author: PER CURIAM. BENTON, J.,

text:
    BROADSPIRE, A Crawford Company, and Geico Corporation, Appellants/Cross-Appellees, v. Rebecca ROSE, Appellee/Cross-Appellant.
    No. 1D09-1460.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.

      Michael S. Waranch of Hurley, Rogner, Miller, Cox & Waranch & Westcott, P.A., Winter Park, for Appellants/Cross-Appel-lees.
    Mark G. Capron of Smith, Feddeler, Smith & Miles, P.A., Lakeland, and Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellee/Cross-Appellant.
   PER CURIAM.

This workers’ compensation appeal raises two questions: (1) the Employer/Carrier (E/C) challenges the Judge of Compensation Claims’ (JCC’s) finding that medical evidence supports Claimant’s claim of a compensable repetitive trauma; and (2) Claimant challenges on cross-appeal the JCC’s finding that the statute of limitations ran on her 1999 date of accident. We reverse the JCC’s finding of medical causation for the reasons explained below. We affirm -without further discussion his finding that the statute of limitations ran on the 1999 accident.

Background

Claimant began working for the Employer as an underwriting tech in 1998, and her job duties included a great deal of data entry work. She complained of numbness and tingling in her hands on April 1, 1999, and her bilateral carpal tunnel syndrome was accepted as compensable and treatment was provided.

Claimant last saw her authorized physician, Dr. Beatty, on August 7, 2007. At the time of that visit, Dr. Beatty recommended surgery on the right wrist based on positive nerve testing. The doctor left the decision up to Claimant.

On August 27, 2008, Claimant filed a petition for benefits (PFB) based on the 1999 accident. The E/C denied the PFB, alleging the statute of limitations had run. Thereafter, Claimant filed another PFB, alleging a new repetitive trauma accident date of September 16, 2008. This second PFB was denied by the E/C on grounds the 2008 accident was not the major contributing cause of Claimant’s need for medical treatment.

The only medical evidence was the testimony of Dr. Beatty. The doctor confirmed she had not examined Claimant since August 9, 2007 (over a year prior to the date of the alleged accident). The doctor testified it was “speculation” as to whether continuing use of a keyboard would cause Claimant’s symptoms to continue or worsen, “[b]ut by history that’s what it looks like.” It was “speculation” whether Claimant’s condition would have changed or improved significantly given that Claimant had not undergone the recommended surgery. When asked whether the regular use of her hands would continually aggravate Claimant’s nerves, Dr. Beatty agreed that was true in some people, but, because there was a possibility for improvement, it was necessary to conduct testing in order to have objective data. Until Claimant underwent new testing, the doctor could not give an opinion regarding Claimant’s current condition.

Analysis

Section 440.09(1), Florida Statutes (2008), requires:

The injury, its occupational cause, and any resulting manifestation or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries.... In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence.... Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must be by medical evidence only, as demonstrated by physical examination findings or diagnostic testing. Major contributing cause must be demonstrated by medical evidence only.

Here, there was no medical evidence to establish Claimant’s condition on September 16, 2008. Dr. Beatty had not examined Claimant in over a year prior to that date and had no current diagnostic test results. Based on that, the doctor declined to give an opinion as to Claimant’s current medical status.

Claimant had the burden to prove every aspect of her claim. See Fitzgerald v. Osceola County Sch. Bd., 974 So.2d 1161, 1164 (Fla. 1st DCA 2008) (holding “[claimant bore the burden over the course of the proceedings below to prove her entitlement to workers’ compensation benefits”). Claimant failed to prove the medical causation of her alleged repetitive injury at all, and certainly did not do so with clear and convincing evidence. There is no competent substantial evidence to support the JCC’s finding that medical causation was established by clear and convincing evidence. Accordingly, this issue is reversed.

REVERSED in part and AFFIRMED in part.

KAHN and CLARK, JJ., concur; BENTON, J., concurs with opinion.

BENTON, J.,

concurring.

The repetitive trauma that gave rise to the appellee’s carpal tunnel syndrome diagnosed as of April 1, 1999, and accepted by the employer as compensable at that time has allegedly again given rise to a need to treat the syndrome. After all, appellee alleges that she has continued to do the same kind of work for the same employer. This time, because the employee declined surgery and sought no other treatment for a year so that the statute of limitations on the “April 1, 1999 date of accident” had run, the employer elected to put the employee to her proof, as it was legally entitled to do. In the circumstances, however, nothing in today’s decision should be understood as holding that, in the event of a subsequent claim, proof of repetitive trauma while working for this employer must be limited to any one time segment.


source: Caselaw Access Project

author: VAN NORTWICK, J.

license: Public Domain

text:
    Susan MACK and Ben Mack, Appellants, v. Daniel C. PERRI, Esquire for the Estate of George Watts, M.D., Appellee.
    No. 1D09-1617.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Todd M. LaDouceur, Pace, for Appellants.
    Daniel C. Perri and Larry H. Hipsh, III, Shalimar, for Appellee.
   VAN NORTWICK, J.

Susan Mack and Ben Mack appeal a final order granting the petition of the Estate of George Watts, appellee, to strike the Macks’ claims against the Estate as untimely. For the following reasons, we affirm all issues raised on appeal.

The decedent, George Watts, a physician, died on November 18, 2004. The first notice to creditors was published on May 14, 2005. On October 31, 2005, the Macks first filed their claims against the Estate based on alleged medical malpractice in connection with surgery Dr. Watts performed on Susan Mack’s ankle. The Macks filed a malpractice action against the Estate on January 30, 2006. In February 2009, the Estate filed a petition in the probate court to limit the Macks’ claim in the malpractice action to the proceeds of malpractice insurance, see section 733.702(4)(b), Florida Statutes (2005), and the Macks filed petitions seeking to strike the Estate’s objections to their claims.

We agree with the trial court that the Macks’ claims against the estate are barred by sections 733.702(1)(3), and 733.710(1), Florida Statutes (2005). The Macks’ claims were filed more than three months from the date the notice to creditors was first published. See § 733.702(1). Further, the Macks did not file a request for an extension of time under section 733.702(3) until after the running of the two-year non-claim period in section 733.710(1). As the Supreme Court held in May v. Illinois National Insurance Company, 771 So.2d 1143, 1157 (Fla.2000), “section 733.710 is a jurisdictional statute of nonclaim that automatically bars untimely claims and is not subject to waiver or extension in the probate proceeding.” The May court explained that this statute “represents a decision by the legislature that 2 years from the date of death is the outside time limit to which a decedent’s estate in Florida should be exposed by claims on the decedent’s assets.” Id. (quoting Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So.2d 163, 167 (Fla. 4th DCA 1996)). Here, the Macks’ claims were untimely filed under section 733.702(1). Although section 733.702(3) provides for an extension, the claim and motion for an extension must be filed before the operation of the two-year non-claim provision. May, 771 So.2d at 1157.

We also reject the Macks’ assertion that their claim was timely filed when measured from the date of publication of a second notice to creditors by the estate. The time period under section 733.702(1) runs from “the time of the first publication of the notice to creditors.” As the Supreme Court held in Estate of Williamson v. Murphy, 95 So.2d 244, 247 (Fla.1957), a second publication will be deemed “unnecessary surplusage” which has no “affect [on] the validity or effectiveness of the first notice published.”

AFFIRMED.

WOLF and ROBERTS, JJ., concur.

      . Section 733.702, Florida Statutes (2005) provides in pertinent part:
      (1) If not barred by s. 733.710, no claim or demand against the decedent's estate that arose before the death of the decedent, ... even if the claims are unmatured, contingent, or unliquidated; ... and no claim for damages, including, but not limited to, an action founded on fraud or another wrongful act or omission of the decedent, is binding on the estate, on the personal representative, or on any beneficiary unless Bled in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor, even though the personal representative has recognized the claim or demand by paying a part of it or interest on it or otherwise....

      (3) Any claim not timely filed as provided in this section is barred even though no objection to the claim is filed unless the court extends the time in which the claim may be filed. An extension may be granted only upon grounds of fraud, estoppel, or insufficient notice of the claims period....

      . Section 733.710 provides in pertinent part:
      733.710 Limitations on claims against estates.—
      (1) Notwithstanding any other provision of the code, 2 years after the death of a person, neither the decedent's estate, the personal representative, if any, nor the beneficiaries shall be liable for any claim or cause of action against the decedent, whether or not letters of administration have been issued, except as provided in this section.


author: PER CURIAM.

text:
    Elizabeth M. DEMONT, Appellant/Cross-Appellee, v. Michael E. DEMONT, Appellee/Cross-Appellant.
    No. 1D09-4184.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Elliot Zisser and Corrine A. Bylund, Zisser, Robison, Brown, Nowlis, Macie-jewski & Cabrey, P.A., Jacksonville, and Cynthia L. Greene, Greene, Smith & Associates, P.A., Miami, for Appellant/Cross-Appellee.
    James G. Roberts, Roberts, & Reiter, P.A., Jacksonville, and Michael J. Korn, Korn & Zehmer, P.A., Jacksonville, for Appellee/Cross-Appellant.
   PER CURIAM.

Appellant seeks review of an “Amended Final Judgment of Dissolution of Marriage,” which appears to be final except for an express reservation of jurisdiction to consider the division of the parties’ marital personal property. This reservation clearly indicates that additional judicial labor is required in the cause and, therefore, the order on appeal is not ap-pealable as a final order. See Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (reaffirming traditional test for finality requiring that “no further action by the court will be necessary”); Thomas v. Thomas, 902 So.2d 881 (Fla. 1st DCA 2005) (dismissing appeal where “final” order of dissolution reserved jurisdiction to consider reduction in value of asset distributed in equitable distribution); Newman v. Newman, 858 So.2d 1273 (Fla. 1st DCA 2003) (dismissing appeal where “final” order of dissolution contained conditional reservation of jurisdiction to determined issues regarding bank and investment accounts); Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002) (dismissing appeal for lack of jurisdiction where trial court retained jurisdiction to determine equitable distribution claim).

In response to our order to show cause why the appeal should not be dismissed as premature, Appellant argued that the reservation of jurisdiction over the division of personal property is collateral to, and in no way alters, the final nature of the order on appeal with respect to the dissolution, award of alimony and child support, and equitable distribution of other property. In support of this argument, Appellant relied entirely on Gaines v. Sayne, 764 So.2d 578 (Fla.2000).

In Gaines, the court resolved a conflict between the district courts regarding the effect that the death of a party has on a proceeding for dissolution of marriage. Id. at 579. The court held that the adjudication of dissolution in the order on review was effective to dissolve the marriage because it completed the judicial labor on the issue of dissolution before the death of a party. Id. at 586. This holding was based on the conclusion that judicial labor on the dissolution issue was complete despite a pending rehearing motion on the “collateral” issue of equitable distribution. Id.

Gaines did not affect the traditional test of finality for purpose of appeal. The court noted that “procedural rules established to determine finality for the purpose of seeking rehearing or appeal do not necessarily affect the efficacy of a validly entered decree.” Id. at 585. Logically, the inverse is also true; the efficacy of a validly entered decree of dissolution does not necessarily affect the application of procedural rules established to determine finality for purposes of appeal. Therefore, although substantively the order on appeal may have the effect of terminating the marriage and finally adjudicating certain issues, procedurally it does not bring an end to the judicial labor required in the cause such that the order is appealable as a final order.

In response to our order to show cause why the cross-appeal should not also be dismissed as premature, Appellee acknowledged that that order on appeal is not final for purposes of appellate review, but he requested that in lieu of dismissal, we abate the appeal and relinquish jurisdiction to the trial court for entry of a final order pursuant to Florida Rule of Appellate Procedure 9.110(£). We routinely relinquish jurisdiction under this rule when it appears that the jurisdictional defect in the order on appeal is technical in nature and merely requires an amended order clarifying that all of the issues between the parties had been finally resolved. In this case, however, an indeterminate amount of judicial labor, possibly requiring another hearing, remains to be done before a final order can be entered, and the asserted grounds for relinquishing jurisdiction — i.e., duplication of effort and additional filing fees — do not present an exceptional circumstance that would justify the relief Ap-pellee requested. See Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995) (“[PJroper exercise of our discretion in this and most cases in this posture is dismissal of the appeal at the time the court is called upon to resolve the jurisdictional issue.... In the absence of some exceptional circumstance, the appeal would be dismissed without prejudice, of course, to the right of the appealing party to file a timely notice of appeal after a final order has been rendered by the trial court.”).

For the foregoing reasons, the appeal and cross-appeal are dismissed without prejudice to either party’s right to file a timely notice of appeal after a final order has been rendered by the trial court.

DISMISSED.

KAHN, LEWIS and WETHERELL, JJ., concur.


text:
    Zoraida GONZALEZ, Appellant, v. WALGREENS and Sedgwick Claims Management, Appellees.
    No. 1D09-1464.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Linette M. Waterman of Rigell, Waterman & Wolfe, P.A., West Palm Beach, for Appellees.
   PER CURIAM.

Upon review of Appellants’ response to this court’s October 29, 2009, order to show cause, we conclude the order being appealed is a non-appealable, non-final order. See Fla. R.App. P. 9.180(b)(1), Mintz v. Broward Corr. Inst., 800 So.2d 343 (Fla. 1st DCA 2001). Also, although not the basis of our decision, we note the order on appeal lacks any factual or legal findings, thereby rendering meaningful review nearly impossible.

Accordingly, the appeal is DISMISSED for lack of jurisdiction.

KAHN, LEWIS and WETHERELL, JJ., concur.


text:
    LIFE CARE HEALTH RESOURCES, INC., d/b/a, Life Care Center of Port St. Lucie; Life Care Health Resources, Inc., d/b/a, Life Care Center of Winter Haven; Life Care Health Resources, Inc., d/b/a, Life Care Center of Jacksonville; Life Care Health Resources, Inc., d/b/a, Life Care Center of Ocala; Life Care Health Resources, Inc., d/b/a, Life Care Center of Orlando; Life Care Centers of America, Inc., d/b/a, Life Care Center of Citrus County, Petitioners, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent.
    No. 1D09-4801.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    John F. Gilroy, III, and John E. Terrel of John F. Gilroy, III, P.A., Tallahassee, for Petitioners.
    Tracy Lee Cooper, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as moot.

HAWKES, C.J., BENTON, AND THOMAS, JJ., CONCUR.


text:
    SPECIAL DISABILITY TRUST FUND, Appellant, v. MIAMI AIRPORT HILTON, Hilton Hotels, Appellee.
    No. 1D09-5545.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Cynthia Arnold Shaw of Special Disability Trust Fund, Department of Financial Services, Tallahassee, for Appellant.
    Jack R. Simmons, Miami Lakes, for Ap-pellee.
   PER CURIAM.

Upon review of Appellant’s response to this court’s November 12, 2009, order to show cause, we conclude the order being appealed is a non-appealable, non-final order. See Fla. R.App. P. 9.180(b)(1); Mintz v. Broward Corr. Inst., 800 So.2d 343 (Fla. 1st DCA 2001). Accordingly, the appeal is DISMISSED for lack of jurisdiction.

WEBSTER, DAVIS, and PADOVANO, JJ., concur.


author: WOLF, J.

text:
    Shipley SMITH-CURLES, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5768.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Ian M. Cotner and Thomas D. Winokur, Assistant Attorneys General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges an order revoking her probation. We reverse.

The affidavit of violation of probation alleged appellant changed her residence without permission. The only evidence presented by the State that appellant changed her residence was the hearsay testimony of appellant’s probation officer. “ ‘Although hearsay evidence is admissible at the revocation hearing, the defendant’s probation or community control cannot be revoked solely on the basis of hearsay.’ ” Stewart v. State, 926 So.2d 413, 414 (Fla. 1st DCA 2006) (quoting Thompson v. State, 890 So.2d 382, 383 (Fla. 2d DCA 2004)). See also Gary v. State, 987 So.2d 180, 181 (Fla. 2d DCA 2008) (finding “[t]he fact that the probation officer did not find [appellant] at home when she visited did not prove that [appellant] had moved” and “the hearsay statement attributed to [appellant’s] daughter ... standing alone, was insufficient to support the revocation”).

Furthermore, the trial court’s finding that appellant violated the terms of her probation by failing to report to her probation officer cannot be affirmed as this violation was not charged in the affidavit. “A trial court is not permitted to revoke probation on conduct not charged in the affidavit.” Perkins v. State, 842 So.2d 275, 277 (Fla. 1st DCA 2003) (citing Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000)).

Therefore, the trial court’s order revoking appellant’s probation is REVERSED.

VAN NORTWICK and ROBERTS, JJ., concur.


text:
    Troy Ray BROCK, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6267.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., for Appellant.

      Bill McCollum, Attorney General, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   WOLF, J.

Appellant seeks review of his convictions and sentences for both trafficking and possession of methamphetamine. Appellant raises two issues: (1) whether the trial court erred by denying appellant’s motion to suppress, and (2) whether appellant’s convictions for both trafficking and possession of methamphetamine violated double jeopardy principles. Because there is merit to the first issue, we reverse. In light of our decision on the first issue, we decline to address the second point on appeal.

As to the first issue, the trial court erred in denying appellant’s motion to suppress. Although consent to enter the residence was given by appellant’s girlfriend, Sheila Long, there was not a reasonable basis for the officers conducting the search to believe Long had the apparent authority to give her consent. Law enforcement may only rely on a person’s apparent authority to give consent if such consent is reasonable given the totality of the circumstances. See State v. Young, 974 So.2d 601, 609 (Fla. 1st DCA 2008) (citing Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). In addition, if the basis for the asserted authority is not clear, the officer must conduct further inquiry before relying on the third party’s representations. Id.

Here, Long called the Jackson County Sheriffs Office to request law enforcement come out and capture appellant on the property, but she was no longer on the property, nor did she meet officers at the property when they arrived. When Long contacted the sheriffs office, she admitted she and appellant were engaged in a domestic dispute before she made the call. Furthermore, the officer who took the call could not recall the exact words Long used or whether she expressly stated she owned the property or was a resident on the property. Finally, a driver’s license record search of Long, conducted prior to officers’ arrival on the property, indicated the property in question was not her residence. Thus, the officers’ belief that Long had the apparent authority to consent to a search of the trailer without further inquiry was not reasonable and the warrantless entry was unconstitutional. Accordingly, the trial court’s order is REVERSED.

VAN NORTWICK and ROBERTS, JJ., concur.


text:
    Michael LOVE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1701.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.

      Michael Love, Moore Haven, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Michael Love appeals the summary denial of his pro se motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record failed to conclusively refute this claim, we reverse and remand for further proceedings.

Love was adjudged a youthful offender and sentenced to two years community control followed by four years on probation and was ordered to attend ninety days at boot camp, stemming from 2004 charges. Love completed boot camp. Love then violated the terms of his probation on two occasions. His probation was revoked and he was sentenced to 90.3 months in the Department of Corrections.

Love asserts that he was not sentenced as required under the Florida Youthful Offender Act. He alleges that the Youthful Offender (YO) statutes limit his period of incarceration to no more than 364 days after completion of YO Boot Camp. Love states that he was sentenced to boot camp for charges committed in 2004 and cites to Diaz v. State, 929 So.2d 668 (Fla. 1st DCA 2006). In Diaz, the first district reversed a trial court’s imposition of a sentence, which exceeded 364 days of incarceration, where the youthful offender attended boot camp pursuant to section 958.04(2)(b), Florida Statutes (1997). Love alleged that since his charges were in 2004 and he successfully completed boot camp — prior to the statutory amendment — his sentence is an ex post facto violation.

The State’s response to Love’s motion to correct an illegal sentence argued that the court was not restricted to 364 days in jail because the defendant was sentenced to community control followed by probation — there was no special condition of incarceration as part of the probation, per section 958.04(2)(b). The State asserted that since the court was not restricted to a maximum 364 day sentence based on the violation, it had the authority to find the defendant violated probation and sentence him to 90.3 months based on the substantive violation. The State, in its response, cites to the 2006 statutory amendment, which eliminated the prior 364-day limitation on incarceration of a youth offender who successfully completed boot camp. The revised statute would be inapplicable to Love, who correctly asserts that he committed his original offenses in 2004.

The State now argues, in this appeal, that Love attended a Broward Sheriffs’ Youth boot camp and not a Department of Corrections (DOC) boot camp. The difference is significant because, as this court explained in Lee v. State, 884 So.2d 460 (Fla. 4th DCA 2004), a youthful offender who completes county boot camp is not limited in his sentencing exposure pursuant to sections 958.04(2)(b) and 958.045(5)(c), Florida Statutes (2004), unlike a youthful offender who completed DOC boot camp.

The record does not conclusively establish which type of boot camp Love attended. Accordingly, the order is reversed and remanded for further consideration. If the court finds that Love was illegally sentenced, the court shall resentence him to a legal sentence. Any subsequent denial shall be supported with attachments of portions of the record refuting the claim. See Ward v. State, 865 So.2d 669 (Fla. 4th DCA 2004).

POLEN, HAZOURI and GERBER, JJ„ concur.

      . Effective July 1, 2006 the legislature amended section 958.045(5)(c), which no longer limits to 364 days the period of incarceration for a youthful offender who completes boot camp and then violates subsequent probation. See Ch. 2006-270, § 1, at 2841-42, Laws of Fla.


text:
    P.U., the mother, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 4D09-4858.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Philip J. Massa, Regional Counsel, J. Patrick Reynolds and Kate Corrigan, Assistant Regional Counsel, and Debbie Maken, Legal Intern, Office of Criminal and Civil Regional Counsel, West Palm Beach, for petitioner.
    Jeffrey Dana Gillen, Statewide Appeals Director, West Palm Beach, for respondent Department of Children and Families.
    No appearance by guardian ad litem.
   PER CURIAM.

P.U., the mother, has filed a petition for writ of certiorari seeking to quash a shelter order. We grant the petition, concluding that the evidence was insufficient to justify removing the mother’s child from her care and custody and placing the child in shelter care.

Section 39.402(l)(a), Florida Statutes (2009), permits the removal of a child and placement of the child in shelter care if there is probable cause to believe that the child has been “abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment.” Section 39.402(8)(d), Florida Statutes (2009), provides that, to continue the placement in shelter care, the Department of Children and Families must establish probable cause that reasonable grounds for removal exist, and that the provision of appropriate and available services will not eliminate the need for placement.

Here, the Department did not establish probable cause under either subsection 39.402(l)(a) or (8)(d). The Department’s petition for dependency alleged that the mother and child were living with a friend, but a foreclosure caused them to move out. The mother and child then moved in with another friend. While there, a neighbor sexually abused the child. Despite those allegations, the Department, at the shelter hearing, presented no evidence that the mother could have, or should have, foreseen the incident. Further, the Department represented that the mother acted appropriately following the incident by reporting it immediately and moving from that residence to stay with other friends.

Rather than focusing on the abuse allegations at the shelter hearing, the Department instead focused on the mother’s living situation with those other friends. The mother had been living with those other friends for two to three months at the time of the shelter hearing. The Department argued that a home study had not been performed to assess the suitability of that housing. However, the Department presented no evidence that this housing was unsuitable.

The circuit court entered the shelter order, finding that P.U. failed to protect her child “from sexual abuse by failing to provide a safe suitable residence, despite the provision/attempt at services.” The court directed the Department to remove the child from the mother’s care and custody, and place the child in shelter care pending a home study of the mother’s current living situation.

We conclude that the shelter order departs from the essential requirements of law. The Department failed to demonstrate probable cause that the mother abused, neglected, or abandoned the child, or failed to protect her from such, based on either the mother’s alleged failure to protect the child from sexual abuse, or the mother’s frequent moves. As a result, it was irrelevant whether the Department made reasonable efforts to provide available services or whether the mother allegedly rejected those services. See generally M.B. v. Dep’t of Children & Family Servs., 985 So.2d 1178, 1179 (Fla. 3d DCA 2008) (homelessness derived solely from custodian’s financial inability does not constitute “abuse, neglect, or abandonment” necessary to justify child’s removal, unless Department offers services, and custodian rejects those services) (citation omitted). Even if the Department had demonstrated probable cause, the record does not indicate that the Department made reasonable efforts to prevent or eliminate the need for removal or continued removal.

Consequently, we grant the petition and quash the shelter order. We remand the case to the circuit court with directions for the Department to return the child to the mother’s custody and care.

Petition granted.

POLEN, MAY and GERBER, JJ., concur.


author: POLEN, J.

text:
    PREMIER REAL ESTATE HOLDINGS, LLC, a Florida limited liability corporation, Appellant, v. Park I. BUTCH, an individual, Atlantic Melbourne, Inc., a Florida corporation, and Melbourne Properties, LLC, a Florida limited liability corporation, Appellees.
    No. 4D08-4951.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.

      Lawrence D. Silverman and Scott B. Cosgrove of Silverman Cosgrove & Sam-mataro, Miami, for appellant.
    Allan A. Joseph of David and Joseph, P.L., Miami, for appellee Park I. Butch.
   POLEN, J.

Premier Real Estate Holdings, LLC (“Buyer”) appeals a final order denying its motion to compel arbitration in its dispute with Appellees (“Seller”) over the return of a deposit. Because we conclude that the failure to designate the “rules” under which the arbitration would be governed did not invalidate the arbitration clause, we reverse the order on appeal and remand for further proceedings.

In July of 2006, the parties executed a commercial contract for the purchase and sale of a townhouse development. The contract called for a total price of $11.4 million, an initial deposit of $250,000, and a closing date on or before September 15, 2006. The contract required a second deposit of $250,000 to be made within fifteen days. After several amendments to the contract, which extended the time for Buyer to make the second deposit, the parties set the closing date for October 31, 2006. The second deposit was never made, and the sale fell through. A dispute then arose regarding the return of Buyer’s initial deposit.

The contract contains an arbitration clause which states, in relevant part, that

[a]ny controversy or claim arising out of or related to this Contract, or the breach thereof, shall be settled by neutral binding arbitration in Dade County, Florida, in accordance with the rules of _ (Name of Organization) and not by any court action except as provided by Florida law for judicial review of arbitration proceedings ....

The contract states that it “will be construed under Florida law....”

Nearly two years after the scheduled closing date, Buyer demanded that the dispute over the deposit be submitted to arbitration pursuant to the above provision. Seller refused, and Buyer filed its motion to compel arbitration. In opposition, Seller argued that the provision lacked the necessary terms to form a binding agreement, as it contained a “blank line” and failed to set forth the rules and procedures to govern arbitration (e.g., the number of arbitrators comprising the arbi-tral panel; the qualification and selection of the arbitrator(s); payment to the arbitrators). Seller also argued that the arbitration clause was unconscionable, and that the claim was barred by the statute of limitations. After a hearing on the matter, the trial court said it was a “very close call,” but ruled in favor of Seller, finding that the “blank line” invalidated the arbitration clause.

“[T]he standard of review applicable to the trial court’s construction of an arbitration provision, and to its application of the law to the facts found, is de novo.” BDO Seidman, LLP v. Bee, 970 So.2d 869, 874 (Fla. 4th DCA 2007); see also Chap man v. King Motor Co. of S. Fla., 833 So.2d 820, 821 (Fla. 4th DCA 2002) (trial court’s decision on validity of arbitration agreement is matter of contract interpretation subject to de novo review).

The court must consider three elements in determining a party’s entitlement to arbitration: “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 185 (Fla.2006) (quoting Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)); BDO Seidman, LLP, 970 So.2d at 874.

At issue here is the first element, whether the parties entered into a valid agreement to arbitrate. Buyer argues that the arbitration clause — despite its failure to designate the arbitration organization — fully complies with the Florida Arbitration Code, which directs that

[t]wo or more parties may ... include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof.... Such agreement or provision shall be valid, enforceable, and irrevocable....

§ 682.02, Fla. Stat. (2006). Buyer submits that the failure to designate the “rules” for the arbitration is not fatal because the Legislature included “gap fillers” in the Code. We agree with Buyer.

Chapter 682, Florida Statutes, sets forth the rules and procedures for arbitration in the event an arbitration clause is silent on such matters. See generally Ch. 682, Fla. Stat. For example, section 682.04 provides:

If an agreement or provision for arbitration subject to this law provides a method for the appointment of arbitrators or an umpire, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed ... the court, on application of a party to such agreement or provision shall appoint one or more arbitrators or an umpire. An arbitrator or umpire so appointed shall have like powers as if named or provided for in the agreement or provision.

(Emphasis added.)

Brown v. ITT Consumer Financial Corp., 211 F.3d 1217 (11th Cir.2000), cited by Buyer, is instructive. In Brown, the parties had agreed that “any dispute between them ... shall be resolved by binding arbitration under the Code of Procedure of the National Arbitration Forum [NAF]”. Id. at 1220. Brown argued that the arbitration clause was void because the specified forum, the NAF, had dissolved. Id. at 1220-21. The court rejected that argument, stating: “Section 5 of the [Federal Arbitration Act] provides a mechanism for appointment of an arbitrator where ‘for any [ ] reason there shall be a lapse in the naming of an arbitrator....’ 9 U.S.C. § 5 (West 2000). The unavailability of the NAF does not destroy the arbitration clause.” Id. at 1222.

Similarly, the failure to designate the “rules” under which the arbitration would be governed did not invalidate the arbitration clause in the instant case. The contract states that it will be construed under Florida law, and the Florida Arbitration Code — which does not require an arbitration clause to set forth the “rules governing the arbitration” — fills in the “gaps” or missing procedures. See also New Port Richey Med. Investors, LLC v. Stern, 14 So.3d 1084, 1087 (Fla. 2d DCA 2009) (holding that unavailability of parties’ chosen arbitrator to conduct arbitration did not render arbitration agreement unenforceable; under section 682.04, the circuit court must appoint another arbitrator or arbitrators).

Seller relies on Malone & Hyde, Inc. v. RTC Transportation, Inc., 515 So.2d 365 (Fla. 4th DCA 1987), in which this court reversed an order compelling arbitration, concluding that the record contained insufficient evidence as to the terms of the alleged arbitration agreement for the court to hold that the parties entered into a binding contract for arbitration. Id. at 366. This court noted that “[p]rovisions in a contract providing for arbitration must be definite enough so that the parties at least have some idea as to what particular matters are to be submitted to arbitration and set forth some procedures by which arbitration is to be effected.” Id. Malone is distinguishable, however, as the purported arbitration clause, which was included in a stipulation for judgment of dismissal, was a mere passing reference to “the already agreed to resolution via arbitration.” See id. at 365. The stipulation was silent as to what the parties agreed to submit to arbitration, and did not contain the language mandated by section 682.02, i.e., provide “for the settlement by arbitration of any controversy thereafter arising between [the parties] relating to such contract or the failure or refusal to perform the whole or any part thereof.” Here, in contrast, the arbitration clause states that “[a]ny controversy or claim arising out of or related to this Contract, or the breach thereof, shall be settled by neutral binding arbitration.” (emphasis added.) Moreover, the contract states that it will be construed under Florida law and, as discussed, the Florida Arbitration Code fills in the “missing procedures.”

Seller contends that, if this court finds the arbitration agreement is not missing material terms, it should find the clause unconscionable. To support a finding of unconscionability sufficient to invalidate an arbitration clause, Seller had to establish both procedural and substantive unconscionability. Chapman, 833 So.2d at 821. The Second District has explained the two types of unconscionability as follows:

Procedural unconscionability relates to the manner in which a contract is made and involves consideration of issues such as the bargaining power of the parties and their ability to know and understand the disputed contract terms. Substantive unconscionability, on the other hand, requires an assessment of whether the contract terms are “so ‘outrageously unfair’ as to ‘shock the judicial conscience.’ ” A substantively unconscionable contract is one that “no man in his senses and not under delusion would make on one hand, and as no honest and fair man would accept on the other.”

Bland v. Health Care & Retirement Corp. of Am., 927 So.2d 252, 256 (Fla. 2d DCA 2006) (citations omitted; emphasis added).

Here, there was no procedural uncon-scionability, as the underlying transaction involved sophisticated parties dealing with a large amount of money for the purchase of commercial property. Nothing in the record reflects evidence of disparity between the parties’ education, age or competency. As noted by Buyer, the arbitration provision could have been deleted or modified. Indeed, the contract reflects that other modifications were made.

As Seller has not demonstrated that the arbitration provision is procedurally unconscionable, this court need not decide whether the provision is substantively unconscionable. See Chapman, 833 So.2d at 821. In any event, there are no terms in the arbitration provision that appear to be “so ‘outrageously unfair’ as to ‘shock the judicial conscience.’ ” See Bland, 927 So.2d at 256 (citation omitted). Rather, the arbitration provision is neutral and fair to both parties.

Finally, Seller’s statute of limitations argument is premature and should not be decided by this court, as the issue of timeliness is a question for an arbitrator. See, e.g., Thenet v. Jenne, 968 So.2d 46, 46-47 (Fla. 4th DCA 2007).

Reversed and remanded.

MAY and GERBER, JJ., concur.

      . Seller concedes that the only issue in dispute is whether the clause is a valid agreement to arbitrate.


author: KHOUZAM, Judge.

text:
    Stephen BELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4734.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 2009.
    James Marion Moorman, Public Defender, and Deborah K. Brueekheimer, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Stephen Bell appeals an order modifying his sex offender probation based on a finding that he failed to comply with his probation officer’s instruction to report daily to the probation office. Because the instruction created a new condition of probation that had not been imposed by the trial court, we reverse and remand for the court to reinstate Bell’s probation.

In 2003, Bell pleaded guilty to one count of lewd or lascivious molestation on a child under twelve and was sentenced to three years of prison, followed by twelve years of sex offender probation. On June 5, 2008, an affidavit of violation of probation was filed alleging that Bell had violated condition seven (failing to comply with probation officer’s instructions). At the hearing, Bell’s probation officer testified that Bell had been unemployed for approximately seven months. She stated that she told Bell to begin reporting on a daily basis to her office with his job search forms. Bell did not report to his probation officer on June 4, 2008.

The trial court found that Bell had violated condition seven of his probation. The court entered an order that restored Bell’s sex offender probation, instructed Bell to report to the probation office as requested by his probation officer, and imposed electronic monitoring under the Jessica Lunsford Act, section 948.30, Florida Statutes (2007). The court also ordered Bell to pay a $100 public defender fee and $100 in prosecution costs.

“[A] probation officer may give a probationer routine supervisory directions that are necessary to carry out the conditions imposed by the trial court.” Miller v. State, 958 So.2d 981, 984 (Fla. 2d DCA 2007). “However, an instruction that essentially imposes a new condition of probation is not a routine supervisory direction and cannot support a finding that the probationer is in violation.” Id. at 984-85.

We find that the probation officer’s requirement of daily reporting constituted a new condition of probation that had not been imposed by the trial court. See Voudry v. State, 641 So.2d 466, 467 (Fla. 4th DCA 1994) (finding that community control could not be revoked on the basis that defendant failed to make daily telephone contact with his community control officer when the condition was imposed by that officer and not by the court); Page v. State, 363 So.2d 621, 622 (Fla. 1st DCA 1978) (holding that trial court could not revoke for failure to make daily telephone contact with probation supervisor because requirement was not court-imposed). Therefore, the trial court erred in finding Bell in violation of condition seven.

Accordingly, we reverse the order modifying Bell’s probation and remand to the trial court with directions that Bell’s probation be reinstated. We also strike the $100 public defender fee and $100 in prosecution costs.

Reversed and remanded with directions.

CASANUEVA, C.J., and KELLY, J„ Concur.

      . The trial court was under the mistaken impression that it was required to impose electronic monitoring under the Jessica Lunsford Act (the Act). The State admits that Bell's offense was committed before the effective date of the Act. See § 948.30(3) (stating that electronic monitoring must be imposed on sex offenders whose offenses occurred on or after September 1, 2005). Nevertheless, the State contends that section 948.063 provides a basis for the imposition of electronic monitoring. Section 948.063 provides in pertinent part:
      (2) If the probationer or offender is required to register as a sexual predator under s. 775.21 or as a sexual offender under s. 943.0435 or s. 944.607 for unlawful sexual activity involving a victim 15 years of age or younger and the probationer or offender is 18 years of age or older and has violated the conditions of his or her probation or community control, but the court does not revoke the probation or community control, the court shall nevertheless modify the probation or community control to include electronic monitoring for any probationer or offender not then subject to electronic monitoring.
      Because we conclude that Bell did not violate his probation, section 948.063(2) is inapplicable to Bell’s case.


text:
    Walter MANKOWSKI, Appellant, v. DEPARTMENT OF REVENUE o/b/o Secily A. EVANS, Appellee.
    No. 4D08-4389.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Walter J. Mankowski, Davie, pro se.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Walter Mankowski appeals a Final Administrative Support Order of the Department of Revenue, Child Support Enforcement Program, regarding the payment of child support. For the reasons that follow, we reverse.

On September 3, 2008, the Department of Revenue (“DOR”) served appellant with an order advising him that he could file a written request for a hearing “no later than 20 days after the date” of service. The order also noted that appellant could, by telephone, “request informal discussions within 10 days from the date” of service. These informal discussions extended the “time to request a hearing ... until 20 days after” DOR notified appellant in writing that informal discussions were complete. Appellant claims that he contacted DOR by phone on September 17 and that the DOR representative said she would “take care” of his appeal. He also claims to have sent DOR additional documentary evidence of support payments, at the direction of DOR agent, six days later. On appeal, DOR claims it has no record of any informal discussions and that it did not receive the documentary evidence until after it rendered its final order.

We note that the time limit for requesting an administrative hearing is not a jurisdictional requirement and may be extended as equity requires. Brown v. State, Dep’t of Fin. Servs., 899 So.2d 1246, 1247 (Fla. 4th DCA 2005). Appellant claims that he initiated informal discussions and followed DOR’s oral instructions to secure a hearing. Because appellant is proceeding pro se, we can give him some latitude in his handling of this case. Stokes v. Fla. Dep’t of Corr., 948 So.2d 75, 77 (Fla. 1st DCA 2007) (noting that pro se litigants are given substantial leeway in litigation, including favorable construction of their pleadings).

We believe that these factual issues are, in part, the natural result of DOR’s own system of “informal discussions.” Equity leads us to err on the side of caution and reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded with Instructions.

WARNER, FARMER and LEVINE, JJ., concur.

      . Informal telephone conversations cannot be documented to the same extent as written notices, motions, and pleadings. DOR has created a system whereby informal conduct with minimal (if any) documentation can have a substantial affect on a party’s rights.


text:
    STATE of Florida, Petitioner, v. Daniel Peter LaBRON, Respondent.
    No. 4D09-3626.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for petitioner.
    Richard F. Della Fera of Entin & Della Fera, P.A., Fort Lauderdale, for respondent.
   PER CURIAM.

The state seeks certiorari relief from a non-final order granting the motion by Daniel Peter LaBron (Defendant), the defendant in a pending criminal prosecution below, for disclosure of evidence concerning a confidential informant (Cl). We grant the petition.

Defendant was charged with delivery of cocaine to an undercover officer. He moved for disclosure of evidence concerning each Cl used in the case. According to his affidavit, he was induced to commit the offense by a friend of a friend, who contacted him repeatedly. In his motion, he indicated that his defense in this case would be entrapment, and that in order to properly prepare his defense, he would need to depose the Cl, with whom he had multiple telephone conversations. The motion acknowledged that the Cl did not appear on the state’s witness list.

Based on Defendant’s allegations that the Cl would be central to his entrapment defense, the trial court concluded that deposing the Cl implicated Defendant’s due process rights and ordered disclosure of the Cl’s identity. The state’s objection included the argument that the next step before full disclosure was an in camera hearing, in which the judge would determine whether the Cl’s testimony would assist the defense of entrapment.

This kind of non-final order is renewable by certiorari, as it presents the possibility of irreparable harm. E.g., State v. Ayala, 713 So.2d 1050 (Fla. 3d DCA 1998); State v. Roberts, 686 So.2d 722, 723 (Fla. 2d DCA 1997).

The state has a limited privilege to withhold the Cl’s identity. Miller v. State, 729 So.2d 417, 419 (Fla. 4th DCA 1999); State v. Zamora, 534 So.2d 864, 867 (Fla. 3d DCA 1988) (quoting from Roviaro v. United States, 353 U.S. 53, 59, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). The purpose of the privilege is to encourage citizens to perform their obligation of communicating their knowledge of the commission of crimes to law enforcement. Roviaro, 353 U.S. at 59, 77 S.Ct. 623.

If the Cl’s identity is to be disclosed, it is the defendant who has the burden of showing why an exception to the rule of nondisclosure applies. E.g., Miller, 729 So.2d at 419 (citing Zamora, 534 So.2d at 868).

Florida Rule of Criminal Procedure 3.220(g)(2) provides that disclosure may be required in one of two circumstances: “Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant.” Citing Roviaro, 353 U.S. at 60-61, 77 S.Ct. 623, this court explained as follows:

Disclosure of a confidential informant is required if an informant’s identity or content of his communication is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause. The first component necessarily centers around a specific defense asserted by the defendant in the case, as to which the informant’s testimony is material and helpful. See State v. Zaviora, 534 So.2d at 868. The second component concentrates on general due process considerations and is not confined to a defense raised by the defendant.

Miller, 729 So.2d at 419. When a defendant succeeds in meeting the “initial burden of showing that disclosure is necessary to a specific defense, the trial court should hold an in camera hearing to determine, in fact, whether the disclosure would be relevant and helpful to the defense.” Roberts, 686 So.2d at 723.

In this case, Defendant sought to obtain disclosure to assist him with his defense of entrapment; the trial court concluded in so doing he had satisfied the second prong, focusing on general due process considerations.

However, a Cl’s being central to a defendant’s entrapment defense is not an exception that implicates general due process concerns; it falls under the first prong.

An informer’s identity must be disclosed under the second, due process prong under circumstances such as the following: (1) if the defendant is charged with delivering or selling drugs to the informant, see Miller, 729 So.2d at 420 (citing Zamora, 534 So.2d at 869 (citing Roviaro)); (2) if the informant is called as a witness at trial, e.g., State v. Hassberger, 350 So.2d 1, 2 (Fla.1977) (“Where the state produces the informer at trial, and attempts to prevent the witness from giving certain testimony on cross-examination, the sixth amendment right of an accused to confront the witnesses against him, made obligatory on the states by the fourteenth amendment, places severe restrictions on the privilege of nondisclosure.”) (footnote and citations omitted); (3) if the informant’s affidavit supports the issuance of a search warrant, Baker v. State, 150 So.2d 729 (Fla. 3d DCA 1963) (reversing conviction, and holding that trial court’s failure to require state to disclose information concerning individual who signed affidavit for search warrant vitiated evidence obtained under it); or (4) if the informant is a defense witness at trial and the defendant seeks to cross-examine an officer about the relationship between the officer and the informant, Smith v. State, 318 So.2d 506 (Fla. 2d DCA 1975) (defense was that defendant was not involved in the narcotics activities, but merely was persuaded to go along with his friend, who in fact was the informant).

These circumstances are listed in Zamora, where the court concluded:

In each of these cases, the courts have implicitly concluded that the disclosure of the informant was an essential part of the defendant’s due process right to be informed of the charges against him or to cross examine the witnesses against him.

534 So.2d at 869-70 (footnote omitted).

On the other hand, this second, due process prong is not met, automatically entitling the defense to the Cl’s identity, upon the mere allegation that the Cl’s identity is central to the defense. See Ayala, 713 So.2d at 1052 (finding second prong was not relevant, but, where defendant satisfied the first prong by filing a motion and affidavit which set forth a potential defense of entrapment, the trial judge was obligated to conduct in camera hearing to question the informant under oath to determine whether anything the informant might say would be relevant and helpful to that defense); Wilson v. State, 13 So.3d 83, 84 (Fla. 2d DCA 2009).

The trial court’s conclusion that disclosure of the Cl was required by due process concerns raised by Defendant’s motion and affidavit constituted a departure from the essential requirements of law. Accordingly, the order on review is quashed, and the case is remanded for further proceedings consistent with this opinion.

Petition Granted.

WARNER, POLEN and DAMOORGIAN, JJ., concur.


author: McCANN, JAMES W., Associate Judge.

text:
    STATE of Florida, Appellant, v. Garett GROSSER, Appellee.
    No. 4D08-2434.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellant.
    Michael J. Rocque, Fort Lauderdale, for appellee.
   McCANN, JAMES W., Associate Judge.

The dispositive issue on this appeal depends upon the commencement date for the running of the time periods afforded by the speedy trial rule. Fla. R.Crim. P. 3.191(a).

The underlying alleged facts are that, on July 14, 2007, the appellant, Garret Andrew Grosser, and the victim, Alyssa Rei-tano, were at a party in the Lake Ida area of Palm Beach County when there was an altercation between them. Reitano attempted to leave in her vehicle and asked her friend, Melissa Watson, to drive because she was nervous and scared. Grosser followed Reitano’s vehicle onto 1-95 southbound and started to cross in front of her vehicle trying to force her into the concrete barrier wall. Grosser was also seen throwing things at the victim’s vehicle. This continued onto the exit ramp of Hillsboro Boulevard in Broward County, at which time Melissa Watson tried to exit to get away from Grosser. At that moment, Grosser, at a high rate of speed, cut in front of Watson suddenly and slammed on his brakes causing the vehicle (driven by Watson and occupied by Reitano) to collide with the rear of Grosser’s vehicle.

After the accident, Grosser continued on, leaving the scene of the accident. Three witnesses stopped at the scene of the accident and gave a statement to the investigating state trooper.

The operative facts giving rise to this appeal are that on July 14, 2007, the trooper arrived at the scene of this road rage incident, and, after concluding his investigation, prepared and signed three Florida Uniform Traffic Citations with the following charges: (1) Reckless Driving Property Damage Wanton Disregard for Life and Property; (2) Leaving Scene of Accident ■with Property Damage; and (3) Crash Failed to Give Information. On the first two citations, Trooper checked off the option stating “Criminal Violation Court Appearance Required As Indicated Below:”. On the third citation, the trooper checked off the option stating “Infraction Which Does Not Require Appearance In Court.” On all three citations, the trooper typed in the court information section which provides for a date, time and location for Grosser to appear in court: “Broward County Court To Be Set.”

The record does not reflect that Grosser was ever served with these citations. The trooper attempted to serve the citations on July 16 and 17, 2007, but was unsuccessful. As a result, the trooper’s report indicates that he requested a capias for Grosser, but the record in this case does not reflect whether a capias was issued. There was no further record activity regarding this matter until September 25, 2007 (seventy-four days later) when the State filed an Information in Broward County Court (Case No. 2007-037809TC10A) charging Grosser with two misdemeanors: Count I — Leaving the Scene of a Crash; and Count II — Reckless Driving.

On January 31, 2008, the State filed an “Amended Information” in Circuit Court charging Grosser with four criminal charges: Count I-Aggravated Assault with a Deadly Weapon (a motor vehicle); Count II — Felony Criminal Mischief; Count III — Leaving the Scene of a Crash; and Count IV — Reckless Driving. Counts I and II were third degree felony charges. Counts III and IV are the identical misdemeanor charges filed against Grosser in the September 25, 2007 Information filed in the County Court case.

On February 19, 2008, Grosser filed a Notice of Expiration of Time for Speedy Trial pursuant to Fla. R.Crim. P. 3.191(h), in the County Court case, asserting that the ninety day time limit to be brought to trial on misdemeanors had expired. On February 19, 2008, the State filed a “No Information” in the County Court case which the trial court likened to a nolle prosequi. See Lovelace v. State, 906 So.2d 1258, 1259 (Fla. 4th DCA 2005). Although the State had the right to avail itself of the recapture periods in Rule 3.191(p), Fla. R.Crim. P., it foreclosed its rights to do so by filing a “No Information” indicating it had no intent to proceed on those charges.

Grosser then filed a Motion to Dismiss in the Circuit Court case seeking a dismissal with prejudice of all charges on the grounds that “... speedy trial expired on October 31, 2007 in the County Court case.” At the April 4, 2008 hearing on the Motion to Dismiss, the State argued that the original Information was properly amended prior to the expiration of the speedy trial time (175 days) on the felony counts pursuant to Rule 3.191(a). The State contends that the speedy trial time began to run on the date of the filing of the Information in the county court on September 25, 2007. Grosser maintains that the ninety day speedy trial time expired on October 12, 2007 (ninety days after the issuance of the Florida Uniform Traffic Citations), and that this precluded the State from filing felony charges arising out of the same conduct thereafter. It is also Grosser’s position that the 175 days had run on the filing of felony charges if the start date for the running of the speedy trial time was July 14, 2007.

The trial court granted the Motion to Dismiss, explaining that: “The State first filed their case against defendant as a misdemeanor case. The 90 day speedy trial time expired on October 12, 2007. The State then refiled the case as a felony on January 31, 2008 which was over 200 days from the date the defendant had been arrested.”

The State timely filed this appeal of the trial court’s dismissal of the four count Amended Information filed in Circuit Court Case No. 2008-2141CF10A.

The State contends that the trial court erred in granting the Defendant’s Motion to Dismiss under the erroneous assumption that the speedy trial time limits had expired for both the misdemeanor and felony counts of the “Amended Information” as a result of utilizing the date on the Florida Uniform Traffic Citations as the commencement date (July 14, 2007). We agree and reverse as to Counts I and II charging Grosser with felonies, but affirm the dismissal on Counts III and IV charging Grosser with misdemeanors.

Our analysis turns exclusively upon the determination of the date when the speedy trial clock begins to run pursuant to Rule 3.191(a). Rule 3.191(a) pro-rides that a defendant is entitled to trial within ninety days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony. The rule goes on to state: “The time periods established by this subdivision shall commence when the person is taken into custody as defined under subdivision (d).” [e.s] Rule 3.191(d) defines “custody” as follows:

For purposes of this rule, a person is taken into custody (1) when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged, or (2) when the person is served with a notice to appear in lieu of physical arrest, [e.s.]

There is no record to establish that (pri- or to September 25, 2007) Grosser was ever arrested on the misdemeanors filed in the county court action, nor is there any record to establish that he was served with a notice to appear in lieu of physical arrest. Furthermore, even if Grosser had been served with the Florida Uniform Traffic Citation issued by the trooper on July 14, 2007, those citations did not require him to respond in any way. The citations stated the return date was “To Be Set” in Broward County court. As such, he was not required to “appear in lieu of physical arrest,” or to “respond in any way” by any directive contained in the Florida Uniform Citations issued by the trooper. See State v. Coughlin, 871 So.2d 935 (Fla. 5th DCA 2004); Ayres v. State, 898 So.2d 1154 (Fla. 5th DCA 2005). Accordingly, the speedy trial time clock did not begin to run on the misdemeanor charges filed in the county court case on July 14, 2007.

Even though Grosser believed and argued at the April 4, 2008 Motion to Dismiss hearing that the speedy trial clock began to run on July 14, 2007, Grosser’s trial counsel stipulated to use September 25, 2007 as the speedy trial clock commencement date. Grosser believed that because the Notice of Expiration of Time for Speedy Trial was filed more than ninety days after September 25, 2007 as well, and since the State filed a No Information after the Notice of Expiration was filed, the State would be barred from prosecuting any charges based upon the same conduct or criminal episode, including the felony charges filed in the Circuit Court.

We find that the speedy trial clock began to run no sooner than September 25, 2007 under the facts of this case. Although there is no record to establish that Grosser was arrested or served with a Notice to Appear since the September 25, 2007 Information was filed, we do know that, upon filing an Information in the County Court, the defendant must have been served with a capias (or other form of arrest warrant) or a Notice to Appear along with the Information, which necessarily could not have occurred earlier than the date the Information was filed (September 25, 2007). Giving Grosser the benefit of the earliest possible date when he could have been arrested or served with a notice to appear upon the filing of an Information on September 25, 2007 is also consistent with Grosser’s trial counsel’s stipulation to utilizing that date at the Motion to Dismiss hearing.

As a result, the ninety day speedy trial clock expired on December 24, 2007 for misdemeanors, not October 12, 2007, as found by the trial court. Similarly, the speedy trial clock for the filing of felony charges arising out of the same conduct or criminal episode would not have expired until March 18, 2008 (175 days from September 25, 2007).

The trial court erred in dismissing the felony counts (counts I and II) on speedy trial grounds. The defendant was not entitled to discharge prior to a timely filing of a Notice of Expiration of Time for Speedy Trial, followed by required recapture procedures and time periods set forth in Rule 3.191(p).

The Appellant’s reliance upon this court’s decision in Lovelace is misplaced. In Lovelace, supra, the defendant was arrested for misdemeanor DUI on August 11, 2004. The defendant filed a Notice of Expiration of Speedy Trial Time on November 15, 2004. The State filed a “No Information” on November 19, 2004. On December 1, 2004, the State filed a felony DUI charge in Circuit Court based upon the same misdemeanor DUI together with the requisite two alleged prior DUI convictions. See § 316.193(2)(b), Fla. Stat. (2004).

Lovelace, does not stand for the blanket legal proposition that the State is barred from filing felony charges arising out of the same conduct or criminal episode as misdemeanors which have been discharged by the speedy trial rule even if those charges are brought prior to the expiration of the felony speedy trial rule time limits. Instead, this Court, citing State v. Woodruff, 676 So.2d 975 (Fla.1996), concluded in Lovelace, that the County Court should have granted the defendant’s Motion for Discharge of the misdemeanor DUI based upon the expiration of speedy trial. However, even though the felony DUI charge was filed within the 175 day period, this Court held that the State would be unable to prosecute the felony DUI as a direct result of the discharge of the misdemeanor DUI count on speedy trial grounds. The felony DUI charge required a conviction on the discharged misdemeanor DUI count together with proof of two prior DUI convictions. Without the discharged DUI misdemeanor, the State had no prima fa-cie case to obtain a felony DUI conviction.

The chronology of this case is more closely aligned with the chronology in Woodruff. In that case, there was a County Court case and Circuit Court case pending at the same time charging Woodruff with Misdemeanor DUI (and other misdemeanor offenses) in County Court; and Felony DUI, along with misdemeanor DUI (and other misdemeanor offenses also charged in the County Court action). The defendant timely filed a “Notice of Expiration of Speedy Trial Time” in the County Court action. The State filed a nolle pro-sequi of misdemeanor charges in the County Court action. The defendant, Woodruff, filed a Motion to Dismiss the Information filed in the Circuit Court action, which was granted. The State appealed the dismissal of the Circuit Court Information. The Florida Supreme Court found that the principle of estoppel properly attached to the misdemeanor charges filed in the Circuit Court action since these offenses were the same as those that were discharged in County Court. However, estoppel did not attach to the Felony DUI charged in the Circuit Court action finding that Felony DUI is a completely separate offense than misdemeanor DUI. Since those charges were filed before the expiration of the felony speedy trial period, the State was not barred from prosecution of that offense. However, based upon the same reasoning as in Lovelace, the Supreme Court found that, by virtue of the discharge of the misdemeanor DUI offenses on speedy trial grounds, it would be impossible to obtain the felony DUI conviction. It was the need to prove the discharged misdemeanor DUI which controlled the outcome of both the Lovelace, and Woodruff, decisions.

Since the Amended Information charging Grosser with Felonies in Counts I and II was filed before the expiration of the Felony Speedy Trial time limit, those charges were improperly dismissed. A different result is compelled for the disposition of Counts III and IV in the Circuit Court case. Both counts charged the identical misdemeanors charged in the County Court case. Since Grosser filed a timely Notice of Expiration of Time for Speedy Trial in the County Court case (i.e., after ninety days had passed since September 25, 2007), and since the State filed a nolle prosequi (or no Information) rather than attempting to avail itself of the recapture provisions of Rule 3.191(p), the State cannot proceed on those charges in the Circuit Court action filed beyond the expiration of the speedy trial time limit for misdemeanors. The speedy trial limits on the misdemeanor charges expired on or about December 24, 2007, but the “Amended Information” was not filed until January 31, 2008.

Rule 3.191(o) makes clear that the State cannot circumvent the intent of the rule by suspending or continuing the misdemeanor charges or by entering a nolle prosequi (or no Information) and later refile the charges together with felony counts within the Felony Speedy Trial time limits (175 days). Once the speedy trial time limits for misdemeanors had expired and a timely Notice of Expiration of Time for Speedy Trial had been filed under the Rules, the defendant was entitled to be brought to trial within the timeframes and pursuant to the procedures set forth in Rule 3.191(p). Failing to do so in this case, the State cannot now prosecute those charges, either in their identical form (as they did in Counts III and IV of the Circuit Court action) or file any other misdemeanor charges based on the same conduct or criminal episode.

Accordingly, Counts III and IV charging the defendant with leaving the scene of a crash and reckless driving, respectively, were properly dismissed by the trial court on speedy trial grounds. We affirm the trial court’s dismissal of the charges in Counts III and IV of the Amended Information on speedy trial grounds. We reverse the trial court’s dismissal of Counts I and II and remand for further proceedings.

WARNER and LEVINE, JJ., concur.

      . The Record does not include the County Court case file (Case No. 2007-037809TC10A); and the parties have not otherwise provided this information.

      . Although the State captioned this as an “Amended Information,” the September 25, 2007 Information was filed in the County Court in and for Broward County, Florida, in County Court Case No. 2007-037809TC10A charging Grosser with two misdemeanors. The January 31, 2008 "Amended Information” was filed in the Circuit Court in and for Broward County, Florida, in Circuit Court Case No. 2008-2141CF10A charging him with the two felony counts and two misdemeanor counts. Accordingly, it does not appear that the January 31, 2008 Information should have been captioned as "Amended” since it was the first Information invoking the subject matter jurisdiction of the Circuit Court regarding this matter.

      .Grosser contends that the ninety day time period began to run on the date when the Florida Uniform Traffic Citations were issued (July 14, 2007).

      . The State argued at the hearing that § 775.15(4)(b), Florida Statutes, provided the basis for utilizing the date of filing an Information as the date when the speedy trial clock begins to run in cases where the defendant had not been previously arrested or served with a summons/Notice to Appear. Section 775.15, however, is the statute of limitations for the prosecution of criminal charges; it has no bearing whatsoever upon the speedy trial timeframes which are provided for in Rule 3.191. Notwithstanding, we will use September 25, 2007 as the date when the speedy trial clock begins under the facts of this case for reasons that will be explained further in this opinion.

      . Defense counsel stated: "Actually, Judge, that’s kind of not accurate, but close. We’ll take the September 25th date ... Mr. Grosser is charged by summons and by the filing of the charge, so speedy trial definitely starts to click and starts to take place.”

      . The Appellant did not file a Notice of Expiration of Time for Speedy Trial in the Circuit Court case, and would have been premature in doing so prior to March 18, 2008.


text:
    Carlos PONCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1606.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.

      Carlos Ponce, Cross City, pro se.
    No appearance required for appellee.
   PER CURIAM.

The defendant below appeals an order of the Broward County circuit court summarily denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). In the motion, the defendant sought additional credit for jail time served. We affirm in part and affirm without prejudice in part.

In his motion, the defendant alleges that he was arrested in Miami-Dade County on April 1, 2005, for violating probation on a Broward County case. He further alleges he was transported to Broward County on April 15, 2005, and was released on modified terms on April 28, 2005. The modified terms changed his five years of probation to two years of community control, followed by three years of probation.

The defendant also alleges he was arrested in Miami-Dade County on November 29, 2006, on charges arising in Miami-Dade County. At the same time, he alleges, he was arrested on a warrant issued in July 2005 for violation of his community control in the Broward case. Ultimately, the Miami-Dade charges were resolved by July 25, 2007. Shortly thereafter, he was transported to Broward County, where the court revoked his community control and sentenced him to prison.

In the instant motion before the Bro-ward court, the defendant sought credit for the time he allegedly served in the Miami-Dade jail from April 1-15, 2005. The defendant also sought credit for the period from his arrest on November 29, 2006, until July 25, 2007, when his Miami-Dade charges resolved. The court summarily denied the motion. The defendant now appeals.

With respect to April 1-15, 2005, the defendant did not allege where in the Broward case record the information can be located demonstrating that he served time in the Miami-Dade jail during that period. See State v. Mancino, 714 So.2d 429, 433 (Fla.1998) (error in trial court’s award of jail time credit can be raised at any time in a rule 3.800(a) motion “when it is affirmatively alleged that the court records demonstrate on their face an entitlement to relief’). Therefore, on that claim, we affirm. Our affirmance, however, is without prejudice to the defendant filing either: (1) a proper rule 3.800(a) motion alleging where in the Broward case record the information can be located which would demonstrate that he served time in the Miami-Dade jail during that period; or (2) a properly sworn rule 3.850 motion. Woody v. State, 993 So.2d 1158, 1159 (Fla. 4th DCA 2008). Because the time for filing a rule 3.850 motion expired while the instant appeal was pending, any such rule 3.850 motion must be filed within thirty days of the mandate to be issued in this case. Id.

With respect to the period from November 29, 2006, to July 25, 2007, the defendant is not entitled to credit even if he can establish that he was arrested in the Miami-Dade jail on the Broward VOCC warrant on November 29, 2006. That is because, according to his own allegations, he also was in custody for his Miami-Dade charges during that period, and his Broward sentence was not made to run concurrent with any sentence which could have been imposed under his Miami-Dade charges. See Ransone v. State, 20 So.3d 445 (Fla. 4th DCA 2009) (defendant not entitled to credit from date of arrest in Miami-Dade on unrelated Broward VOCC warrant for jail time served in Miami-Dade on Miami-Dade case, where Bro-ward sentence was not made concurrent with Miami-Dade sentence). Therefore, on that claim, we affirm. As we did in Ransone, we certify conflict with Tharpe v. State, 744 So.2d 1256 (Fla. 3d DCA 1999).

Affirmed in part; affirmed without prejudice in part.

GROSS, C.J., TAYLOR and GERBER, JJ., concur.


text:
    Cal HAYNES, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-633.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Cal Haynes, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant, Cal Haynes, appeals a trial court order summarily denying all three grounds of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s summary denial of grounds one and three without further discussion, but reverse and remand the trial court’s summary denial of ground two.

In ground two, Haynes argued ineffective assistance of trial counsel arising from counsel advising him to reject a plea offer by the State of four years imprisonment, based on erroneous advice of counsel that the victim’s failure to appear for trial within the time for speedy trial could result in dismissal of the prosecution against him for aggravated battery. Haynes rejected the plea offer. He later entered into an open, no contest plea and was sentenced to fifteen years imprisonment. The trial court summarily rejected this claim as successive because Haynes previously filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170 in which he alleged that he was misled as to the possible sentence he would receive, and coerced into entering the open plea.

The trial court held an evidentiary hearing on the rule 3.170 motion, at which Haynes testified that his counsel advised him to enter the open plea after the victim appeared for trial and that he did not want to do that. He said he was surprised that the victim appeared for trial. The trial court denied relief after that hearing, and this Court affirmed per curiam in Haynes v. State, 974 So.2d 1079 (Fla. 4th DCA 2008). The rule 3.170 motion did not contain the same claim Haynes presented in ground two of his rule 3.850 motion. The denial of Haynes’s rule 3.170 motion, and this Court’s affirmance of that denial, does not preclude relief now. See generally Gadson v. State, 807 So.2d 817 (Fla. 4th DCA 2002).

Haynes asserts that but for the misad-vice of counsel, he would have accepted the State’s plea offer of four years. If true, this is a viable claim for ineffective assistance of counsel. See Hoswell v. State, 948 So.2d 820, 821 (Fla. 4th DCA 2007) (citing Cottle v. State, 733 So.2d 963 (Fla.1999)). Haynes’s claim is not refuted by the record before this Court.

Therefore, we reverse and remand the trial court’s summary denial of ground two for either an evidentiary hearing or record attachments that refute the claim.

Reversed and Remanded.

HAZOURI, MAY and CIKLIN, JJ„ concur.


text:
    Bobby Gene GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-204.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Bobby Gene Gordon, appeals the trial court’s order adjudicating him guilty of grand theft and dealing in stolen property and sentencing him to concurrent terms of forty months imprisonment. Gordon was charged with dealing in stolen property and grand theft after he removed and pawned a valuable watch from his employer’s home. Gordon pled nolo con-tendere to the charges. The sole issue on appeal is whether the trial court violated a Florida statute by adjudicating Gordon guilty of both dealing in stolen property and grand theft. The state concedes error. For the following reasons, we reverse and remand for the trial court to vacate one of the charges and resentence Gordon.

Section 812.025, Florida Statutes (2006), provides:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

Thus, section 812.025 prohibits a trial court from adjudicating a defendant guilty of both grand theft and dealing in stolen property where the two charges arise from the same course of conduct. Toson v. State, 864 So.2d 552, 555 (Fla. 4th DCA 2004). In Hall v. State, 826 So.2d 268 (Fla.2002), the Florida Supreme Court held that the statute also prohibited dual convictions for dealing in stolen property and grand theft where a defendant pled nolo contendere to both charges. Id. at 271.

In Toson, this court reversed the defendant’s dual convictions for grand theft and dealing in stolen property where the charges arose from the defendant’s theft and sale of the same items of property. 864 So.2d at 555. Similarly, in the present case, Gordon’s charges and convictions arise from his theft and sale of one watch. Thus, the trial court erred in convicting Gordon of both charges.

Reversed and remanded.

MAY and GERBER, JJ., concur.


author: PER curiam:.

text:
    Kevin V. BROWN, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D09-3713.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2009.
    Kevin V. Brown, pro se, Appellant.
    Bill McCollum, Attorney General, Mark J. Hiers, Assistant Attorney General, Sheron Wells, Assistant General Counsel, Tallahassee, for Appellee.
   PER curiam:.

DISMISSED. See Fla. R.App. P. 9.110(b). Cf. Newell v. Moore, 826 So.2d 1033 (Fla. 1st DCA 2002).

HAWKES, C.J, BENTON, and THOMAS, JJ., concur.


author: SUAREZ, J.

text:
    Randall WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1738.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

Randall Williams appeals from a judgment of conviction for first degree murder following a jury trial. We affirm.

Williams was convicted of one charge of first degree murder, and possession of a firearm by a convicted felon. The sole eyewitness testified that she was five to eight feet from the victim when Williams approached and shot him point-blank several times. She positively identified Williams as the shooter. Williams testified and denied any association with the crime. The jury convicted him as charged.

Williams raises two claims on appeal. First, he argues that the trial court failed to conduct an adequate Faretta hearing when he asserted his desire to represent himself. The record reflects, however, that Williams did not require a formal Nelson or Faretta hearing. The record shows that Williams, through his attorney, made the assertion towards the end of trial that he wanted to represent himself. The trial court stopped the proceedings and asked defense counsel if Williams indicated that he wanted to Are him as counsel. Counsel responded that Williams had not used those words, but rather wanted to take over as lead, particularly as to re-cross-examination of the detective currently on the stand. The trial court then appropriately inquired of Williams as to his intent. Williams answered, “Well really, your Honor, I just want to be more involved as far as I see some things that he [counsel] don’t see. I’m try [sic] to tell him and show him and he’s not presenting them. So I was, if he’s not going to present it, I want to present it myself.”

The trial court’s inquiry can only be as specific as the defendant’s complaint, and a Nelson hearing is not necessary if the defendant expresses generalized dissatisfaction with his attorney or asserts general complaints about defense counsel’s trial strategy without making any formal allegations of incompetence. See Morrison v. State, 818 So.2d 432, 440 (Fla.2002); Hearns v. State, 16 So.3d 969 (Fla. 3d DCA 2009); Wilson v. State, 753 So.2d 683, 687 n. 2 (Fla. 3d DCA 2000) (holding that an expression of general loss of confidence or trust, standing alone, does not equate to ineffective assistance and does not require withdrawal of counsel, neither does a defendant’s perception that counsel has inadequately conferred with the client, without more specific allegations of incompetence, amount to ineffective assistance); Merelus v. State, 735 So.2d 552 (Fla. 3d DCA 1999); See also Augsberger v. State, 655 So.2d 1202, 1204 (Fla. 2d DCA 1995); Johnston v. State, 497 So.2d 863 (Fla.1986).

If court-appointed counsel is found to be rendering effective assistance and the defendant insists that he still wants to discharge him or her, a Faretta hearing is in order. But this is not the case here because Williams didn’t insist on firing counsel, did not express dissatisfaction with counsel’s entire representation, and did not request to proceed pro se. The trial court appropriately found that defense counsel was performing professionally, and denied Williams’ request to continue the remainder of trial as lead counsel. See Potts v. State, 718 So.2d 757, 759 (Fla.1998) (holding that because the trial court must weigh the right of self-representation against the rights to counsel and to a fair trial, the trial court’s ruling turns primarily on assessment of demeanor and credibility, and thus its decision is entitled to great weight, and will be affirmed on review if supported by competent substantial evidence).

Finally, Williams claims that his trial counsel was ineffective because, through his allegedly faulty cross-examinations of certain witnesses, counsel opened the door for the prosecution to elicit otherwise inadmissible hearsay that implicated Williams in the crime. This, however, is not a claim that can be raised on direct appeal. See Bruno v. State, 807 So.2d 55, 63 (Fla.2001):

Whereas the main question on direct appeal is whether the trial court erred, the main question in a Strickland claim is whether trial counsel was ineffective. Both claims may arise from the same underlying facts, but the claims themselves are distinct and — of necessity— have different remedies: A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion, and a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal. A defendant thus has little choice: As a rule, he or she can only raise an ineffectiveness claim via a rule 3.850 motion, even if the same underlying facts also supported, or could have supported, a claim of error on direct appeal.

See also Lopez v. State, 17 So.3d 889 (Fla. 4th DCA 2009). Here, the record does not show any error or prejudice that would allow an exception to that rule. Id.

Affirmed.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


author: COPE, J.

text:
    A.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2926.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and SHEPHERD, JJ.
   COPE, J.

This is an appeal of an adjudication of delinquency for giving a false name to a law enforcement officer. The question is whether the law enforcement officer had a reasonable suspicion for an investigatory stop. We conclude that the answer is yes.

The officer in this case received a dispatch regarding a burglary in progress in the Cutler Ridge area of Miami-Dade County. The officer said that this area had been identified by the police department as a “hot zone” because of an increase in burglaries. The caller gave the location of the alleged burglary and a physical and clothing description of the suspect.

According to the officer, the dispatcher also indicated that a witness had followed the suspect to an auto shop close to U.S. Highway 1 and Southwest 220 Street. The officer drove to the auto shop and was flagged down by the witness. The distance from the burglary location to the auto shop was between 1/8 and 1/4 of a mile.

The officer stopped and spoke to the individual for ten to twenty seconds, in order to ascertain that they were talking about the same person. The individual pointed out the direction taken by the suspect. Neither the officer nor the dispatcher obtained the name of this witness.

The officer proceeded a few blocks and saw A.M., who matched the description. The officer stopped his car and spoke to A.M.

The officer asked A.M. what he was doing in the area and why he was not in school. During the conversation, A.M. told the officer that he had a driver’s license. The officer asked for a name and date of birth.

A.M. initially stated that his name was James Jackson. When the name and date of birth were checked through the police car’s computer, no driver’s license came up under that name and date of birth.

The officer told A.M. he was aware that sometimes people are afraid that they may have a warrant for their arrest but he was eventually going to find out his name anyway, even if the officer had to take him into custody and fingerprint him. The officer placed A.M. in handcuffs in the back seat of the police car. A.M. then gave the officer the name James Myles and a different date of birth which would have made him an adult. Once again, a computer inquiry revealed no driver’s license with that name and date of birth.

The officer patted down A.M. and found an identification card with what turned out to be his correct name. A computer inquiry revealed that there was a pick-up order for A.M. At the station, A.M. was fingerprinted and ultimately admitted his actual name.

By statute, “It is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in anyway, to the law enforcement officer or any county jail personnel.” § 901.36(1), Fla. Stat. (2008) (emphasis added). AM. contended at trial that he was not lawfully detained. The trial court rejected this argument and adjudicated A.M. delinquent. A.M. has appealed.

A.M. argues that there was no reasonable suspicion to support an investigatory stop. A.M. relies primarily on Baptiste v. State, 995 So.2d 285 (Fla.2008). The Baptiste decision does not support A.M.’s argument.

In Baptiste an anonymous caller told the police that a man had waived a firearm in front of a grocery store at a particular location. The caller gave a description of the individual. Two officers arrived and located the individual who corresponded to the description. No firearm was visible, nor were there any bulges or other visible indications that Baptiste possessed a firearm. The officers apprehended Baptiste at gunpoint, frisked him, and found a weapon.

After Baptiste was apprehended, a man approached one of the officers and told the officer that he was the one who placed the telephone call. He stated that he intended to remain anonymous, disappeared, and has never been identified. Id. at 288. The Florida Supreme Court held that “when investigating an anonymous tip, officers who are unable to independently corroborate criminal activity may not initiate a gunpoint seizure based upon confirmation of only innocent details-such as a physical description-with absolutely no observation or development of any suspicious behavior.” Id. at 301.

In the present case there was an anonymous telephone call to the police reporting a burglary in an area having a recent increase in burglaries. The officer went to the auto parts store, where a citizen flagged down the officer and they had a face-to-face discussion. The officer spoke briefly with the citizen, ascertained that they were talking about the same individual, and went in the direction indicated by the citizen, where the officer found A.M.

The Baptiste decision explains:

State and federal case law establishes that the reliability of a tip which alleges illegal activity varies based upon whether the tip is truly anonymous, such as an anonymous telephone call, or whether it is offered by a “citizen informant” who approaches the police in person to report criminal activity. A tip from a citizen informant falls at a higher end of the reliability scale.

Id. at 291 (citing State v. Maynard, 783 So.2d 226, 228 (Fla.2001)); see also Baptiste, 995 So.2d at 291, 295-96 (collecting cases); Phillip A. Hubbart, Making Sense of Search and Seizure Law 194-98 (2005). In this case the anonymous tip was followed by a face-to-face encounter between the officer and the citizen who had followed A.M.

A.M. argues that the encounter with the citizen must be ignored because the officer testified that he did not know whether the citizen was the one who had placed telephone call to the police. We reject that argument. The telephone call indicated that an individual had followed the subject to the auto shop, and a citizen flagged the officer down when he arrived at that location. The officer did not ask the individual specifically whether he or she had made the telephone call to the police. Logically, however, either the citizen was the one who placed the call, or the citizen had been present with the one who did make the telephone call. Under the circumstances of this case, the stop was good.

Affirmed.


text:
    Eduardo MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2935.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Rehearing Denied Jan. 22, 2010.

      Eduardo Martinez, in proper person.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and LAGOA, and SALTER, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850(a). The motion raised seven grounds for relief. The trial court held an eviden-tiary hearing. At the very beginning of the hearing, the appellant, Eduardo Martinez, stated: “I would like to request you to appoint me counsel due to the fact that I had assistance with my motion. I didn’t do it on my own, Your Honor.” We reverse because the trial court never explained why counsel was not appointed.

In Lee v. State, 847 So.2d 1142 (Fla. 3d DCA 2003), we said that “[t]here is no automatic right to counsel in post-conviction proceedings, and appointment of post-conviction counsel is a matter solely within the discretion of the trial court.... The factors to be considered by the trial court in exercising that discretion include an examination of the adversarial nature of the proceeding, the complexity of the proceeding, the need for an evidentiary hearing, and the need for substantial legal research.” Id. at 1143. In Graham v. State, 372 So.2d 1363 (Fla.1979), the Florida Supreme Court set out four factors to be considered by the trial judge in deciding whether to appoint counsel in collateral proceedings for post-conviction relief. “The adversary nature of the proceeding, its complexity, the need for an evidentiary hearing, or the need for substantial legal research are all important elements which may require the appointment of counsel.” Id. at 1366. In Williams v. State, 472 So.2d 738 (Fla.1985), the Florida Supreme Court further explained that “[t]he determination that an evidentiary hearing is necessary in itself implies that three of the four elements are involved.” Id. at 740. More importantly, the Court made clear that “any doubt about the need for counsel must be resolved in favor of the indigent defendant.” Id.

Because the trial court never considered the factors outlined in Graham, we do not know if the court ever engaged in the requisite analysis.

Reversed and remanded for further proceedings.