author: PER CURIAM.

text:
    ORANGE COUNTY AND ALTERNATIVE SERVICE CONCEPTS, Appellants, v. Lavonda WILDER, Appellee.
    No. 1D12-1401.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.
    Rehearing Denied Feb. 27, 2013.
    Karen J. Cullen and Meredith Barrios of Broussard & Cullen, P.A., Orlando, for Appellants.
    Kelli Biferie Hastings of the Law Office of Kelli Biferie Hastings, PLLC, Orlando, and Paolo Longo of Bichler, Kelley et al., PLLC, Maitland, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, Orange County and Alternative Service Concepts, the Employer/Carrier (E/C), challenge an order of the Judge of Compensation Claims (JCC) awarding Claimant, Lavonda Wilder, appellee, benefits for her heart disease based upon the presumption of occupational causation available in section 112.18, Florida Statutes (2010). The E/C acknowledges that Claimant met the prerequisites of proof for application of the presumption, including that her viral cardiomyopathy constitutes “heart disease” as that term is used in section 112.18. The E/C argues, however, that the JCC erred in failing to rule that the E/C had rebutted the statutory presumption by proving the cause of the cardiomyopathy was a virus. In the order under review, the JCC found that the E/C bore, but failed to meet, the burden of proving Claimant’s employment was not the cause of the viral cardiomyopathy. As this court recently held in Walters v. State of Florida—DOC/Division of Risk Management, 100 So.3d 1173, (Fla. 1st DCA 2012), another case involving viral cardiomyopathy, “[i]f the presumption applies, the claimant is under no obligation to establish occupational causation redundantly by adducing evidence beyond what was necessary to give rise to the presumption in the first place.... The State had the burden to prove he did not get the virus at work, and failed to carry its burden.” Here, the JCC correctly applied the law consistent with Walters and competent substantial evidence supports the JCC’s finding that the E/C failed to meet its burden of proof.

AFFIRMED.

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Darlene WATSON, Appellant, v. YALE MORTGAGE CORPORATION, Appellee.
    No. 1D12-4085.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.
    Darlene Watson, pro se, Appellant.
    Sarah T. Weitz and Steven C. Weitz, Weitz & Schwarts, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

The Court having determined that it lacks jurisdiction to review any of the orders on appeal, this appeal is hereby DISMISSED.

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Carlo WOODSON, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D12-5343.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.
    Rehearing Denied Feb. 28, 2013.
    Carlo Woodson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee (no appearance), for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of December 6, 2012, the Court has determined that the appeal is untimely. Although the lower tribunal granted appellant’s motion for rehearing in part, apparently treating it as timely filed, it was without authority to do so. Fla. R. Civ. P. 1.090(b). Consequently, appellant’s untimely motion for rehearing failed to delay rendition of the underlying order pursuant to Florida Rule of Appellate Procedure 9.020(h). As a result, the notice of appeal, which was filed more than 30 days after rendition of the final order, failed to timely invoke the Court’s jurisdiction. Accordingly, the appeal is dismissed for lack of jurisdiction.

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    CITY OF NAPLES and PGCS, Appellants, v. Andrew JOHNSON, Appellee.
    No. 1D12-2440.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2013.
    Rehearing Denied Feb. 26, 2013.
    George A. Helm, III, of Public Entity Legal Solutions, Lake Mary, for Appellants.
    Margaret M. Bichler of Lytal, Reiter, Smith, Ivey & Fronrath, LLP, West Palm Beach, and Geoff Bichler and Tonya A. Oliver of Bichler, Kelley, Oliver & Longo, LLP, Maitland, for Appellee.
   PER CURIAM.

AFFIRMED. See Rocha v. City of Tampa, 100 So.3d 138 (Fla. 1st DCA 2012).

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


text:
    Johnnie BULLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3957.
    District Court of Appeal of Florida, Fifth District.
    Feb. 12, 2013.
    Johnnie Q. Bullock, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Harricharan v. State, 59 So.3d 1162 (Fla. 5th DCA 2011).

TORPY, LAWSON and COHEN, JJ., concur.


author: SILBERMAN, Chief Judge.

text:
    Lewis Greg BARRENTINE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2844.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2013.

      Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Chief Judge.

Lewis Greg Barrentine seeks review of his judgment and sentence for various charges of drug possession, maintaining a structure for selling controlled substances, and possession of equipment for animal fighting or baiting. The charges arose after police officers executed a warrant to search Barrentine’s home and surrounding property for evidence of animal cruelty and fighting. Barrentine argues that the trial court erred in denying his motion to suppress because the affidavit in support of the search warrant did not establish probable cause to believe that evidence of animal cruelty and fighting would be found on Barrentine’s property. We agree and reverse. We remand for another suppression hearing because the State was not afforded the opportunity to develop its argument that, even if the affidavit did not establish probable cause, the evidence seized pursuant to the warrant was admissible under the good faith exception.

The trial court’s ruling denying suppression of evidence seized pursuant to the search warrant is presumed to be correct, and this court must interpret the facts and reasonable inferences in favor of sustaining that ruling. Pilieci v. State, 991 So.2d 883, 893-94 (Fla. 2d DCA 2008). This court’s review consists of “a legal examination of the evidence in the affidavit to determine whether it establishes probable cause — with a presumption of correctness given to the trial court, which in turn gave great deference to the magistrate.” Id. at 894. The question for this court is whether the facts set forth in the affidavit established a fair probability of finding evidence of animal cruelty and animal fighting or baiting at Barrentine’s home when the warrant was signed on September 12, 2006. See id.

In the affidavit, Detective Paul Wright related the following facts. First, two concerned neighbors provided information to the Sheriffs Office in September 2003 regarding suspected dog and rooster fighting and cruelty. Second, a land surveyor notified the Sheriffs Office on September 11, 2006, that he had seen emaciated pit bulls on the property with scars on their faces and necks. He said those dogs were chained with oversized chains and had dirty water bowls. He also observed several roosters that had missing feathers and appeared to be animal aggressive. The legs of these roosters were tied to the ground by rope. Third, aerial photographs obtained from the Property Appraiser’s website showed a large number of dogs confined individually on the property. Fourth, the affiant relied on his experience with animal fighting and cruelty to explain that these circumstances, in addition to the use of a large privacy fence, led him to believe that there was animal cruelty and fighting taking place at the location.

The deficiency in the affidavit is its failure to establish the relevant time period during which the animals were observed on Barrentine’s property. To establish a fair probability that evidence of a crime will be found at the place to be searched, the affidavit must reflect the specific time of the illegal activity that forms the basis for the alleged probable cause. State v. Vanderhors, 927 So.2d 1011, 1014 (Fla. 2d DCA 2006); State v. Jenkins, 910 So.2d 934, 937 (Fla. 2d DCA 2005); King v. State, 410 So.2d 586, 587 (Fla. 2d DCA 1982). But see Johnson v. State, 872 So.2d 961, 964 (Fla. 4th DCA 2004) (holding that an affidavit does not have to allege the specific time of illegal activity and certifying conflict with the Second District). The affidavit need not expressly state the exact time of the illegal activity; it is sufficient if the magistrate is able to discern the relevant time period from the entirety of the affidavit. See Vanderhors, 927 So.2d at 1015; Jenkins, 910 So.2d at 938. This information is crucial because there is less of a chance that the evidence to be seized will be found as the time period between the date of the illegal activity and the date of issuance of the warrant increases. Jenkins, 910 So.2d at 937-38.

Here, the neighbors’ reports from three years previous were obviously too remote in time to establish probable cause. And while the land surveyor made a report to the Sheriffs Office the day before the warrant application was signed, there is no information regarding when the land surveyor made the observations that were the subject of his report. There is similarly no indication of the date of the photographs that were obtained from the Property Appraiser’s website. Without information establishing that the animals were observed on Barrentine’s property at some point in the not-too-distant past, the magistrate did not have probable cause to issue a search warrant. See Rand v. State, 484 So.2d 1367, 1367-68 (Fla. 2d DCA 1986) (holding that an affidavit was insufficient to establish probable cause because it stated that, within the last ten days, the affi-ant had interviewed two informants who claimed to have seen marijuana growing at the location, but it did not state when the informants observed the illegal activity).

The State acknowledges this defect in the affidavit but argues that the evidence seized pursuant to the search warrant was nonetheless admissible under the good faith exception. Under this exception, evidence seized in reasonable reliance on a warrant issued by a detached and neutral magistrate is generally admissible. Pilieci, 991 So.2d at 895 (citing United States v. Leon, 468 U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The good faith exception applies unless the officer who applied for the warrant “acted dishonestly, recklessly, or under circumstances in which an objectively reasonable officer would have known the affidavit or the existing circumstances were insufficient to establish probable cause for the search.” Id. at 896, 104 S.Ct. 3405. To resolve that issue, this court must discern “the objective reasonableness of the officer’s actions in obtaining the warrant.” Id. at 898, 104 S.Ct. 3405. This inquiry may require fact finding beyond the four corners of the affidavit. Id.

At the hearing on the motion to suppress, the parties did not offer any testimony because their arguments centered on the facial sufficiency of the affidavit. Although the State briefly made its good faith argument, the trial court never reached the issue because it ruled in the State’s favor on the facial sufficiency issue. Under these circumstances, the State is entitled to a hearing on the issue on remand. See id. at 899, 104 S.Ct. 3405. We therefore reverse and remand for further proceedings in which the trial court should consider the content of the affidavit and any additional evidence that was known to the affiant but not revealed to the magistrate. Id. If the trial court grants the motion to suppress after the hearing on remand, it should also grant Barrentine a new trial. See Brinkley v. State, 898 So.2d 1175, 1176 (Fla. 2d DCA 2005). If the court again denies the motion to suppress, it should reinstate Barrentine’s conviction and sentence. See id. at 1177.

Reversed and remanded.

VILLANTI and CRENSHAW, JJ„ Concur.


author: MORRIS, Judge.

text:
    Scott KATZMAN, M.D., and Advanced Orthopaedics, P.A., Petitioners, v. Earnest FISHER and Kelley N. Penney, Respondents.
    No. 2D12-3316.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2013.
    Kimberly P. Simoes and Mario B. Si-moes of The Simoes Law Group, P.A., Deland, for Petitioners.
    Patrick B. Flanagan of Flanagan & Ma-niotis, P.A., West Palm Beach, for Respondents.
   MORRIS, Judge.

Scott Katzman, M.D., and Advanced Or-thopaedics, P.A., petition for a writ of cer-tiorari directed at two circuit court orders requiring them to produce various documents and to answer deposition questions. Without further comment, we dismiss as untimely the portion of the petition addressing the order to produce and we deny the portion of the petition addressing the order directing Dr. Katzman and Advanced Orthopaedics to answer deposition questions.

Dismissed in part; denied in part.

VILLANTI and WALLACE, JJ., Concur.


author: KHOUZAM, Judge. VILLANTI, Judge,

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee on behalf of The Harbor View Mortgage Trust 2006-9 Trust Fund, Appellant, v. LGC as Trustee of Trust 3104 under Trust Agreement dated September 19, 2006, Len Gale, and Unknown Tenants/Owners n/k/a Claudia Lopez and Jose Tabra, Appellees.
    No. 2D12-863.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2013.

      Karene L. Tygenhof, Michael Rodriguez, and Natalie F. Guerra-Valdes of Blank Rome LLP, Boca Raton, for Appellant.
    John P. Fleck, Jr., Bradenton, for Ap-pellee LGC as Trustee of Trust 3104 Under Trust Agreement Dated September 19, 2006.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

Deutsche Bank National Trust Company appeals an order dismissing with prejudice its foreclosure action against LGC and others due to a single violation of a discovery order. Because the trial court abused its discretion in employing such a harsh sanction, we reverse the order and remand the case for further proceedings.

The procedural history of this case is somewhat unusual. On February 17, 2009, Deutsche Bank filed a two-count complaint against LGC and others to collect on a note and foreclose a mortgage.- The defendants filed a motion to dismiss on July 24, 2009, arguing that Deutsche Bank failed to attach necessary documents to the complaint. The parties then began the discovery process, and although the extent of that discovery is not clear, our record demonstrates that Deutsche Bank participated by responding to at least one request for production and serving at least one set of answers to the defendants’ interrogatories. Thereafter, a discovery dispute arose and LGC filed on September 1, 2010, a motion to compel the production of documents. The defendants twice amended their motion to dismiss, and by October 29, 2010, it included allegations that the court lacked subject matter jurisdiction to hear the case and that Deutsche Bank had committed fraud upon the court.

On November 22, 2010, a hearing was held on both the motion to compel and the amended motion to dismiss. At the hearing, the trial court orally denied the motion to dismiss and orally granted the motion to compel. But our record does not indicate any further action from either party or the court until September 21, 2011, when Deutsche Bank filed a motion for summary judgment. Six days later, on September 27, 2011, the trial court entered two orders memorializing its oral rulings made in November 2010. One denied the defendants’ amended motion to dismiss and the other granted the September 1, 2010, motion to compel and allowed Deutsche Bank 45 days from the entry of the order to comply.

Deutsche Bank did not comply with the order to compel within the time provided. Consequently, on December 29, 2011, LGC filed a motion to dismiss the case for noncompliance -with the discovery order. A hearing on the motion to dismiss was held on January 12, 2012, and five days later the trial court entered an order granting the motion and dismissing the case with prejudice.

The trial court explained in its order that this sanction was warranted because, inter alia, the plaintiff, but not the plaintiffs attorney, was directly involved in the violation; the plaintiff failed to offer any explanation for the noneompliance; the failure to produce directly prejudiced the defendants because it went to the issue of standing; the noncompliance constituted a willful or deliberate disregard; and dismissal with prejudice was the only appropriate remedy to protect the integrity of the judicial system. See Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993) (delineating the factors a trial court must consider in determining whether dismissing a case with prejudice is appropriate). Deutsche Bank timely appealed, arguing that it was error to dismiss the case with prejudice.

We review the trial court’s order for an abuse of discretion. Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002). It is well established that in imposing sanctions trial courts possess broad discretion. Id. However, it is also well settled that “dismissing an action for failure to comply with orders compelling discovery is ‘the most severe of all sanctions which should be employed only in extreme circumstances.’ ” Ham v. Dunmire, 891 So.2d 492, 495 (Fla.2004) (quoting Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)).

As it is “the ultimate sanction in the adversarial system,” dismissal with prejudice “should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result.” Kozel, 629 So.2d at 818. Because the purpose of discovery sanctions is to ensure compliance with the trial court’s order rather than to punish, Carr v. Reese, 788 So.2d 1067, 1072 (Fla. 2d DCA 2001), dismissal with prejudice “as a sanction for failing to comply with a court order has generally been frowned upon by the courts, except in the most egregious circumstances of intentional defiance and contumacious disregard of the court’s authority,” Wheeler v. Hajianpour, 688 So.2d 423, 424 (Fla. 4th DCA 1997). Consequently, “if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.” Kozel, 629 So.2d at 818.

Here, the trial court abused its discretion in dismissing the case with prejudice. Although the trial court had the discretion and authority to sanction Deutsche Bank for its failure to comply with the order to compel, dismissal with prejudice was too harsh a penalty under these circumstances. In addition to the fact that Deutsche Bank violated only a single discovery order, there is no indication that the violation resulted in any prejudice to the defendants. See Ham, 891 So.2d at 499 (noting that dismissal with prejudice “is far too extreme as a sanction in those cases where discovery violations have absolutely no prejudice to the opposing party”). Indeed, after the motion to compel was orally granted, the case sat idle for nine months during which time the defendants did not take a single action on the case, and LGC has not alleged in this appeal any prejudice beyond general inconvenience. Moreover, a dismissal with prejudice here could act as a substantial monetary penalty.

Under these circumstances, the trial court should have employed a sanction less harsh than dismissal with prejudice. As the Florida Supreme Court observed in Ham, “[t]his is simply not a case involving a protracted history of discovery abuses, numerous motions to compel, prior sanctions by the trial court, patent prejudice to the opposing party, or other circumstances that would in any way warrant imposition of the ultimate sanction of dismissal.” Id. Consequently, the order dismissing the case must be reversed and the case remanded for further proceedings.

Reversed and remanded.

ALTENBERND, J„ Concurs.

VILLANTI, J., Concurs with opinion.

VILLANTI, Judge,

Concurring.

I fully concur in the majority opinion, but write to make one observation. Although a trial court is ordinarily not required to state its reasons for dismissing a case, a special rule applies when a case is dismissed with prejudice as a sanction. Under this circumstance, the trial court must make an express written finding of willful or deliberate violation of a discovery order supporting its imposition of the most severe sanction of dismissal. See, e.g., Urbanek v. R.D. Schmaltz, Inc., 573 So.2d 107, 108 (Fla. 4th DCA 1991). To its credit, the trial court in this case attempted to comply with this requirement by stating in its order that the plaintiff had willfully or deliberately disregarded a discovery order that went to the issue of whether the plaintiff had standing to file this foreclosure action. But, standing was a red herring in this case. Rather, it appears the issue was raised by the defendant in a prototypical motion to dismiss, despite the actual note being in the court file. In any event, it is clear that the court’s most serious findings, which might have justified dismissal with prejudice, were not supported by the record. As pointed out by the majority, only a simple, first time discovery violation occurred and, thus, dismissal with prejudice was not justified.

      . Deutsche Bank conceded at oral argument that the failure to comply with the order was a sanctionable violation.

      . The complaint alleges that Deutsche Bank is owed $111,638.97 on the note.


text:
    Terrance D. McCLENDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2856.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.

      Terrance D. McClendon, Milton, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Galindez v. State, 955 So.2d 517, 522-23 (Fla.2007).

TAYLOR, CIKLIN and CONNER, JJ., concur.


text:
    Clive DONEGAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2855.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Steven Raisman and Helene B. Raisman of Raisman & Raisman, P.A., Fort Lauder-dale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively to the 1999 plea in this case. Hernandez v. State, — So.3d - (Fla.2012). The post-conviction motion was untimely, and appellant was not entitled to relief. In addition, the motion was insufficient as it failed to allege that appellant was in the country lawfully and removable based solely on the plea in this case. See Rosas v. State, 991 So.2d 1003 (Fla. 4th DCA 2008); Forrest v. State, 988 So.2d 38 (Fla. 4th DCA 2008).

POLEN, STEVENSON and GROSS, JJ., concur.


text:
    Darryll Joel McKENZIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2846.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Darryll Joel McKenzie, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

MAY, C.J., DAMOORGIAN and LEVINE, JJ., concur.


text:
    Travis A. TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2843.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Travis Turner, Sneads, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Metellus v. State, 900 So.2d 491 (Fla.2005).

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Dwayne Demond BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2763.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Dwayne Demond Bryant, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, GROSS and TAYLOR, JJ., concur.


text:
    Iberson PHILLIPE, a/k/a Phillipe Iberson, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2760.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    David M. Lamos, Fort Pierce, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. The motion for postconviction relief was untimely. In addition, it is without merit. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, POLEN and GROSS, JJ., concur.


text:
    Geno JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2748.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Geno Joseph, Fort Lauderdale, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s motion for postconviction relief. First, Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively to the 1999 plea. Hernandez v. State, — So.3d - (Fla.2012). Second, appellant does not show that he was present in the country lawfully. Padilla applies only to those who were present in the country lawfully at the time of the plea. Appellant cannot show that the plea is the sole basis for his removability. See Rosas v. State, 991 So.2d 1003 (Fla. 4th DCA 2008).

Affirmed.

WARNER, TAYLOR and CONNER, JJ., concur.


text:
    Daniel FERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2658.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. Hernandez v. State, — So.3d - (Fla.2012).

GROSS, TAYLOR and DAMOORGIAN, JJ., concur.


text:
    Golden Cox VASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4120.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Golden Cox Vasquez, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We summarily affirm the trial court’s order denying appellant’s motion to vacate the Order of Restitution. Fla. R.App. P. 9.315(a). Appellant failed to provide any support for her allegation that the restitution in this case was satisfied through a sale of property on which the victim had a lien. Our affirmance is without prejudice to appellant again seeking relief from the trial court if she can provide adequate support for her allegation that the restitution in this case has been satisfied.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    GULFCOAST SURGERY CENTER, INC., Petitioner, v. Earnest FISHER and Kelley N. Penney, Respondents.
    No. 2D12-3313.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2013.

      Kimberly P. Simoes and Mario B. Si-moes of The Simoes Law Group, P.A., Deland, for Petitioner.
    Patrick B. Flanagan of Flanagan & Ma-niotis, P.A., West Palm Beach, for Respondents.
   MORRIS, Judge.

Gulfcoast Surgery Center, Inc., seeks a petition for writ of certiorari directed at the trial court’s order compelling it to produce financial documents. We grant the petition.

I. Facts.

Kelley Penney was involved in an automobile accident with Earnest Fisher. Thereafter, she was treated by Dr. Scott Katzman and had procedures performed at Gulfcoast. Penney filed suit against Fisher for injuries she sustained in the accident. Fisher then submitted a notice of subpoena duces tecum seeking production of various financial documents from Gulfcoast which related to Penney’s care such as:

• admission information
• letters of protection
• statements and billing records
• payments by Gulfcoast to anyone involved in Penney’s care and for any equipment used in Penney’s care
• correspondence from physicians, factoring companies, equipment providers, and service providers relative to the scheduling and/or procedure performed on Penney, as well as correspondence from medical funding companies in relation to Penney’s care
• contracts between Gulfcoast and any medical funding companies, providers of anesthesia, and Neuro IOM Services
• documents regarding a sale of Penney’s account receivable to medical funding companies
• the definition of CPT codes for services provided to Penney
• documents reflecting compensation to anyone involved in Penney’s care
• credentials of Dr. Katzman to perform surgery at Gulfcoast as well as the credentials of Dr. Monica Pruitt to assist in the surgery
• preference cards of Dr. Katzman relating to equipment and supplies used in Penney’s care
• and documents “as to the basis upon which Gulfcoast ... calculated its statement for services to Kelly Penney.”

Gulfcoast objected to the request and filed a motion for protective order. However, the trial court ultimately ordered Gulfcoast to comply with the discovery request.

II. Analysis

Where a discovery order departs from the essential requirements of law causing material injury which cannot be remedied on appeal, certiorari review is appropriate. Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., 820 So.2d 445, 448 (Fla. 2d DCA 2002) (citing Allstate Ins. v. Langston, 655 So.2d 91, 94 (Fla.1995)).

Gulfcoast contends that the trial court departed from the essential requirements of the law because the requested documents are not relevant and because it failed to balance Fisher’s need for the documents with Gulfcoast’s privacy interests. Gulfcoast also argues that an in camera review was required because the documents contain trade secrets.

Turning first to Gulfcoast’s relevancy argument, we note that this court has found that a hospital’s internal cost structure information was relevant and critical to establishing a defendant’s claim of unreasonableness of charges. See Giacalone v. Helen Ellis Mem’l Hosp. Found., 8 So.3d 1232, 1235 (Fla. 2d DCA 2009). Thus, we reject Gulfcoast’s argument that the same principle should not be applied to this situation merely because Gulfcoast is a surgical center and because Fisher is a third party who is disputing the reasonableness of the charges. Indeed, Gulfcoast conceded below that information which bore on that topic was discoverable. Consequently, any of the requested documents which relate to Gulfcoast’s internal cost structure are relevant. We do not express any opinion on whether all of the requested documents meet that definition however. That is an issue for the trial court to resolve when it reconsiders Gulfcoast’s objections.

We next address the issue of the trial court’s failure to perform a balancing test or conduct an in camera review. “When a party asserts the need for protection against disclosure of a trade secret, the court must first determine whether, in fact, the disputed information is a trade secret [which] usually requires the court to conduct an in camera review.” Summitbridge Nat’l Invs. v. 1221 Palm Harbor, L.L.C., 67 So.3d 448, 449 (Fla. 2d DCA 2011) (citing Ameritrust Ins. v. O’Donnell Landscapes, 899 So.2d 1205, 1207 (Fla. 2d DCA 2005)); see also Westco, Inc. v. Scott Lewis’ Gardening & Trimming, 26 So.3d 620, 622 (Fla. 4th DCA 2009) (holding that where a party claims a document is privileged and the trial court fails to conduct an in camera review or balancing test, the trial court has departed from the essential requirements of the law). This court has previously held that internal cost structure information constitutes a trade secret. See Laser Spine Inst. v. Makanast, 69 So.3d 1045, 1046 (Fla. 2d DCA 2011) (referring to documents pertaining to billing and collection practices); Summitbridge Nat’l Invs., 67 So.3d at 450 (referring to information pertaining to how different types of patients are charged). However, in his response to Gulfcoast’s petition, Fisher has indicated his willingness to stipulate that the requested documents constitute trade secrets. Thus the more pertinent issue is the trial court’s failure to require any sort of protective measures in relation to the documents.

In Laser Spine Institute, LLC, this court held that where a trial court directs disclosure of trade secrets, “it must take appropriate measures to protect the interests of the trade secret holder, the interests of the parties, and the furtherance of justice.” 69 So.3d at 1046 (citing § 90.506, Fla. Stat. (2010)); see also Summitbridge Nat’l Invs., 67 So.3d at 450-51 (concluding that trial court departed from essential requirements of law by ordering disclosure of information without conducting in camera review to determine if information was, in fact, a trade secret and, if so, whether the party requesting it had shown a reasonable necessity for it and whether safeguards were required to prevent its dissemination); Columbia Hosp. (Palm Beaches) v. Hasson, 33 So.3d 148, 151 (Fla. 4th DCA 2010) (concluding hospital was entitled to relief only insofar as the trial court should have stayed the discovery until the parties had the opportunity to negotiate a confidentiality agreement).

But here, the trial court did not perform any sort of balancing test or conduct an in camera review to determine if the requested documents constituted trade secrets. Thereafter, it failed to require any sort of protective measures to prevent dissemination of the information. Accordingly, we hold that the trial court departed from the essential requirements of law resulting in material injury which cannot be remedied on appeal. Because Fisher has indicated he would stipulate that the requested documents constitute trade secrets, when the trial court considers Gulfeoast’s objections anew, the trial court need only address Gulfeoast’s relevancy objection and then proceed to the issue of protective measures.

Petition granted; order quashed.

VILLANTI and WALLACE, JJ., Concur.

      . Dr. Katzman was also ordered to comply with various discovery requests, and he has filed a separate appeal, case number 2D 12-3316.

      . We have some doubt that dll of the requested documents constitute trade secrets since they include contracts, salary information, and cost information as it pertains to- Penney’s procedure only. See Summitbridge Nat’l Invs., 67 So.3d at 450 (citing Restatement (First) of Torts § 757 cmt. b (1939) for the proposition that "the amount or other terms of a secret bid for a contract or the salary of certain employees” would not necessarily constitute a trade secret; also distinguishing between a hospital’s internal rate structure information generally and the price for a single transaction). But due to Fisher’s willingness to stipulate that the documents constitute a trade secret, these categorical distinctions may be of no consequence.


text:
    Jeffery N. FELDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2286.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Jeffery N. Felder, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

The trial court properly denied appellant’s request for post-sentence jail credit which must be sought through the Department of Corrections. Hines v. State, 842 So.2d 999, 1000 (Fla. 2d DCA 2003); Moreland v. State, 700 So.2d 800, 801 (Fla. 4th DCA 1997); Washington v. State, 662 So.2d 1027, 1028 (Fla. 5th DCA 1995).

If appellant is correct in his assertion that the custodian of the local jail did not certify the information about his post-sentence jail time as required by section 921.161(2), Florida Statutes (2007), then appellant may seek mandamus in the circuit court. Ilkhani v. Lamberti, 50 So.3d 1180 (Fla. 4th DCA 2010).

Affirmed.

GROSS, DAMOORGIAN and LEVINE, JJ., concur.


text:
    Calvin HODGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1121.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012).

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


text:
    Jimmie WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-744.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Jimmie Walker, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the denial of appellant’s motion for clarification of sentence. Our denial is without prejudice to the appellant filing a proper motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a), if what he claims is that the court’s oral pronouncement conflicted with the written sentencing judgment. See Williams v. State, 957 So.2d 600 (Fla.2007). The allegations of his motion are insufficient to make this claim, and he has failed to attach a copy of the transcript to his motion. See Ayala-Laies v. State, 16 So.3d 244 (Fla. 4th DCA 2009).

WARNER, TAYLOR and DAMOORGIAN, JJ., concur.


author: VILLANTI, Judge.

text:
    Jerome MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3284.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2013.

      Howard L. Dimmig, II, Public Defender, and Edward L. Giles, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Jerome Miller appeals his conviction for felon in possession of a firearm, contending that the trial court erred by denying his motion for judgment of acquittal. Because the State failed to prove that Miller was in either actual or constructive possession of the gun in question after he became a convicted felon, the State failed to establish a prima facie case of guilt. Therefore, we must reverse as a matter of law and remand for Miller’s discharge.

In its charging document, the State alleged that Miller was a felon in possession of a firearm “on or between 12/1/2008 through 05/12/2009.” Prior to trial, Miller stipulated that he was a convicted felon “[fjrom April 24, 2008[,] through May 12, 2009[,]” and that he did not have the right to own, possess, use, or receive a firearm at any time after April 24, 2008. Thus, the issues at trial were whether Miller had actual or constructive possession of the gun at issue and, if so, whether that possession occurred after April 24, 2008.

At trial, the State’s evidence showed that Miller, his sister, her boyfriend, and their infant moved into a two-bedroom apartment in early March 2009. The sister, her boyfriend, and their infant occupied one bedroom, and Miller occupied the other bedroom. On May 12, 2009, law enforcement contacted Miller at the apartment in the early afternoon; however, no search was performed at that time and no one saw Miller in possession of a gun. Six hours later, the police returned to Miller’s apartment with a lawful search warrant. As the police were serving the warrant, Miller told them that they were free to search “his room.” Nevertheless, the police searched the entire apartment pursuant to the warrant and found a handgun between the mattress and box spring in the room occupied by Miller’s sister, her boyfriend, and their infant. DNA found on the handgrip of the gun was determined to be a mix of Miller’s DNA and that of an unidentified female, with Miller being the “major contributor.” Kevin Nof-finger, the director of DNA Labs International, testified that “generally ” the “major contributor” to a DNA sample on an object would be the last person to have touched that object, but he could not say that this was “an absolute.” Noffinger admitted that someone else could have touched the gun at issue in this case after the “major contributor” touched it and that this second person could simply not have left any detectable DNA. Noffinger also testified that there was no way to determine from the existence of the DNA itself when the DNA was deposited or how long it had been on the gun.

At the close of the State’s case, Miller moved for a judgment of acquittal, arguing that the State had not proved that he had either actual or constructive possession of the gun after April 24, 2008. He argued that the State failed to prove constructive possession because the gun was located in a room other than his in a jointly occupied apartment, the gun was not in plain view, and there was no independent evidence that he knew that the gun existed or that he had any level of control over it. And although Miller admitted that there was evidence of his actual possession of the gun in the form of his DNA on the grip, he argued that there was no evidence that he possessed the gun and left the DNA after April 24, 2008, when he became a convicted felon.

In response, the State argued that it was clear from the evidence that the gun was placed under the mattress some time after March 1, 2009, when Miller, his sister, her boyfriend, and the infant moved into the apartment. The State argued that the date of the move proved that the gun was placed under the mattress after April 24, 2008, when Miller became a convicted felon. On the issue of whether Miller placed the gun under the mattress and thus had possession of it, the State argued that the jury could infer from Miller’s statement giving police permission to search “his room” — rather than the entire apartment — that Miller had moved the gun from his bedroom to his sister’s bedroom during the six hours it took police to obtain the warrant and that his DNA was deposited on the gun during that time. Based on these arguments, the trial court denied the motion for judgment of acquittal, which Miller now contends was error.

To survive Miller’s motion for judgment of acquittal on the charge of felon in possession of a firearm, the State had to present prima facie evidence to show that Miller either actually or constructively possessed the gun in question after April 24, 2008, when he became a convicted felon. See, e.g., State v. Law, 559 So.2d 187, 188 (Fla.1989) (setting out the requirement that the State present evidence to support a prima facie case in order to survive a motion for judgment of acquittal). The question for the trial court when considering Miller’s motion was whether the State’s evidence was legally adequate to permit the jury to return a guilty verdict. See, e.g., Fergien v. State, 79 So.3d 907, 908 (Fla. 2d DCA 2012); Geibel v. State, 817 So.2d 1042, 1044 (Fla. 2d DCA 2002).

On the issue of constructive possession, the State had to prove beyond a reasonable doubt that Miller knew of the presence of the gun and had the ability to exercise control over it. See, e.g., Watson v. State, 961 So.2d 1116, 1117 (Fla. 2d DCA 2007). Further, because the apartment was jointly occupied and the gun was not in plain view, Miller’s knowledge of and control over the gun could not be inferred from any alleged proximity to the gun but instead had to be established by independent proof. Id. Such proof could have been in the form of incriminating statements or other evidence that would tend to support the inference that Miller had knowledge of and control over the gun. See Evans v. State, 26 So.3d 85, 89 (Fla. 2d DCA 2010); Ras v. State, 610 So.2d 24, 25 (Fla. 2d DCA 1992).

Here, the State failed to meet this burden. The gun was found hidden between a mattress and box spring in the bedroom occupied by Miller’s sister, her boyfriend, and their infant. While the State presented DNA evidence that established that Miller had touched the gun at some undetermined point in the past, it presented no evidence whatsoever to establish that Miller knew that the gun was between the mattress and box spring in his sister’s room on May 12, 2009, or that he had the ability to exercise any control over the gun at that time. Further, the State presented no incriminating statements by Miller or any other evidence that would tend to show that he had knowledge of the location of the gun and the ability to exercise control over it. Contrary to the State’s argument, Miller’s statement that the police were free to search his room is not an incriminating statement, and this statement, standing alone, does not support an inference that Miller was intentionally directing the police to his room because he knew the gun was in the other room. Indeed, it more likely reflects that Miller did not have permission to authorize a search of his sister’s bedroom. Thus, the State’s evidence did not establish a prima facie case that Miller constructively possessed the gun, and Miller was entitled to a judgment of acquittal on this theory.

On the issue of actual possession, the State did present some direct evidence that Miller had previously had actual possession of the gun. However, unlike in the more common case of possession of an illegal substance, the time element of the State’s case against Miller was critical because Miller’s possession of the gun was not illegal until after April 24, 2008. Thus, the State’s DNA evidence, which proved Miller’s actual possession of the gun, established only part of the State’s prima facie case, and the only evidence of when Miller possessed the gun — whether it was before April 24, 2008, or after — is entirely circumstantial.

When the State’s proof of one or more elements of an offense depends entirely on circumstantial evidence, a motion for judgment of acquittal should be granted “if the [S]tate fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Law, 559 So.2d at 188; see also Ginn v. State, 26 So.3d 706, 710 (Fla. 2d DCA 2010). The trial court’s function when considering a motion for judgment of acquittal in a circumstantial evidence case “is to determine whether there is prima facie inconsistency between (a) the evidence, viewed in the light most favorable to the State[,] and (b) the defense theory or theories.” Orme v. State, 677 So.2d 258, 262 (Fla.1996) (emphasis added). Hence, the State must introduce competent evidence that is inconsistent with or contradicts the defendant’s theory of events. Ginn, 26 So.3d at 710. “[T]he State cannot defeat a motion for judgment of acquittal when it accepts the defendant’s uncontradicted theory of the facts and simply argues that a competing theory is equally reasonable.” Id. at 711.

At trial, Miller’s theory of the facts was that he touched the gun before April 24, 2008, leaving his DNA at that time. He asserted that someone else must have placed the gun in his sister’s room between her mattress and box spring after March 1, 2009, and that that person was either the “minor contributor” to the DNA found on the gun or did not leave any DNA at all. This theory is fully supported by the testimony of the State’s expert witness, Noffinger.

In contrast, the State’s theory was that Miller had multiple opportunities to possess the gun after April 24, 2008, and that the jury should have been allowed to determine that he did so because “generally” — although not absolutely — the last person to touch the gun would have been the “major contributor” of any DNA found on it. This theory, however, ignores the State’s own evidence that someone could have touched the gun after the “major contributor” and simply left no detectable DNA. Moreover, the State’s expert clearly testified that there was no way to determine from the mere presence of DNA on the gun when it was deposited. Thus, while the State presented a theory that was inconsistent with Miller’s theory, it did not present any evidence that was inconsistent with Miller’s theory. And “[c]ir-cumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt.” Davis v. State, 90 So.2d 629, 632 (Fla.1956). Here, the State’s circumstantial evidence as to when the DNA was left on the gun generated hypotheses that were equally consistent with Miller’s innocence as with his guilt. Accordingly, the State failed to prove its prima facie case of actual possession, and Miller was entitled to a judgment of acquittal on that theory as well.

In sum, the State failed to present sufficient evidence that was legally adequate to support a guilty verdict of either actual or constructive possession. We must therefore reverse Miller’s conviction as a matter of law and remand for Miller’s discharge on this offense.

Reversed and remanded for discharge.

WALLACE and MORRIS, JJ., Concur.

      . The basis for the issuance of the search warrant is irrelevant to our resolution of this case, and the State presented no evidence at trial to explain its issuance.


author: BLACK, Judge.

text:
    Kevin P. WOLF, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2774.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2013.

      Kevin P. Wolf, pro se.
   BLACK, Judge.

Kevin P. Wolf appeals the summary denial of his motion for postconvietion relief filed under Florida Rule of Criminal Procedure 8.850. We reverse the postconviction court’s denial and remand for further proceedings.

Wolf was initially placed on probation following a conviction on various offenses in Pasco County. Subsequently, Wolf was arrested in Hernando County on unrelated charges. During the bond process in Her-nando County, Wolf alleged that he was informed by Hernando County officials that their records showed active Pasco County warrants for violation of probation — as well as additional new charges— and that Pasco County had holds on each warrant so that should he proceed with the bond process, he would be extradited there rather than being released outright. Wolf alleged that he terminated the bond process and continued with regular proceedings in Hernando County, at the completion of which he was transferred to Pasco County. Once there, he entered a plea to all Pasco County charges and was sentenced to terms of six years’ imprisonment in all cases.

In his motion, Wolf alleged that his counsel was ineffective for failing to understand that Wolf was to receive credit for all time served in county jail prior to sentencing and transfer to the Department of Corrections (DOC). In support, Wolf claimed that when Hernando County officers announced that Pasco County arrest warrants had been issued, he became legally arrested on those warrants and thus entitled to credit in those cases for his time spent in the Hernando County Jail. He claimed that but for his counsel’s failure to present evidence of this to the court at the appropriate time, he would be serving approximately six months less on each of his Pasco County cases — case numbers 08CF-5220, 08CF-6279, 08CF-6304, 10CF-486, 10CF-638, and 10CF-1059.

The postconvietion court denied Wolfs claim, finding that he failed to establish that he was arrested in the Her-nando County ease at least partially on a Pasco County warrant or was being held in the Hernando County Jail pursuant only to a detainer issued by Pasco County. In support, the court emphasized that Wolf had stated that his arrest in Hernando County was unrelated to the Pasco County cases. The postconviction court is correct in noting that “absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.” Gethers v. State, 838 So.2d 504, 505 (Fla.2003). Furthermore, “[o]nly if the prisoner is subject to release but is being held because a detainer has been lodged can it be said that the prisoner is in custody pursuant to the detainer.” Id. at 507.

However, other portions of the court’s order are somewhat confusing, not the least of which is a procedural history that refers to the defendant as “she” and discusses case numbers that do not appear in the heading of Wolfs motion, the post-conviction court’s order, or anywhere on Wolfs DOC record. Furthermore, although the court’s findings clearly address Wolfs motion, the emphasis on Wolfs use of the term unrelated charges is problematic in that the relatedness of the charges at issue is irrelevant to the aforementioned analysis. Under the Gethers standard, the first question would be whether or not Wolf was officially charged with violating his Pasco County probation upon his arrest in Hernando County (or during his time there). If he was not charged, the question would become whether or not he was being held in Her-nando County pursuant to a detainer on the Pasco County cases, without which he would have been subject to release.

Furthermore, Wolf cites additional caselaw in his brief in support of the claim that he became legally arrested on the Pasco County charges when Hernando County officials announced that those warrants had issued. Specifically, “from the time a warrant is transmitted or issued to another county and that county incarcerates the defendant on unrelated charges, that defendant ... is deemed to be in custody on the warrants from both counties and therefore entitled to jail credit on concurrent sentencing.” Travis v. State, 724 So.2d 119, 120 (Fla. 1st DCA 1998). Similarly, when a warrant is transmitted to a sheriff who was already holding a defendant on other charges, “the defendant must be deemed to have been in custody under the warrants from both counties, at least for purposes of entitlement to jail credit on concurrent sentencing.” Pearson v. State, 538 So.2d 1349, 1350 (Fla. 1st DCA 1989). This court subsequently cited to Travis in equating the issuance of a detainer with the transmission of a warrant. See Bryant v. State, 787 So.2d 68, 69 (Fla. 2d DCA 2001), abrogated by Gethers v. State, 838 So.2d 504 (Fla.2003). Gethers then distinguished Travis and abrogated Bryant by explaining that the issuance of a detainer or hold does not have the same effect as the transmission of a warrant. See Gethers, 838 So.2d at 508. However, the concept that the transmission of a warrant amounts to an arrest remains in effect. See id.

Based on the Gethers and Travis line of cases, there appear to be two separate but related analyses under which Wolf could potentially be entitled to relief depending on whether Wolfs Pasco County warrants were either executed or transmitted to Hernando County, or alternatively whether a detainer had been lodged. However, in denying Wolfs motion for postconviction relief, the court failed to adequately address these standards or attach any record in support.

Accordingly, we reverse the postconviction court’s denial and remand for the court to either attach portions of the record conclusively refuting Wolfs claim or hold an evidentiary hearing.

Reversed and remanded.

WALLACE and CRENSHAW, JJ., Concur.


author: ALTENBERND, Judge.

text:
    LAKELAND REGIONAL MEDICAL CENTER, Inc., a Florida corporation, Petitioner, v. Horace and Clara PILGRIM, husband and wife; and Wilson-Cook Medical, Inc., a North Carolina corporation, Respondents.
    No. 2D12-2909.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2013.

      Scott A. Cole and Kathryn L. Smith of Cole, Scott & Kissane, P.A., Miami; and Paula J. Parisi of Cole, Scott & Kissane, P.A., Tampa, for Petitioner.
    Robert Aranda of Valenti Campbell Trohn Tamayo & Aranda, P.A., Lakeland, for Respondents Horace and Clara Pilgrim.
    No appearance for Respondent Wilson-Cook Medical, Inc.
   ALTENBERND, Judge.

Lakeland Regional Medical Center, Inc. (the Hospital), petitions this court for cer-tiorari review of a trial court order denying its motion to dismiss, which had the practical effect of permitting the plaintiffs, Horace and Clara Pilgrim, to proceed with their negligence lawsuit against the Hospital without first complying with the statutory presuit requirements applicable to medical negligence actions as set forth in chapter 766, Florida Statutes (2010). Although we grant this petition, on remand we require the trial court to further develop the record before it determines whether this case falls within the ambit of chapter 766 presuit requirements.

I. THE PROCEEDINGS IN THE TRIAL COURT

As is typical in this variety of certiorari proceeding, our record is limited. It includes an appendix that contains the Pilgrims’ complaint, the Hospital’s motion to dismiss, a transcript of the short hearing on the motion, and an order that denies the motion without any factual or legal discussion. The record contains no affidavits or evidence.

According to the allegations of the complaint, Mrs. Pilgrim underwent an endoscopic procedure at the Hospital in September 2010. During the procedure, a device described as a “cytology brush” was used by someone. A piece of the brush broke and became lodged in Mrs. Pilgrim’s pancreatic duct. This event led to extensive additional medical treatment, as well as bodily injury with resulting pain and suffering, for Mrs. Pilgrim. Her husband has a claim for loss of consortium.

The Pilgrims filed their lawsuit in November 2011, naming both the Hospital and Wilson-Cook Medical, Inc., the company that allegedly designed and manufactured the cytology brush. The complaint against Wilson-Cook includes claims of negligent design and manufacture, negligent failure to warn, strict liability, and breach of implied warranty. These claims are apparently pending in the trial court and are not directly affected by this certio-rari proceeding.

The Pilgrims’ complaint against the Hospital alleges facts that suggest that Mrs. Pilgrim’s claim may be one of medical negligence as defined in chapter 766, but the alleged theory is simple negligence. In very general terms, the complaint states that the Hospital had a duty to “procure, inspect, and maintain” the brush. Mrs. Pilgrim claims that a breach of this duty resulted in her injuries. The complaint does not identify who at the Hospital would have performed these functions. We have no information about the training or qualifications of the individuals involved in procuring, inspecting, or maintaining the brush. We have no information about the person who actually used the brush during the procedure. The complaint does not allege that a doctor was involved in the procedure and no physician is named as a defendant. It is not clear whether the negligent maintenance and inspection would have occurred prior to or during the procedure.

The Hospital responded to the Pilgrims’ complaint with a motion to dismiss, arguing that the Pilgrims were required to comply with the presuit requirements of chapter 766 prior to the commencement of an action against the Hospital. In the motion, the Hospital argues that Mrs. Pilgrim may have simply disguised a medical negligence claim as a simple negligence claim in the complaint.

At the hearing on this motion, the Hospital discussed two cases in support of its motion, one of which is Corbo v. Garcia, 949 So.2d 366 (Fla. 2d DCA 2007). In Corbo, a patient sustained burns on her arms when she was connected to a physical therapy machine that provided electrical stimulation. She brought a negligence action against the physical therapist and his practice, alleging that they failed to exercise reasonable and ordinary care in maintaining their physical therapy equipment. Id. at 368. Similar to the motion filed here, in Corbo the health care providers filed a motion to dismiss on the ground of noncompliance with the statutory medical malpractice presuit screening requirements. The trial court denied the motion. Id. This court granted certiorari, explaining, in part:

Here, even though [respondent] asserts that the negligence occurred prior to her treatment, the gravamen of her claim is based on the petitioners’ use of the equipment during [respondent’s] physical therapy treatment. The basis for [respondent’s] claim is that the petitioners negligently administered a treatment modality: Therefore, her injury occurred during medical treatment, and in order to prove her claim, she must prove that the petitioners did not properly maintain their electrical stimulation equipment, which falls within the standard of care involved in treating a patient with that equipment.

Corbo, 949 So.2d at 370.

The Pilgrims countered the Hospital’s argument, relying primarily on Broadway v. Bay Hospital, Inc., 638 So.2d 176 (Fla. 1st DCA 1994). In Broadway, Mrs. Broadway was injured when her hospital bed collapsed while she was a patient at the hospital. She and her husband filed a lawsuit against the hospital. Id. at 177. The lawsuit sought damages against the hospital based on a breach of its duty to use reasonable care in maintaining its premises and a breach of its duty to warn Mrs. Broadway of latent hazards. Id. The hospital filed a motion to dismiss on the ground that the complaint stated a claim for medical negligence and the Broadways had failed to comply with the presuit screening requirements of chapter 766. Id. The trial court granted the motion and entered a final order dismissing the case. The Broadways appealed. Id. The First District reversed, explaining:

The test for determining whether a defendant is entitled to the benefit of the presuit screening requirements of section 766.106, Florida Statutes, is whether the defendant is directly or vicariously liable under the medical negligence standard of care set forth in section 766.102(1), Florida Statutes. Not every wrongful act by a health care provider amounts to medical malpractice.
From the face of the complaint, it is apparent that appellants have sued ap-pellee for the failure to warn of a dangerous condition or properly maintain a piece of equipment, rather than for breach of some professional standard of care.

Broadway, 638 So.2d at 177 (internal citations omitted).

In the Pilgrims’ case, the trial court denied the Hospital’s motion to dismiss, but expressed its opinion that the issue was very close. In its oral pronouncement, the trial court, in part, determined that the Pilgrims’ negligence allegations fell within the purview of the Broadway case.

II. THE APPLICATION OF CHAPTER 766 PRESUIT REQUIREMENTS MAY REQUIRE A FACTUAL DETERMINATION BEYOND THE ALLEGATIONS OF THE COMPLAINT

The issue of whether a case is subject to the presuit requirements of chapter 766 has long been one that is addressed by a motion to dismiss in the trial court, the denial of which is reviewed by certiorari in the district courts. See NME Hosps. Inc. v. Azzariti 573 So.2d 173 (Fla. 2d DCA 1991). In fairness to the trial courts of this state, the district courts’ attempt to draw a clear, predictable line between cases subject to statutory presuit requirements and cases that are exempt has not been entirely successful.

This case seems to exemplify a primary source of the problem; contrary to the language in Broadway, this issue cannot necessarily be resolved from “the face of the complaint.” 638 So.2d at 177. Even though the issue needs to be resolved at the beginning of the lawsuit, it may involve factual questions comparable to those that must be decided at the beginning of a case to resolve a jurisdictional issue. See, e.g., Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989).

In this case, the Hospital is correct in claiming that the complaint in this case is designed to minimize the factual allegations that might reveal whether the claim is a medical negligence claim or a simple negligence claim. The judges on this panel have never seen a cytology brush and have no idea who might inspect or maintain one. It is apparent from the transcript of the hearing that the trial court had a similar lack of experience. Although we might guess that such a technical device is inspected and maintained by employees with medical expertise and that this case is comparable to Corbo, the truth is that we really do not know. The trial court decided that the brush used here was analogous to the hospital bed in Broadway, but it too was guessing. Indeed, at the hearing on the motion to-dismiss, even the Pilgrims’ attorney claimed that he did not know “if there is a professional duty of care as it relates to a maintenance of a cystology [sic] brush.”

Thus, it is clear in this case that the application of the presuit requirements set forth in chapter 766 is not a pure question of law. If the essential requirements of chapter 766 and the parties’ due process rights are to be honored, neither the trial court nor this court should guess at an outcome. Instead, this issue should be determined by the trial court applying the law to the facts necessary to make the decision. When those facts are fully and accurately described in the initial complaint, a trial court may be able to rely upon the allegations to determine the application of the presuit requirements of chapter 766. But when the complaint is vague, the parties are entitled to a process that presents evidence by affidavit or evi-dentiary hearing.

We conclude that the trial court should have granted the motion to dismiss, but with leave to amend the complaint. The Pilgrims should have been given an opportunity to determine whether the claim involved a professional duty and then to amend the complaint either to allege compliance with chapter 766, see Hosp. Corp. of Am. v. Lindberg, 571 So.2d 446 (Fla.1990), or to reallege their theory in greater factual detail to demonstrate that the matter involved only ordinary negligence.

On remand, if the Pilgrims choose to reallege a simple negligence theory and the Hospital wishes to contest those allegations, it may again file a motion to dismiss, supported by affidavits. If the factual basis for the claim remains disputed, it may be necessary for the trial court to conduct a limited evidentiary hearing, comparable to the hearing used to resolve a Venetian Salami jurisdictional dispute, to determine whether this case falls within the ambit of chapter 766.

Petition granted.

CASANUEVA and KHOUZAM, JJ., Concur.

      . We stress that the facts described in this paragraph are based on the allegations of the complaint.

      . As used in section 766.106, Florida Statutes (2010), a " ‘[c]laim for medical negligence’ or 'claim for medical malpractice’ means a claim, arising out of the rendering of, or the failure to render, medical care or services.” § 766.106(l)(a). As used in sections 766.201 through 766.212, " '[m]edical negligence’ means medical malpractice, whether grounded in tort or in contract.” § 766.202(7).

      . Once a lawsuit has been filed alleging a claim that may involve medical negligence, the defendant health care provider may risk waiving or being estopped from later raising the issue of the plaintiff's noncompliance with statutory presuit requirements by failing to raise the issue in its pleadings. See, e.g., Ingersoll v. Hoffman, 589 So.2d 223 (Fla.1991) (determining that dentist who generally denied the allegation that the plaintiffs had complied with all conditions precedent waived the ability to amend his answer to specifically plead a defense of noncompliance with the statutory presuit requirements inasmuch as an amendment after the statute of limitations had run would have unfairly prejudiced the plaintiffs).


text:
    Michael R. JAMES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4962.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2013.
    Michael R. James, Lake City, 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 filed August 11, 2008, in case no. 2005-CF-002161, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, TORPY and BERGER, JJ., concur.


text:
    James PARCHER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4705.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2013.
    James Parcher, Bristol, 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 filed May 81, 2012 in case number 2002-CF-3900, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, COHEN, and JACOBUS, JJ., concur.


text:
    Marquis STOKES, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3634.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2013.
    Marquis Stokes, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Marquis Stokes appeals the summary denial of his original and amended verified motions for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of claims one and two of the original motion and claims one, two, three, and four of the amended motion without further comment. However, because the attached record does not conclusively refute claim three of the original motion and claim five of the amended motion, we reverse and remand with instructions that the trial court either grant the relief, conduct an evidentiary hearing, or attach the records that conclusively refute the claims.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TORPY, JACOBUS and BERGER, JJ., concur.

      . The lack of attachment of the written plea agreement, oral pronouncement of sentence, the written sentence, or alleged amended written sentence makes it difficult for this Court to determine whether the sentence was illegal.

      . The trial court originally denied claim five of the amended motion as conclusory. The records we found insufficient to refute this claim were attached to the trial court's July 30, 2012 order denying Stokes' motion for rehearing.

      .We agree with the trial court that claim five of the amended motion is conclusory. If no records exist to refute this claim, the trial court should grant Stokes’ request to amend it pursuant to Spera v. State, 971 So.2d 754 (Fla.2007).


author: JACOBUS, J.

text:
    Edgardo ESTREMERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3517.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2013.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

Appellant, Edgardo Estremera (“Es-tremera”), appeals his convictions and sentences for burglary of a structure with an assault while armed with a firearm, robbery with a firearm, petit theft, and three counts of aggravated assault with a firearm. Estremera raises several issues on appeal, only one of which merits discussion.

Estremera challenges his convictions for aggravated assault with a firearm and burglary with an assault while armed with a firearm on the grounds that the convictions violate double jeopardy. “[A]ll of the elements of the crime of aggravated assault with a firearm are contained within the crime of burglary with assault while armed with a firearm.” White v. State, 753 So.2d 668, 669 (Fla. 1st DCA 2000). Thus, the State has properly conceded error with regard to Estremera’s dual convictions for aggravated assault with a firearm and burglary with assault while armed with a firearm, and one of Estrem-era’s aggravated assault convictions must be vacated as a violation of the prohibition against double jeopardy. However, because there were three separate victims of aggravated assault in this case, the two remaining aggravated assault convictions do not violate double jeopardy. See Mauldin v. State, 9 So.3d 25, 28 (Fla. 4th DCA 2009) (concluding that it is clear from the assault statute that “[t]he legislature intended separate punishments when a defendant’s threat places more than one person in well-founded fear,” and, thus, multiple convictions under the assault statute arising from a single criminal episode do not violate the prohibition against double jeopardy). Accordingly, we reverse with instructions to vacate one of Estremera’s convictions for aggravated assault. Because Estremera’s sentencing scoresheet must be recalculated, we also remand for resentencing on the remaining convictions which are affirmed. Estrem-era is entitled to be present when he is resentenced. See Orta v. State, 919 So.2d 602 (Fla. 3d DCA 2006) (concluding that resentencing on a recalculated scoresheet is not a “ministerial act,” and, thus, the defendant had the right to be present).

AFFIRMED in part, REVERSED in part, and REMANDED with instructions

TORPY and EVANDER, JJ, concur.


author: GRIFFIN, J.

text:
    Jon A. REGISTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-38.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2013.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Jon A. Register [“Register”] appeals his judgment and sentences for two counts of lewd or lascivious molestation against a victim less than twelve years of age. Register argues that his judgment and sentences violate the constitutional guarantee against double jeopardy. We disagree and affirm both convictions.

On April 8, 2004, the State charged Register, through information, with two counts of lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes. In count one, the State alleged that on January 14, 2004, Register, a person eighteen years of age or older, did intentionally touch in a lewd or lascivious manner the genital area or clothing covering the genital area of the victim, a person less than twelve years of age. In count two, the State alleged that on January 14, 2004, Register, a person eighteen years of age or older, did intentionally force or entice the victim, a person less than twelve years of age, to touch his genitals in a lewd or lascivious manner.

On August 17, 2009, Register entered a bench plea of nolo contendere to both counts. The State offered the following factual basis:

On January 14th of 2004, the Defendant was watching a four-year old child that he was acting as a stepfather to during the time.
On that date he had her get undressed. He then touched her vagina with his hands. He made her touch his private part and help masturbate him. He then ejaculated on her and the bed that she was on.
He then provided a written confession as to what he did.
All of this occurred in Osceola County, Florida.

Thereafter, the trial court adjudicated Register guilty of both counts of lewd or lascivious molestation and sentenced him to fifteen years in the Department of Corrections on each count, to run concurrent, with twenty-three days of credit for time served, and followed by ten years of sex offender probation.

Register intentionally touched the genital area or clothing covering the genital area of the victim in a lewd or lascivious manner and forced or enticed the victim to touch his genitals in a lewd or lascivious manner. Although these acts occurred diming a single criminal episode, they are distinct in character and type and require different elements of proof. Section 800.04(5), Florida Statutes, proscribes each of these distinct acts. There is no double jeopardy violation. See Sanders v. State, 101 So.3d 373 (Fla. 1st DCA 2012); see also Roughton v. State, 92 So.3d 284 (Fla. 5th DCA 2012).

AFFIRMED.

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

      . Recently, the Fourth District Court of Appeal, in Webb v. State, 104 So.3d 1153 (Fla. 4th DCA 2012), held that a defendant’s two convictions for lewd and lascivious molestation violated the prohibition on double jeopardy in a case where the victim had testified that the defendant “proceeded to touch ... [her] breast, once underneath her shirt and once over her shirt,” that he "then touched ... [her] crotch area over her jeans,” and that "all of the touchings occurred approximately within a ten-minute period.” That decision is not final at the time of this writing. Factually, our case is more like Sanders than Webb.


author: KELLY, Judge.

text:
    L.D., Appellant, v. STATE of Florida, Appellee.
    Nos. 2D11-4076, 2D11-4092.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2013.
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

In this consolidated appeal, L.D. challenges a disposition order adjudicating her delinquent for resisting or opposing an officer in circuit court case number 11-CJ-2722, and a disposition order finding her guilty of battery on a school employee and revoking her probation in circuit court case number 08-CJ-3491. We affirm without discussion her adjudication and the disposition order in case number 11-CJ-2722. However, we agree with L.D., and the State properly concedes, that the disposition order in case number 08-CJ-3491 must be reversed and the case remanded for further proceedings.

The disposition order in case number 08-CJ-3491 directs that L.D. be continued on probation for a term of five years. At the revocation hearing, the court pronounced a maximum period of supervision not to exceed five years or L.D.’s nineteenth birthday. Because a trial court’s written disposition must be consistent with its oral pronouncement, we reverse the disposition order and remand for entry of a corrected order that accurately reflects the court’s oral pronouncement. See N.L. v. State, 4 So.3d 1286 (Fla. 2d DCA 2009).

The disposition order also reflects that L.D.’s curfew is during daytime rather than nighttime hours (6:00 a.m.-9:00 p.m.; 6:00 a.m.-10:00 p.m.). At the revocation hearing, the court stated, “curfew is 9 p.m. Sunday through Thursday, 10 p.m. Friday and Saturday. You have permission to leave your residence in the morning at 6:00 each morning to go to work or to go to school.” On remand, the court shall correct the written disposition order to reflect the court’s oral pronouncement. See id.

Finally, the court erred by not entering a written revocation order specifying the conditions of probation L.D. violated. See Greene v. State, 919 So.2d 684 (Fla. 2d DCA 2006). Thus, upon remand, we direct the court to enter such an order.

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

DAVIS, J., and PETERS, R. TIMOTHY, Associate Judge, Concur.


author: CASANUEVA, Judge.

text:
    In the Interest of T.B. and T.P., children. M.P., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D12-5198.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2013.

      Tarya A. Tribble of Tribble Law Center, P.A., Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessica Stephans, Assistant Attorney General, Tampa, for Appellee Department of Children & Family Services.
   CASANUEVA, Judge.

M.P., the Mother, appeals an order finding that two of her children are dependent as to the father, who had consented to the dependency. The order withheld adjudication of dependency and accepted a case plan for the children. In the dependency order, the trial court found that it was in the best interest of the children to remain in the custody of the Mother under protective supervision. We reverse only those portions of the dependency order which give the Department of Children and Family Services (hereinafter “DCF”) the right to share temporary physical custody of the children and which pertain to the maternal grandparents.

DCF filed the petition for adjudication of dependency alleging that during a visit with the children, the father pushed the Mother while at the home of the maternal great-grandparents. The Mother fell on the child, T.B., who was knocked down and struck his head on a wooden table. Both the Mother and child suffered minor injuries as a result of the incident. When family members asked the father to leave, he retrieved a gun from his vehicle, pointed the gun at the maternal uncle’s chest, and waved the gun at other family members standing in the front yard. The children were present during both incidents.

As previously noted, the trial court ordered that the children remain in the custody of the Mother. However, the order also gave DCF “or the temporary legal custodian the right to have temporary physical custody of the children” to provide for the needs of the children. This language giving DCF the right to have temporary physical custody of the children is erroneous, as the trial court granted the Mother legal custody of the children. We therefore reverse this portion of the order and direct the trial court to strike the language indicating that DCF has the right to have temporary physical custody of the children. See § 39.521(4), Fla. Stat. (2012) (“An agency granted legal custody shall have the right to determine where and with whom the child shall live, but an individual granted legal custody shall exercise all rights and duties personally unless otherwise ordered by the court.”).

Further, the dependency order also appears to contradict itself regarding the contact it allows between the children and the maternal grandparents. While it states that the Mother shall not allow the maternal grandparents to have unsupervised visits with the children without the approval of DCF, it also states that the grandparents may transport the children for visits with the father. This portion of the order is reversed and remanded for the trial court to clarify these two directives.

Reversed in part, affirmed in part, and remanded with directions.

WALLACE and LaROSE, JJ„ Concur.

      . The Mother does not reside with the father, and there have been no allegations of abuse or neglect pertaining to the Mother.

      . The children, T.B. and T.P., were born on September 17, 2009, and September 2, 2010, respectively.

      . The domestic violence incident involving the father occurred at the home of the maternal great-grandparents, not the maternal grandparents who are referred to in the order.


text:
    Dorrie THOMAS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D12-4087.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2013.

      Dorrie Thomas, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Dorrie Thomas seeks certiorari review of an order denying a petition for writ of mandamus which challenged the Florida Parole Commission’s action of leaving intact the suspension of his presumptive parole release date (PPRD), thereby effectively denying him parole. We grant the petition for writ of certiorari, quash the order denying relief and remand for further proceedings.

The ultimate discretion to grant parole lies with the Florida Parole Commission, and a decision by the Commission to suspend an inmate’s PPRD and defer setting an effective parole release date (EPRD) can be set aside by a court only for a demonstrated abuse in the exercise of the Commission’s discretion. See Florida Parole & Probation Comm’n v. Paige, 462 So.2d 817 (Fla.1985). As we observed in Florida Parole Commission v. Brown, 989 So.2d 723 (Fla. 1st DCA 2008), an abuse of discretion may be established in various ways, including a showing that the Commission deviated from the legal requirements imposed upon it, such as the obligation to review the inmate’s complete record and to articulate the basis for its decision.

In the petition for writ of mandamus filed in the circuit court, Thomas asserted that the Commission had not complied with rules 23-21.0155 or 23-21.0161, Florida Administrative Code, and failed to articulate the basis for its decision. We conclude that this claim stated a basis for relief. See Alday v. Fla. Parole Comm’n, 58 So.3d 327 (Fla. 1st DCA 2011) (holding that the Parole Commission is required to state reasons for its finding that an inmate continues to be a poor candidate for parole release). Rule 23-21.0155 provides that when the Commission suspends an inmate’s PPRD and declines to authorize an EPRD, the inmate shall continue to receive extraordinary interviews at scheduled intervals. Rule 23-21.0155(1) states:

When an inmate’s case is referred for extraordinary review by the Commission, an order shall be prepared outlining the reason(s) for the Commission’s decision. The order shall be acted upon by the Commission within 60 days of the decision declining to authorize the effective parole release date. The Commission’s order shall specifically state the reasons for finding the inmate to be a poor candidate for parole release pursuant to Section 947.18, F.S., and shall identify the information relied upon in reaching this conclusion (emphasis added).

Rule 23-21.0161 provides that in conducting extraordinary interviews, parole examiners shall follow the procedures specified for conducting EPRD interviews and, additionally, shall obtain information relevant to the Commission’s previous determination that the inmate was not a good candidate for parole release. The parole examiner then reduces a recommendation to writing and forwards it to the Commission, which “shall independently review the complete official record in the inmate’s case” and thereafter inform the inmate in writing of its findings on extraordinary review. More specifically, rule 23-21.0161(3) provides:

If, as a result of extraordinary interview, the Commission finds that the inmate continues to be a poor candidate for parole release, the Commission shall again state the reasons and record support for this finding and shall again refuse to authorize an effective parole release date (emphasis added).

In 2002, Thomas was given an EPRD interview, but the Commission was unable to find that if released, Thomas would conduct himself as a respectable and law-abiding person as required by section 947.18, Florida Statutes. The Commission voted not to authorize release and suspended the PPRD. In 2011, Thomas received an extraordinary parole release date interview and the parole examiner recommended that Thomas be considered for parole, citing his positive institutional adjustment and his lack of inmate disciplinary reports for over 10 years. The Commission’s January 2012 order memorializing its most recent action with respect to Thomas reflects that a “review of the entire Department of Corrections record” was undertaken and the Commission reaffirmed its prior negative finding under section 947.18. The order stated that the “Parole Commission still considers [Thomas] to be a risk to the public.” However, the order does not cite any record support for this finding or identify the information relied upon in reaching this conclusion as required by rules 23-21.0155 or 23-21.0161. This was an abuse of discretion. See Alday, 58 So.3d at 329.

Accordingly, the order denying Thomas’s petition for writ of mandamus is QUASHED and the matter is REMANDED for further proceedings consistent herewith.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    Travis P. BEVERLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5819.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2013.
    Travis P. Beverly, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of December 7, 2012, the Court has determined that its jurisdiction was not timely invoked. Appellant’s notice of appeal was not filed with the court until December 5, 2012. Contrary to appellant’s assertion, his attempt to file a notice of appeal by serving it on opposing counsel did not invoke the Court’s jurisdiction. Fla. R.App. P. 9.110(b). Accordingly, the appeal is dismissed.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    Merlin L. SIKES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5974.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2013.
    Merlin L. Sikes, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Fla. RApp. P. 9.140(b)(3).

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    Thomas A. LEE, Petitioner, v. Amy C. LEE, Respondent.
    No. 2D12-5021.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2013.
    Michael S. Edenfield of Battle & Eden-field, P.A., Brandon, for Petitioner.
    Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Respondent.
   PER CURIAM.

We treat the petition for certiorari review as an appeal of a nonfinal order entered on an authorized motion. See Fla. R.App. P. 9.130(a)(4). Affirmed.

CASANUEVA, KELLY, and LaROSE, JJ., Concur.


author: LaROSE, Judge.

text:
    Shawn E. HOLLIDAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2535.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2013.

      Shawn E. Holliday, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Shawn Holliday appeals the summary denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Upon the State’s concession of error and our own record review, we reverse and remand for further proceedings.

Mr. Holliday pleaded guilty to charges of attempted burglary of a dwelling and grand theft. The trial court placed him on probation. After a violation of probation in approximately December 2009, the trial court modified the probation.

Mr. Holliday again violated his probation by committing new law violations. In September 2011, he entered a plea to the new charges and admitted violating his probation. According to Mr. Holliday, his counsel advised him that the State was offering a minimum guidelines sentence of approximately forty-six months in prison. The plea form listed 46.2 months as the agreed-upon sentence. The sentencing scoresheet reflected thirty-six points in the Community Sanction- violation section, apparently representing three prior probation violations.

On the day after sentencing, Mr. Holli-day allegedly learned that the scoresheet was erroneous. He claims to have had only one prior probation violation. A correct scoresheet would have yielded a sentence of about thirty-five months. The State concedes that the postconviction court erred in summarily denying Mr. Hol-liday’s rule 3.850 motion. The State also seems to concede that Mr. Holliday is entitled to resentencing. We do not decide that issue. We conclude that remand for proceedings on the merits of the claim is appropriate.

Reversed and remanded.

ALTENBERND and DAVIS, JJ„ Concur.


text:
    Tonshad Levon CULPEPPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4647.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2013.
    Howard L. Dimmig, II, Public Defender, and Margaret H. White-Small, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Tonshad Levon Culpepper appeals his convictions and sentences for burglary of a dwelling, dealing in stolen property, and false verification of ownership to pawnbroker. He raises three issues, asserting two errors in the jury instructions and an error in the denial of his motion for judgment of acquittal. As to the issue regarding the failure to give a jury instruction on dealing in stolen property and grand theft pursuant to section 812.025, Florida Statutes (2011), we affirm and certify conflict with Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010), and certify questions of great public importance. As to the remaining issues, we affirm without comment.

The State charged Culpepper with burglary of a dwelling, dealing in stolen property, grand theft, and false verification of ownership to pawnbroker, and the jury found Culpepper guilty as charged. Because the grand theft and dealing in stolen property charges arose from “one scheme or course of conduct,” see § 812.025, the trial court dismissed the grand theft count. The court then adjudicated Culpepper guilty of the z'emaining charges.

Culpepper contends that the trial court should have given his requested instruction to the jury that it could return a verdict for dealing in stolen property or grand theft, but not both, pursuant to Kiss, 42 So.3d 810, and section 812.025. Culpepper acknowledges this court’s precedent to the contrary in Williams v. State, 66 So.3d 360 (Fla. 2d DCA), review granted, 70 So.3d 588 (Fla.2011), in which this court determined that the jury instruction regarding section 812.025 is not warranted and failure to give the instruction does not require a new trial. This court has certified conflict with Kiss and certified three questions of great public importance to the Florida Supreme Court. See Wilkins v. State, 78 So.3d 18, 19 (Fla. 2d DCA 2011); Poole v. State, 67 So.3d 431, 432 (Fla. 2d DCA 2011); Williams, 66 So.3d at 365. We again certify conflict with Kiss and certify the following questions to the Florida Supreme Court that this court certified in Williams:

1.MUST THE TRIAL COURT INSTRUCT THE JURY TO PERFORM THE SELECTION PROCESS DESCRIBED IN SECTION 812.025 OF THE FLORIDA STATUTES?
2. IF SO, MUST THE APPELLATE COURT ORDER A NEW TRIAL ON BOTH OFFENSES IF THE TRIAL COURT FAILS TO GIVE THE INSTRUCTION?
3. IF THE APPELLATE COURT IS NOT REQUIRED TO MANDATE A NEW TRIAL, MUST IT REQUIRE THE TRIAL COURT TO SELECT THE GREATER OFFENSE OR THE LESSER OFFENSE WHEN THE TWO OFFENSES ARE OFFENSES OF DIFFERENT DEGREEES OR OF DIFFERENT SEVERITY RANKING?

Williams, 66 So.3d at 365.

Affirmed, conflict certified, and questions certified.

CASANUEVA and BLACK, JJ„ Concur.


text:
    SECURITY BANK, N.A., Appellant, v. VIZCAYA HOLDINGS, LLC, LA Port Holding, LLC d/b/a LA Port Holdings LLC, G.4.A. Holding, LLC, Giancarlo Cuffia, Oscar Larraza and City of Fort Lauderdale, FL, Appellees.
    No. 4D12-2930.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.

      Philip A. Allen and David S. Garbett of Garbett, Stiphany, Allen & Roza, P.A., Miami, for appellant.
    Michael Rothman and Paula Levy of Rothman & Tobin, P.A., Coral Springs, for appellee G4A Holdings, LLC.
   PER CURIAM.

Affirmed. See Viets v. Am. Recruiters Enters., Inc., 922 So.2d 1090 (Fla. 4th DCA 2006).

STEVENSON, CIKLIN, JJ., and MORGAN, DAVID C., Associate Judge, concur.


text:
    Morris Kent THOMPSON, Appellant, v. Joelle SAWAYA, Appellee.
    No. 4D12-2809.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.
    Morris Kent Thompson, Coconut Creek, pro se.
    Kristin Cantrell of Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

WARNER, GERBER and LEVINE, JJ., concur.