beneficiary, and named as contingent beneficiaries Ernice’s daughter, then the daughter’s living descendants, then Esther’s son, Julian Wein-kle, then the son’s living descendants. Id. The trust provided that the beneficiary would receive trust income periodically, plus one third of the corpus at age 25, one third at age 35, and one third at age 45. Id. at 13 n. 3. Subsequently, Ernice released her rights to the trust corpus, which would pass to contingent beneficiaries at her death; she retained income distributions during her life. See id. at 12 n. 2. Years later, Ernice filed a complaint alleging that Julian, who was then a trustee, had unduly influenced her to release her rights. Id. at 12. She asked the trial court to cancel the release. Id.

The trial court found no undue influence. Id. Rather, beset by marital problems, Ernice sought the security of the trust income without her husband being able to reach her funds. Id. Esther, Ernice, and Julian all agreed at that time she signed the release that it was in her best interest to do so. Id. The trial court agreed. Id.

On appeal, the Third District affirmed the trial court’s finding that there was no undue influence. Id. at 13. The question remained whether a spendthrift trust beneficiary could assign her right to receive trust benefits. Id. The court recognized that “[t]he terms of a trust may be modified if the settlor and all the beneficiaries consent. Having the power to terminate, they obviously have the power to create a new trust or to modify or change the old.” Id. at 14; see Smith v. Mass. Mut. Life Ins. Co., 116 Fla. 390, 156 So. 498 (1934). The court held that the amendment was valid because the settlor and all beneficiaries consented, the trust modification assured Ernice income during her life, which was more consistent with the purpose of a spendthrift trust than the original trust terms, and subsequent events, including four marriages, established that the modification was in Ernice’s best interests. Preston, 294 So.2d at 13, 14.

Here, Daniel argues that the trial court erred in terminating the CLP Trust before the section 736.04113(1) termination requirements had been met and allowing a principal distribution not in accord with CLP Trust provisions. He relies principally on Bellamy v. Langfitt, 86 So.3d 1170 (Fla. 3d DCA 2012). In that case, Robert Bellamy, as settlor, created a trust naming himself, Northern Trust, and four other individuals as co-trustees. Id. at 1171. Paragraph 2 of the Bellamy Trust provided that “[i]f the corporate Trustee fails or ceases to serve, the remaining individual Trustees or Trustee shall choose a successor corporate Trustee, so that there shall always be a corporate Trustee after the Settlor ceases to serve.” Id. Paragraph 18 provided, “[T]o the extent permitted by law, I prohibit a court from modifying the terms of this Trust Agreement under Florida Statutess. 7374031(2) or any statute of similar import.” Id. at 1173.

After Mr. Bellamy died, his adult daughters, who were among the cotrustees, agreed with Northern Trust to allow Northern Trust to resign as trustee and to be replaced with a corporate custodian to hold Bellamy Trust assets. Id. at 1172. The daughters filed a petition for court approval of this agreement. Id. Mrs. Bellamy, also a co-trustee, objected, arguing that Northern Trust must be replaced with another corporate co-trustee because the trust purposes remained unfulfilled. Id. at 1171-73. The trial court granted the daughters’ petition and approved the agreement because (1) it was in the beneficiaries’ best interests and (2) the “ ‘purpose of having a corporate trustee is no longer served because the Trust is substantially administered.’ ” Id. at 1174-75.

On appeal, the Third District reversed and reinstated Northern Trust as corporate co-trustee. Id. at 1175. It held that the trial court erred in modifying paragraph 2. Id. First, paragraph 18 prohibited judicial modification, even in the beneficiaries’ best interests. Id. see § 737.4031(2)(c)(2) (repealed 2008) (stating that subsection (2) allowing trial court modification of trust in beneficiaries’ best interests does not apply where trust terms expressly prohibit judicial modification). Second, competent substantial evidence did not support the trial court’s finding that the trust had been substantially administered because “more than routine, ministerial functions remain[ed].” Id. Significantly, Bellamy dealt with statutory judicial modification, not common law modification by consent of the settlor and all beneficiaries as considered by Preston.

Like Bellamy, other cases upon which Daniel relies are inapposite because none involved termination of a trust by agreement of the settlor and beneficiaries. See Bacardi v. White, 463 So.2d 218 (Fla.1985) (holding spendthrift trust disbursements may be garnished to enforce court-ordered alimony); Byers v. Beddow, 106 Fla. 166, 142 So. 894 (1932) (holding testamentary trust not terminable because deceased set-tlor’s intent was to control disbursements to beneficiary until her death, and contingent beneficiaries’ sisters consent was irrelevant because they had no interest to give up until beneficiary died without children); Schwarzkopf v. Am. Heart Ass’n of Greater Miami, 541 So.2d 1348 (Fla. 3d DCA 1989) (holding trial court had no authority to terminate testamentary trust prematurely where settlor’s intent was to postpone corpus distribution for ten years); Featherston v. Tompkins, 339 So.2d 306 (Fla. 3d DCA 1976) (holding trust termination improper where distribution condition that all child beneficiaries reach age twenty-one had not been fulfilled; trust purpose had not been accomplished and minor beneficiary had no capacity to agree); Fla. Nat’l Bank & Trust Co. at Miami v. Blake, 155 So.2d 798 (Fla. 3d DCA 1963) (holding spendthrift trust termination improper because all parties were not before the court and did not consent); First Nat’l Bank of Miami v. Kerness, 142 So.2d 777 (Fla. 3d DCA 1962) (holding settlor/beneficiary not entitled to dissolve irrevocable spendthrift trust where contingent beneficiaries did not agree, object of trust had not been accomplished, all interests had not vested, trustee did not agree, and infant child was not before court).

If Bernard had created the CLP Trust as settlor, he probably could have structured it so that it could not be modified by this common law method after his death or if he objected while living. Because his will anticipated that Constance would create her own trust to receive his residual trust assets and she was the grantor/set-tlor, she could modify or terminate the trust, with the beneficiaries’ consent, even if it defeated her father’s intent as to how she could access his assets once distributed to the CLP Trust.

The trial court correctly relied on Preston. Pursuant to subsection (4), section 736.04113 does not abrogate the common law. Accordingly, termination of the CLP Trust was not improper.

Affirmed.

VILLANTI and CRENSHAW, JJ., Concur.

      . For ease of reference and to avoid confusion, we will refer to each of the Peck family members by their respective first names.

      . Section 736.04113 provides, in pertinent part, as follows:
      (1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2), if:
      (a) The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill;
      (b) Because of circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust; or
      (c) A material purpose of the trust no longer exists.
      (2) In modifying a trust under this section, a court may:

      (b) Terminate the trust in whole or in part;

      (3) In exercising discretion to modify a trust under this section:

      (b) The court shall consider spendthrift provisions as a factor in making a decision, but the court is not precluded from modifying a trust because the trust contains spendthrift provisions.
      (4) The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts.

      . See W. Michael Parrott, "Pitfalls and Minefields in Estate Planning,” BEP FL-CLE 2-1 § 2.58 (2012) (citing ch. 2000-245, § 7, [at 2395-98,] Laws of Fla.).

      . Section 737.4031, Florida Statutes (2002), the predecessor of section 736.04113, provided, in pertinent part, as follows:

        (1) If the purposes of a trust have been fulfilled or have become illegal or impossible to fulfill or, if because of circumstances not known to or anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of á material purpose of the trust or, if a material purpose of the trust no longer exists, upon the application of a trustee of the trust or any beneficiary a court at any time may modify the terms of a trust which is not then revocable to:
      (a) Amend or change the terms of the trust, including terms governing distribution of the trust income or principal, or terms governing administration of the trust;
      (b) Terminate the trust in whole or in part;
      (c) Direct or permit the trustee to do acts that are not authorized or that are prohibited by the terms of the trust; or
      (d) Prohibit the trustee from performing acts that are permitted or required by the terms of the trust.
      (2) Upon the application of a trustee of the trust or any beneficiary, a trust which is not then revocable may be modified at any time by a court as provided in subsection (1), and without regard to the reasons for modification provided in subsection (1), if compliance with the terms of the trust is not in the best interest of the persons having a beneficial interest in the trust.
      (a) The court shall exercise its discretion to order a modification of the trust under this subsection in a manner that conforms to the extent possible with the intention of the settlor, taking into account the current circumstances and best interests of the beneficiaries.

      (c) This subsection shall not apply to a trust created after December 31, 2000, if:

      2. The terms of the trust expressly prohibit judicial modification.
      (3)In exercising its discretion to order a modification of a trust under this section, the court shall consider the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification.

      (5) The court shall consider spendthrift provisions as a factor in making a decision whether to modify a trust under this section, but the court is not precluded from exercising authority to modify the trust because the trust contains spendthrift provisions.

      (7) The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, or revoke trusts.


text:
    Joseph CHIANDUSSE, Jr., and Patricia Chiandusse, Appellants, v. Terry J. GRANNIS, Michael S. Grannis, City of St. Petersburg, Jane Doe, and John Doe, Appellees.
    No. 2D13-3068.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2014.

      Thomas H. McGowan of Thomas H. McGowan, P.A., St. Petersburg, for Appellants.
    Terry J. Grannis and Michael S. Gran-nis, pro se.
    John C. Wolfe, City Attorney, and Jeanne Hoffmann, Assistant City Attorney for St. Petersburg, for Appellee City of St. Petersburg.
    No appearance for remaining Appellees.
   ALTENBERND, Judge.

Joseph Chiandusse, Jr., and his wife, Patricia, appeal an order denying partial summary judgment in their action against Terry J. Grannis, Michael S. Grannis, and the City of St. Petersburg. We dismiss the appeal for lack of jurisdiction because the order cannot be appealed as an order denying an injunction. See Fla. R. App. P. 9.130(a)(3)(B).

Joseph and Patricia Chiandusse live next door to Terry and Michael Grannis on a street where all of the properties are waterfront lots. The parties’ two lots are in a location where the property line with the water curves. As a result, the Chian-dusses’ best view of the water is a view that looks across the Grannises’ property.

The Grannises built a six-foot fence on the property line between these two lots. The fence allegedly blocks the Chianduss-es’ view of the water. Moreover, apparently for more than thirty years, the Chiandusses believed the property line was located elsewhere. As a result, they have long had a sprinkler system and cultivated plants on what apparently is the Grannises’ lot. Allegedly, the fence was built atop the sprinkler line.

Proving once again that Robert Frost was correct to question whether good fences really make for good neighbors, the Chiandusses filed an action against the Grannises seeking declaratory relief in 2011. They sought to establish that the sprinklers created a “boundary by acquiescence” and that the fence was erected in violation of provisions of the city code. The three-count complaint sought declaratory relief against the City in count I, declaratory relief against the Grannises in count II, and a permanent injunction in count III. Significant to our outcome in this appeal, the complaint did not seek a temporary injunction and no separate motion seeking a temporary injunction appears to have been filed in this case.

In 2013, the Chiandusses filed a motion for partial summary judgment only as to count III. They claimed that there was no material issue in dispute and that they were entitled to a summary judgment granting a permanent injunction as a matter of law. Following a hearing, the trial court denied that motion. It entered an order denying the motion for partial summary judgment, relying on this court’s opinion in Mickel v. Norton, 69 So.3d 1081 (Fla. 2d DCA 2011).

The Chiandusses filed their notice of appeal, claiming that the order was a final order. It obviously is not a final order. Accordingly, this court issued a procedural order informing the parties that the case would proceed under the rules associated with nonfinal appeals. Specifically, we stated that it would proceed “per rule 9.130(a)(3)(B).” The Grannises filed a motion to dismiss the appeal for lack of jurisdiction. The Chiandusses responded, arguing essentially that it was the law of the case that this court had jurisdiction because of our earlier order. Although the order on appeal simply denies a motion for summary judgment, it concludes with a sentence stating: “Based upon the foregoing, this Court finds that the [Chianduss-es] are not entitled to a partial summary judgment for a permanent injunction because, as a matter of law, the [Grannises’] fence does not violate the riparian or littoral rights of the [Chiandusses].” Because this court was not certain whether the order was appealable at that stage in the proceedings, we denied the motion to dismiss.

The dispositive legal issue is whether the order is a nonappealable order denying summary judgment, see Better Gov’t Ass’n of Sarasota Cnty., Inc. v. State, 802 So.2d 414, 415 (Fla. 2d DCA 2001), or an appeal-able order denying an injunction, see H & M Hearing Assocs., LLC v. Nobile, 950 So.2d 501 (Fla. 2d DCA 2007). Although the above-quoted sentence from the order indicates that the trial court is probably willing to grant a summary judgment in favor of the Grannises, functionally the order on appeal merely denies a summary judgment. Although it may be a futile act, the Chiandusses have the option to set a final hearing on their complaint, including count III. They are still free to present evidence and seek a permanent injunction even if those actions are only useful to preserve the issue for appeal. The trial court has not legally denied an injunction; it has denied a motion for summary judgment.

If the Chiandusses sought a temporary injunction and the order on appeal denied a motion for temporary injunction, the order presumably would have been appeal-able under rule 9.130(a)(3)(B). See Ware v. Polk Cnty., 918 So.2d 977, 978-79 (Fla. 2d DCA 2005). But that is not what they sought in the trial court, and we cannot convert this motion for summary judgment to a motion for a temporary injunction. The two motions require significantly different proof and legal analysis.

We would note this case demonstrates that the preliminary procedural rulings by this court do not foreclose reexamination of our jurisdiction at the time the court makes a final decision. Our initial decisions on jurisdictional questions are often made with incomplete information. When in doubt, we frequently deny an initial motion to dismiss in order to allow the case to receive full consideration and to assure that an appellant has full access to the court. Occasionally, on full review, it becomes clear that our initial decision was not well founded. This simply is one of those instances.

Dismissed.

LaROSE and MORRIS, JJ., Concur.

      . Robert Frost, Mending Wall, in North of Boston 11-13 (2d ed. 1917).

      . Although we dismiss this case, from the briefing and record it appears that the trial court's reliance on Mickel, 69 So.3d 1081, was reasonable.


text:
    Tyrone K. POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1565.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2014.
    Tyrone K. Powell, pro se, Appellant; Nancy A. Daniels, Public Defender, and Maria Ines Súber, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Defendant was convicted of aggravated battery of a person over 65. The trial court sentenced him as a habitual violent felony offender under section 775.084(4)(b), Florida Statutes (2012), and a violent career criminal under section 775.084(4)(d). A defendant may be sentenced for one criminal conviction under only one recidivist category from section 775.084, even if the defendant meets the criteria for more than one. See Clines v. State, 912 So.2d 550 (Fla.2005). We affirm, however, because defendant did not object at sentencing or file a motion under Florida Rule of Criminal Procedure 3.800(b)(2). See A.L.B. v. State, 23 So.3d 190 (Fla. 1st DCA 2009). We certify the following question as we did in A.L.B.

NOTWITHSTANDING MADDOX, SHOULD AN APPELLATE COURT CORRECT A SENTENCING ERROR IN AN ANDERS CASE WHICH WAS NOT PRESERVED PURSUANT TO THE APPLICABLE RULES OF PROCEDURE? IF NOT, WHAT STEPS SHOULD AN APPELLATE COURT FOLLOW TO CARRY OUT THE MANDATES OF ANDERS AND CAU-SEY IN SUCH A CASE?

We AFFIRM defendant’s conviction and sentence without prejudice to his right to seek post-conviction relief. See Jones v. State, 964 So.2d 855 (Fla. 2d DCA 2007).

BENTON, PADOVANO, and ROBERTS, JJ., concur.


author: DAVIS, Chief Judge.

text:
    Chris P. NENOV, Appellant, v. Katya P. NACHEVA, Appellee.
    No. 2D13-2190.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2014.

      Chris P. Nenov, pro se.
    Katya P. Nacheva, pro se.
   DAVIS, Chief Judge.

Chris Nenov, the Father, challenges the trial court’s order granting the motion filed by Katya Nacheva, the Mother, seeking permission to travel outside the United States with the parties’ minor child. The Father also challenges the court’s order, entered the same day, denying his motion to enforce the supplemental final judgment of dissolution of the parties’ marriage. We dismiss as moot the portion of this appeal challenging the order granting permission to travel. Additionally, we affirm without comment the trial court’s order denying the motion to enforce the judgment.

Dismissed in part; affirmed in part.

VILLANTI and BLACK, JJ„ Concur.


text:
    D.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2652.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2014.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Mary-Grace L. Mendoza, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and SALTER and EMAS, JJ.
   CONFESSION OF ERROR

PER CURIAM.

D.A., a juvenile, appeals from an October 4, 2013, order withholding adjudication and issuing a judicial admonition. D.A. challenges the trial court’s jurisdiction to enter this disposition order because on the date the order was entered, he was 19-years old. See § 985.0301(5)(a), Fla. Stat. (2012).

Based on the State’s confession of error, with which we agree, we reverse the order and remand with directions that the case be dismissed.


text:
    David R. REIDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-154.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2014.

      David R. Reidy, Polk City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court summarily denied several grounds in the motion and conducted an evidentiary hearing on several other grounds. We affirm the trial court’s order on all grounds except grounds four and eight.

In ground four, Appellant alleged that his trial attorney misadvised him about the consequence of testifying at trial when she told him that, if he testified, he would lose the strategic advantage of having the first and last closing argument. At the time of Appellant’s trial, he would have been entitled to first and last closing argument, unless he presented evidence other than his testimony. Appellant alleges that he decided to waive his right to testify based on this affirmative misadvice. In ground eight, Appellant alleged that his trial attorney opened the door to the admission of otherwise inadmissible hearsay evidence related to the reason the police were present at the crime scene. If true, this allegation is cognizable in a rule 3.850 motion. Mungin v. State, 932 So.2d 986, 997 (Fla.2006).

The attachments to the order do not refute the allegations set forth in grounds four and eight. Therefore, it was error to summarily deny them. On remand, the trial court shall either grant the relief, attach record evidence that refutes Appellant’s specific allegations or conduct an evidentiary hearing to address those points. In all other respects, the trial court’s order is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

TORPY, C.J., GRIFFIN and LAWSON, JJ., concur.


text:
    Jordan GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4948.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2014.
    Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Chief Judge.

Jordan Green challenges his convictions and sentences for one count of sale of cocaine, for which he received a ten-year prison sentence, and one count of possession of cocaine, for which he received a concurrent five-year sentence. Because the trial court failed to conduct an adequate hearing pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), we reverse.

Green was on trial for selling drugs to a confidential informant (Cl) over the course of three transactions, resulting in six pending charges. Prior to his trial, Green filed a written motion to discharge counsel claiming that counsel was ineffective for failing to contact him or explain the proceedings to him, failing to prepare an entrapment defense, failing to identify and depose witnesses, and forcing him to trial. The trial court addressed the motion with Green’s counsel, ultimately determining that his counsel was not ineffective for failing to use an entrapment defense in the instant case because that defense failed to work in Green’s earlier case involving similar facts. The other claims were not addressed. Green then told the trial court in open court that his counsel was not explaining the process to him and that he did not understand due to his learning disability. Both his written motion and the subsequent complaints in open court raise potential conflicts with counsel that require the trial court to hold a Nelson hearing to resolve. See generally Torres v. State, 42 So.3d 910, 912 (Fla. 2d DCA 2010) (outlining the steps involved in the Nelson hearing process).

The trial court allowed Green an opportunity to put his Nelson issues on the record and, after determining only that counsel had conducted depositions, told Green that his case had been pending for almost two years and that it had to be resolved. Green was given the option of proceeding to trial with his counsel or entering a plea. Green proceeded to trial, after which the jury returned a verdict of not guilty on four counts and guilty on two counts.

Green made clear, unequivocal statements concerning specific allegations of incompetence or ineffectiveness of his counsel, and such statements require the court to make specific inquiries to determine whether there is a reasonable basis to conclude that counsel was not providing effective assistance. See C.H. v. State, 116 So.3d 629, 631 (Fla. 3d DCA 2013). The trial court did not conduct an adequate Nelson hearing but rather only inquired about some of the issues raised by Green. The trial court’s inquiries do not address, at least preliminarily, whether his counsel was sufficiently explaining the proceedings to him or was forcing him to trial. We conclude this was an abuse of discretion. See Crosby v. State, 125 So.3d 822, 825 (Fla. 2d DCA 2013) (“We review the adequacy of a trial court’s Nelson inquiry for an abuse of discretion....”).

Because Green was convicted of at least one sale to the Cl but was acquitted of others, we cannot conclude that the failure to conduct an adequate Nelson hearing in the instant case was harmless. See Torres, 42 So.3d at 912 (“Generally, the trial court’s ruling [on a Nelson inquiry] may also be reviewed to determine whether the error was harmless.”). We therefore reverse his convictions and sentences and remand for a new trial. We note that Green was acquitted of four of the original six counts and that any retrial should proceed only on the two counts for which he was convicted. See Watson v. State, 410 So.2d 207, 208 (Fla. 1st DCA 1982) (“Once a defendant obtains an acquittal after jeopardy attaches ... the double jeopardy clause bars retrial.”).

Reversed and remanded.

SILBERMAN and VILLANTI, JJ., Concur.

      . We do not address whether a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), was necessary because there is no indication that Green made an unequivocal request for self-representation. See Hillman v. State, 129 So.3d 436 (Fla. 2d DCA 2013).


author: WALLACE, Judge.

text:
    Curtis Michael ROBINSON, Appellant, v. Sylvia A. BARR, Appellee.
    No. 2D12-6326.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2014.
    R. Michael Robinson, St. Petersburg, for Appellant.
    Edwin Peck, St. Petersburg, for Appel-lee.
   WALLACE, Judge.

Curtis Michael Robinson challenges the trial court’s order denying his motion for attorney’s fees and costs following the entry of a final judgment for the partition of real property. Because the trial court’s rationale for denying the motion for fees and costs is insufficient, we reverse and remand for further proceedings.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

Mr. Robinson and Sylvia A. Barr owned as tenants in common a commercial property located in St. Petersburg. Mr. Robinson and Ms. Barr each owned a one-half interest in the real property. In February 2008, Mr. Robinson filed a complaint seeking to partition the property. Ms. Barr filed an answer to the complaint and a counterclaim for partition. In addition to seeking partition, both parties sought additional relief based upon their respective claims arising from the income and expenses associated with the property.

After a trial, the trial court entered a final judgment for the partition of the property. Based on a finding that the property was indivisible, the trial court ordered that the property be sold and the proceeds divided between the parties. In addition, the trial court ruled against both Mr. Robinson and Ms. Barr on their claims for additional monetary relief. Mr. Robinson timely filed a motion for attorney’s fees and costs.

The clerk of court sold the property in February 2011, and Mr. Robinson became the purchaser at the sale. In October 2012, the trial court conducted a hearing on Mr. Robinson’s motion for attorney’s fees and costs and another motion filed by Mr. Robinson requesting an order providing for the disbursement of the proceeds of the sale. After the hearing, the trial court entered an order directing the disbursement of the sales proceeds. In the same order, the trial court denied Mr. Robinson’s motion for attorney’s fees and costs. This appeal followed.

II. THE TRIAL COURT’S RATIONALE

In the order under review, the trial court stated its rationale for denying Mr. Robinson’s motion for attorney’s fees and costs in full as follows: “[T]his Court finds that [Mr. Robinson] and [Ms. Barr] both prevailed on the partition counts, but not on the other counts, and that no attorneys’ fees and costs will be awarded.”

III. DISCUSSION

Mr. Robinson sought an award of attorney’s fees and costs under section 64.081, Florida Statutes (2009). The statute, which forms part of chapter 64 concerning partition of property, provides, in pertinent part, as follows: In the final judgment for partition, the trial court necessarily found that partition of the property was appropriate. Thus the trial court was required to consider and make such awards of attorney’s fees and costs as might be appropriate in accordance with the provisions of the statute. See Fernandez-Fox v. Reyes, 79 So.3d 895, 896-97 (Fla. 5th DCA 2012); Deshommes v. Bazin, 421 So.2d 806, 807 (Fla. 3d DCA 1982). The circumstance that both Mr. Robinson and Ms. Barr prevailed on their claims for partition but not on their requests for additional relief is not a valid reason to disregard the command of the statute and to deny Mr. Robinson’s timely motion seeking an award of attorney’s fees and costs.

Every party shall be bound by the judgment to pay a share of the costs, including attorneys’ fees to plaintiffs or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest.

IY. CONCLUSION

For the foregoing reasons, we reverse the order under review to the extent that it denied Mr. Robinson’s motion for attorney’s fees and costs. On remand, the trial court shall reconsider the motion in light of the requirements of section 64.081 and the considerations outlined in Adler v. Schekter, 197 So.2d 46 (Fla. 3d DCA 1967). Upon reconsideration of the motion for attorney’s fees and costs, the trial court should make such amendments to the order for the disbursement of funds as may be appropriate.

Reversed and remanded with directions.

VILLANTI and SLEET, JJ., Concur.


text:
    Laisha LANDRUM, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3089.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2014.
    Laisha Landrum, pro se.
   LaROSE, Judge.

Laisha Landrum appeals an order denying her motion to correct an illegal sentence. See Fla. R.Crim. P. 3.800(a).

In 2006, a jury convicted Ms. Landrum of second-degree murder with a weapon (Count I) and tampering with physical evidence (Count II). The trial court sentenced her to life in prison for Count I and to five years in prison for Count II. We affirmed on direct appeal. Landrum v. State, 963 So.2d 711 (Fla. 2d DCA 2007) (table).

In her motion for postconviction relief, Ms. Landrum asserted that her sentence for Count I was illegal under Miller v. Alabama, - U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Miller held that a mandatory life sentence without the possibility of parole was unconstitutional as applied to juveniles who commit a homicide offense. Id. at 2469. The postconviction court denied relief, ruling that Miller does not apply retroactively. See Gonzalez v. State, 101 So.3d 886, 886-88 (Fla. 1st DCA 2012).

Recently, we determined that Miller applies retroactively and we certified conflict with Gonzalez. Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014). Consequently, we reverse and remand for further proceedings before the postconviction court consistent with Miller and Toye as relevant to Count I.

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.


text:
    Eric Tieriece EASON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-211.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2014.
    Eric Tieriece Eason, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the order denying Petitioner’s Rule 3.850 motion for post-conviction relief in Case No. ll-CF-4630, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, ORFINGER and LAWSON, JJ., concur.


author: WALLIS, J.

text:
    Terry L. POTTS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-308.
    District Court of Appeal of Florida, Fifth District.
    Feb. 28, 2014.
    James S. Purdy, Public Defender, and Kevin Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   WALLIS, J.

Appellant appeals the lower court’s revocation of his probation and suspended sentence. At sentencing, the lower court suspended Appellant’s eighteen-month prison sentence on the condition that he complete two years’ probation. Later, the lower • court improperly amended Appellant’s probation by adding the requirement that he successfully complete a drug treatment program and subsequently revoked his suspended sentence for failure to complete the program. The probation condition requiring drug treatment was not imposed in the original sentence. The State concedes error because Appellant’s due process rights were violated. He did not receive a properly noticed hearing regarding the added condition of probation. § 948.06, Fla. Stat. (2012); Clark v. State, 579 So.2d 109 (Fla.1991).

We reverse the revocation of probation and remand with instructions to reinstate Appellant to the term of probation and conditions originally ordered.

REVERSED and REMANDED with INSTRUCTIONS.

PALMER and COHEN, JJ., concur.


text:
    William Isiah JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-565.
    District Court of Appeal of Florida, First District.
    March 4, 2014.

      Nancy A. Daniels, Public Defender and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brittany Rhodaback, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, William Isiah Johnson, was convicted of burglary of a dwelling with assault or battery and home invasion robbery, but was adjudicated guilty and sentenced only on the burglary charge. Appellant raises two issues on appeal, only one of which merits discussion. Appellant argues, and the State concedes, that his dual convictions violate the prohibition against double jeopardy. We agree and, therefore, reverse Appellant’s conviction for home invasion robbery and remand with directions that the trial court vacate his conviction on that charge.

Appellant was charged with (Count I) burglary of a dwelling with assault or battery and (Count II) home invasion robbery without a weapon based on offenses he allegedly committed on or about October 11, 2011. Following a trial, the jury returned a verdict finding Appellant guilty on both counts as charged. At the sentencing hearing, the State reminded the trial court that Appellant could be sentenced only on one of the counts, and asked that he be sentenced on the higher offense of burglary of a dwelling with assault or battery. The trial court adjudicated Appellant guilty of burglary of a dwelling with assault or battery and sentenced him to forty-three years’ imprisonment on that count. Then, the following conversation took place:

THE COURT: ... Are we nolle pressing Count Two, or am I dismissing Count Two? Am I only sentencing on Count One?
[STATE]: You’re just only sentencing on Count One, and that’s the way it stays.
THE COURT: Okay. So Count Two just kind of floats out there?
[STATE]: Right.
THE COURT: I don’t know if it needs to be resolved in some way.
[DEFENSE COUNSEL]: No, your Honor. The way the case law seemed— my interpretation of the case law was he just couldn’t take an adjudication and have it added to his scoresheet and take additional time for it.
THE COURT: Okay. All right. So he’ll be adjudicated on Count One. We are not proceeding or sentencing or considering the verdict on Count Two, and his sentence is to begin immediately.
This appeal followed.

A double jeopardy violation constitutes fundamental error that may be raised for the first time on appeal. Stowe v. State, 66 So.3d 1015, 1016 (Fla. 1st DCA 2011). However, pursuant to the invited-error doctrine, “ ‘a party may not make or invite error at trial and then take advantage of the error on appeal.’ ” Anderson v. State, 98 So.3d 1201, 1206 (Fla. 1st DCA 2012) (quoting Czubak v. State, 570 So.2d 925, 928 (Fla.1990)). A double jeopardy claim based on undisputed facts is reviewed de novo. McKinney v. State, 66 So.3d 852, 853 (Fla.2011).

“Burglary of a dwelling with an assault or battery is subsumed by home-invasion robbery, such that convictions of both offenses arising from a single criminal episode violate the principles of double jeopardy.” Davis v. State, 74 So.3d 1096, 1097 (Fla. 1st DCA 2011) (reversing the appellant’s conviction for home invasion robbery and remanding with directions to vacate the conviction and sentence for that charge). A double jeopardy violation is not harmless simply because the defendant was adjudicated guilty and sentenced only on one of the offenses; rather, “the proper remedy is to vacate the verdict of guilt as to one of the offenses.” Bolding v. State, 28 So.3d 956, 957 (Fla. 1st DCA 2010).

Appellant’s convictions for both burglary of a dwelling with assault or battery and home invasion robbery constitute a double jeopardy violation. While defense counsel invited the error during the sentencing hearing, reversal is proper because defense counsel’s ineffective assistance is apparent from the face of the record and the State concedes the error. See Hill v. State, 114 So.3d 1071, 1072 (Fla. 1st DCA 2013) (holding that the appellant’s dual convictions constituted a double jeopardy violation, reversing in part and remanding with instructions to vacate one of the convictions, and noting that while the Court recognized that defense counsel acquiescenced to the improper disposition, “consistent with the State’s concession of error, we conclude that this is one of those rare circumstances in which reversal is warranted based on ineffective assistance of counsel that is apparent on the face of the record”). Therefore, we affirm Appellant’s conviction and sentence for burglary of a dwelling with assault or battery, but reverse his conviction for home invasion robbery and remand with directions that the trial court vacate that conviction.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

LEWIS, C.J., WETHERELL and ROWE, JJ., concur.


text:
    Patricia Ann WILLIAMS, Wife, Appellant, v. Jackie G. WILLIAMS, Husband, Appellee.
    No. 1D13-2781.
    District Court of Appeal of Florida, First District.
    March 4, 2014.
    Shannon L. Novey, Christin F. Gonzalez, and Jerome M. Novey, of Novey Law, Tallahassee, for Appellant.
    John F. Greene, Destín, for Appellee.
   PER CURIAM.

Patricia Williams appeals from the Final Judgment of Dissolution of Marriage equitably dividing the parties’ property. We reverse in part and affirm in part.

It is unclear from the Final Judgment how the trial court reached the figure of $376,086 in valuing the parties’ art collection. This dollar amount does not align with either figure offered by the parties’ respective expert witnesses who appraised the collection. The value the trial court placed on the collection is nearly $100,000 below the $470,107 appraisal by the former husband’s expert witness and is more than $300,000 below the $688,550 appraisal by the former wife’s expert.

Because the Final Judgment contains no specific findings as to the value of the collection, other than the total amount itself, it is impossible to determine how the trial court reached the value it placed on the collection, or whether the value is supported by competent substantial evidence. Further, the Final Judgment expressly indicates that the valuation does not include the pieces housed in Florida, but encompasses only those in New Mexico. Therefore, we must reverse and remand for the trial court to explain how it reached the value it placed on the collection and to set forth a value as to the pieces housed in Florida. See Blossman v. Blossman, 92 So.3d 878, 879 (Fla. 1st DCA 2012); Wendroff v. Wendroff, 614 So.2d 590 (Fla. 1st DCA 1993); Augoshe v. Lehman, 962 So.2d 398, 402-03 (Fla. 2d DCA 2007).

Competent substantial evidence supported the trial court’s finding that the family business and its assets constituted a marital contingent asset that could not be accurately valued at the time of the Final Judgment. However, as to the equalization payment the court awarded to the wife, the Final Judgment does not indicate how the trial court reached the figure of $195,507 for this payment. The Judgment states only that the figure included the Social Security checks, the withdrawal from the joint bank account, and the FEMA payment. These items do not total the amount of the equalization payment, and there are no findings or explanation in the Final Judgment as to how the court reached the amount of the equalization payment.

A trial court must support any distribution of marital assets or liabilities with factual findings in the judgment, based on competent substantial evidence, with reference to the statutory factors. See § 61.075(3), Fla. Stat.; Winney v. Winney, 979 So.2d 396 (Fla. 1st DCA 2008); Nicewonder v. Nicewonder, 602 So.2d 1354 (Fla. 1st DCA 1992). It must make specific written findings of fact identifying marital assets and individually valuing significant assets. See § 61.075(3)(b), Fla. Stat.; Bateh v. Bateh, 98 So.3d 750, 753 (Fla. 1st DCA 2012); Wendroff v. Wendroff, 614 So.2d 590, 593-94 (Fla. 1st DCA 1993). The lack of any such findings in the Final Judgment here makes meaningful appellate review of the equalization payment impossible.

For these reasons we remand the case to the trial court to make specific written findings as to the amount the former husband owed the former wife on the FEMA payment, and to explain how it arrived at the total amount of the equalization payment. The court shall explain in writing its method of calculating the amount of the equalization payment, with reference to the factors set forth in section 61.075, Florida Statutes. Also on remand, the trial court shall set forth specific findings as to the value of the art collection, including the two sculptures in Florida, along with the evidence on which the court relied in reaching its valuation. In all other respects, the Final Judgment is affirmed.

Affirmed in part, reversed in part, and remanded.

VAN NORTWICK, PADOVANO, and ROWE, JJ., concur.


text:
    Terry ADKISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1930.
    District Court of Appeal of Florida, First District.
    March 4, 2014.
    Nancy A. Daniels, Public Defender, and Terry P. Roberts of Law Office of Terry P. Roberts, Special Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brittany Rhodaback, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Terry Adkison, Appellant, appeals from his convictions and sentences for three counts of sexual battery with a deadly weapon. He raises two issues, only one of which merits reversal. We affirm Appellant’s convictions but vacate his sentences and remand for resentencing because the court’s oral pronouncement “can be reasonably read only as conditioning the sentence, at least in part, on Appellant’s lack of remorse and claim of innocence, which is a violation of Appellant’s due process rights.” See Dumas v. State, 134 So.3d 1048 (Fla. Feb. 8, 2013); Jackson v. State, 39 So.3d 427, 428 (Fla. 1st DCA 2010). This error requires resentencing before a different judge. Jackson, 39 So.3d at 428.

AFFIRMED in part; VACATED in part; and REMANDED with instructions to resentence Appellant before a different judge.

BENTON, PADOVANO, and RAY, JJ., concur.


text:
    TROON PROPERTIES, LLC, Appellant, v. FLORIDA DEPARTMENT OF REVENUE, Appellee.
    No. 1D13-2909.
    District Court of Appeal of Florida, First District.
    March 4, 2014.
    Fred M. Johnson, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; James Mcauley and Jeffrey M. Dikman, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellee’s motion to relinquish jurisdiction is treated as a confession of error. The final order is vacated and the cause is remanded for further proceedings.

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Freddie L. JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5211.
    District Court of Appeal of Florida, First District.
    March 4, 2014.
    Freddie L. Jenkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the June 6, 2013 judgment and sentence entered in Duval County Circuit Court case number 16-2018-CF-001474-AXXX-MA. 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. See Fla. R.App. P. 9.141(c)(6)(D).

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Wakil GORDON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5925.
    District Court of Appeal of Florida, First District.
    March 4, 2014.
    Wakil Gordon, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). This disposition is without prejudice to petitioner filing a subsequent petition if necessary in the future.

CLARK, MAKAR, and OSTERHAUS, JJ., concur.


text:
    Shaneika Chavon SAMUEL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0205.
    District Court of Appeal of Florida, First District.
    March 4, 2014.
    Bruce A. Miller, Public Defender, and Nicholas M. Thomas, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is dismissed without prejudice to petitioner securing the rendition of an appealable, written order, via petition for writ of mandamus if necessary, and filing a timely notice of appeal directed to that order. See, e.g., State v. Sullivan, 640 So.2d 77, 78 (Fla. 2d DCA 1994) (“[i]f a trial court fails or refuses to enter a written order that is needed for an appeal, counsel has the remedy of filing a motion or a petition for writ of mandamus with this court to compel the trial court to enter such an order” (citing State v. Bolick, 512 So.2d 960 n. 1 (Fla. 2d DCA 1987))).

CLARK, MAKAR, and OSTERHAUS, JJ., concur.