text:
    Francis BRAGANZA, Appellant, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, Appellee.
    No. 3D08-2718.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Robert Allen Law and Paul B. Feltman, Miami, for appellant.
    Horr, Novak & Skipp, David J. Horr, Eduardo Hernandez, and Stephanie H. Wylie, Miami, for appellee.
    Burlington & Rockenback and Philip M. Burlington, for Florida Justice Association, as amicus curiae.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Olsten Health Servs., Inc. v. Cody, 979 So.2d 1221, 1227 (Fla. 3d DCA 2008); Scarlett v. Ouellette, 948 So.2d 859, 862 (Fla. 3d DCA 2007); Young-Chin v. City of Homestead, 597 So.2d 879, 881 (Fla. 3d DCA 1992); Miami Free Zone Corp. v. Elecs. Trade Ctr., 586 So.2d 1279 (Fla. 3d DCA 1991).


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Orlando CAMPO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-47.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.

      Orlando Campo, in proper person.
    Bill McConnell, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS, SUAREZ, and CORTIÑAS, JJ.
   SUAREZ, J.

Orlando Campo (“Campo”) appeals from the trial court’s denial of his pro se Motion to Correct Jail Time pursuant to Fla. R.Crim. P. 3.800(a). Because the record supports the trial court’s decision to deny the motion, we affirm.

Campo was charged with strong-arm robbery. The State and the defense announced a plea agreement on September 19, 2007. Campo advised the court during colloquy that although he was taking medication for schizophrenia, neither his illness nor the medication he was on prevented him from understanding what was happening in the court. Both the State and the defense stipulated to his competency. Campo agreed that he was competent to enter the plea and advised the court that he was not under the influence of alcohol or drugs that would prevent him from understanding anything happening in court.

“An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error.” § 924.051(3), Fla. Stat. (2009). The record reflects that defense counsel stipulated to Campo’s competency, did not ask for a competency hearing, and did not make any objections regarding Campo’s competency. The issue, therefore, was not properly preserved for appeal.

The trial court did not err when it did not request, sua sponte, a competency hearing. This Court has held that a trial court does not err when it does not conduct an inquiry concerning the defendant’s mental competency to stand trial where no showing of mental incompetency was made and no request by the defendant for such an inquiry was made. See Chery v. State, 642 So.2d 1161, 1162 (Fla. 3d DCA 1994). In the present case, the State and the defense stipulated to Campo’s competency. Campo was taking his medication and he assured the court that he was competent to enter into the plea agreement. Further, defense counsel never requested a competency hearing. The record does not reflect any information sufficient to raise a reasonable doubt as to Campo’s mental competence to proceed in his plea agreement.

Moreover, the trial court was not required to entertain Campo’s motion. This court granted Campo’s petition for a belated appeal on December 31, 2007. Campo thereafter filed a Motion to Credit Jail Time on July 18, 2008. The issue brought on appeal was the same issue raised in the motion. “[A] court may at any time correct an illegal sentence ... provided that a party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal.” Fla. R.Crim. P. 3.800(a) (2009), cf. Latulip v. State, 884 So.2d 254 (Fla. 2d DCA 2004) (finding that a trial court does not have jurisdiction to consider the merits of a motion if another rule 3.800(a) motion that is the subject of a pending appeal has raised the same issue or if the two motions are sufficiently related to divest the trial court of jurisdiction).

We conclude that since the record does not reflect any fundamental error on the trial court’s behalf, and since the issue was not properly preserved for appeal, the trial court’s decision to deny Campo’s motion will not be disturbed. We therefore affirm.

Affirmed.


author: PER CURIAM.

text:
    FLORIDA POWER & LIGHT COMPANY, Petitioner, v. Alfredo FEO, Rosa Perez, et al., Respondents.
    No. 3D09-2808.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Quintairos, Prieto, Wood & Boyer and David M. Tarlow and Philip J. Kantor, Fort Lauderdale, for petitioner.
    Andrew T. Trailor, Miami and Brian H. Pollock, for respondents.

      Before SUAREZ, LAGOA and SALTER, JJ.
   PER CURIAM.

Florida Power & Light Company [“FPL”] petitions for a writ of prohibition to prevent the trial court from proceeding on a Florida Deceptive and Unfair Trade Practices Act, §§ 501.201 — .213, Fla. Stat. (2009) [“FDUTPA”], claim brought against it by the respondents. We grant prohibition and remand the case with directions that this claim in the complaint be dismissed.

FPL is correct when it asserts that the circuit court lacks jurisdiction to entertain the FDUTPA claims. Section 501.212(5), Florida Statutes (2009), creates a specific exception from suit under that Act for “[a]ny activity regulated under laws administered by the Florida Public Service Commission.” The Resident Building Envelope Program giving rise to the complaint is an incentive program approved and governed by the Florida Public Service Commission [“PSC”]. Fla. Admin. Code R. 25-17.0021 (granting PSC authority to establish conservation goals for utilities and to oversee/regulate progress in meeting same). Therefore, the PSC has exclusive jurisdiction over this matter. See § 366.04, Fla. Stat. (2009); Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So.3d 400 (Fla. 3d DCA 2009). Dismissal of the FDUTPA claim is appropriate.

Petition granted; cause remanded.

      . The dismissal will be without prejudice to the appellees' prosecution of the claim against FPL before the Florida Public Service Commission.


author: ROTHENBERG, J.

text:
    Humberto TALAVERA, Appellant, v. ROYAL AMERICAN MILLS, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D09-2021.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.

      Humberto Talavera, in proper person.
    M. Elaine Howard, Tallahassee, for ap-pellee Florida Unemployment Appeals Commission.
    Before ROTHENBERG, LAGOA, and SALTER, JJ.
   ROTHENBERG, J.

Humberto Talavera appeals the final order of the Florida Unemployment Appeals Commission affirming the dismissal of his appeal as untimely filed. Because the transcript of the telephonic April 16, 2009, hearing contains numerous confusing exchanges between the appeals referee, the interpreter for the hearing, Talavera, and a third party he enlisted for assistance with his appeal, and the transcript suggests that Talavera may have a valid due process argument, we reverse and remand for another evidentiary hearing.

Although the Commission concluded that Talavera’s appeal was untimely filed, the Commission correctly notes that Florida courts have created an exception to untimely appeals based on due process concerns. E.g., Stanley v. Florida Unemployment Appeals Comm’n, 864 So.2d 1160 (Fla. 4th DCA 2004) (holding that an appeal was timely filed where the claimant attempted to timely fax her appeal but was unsuccessful); Francois v. Florida Unemployment Appeals Comm’n, 852 So.2d 953 (Fla. 4th DCA 2003) (reversing a Commission finding that an appeal was untimely where the claimant timely complied with the agency representative’s instruction to fax her appeal to an Orlando office for forwarding to the appeals office).

The record below demonstrates that Ta-lavera’s and Selena Rodriguez’s, the third party he enlisted to assist him, command of the English language was very limited. The notice sent by the Commission to Ta-lavera rejecting his application for unemployment benefits was written entirely in English, except for the following statement that was written in Spanish: “This document contains important information, dates, or eligibility status regarding your Unemployment Compensation claim. It is important for you to understand this document. If you do not read or understand English, call 1-800-204-2418 for free translation assistance regarding your Unemployment Compensation claim.”

The record below demonstrates that Ta-lavera, with the help of Rodriguez, attempted to timely respond to the Commission’s notice with an appeal letter dated February 12, 2009. The record further demonstrates that Rodriguez tried calling for assistance several times without success. However, the details regarding these failed attempts remain unclear because the translation by the interpreter during the telephonic hearing and the questioning by the appeals referee were inadequate and confusing. Because the record is unclear as to whether Talavera’s failure to respond to the Commission’s notice was frustrated by an inability to obtain the assistance offered by the Commission or for other reasons related to his right to due process under the law, we reverse the order under review and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . The English translation provided on the form is provided here.


text:
    R.M., Mother of V.L., E.L., and T.L., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D09-2087.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 2009.
    R.M., St. Augustine, pro se.
    No Appearance for Appellee.
   PER CURIAM.

R.M. appeals from a dependency order denying her motion for change in the custody of her two minor children. See R.M. v. Dep’t of Children and Families, 19 So.3d 1029 (Fla. 5th DCA 2009). After finding no meritorious appellate issue, her appointed counsel moved to withdraw. We granted the motion, and allowed R.M. to file a pro se brief. Id. R.M.’s filing does not point us to any cognizable error made by the trial court. Instead, R.M. complains, generally, that the trial court ruled as it did only because it was deceived by the testimony of her mother, who currently has custody of the two children. Although R.M. asks us to reweigh the evidence, we cannot do so. See, e.g., Hicks v. Hicks, 962 So.2d 975 (Fla. 5th DCA 2007). It is the trial court’s role to assess the credibility of witnesses when sitting as the trier of fact. See, e.g., Dingess v. State, 8 So.3d 444 (Fla. 5th DCA 2009). Accordingly, we affirm the trial court’s order.

AFFIRMED.

PALMER, LAWSON and JACOBUS, JJ., concur.


text:
    MICRO RACING ASSOCIATION OF LEESBURG, INC., Appellant, v. LEESBURG MICRO RACING ASSOCIATION, LLC., et al., Appellee.
    No. 5D09-872.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 2009.
    Charles D. Johnson of Sellar, Sewell, Russ, Saylor & Johnson, P.A., Leesburg, for Appellant.
    Johnnie B. Byrd, Jr., of Byrd & Barn-hill, P.L., Plant City, for Appellee.
   PER CURIAM.

AFFIRMED. See DGG Dev. Corp. v. Estate of Capponi, 983 So.2d 1232 (Fla. 5th DCA 2008).

GRIFFIN, PALMER and JACOBUS, JJ., concur.


author: MORRIS, Judge.

text:
    Jesse DELAROSA, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2025.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.
    Jesse Delarosa, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Jesse Delarosa appeals the summary denial of ground (2)(a) of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the postconviction court erred by denying this claim as conclusory, we reverse and remand the denial of that ground. We affirm without comment the denial of all other grounds raised in the motion.

In 2005, Delarosa was convicted of attempted murder of a law enforcement officer and obstructing or opposing an officer with violence. His judgments and sentences were affirmed by this court.

In ground (2)(a) of his postconviction motion, he alleged that his trial counsel was ineffective for failing to impeach a state witness, Deputy Andrew Deluna, with a prior inconsistent statement. Specifically, he asserted that within minutes of his (Delarosa’s) arrest, Deputy Deluna gave a written statement to another officer that he (Deputy Deluna) had been attacked by three Mexican men. Yet at trial, Deputy Deluna testified that he had been confronted only by Delarosa. Dela-rosa contended that if his trial counsel had impeached Deputy Deluna with the prior inconsistent statement, it would have cast doubt on Deputy Deluna’s credibility.

The State responded to this claim by asserting: (1) that it was unaware of any such written statement and (2) that Dela-rosa’s claim was conclusory in nature because Delarosa failed to attach the written statement to his motion.

In summarily denying this claim, the postconviction court agreed with the State’s response and found that “without support that there exists this written statement by which to impeach [Deputy] Deluna, Defendant’s allegation is concluso-ry and must be denied.” In making this determination, the postconviction court erred.

Delarosa’s claim was not conclusory for two reasons. First, Delarosa alleged a legally sufficient claim. Delarosa specified what portion of Deputy Deluna’s testimony could have been impeached, and he also specified how he was prejudiced by counsel’s failure to impeach Deputy Deluna with the prior inconsistent statement. Such a claim is cognizable in a rule 3.850 motion. Cf. Mohr v. State, 17 So.3d 1249 (Fla. 2d DCA 2009) (agreeing that appellant’s claim was legally insufficient where he failed to allege what portions of witness’s testimony could have been impeached or how counsel’s failure to do so affected trial but reversing in part and remanding pursuant to Spera v. State, 971 So.2d 754 (Fla.2007)).

Second, because no evidentiary hearing was held on this claim, the postconviction court was required to accept Delarosa’s allegations as true unless they were refuted by the record, see Peede v. State, 748 So.2d 253, 257 (Fla.1999), and Delarosa was not required to attach the purported written statement to his motion in order for the claim to be valid, see Mann v. State, 21 So.3d 894, 895 (Fla. 2d DCA 2009) (“[T]he law does not require a prisoner to support his sworn motion with additional evidence.”).

Here, nothing in the record refutes De-larosa’s allegations, and the State’s bare assertion that it was unaware of Deputy Deluna’s written statement is insufficient to rebut Delarosa’s sworn allegation that such written statement existed. See Clark v. State, 662 So.2d 729, 730 (Fla. 2d DCA 1995) (holding that State’s response that appellant never sent the State a copy of an interstate agreement on detainers (IAD) request was insufficient to rebut appellant’s sworn allegation that he had advised trial counsel that the time limit imposed by IAD had expired, that he was entitled to dismissal of the charges, and that he sent IAD request to State).

For these reasons, the postconviction court erred by summarily denying ground (2)(a) of Delarosa’s postconviction motion as conclusory. We therefore reverse the summary denial of ground (2)(a) and instruct that on remand, the postconviction court should either attach record documents refuting this claim or conduct an evidentiary hearing.

Affirmed in part; reversed in part; remanded.

FULMER and DAVIS, JJ., Concur.

      . We note that even if this court had determined that ground (2)(a) was conclusory, we would be constrained to reverse and remand for the postconviction court to strike the claim with leave for Delarosa to amend within a reasonable period of time, pursuant to Spera v. State, 971 So.2d 754 (Fla.2007). See Monroe v. State, 13 So.3d 1083, 1084 (Fla. 2d DCA 2009) (reversing and remanding summary denial of conclusory claim pursuant to Spera).


author: NORTHCUTT, Judge.

text:
    Brandan GATLIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2525.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.

      Brandan Gatlin, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

A jury convicted Brandan Gatlin of aggravated battery by a prison detainee. Several years later, Gatlin filed a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, asserting twenty-three grounds for relief. We reversed the first summary denial of that motion in Gatlin v. State, 940 So.2d 1274 (Fla. 2d DCA 2006) (Gatlin I), and remanded for further proceedings with directions to the postconviction court.

On remand the court held an evidentiary hearing on two of Gatlin’s claims and denied them after the hearing. It summarily denied the rest of the claims. As we will explain, the court failed to follow our directions in Gatlin I. Accordingly, we must reverse most of the summarily denied claims and again remand for further proceedings. We affirm without discussion the two claims that the court denied after conducting an evidentiary hearing.

In Gatlin I we pointed out that the postconviction court originally entered an order finding that all Gatlin’s claims were legally sufficient. After the State responded, the court changed course and entered an order summarily denying all of Gatlin’s grounds on the alternative theories that each was either facially insufficient or refuted by the record. Id. at 1274-75. We noted the problem with denying the claims on such alternative grounds, i.e., that a denial or dismissal based on insufficiency of the pleadings was not a ruling on the merits, whereas a denial based on record attachments was a ruling on the merits. Id. at 1275 n. 1. We additionally advised that if the court were to deny any claims as refuted by the record, it must attach to its order the documents that supported that determination.

Notwithstanding our admonition in Gat-lin I, on remand the postconviction court again denied nine of Gatlin’s claims on the dual grounds that they were legally insufficient and refuted by the record. Additionally, it denied eight more claims on the sole basis that they were refuted by the record. Four claims were denied because of legal insufficiency alone, one claim because it was without legal merit. The postconviction court’s order specifically discussed only seven of the summarily denied claims; it adopted the State’s response as its reason for denying the rest of them.

A. Claims denied because they were refuted by the record

We first address the claims denied solely on the basis that they were refuted by the record (footnote 3, above). We repeat that when a court denies post-conviction claims as refuted by the record, it must attach to its order the portions of the record that conclusively refute the claims. See Gatlin I, 940 So.2d at 1275; see also Fla. R.App. P. 9.141(b)(2)(D). Here, the postconviction court adopted the State’s response to the motion, which referenced pages of the record but did not attach them. The court itself also failed to attach to its order any documents that supported the denial of these claims. We must therefore again reverse the denials of these claims and remand with directions to the postconviction court either to grant Gatlin an evidentiary hearing or, if the record refutes a claim, to attach the appropriate documents to the order of denial. See Gatlin I, 940 So.2d at 1275; Burnett v. State, 933 So.2d 1282 (Fla. 2d DCA 2006).

B. Claims denied because they were legally insufficient

These claims include those denied solely on this basis (footnotes 4 and 5, above) and those denied on this and the additional ground that they were refuted by the record (footnote 2, above). We affirm the denial of Gatlin’s claims 7 and 18. In claim 7, Gatlin objected to the State’s decision to nolle prosequi one of the claims in the information against him. As the court correctly stated, this claim was “without legal foundation, is legally insufficient, and is without legal merit.” The court adopted the State’s response to claim 18, which asserted that defense counsel was ineffective for failing to request a mistrial when a juror was dismissed and the alternate juror was seated. The State pointed out that Florida Rule of Criminal Procedure 3.280(a) requires exactly the procedure that occurred at Gat-lin’s trial. The State and the court are correct.

The court adopted the State’s response to all the remaining claims that it denied either entirely or partially based on legal insufficiency. The State’s response asserted that many of these claims should have been denied for inadequate pleading. The response was filed in February 2006, before the postconviction court’s first denial of Gatlin’s motion. It was also filed before the supreme court issued Spera v. State, 971 So.2d 754 (Fla.2007). The post-conviction court’s order on remand that summarily denied Gatlin’s claims was also entered before Spera was decided, but the final order was rendered approximately six months later. Yet the court did not discuss the effect of Spera on its previous summary denials. Spera holds that “when a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.” Id. at 761.

The State’s responses to grounds 11,12, and 15, the remaining claims denied on the basis of legal insufficiency alone, raised pleading insufficiencies. Because the post-conviction court did not specifically address why it was denying these claims, other than to accept the State’s response, we must reverse and remand for the court to determine whether Gatlin should be given an opportunity to replead his assertions pursuant to Spera.

As to the rest of the claims (enumerated in footnote 2), the court must determine whether they are legally insufficient or whether they are refuted by the record. If legally insufficient, it must again determine whether Gatlin should be allowed an opportunity to replead. If it determines that any claim is refuted, it must attach to its order the portions of the record that conclusively establish that Gatlin is not entitled to relief.

The denials of claims 7, 8(b), 18, and 19 are affirmed. The denials of all other claims are reversed and remanded for further proceedings.

LaROSE and KHOUZAM, JJ., Concur.

      . Claims referred to in the court’s order as 8(b) and 19.

      . Claims 1 through 6, 16, 20, and 21.

      . Claims 8(a) through 10, 13, 14, 17, 22, and 23.

      . Claims 11, 12, 15, and 18.

      . Claim 7.

      . Our Gatlin I decision also was issued before the opinion in Spera.


author: FULMER, Judge.

text:
    Julio OQUENDO, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-6326.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Julio Oquendo appeals from his convictions for promoting the sexual performance of a child and contributing to the delinquency of a minor, in violation of sections 827.071 and 827.04, Florida Statutes (2007). We reverse the conviction for promoting a sexual performance but affirm the conviction for contributing to the delinquency of a minor.

Deputy Anderson received a complaint of a missing sixteen-year-old girl. The mother told the deputy that the girl had gone for a walk four hours earlier and had not returned. The deputy spoke to other family members and was given information that directed him to a trailer two or three blocks away where the girl had been seen in the past. The deputy approached the trailer and heard loud music playing. Through an open window, he could see a large television with a pornographic movie playing. The missing girl was seated between two men on a couch in front of the television. Oquendo was one of the men.

Deputy Anderson stepped back from the window and called for backup. When the backup deputy arrived a few minutes later, Deputy Anderson knocked on the door. Oquendo came to the door alone, and Deputy Anderson explained that he was investigating the report of a missing girl and asked to search the residence. Oquendo denied that she was in the home and refused to let him in.

A third deputy, Deputy Osborne, arrived at the scene, and because he knew Oquen-do by his first name from working in the area, he was able to gain Oquendo’s consent to go in the house to retrieve the missing girl. While Deputy Osborne was at the front door with Oquendo, a Hispanic male in his twenties came out from the back bedroom. The Hispanic male indicated that he did not speak English. Deputy Osborne proceeded to the back bedroom, found the girl sitting on the floor getting dressed, and advised her to get up. While he was escorting her out of the house, he noticed Oquendo trying to conceal a crack pipe.

The girl testified at trial that she knew Oquendo from working with him cleaning houses. He was aware that she was sixteen. She saw him when she was out walking, and he wanted to show her his new TV. She went in the house, and they began smoking crack together. Another man came over and was speaking Spanish with Oquendo, which the girl did not understand. Oquendo asked the girl if she would go to the back room with the other man. She knew that Oquendo meant for her to have sex to get the money for her drugs. The Hispanic man gave Oquendo money to have sex with the girl. The girl consented, went in the back room, and had sex with the man. The door was shut, and no one else was in the room.

After the State rested, the defense moved for a judgment of acquittal, arguing that the evidence did not show a sexual performance, where the sexual activity had occurred in a private bedroom with no one else viewing the activity. The trial court denied the motion.

Section 827.071, Florida Statutes (2007), provides, in part:

(2) A person is guilty of the use of a child in a sexual performance if, knowing the character and content thereof, he or she employs, authorizes, or induces a child less than 18 years of age to engage in a sexual performance or, being a parent, legal guardian, or custodian of such child, consents to the participation by such child in a sexual performance. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Subsection (l)(b) of section 827.071, defines “performance” as “any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.” Subsection (l)(h) defines “sexual performance” as “any performance or part thereof which includes sexual conduct by a child of less than 18 years of age.”

We agree with Oquendo that the State failed to prove a prima facie case of guilt under section 827.071 because there was no “performance,” as that term is defined in subsection (l)(b) of the statute, shown by the evidence. Therefore, we reverse the conviction for promoting the sexual performance of a child and remand for the trial court to discharge Oquendo on that count.

We reject Oquendo’s second argument alleging improper comments by the prosecutor.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and LaROSE, JJ., Concur.

      . Oquendo was also charged with procuring a person under the age of eighteen for prostitution, but he was found not guilty of that charge.

      . The amended information charged Oquendo with "Promoting Sexual Performance of a Child” and referred only to "Florida Statute 827.071” without designating the subsection of the statute. The language in the body of the information alleges that Oquendo did "employ, authorize, or induce a child less than 18 years of age, to engage in a sexual performance.” Subsection (3) of section 827.071 defines the crime of "promoting a sexual performance by a child.” Subsection (2) defines the crime of "the use of a child in a sexual performance.” Both crimes are second-degree felonies. The jury was instructed as though Oquendo was charged under subsection (2). The judgment slates that Oquen-do was found guilty of "Promote Sexual Performance.” These irregularities do not affect our decision because both subsections (2) and (3) require proof of a performance, and our decision would be the same regardless of which subsection of the statute was at issue.


author: CRENSHAW, Judge.

text:
    Carol THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1123.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.
    Carol Thompson, pro se.
   CRENSHAW, Judge.

Carol Thompson appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

Thompson pleaded guilty to driving with a suspended license, driving under the influence, and possession of methamphetamine. Her plea agreement called for a total sentence of eighteen months in prison. Paragraph 21 of the plea agreement states, “I understand that if I fail to timely appear for my Pre-Sentence Investigation interview or Sentencing that my plea will stand but the sentencing agreement is void and I may then receive the maximum sentence authorized by law.”

Sentencing was set for June 9, 2006. On that day Thompson was present in the courthouse but she was not at the right courtroom when her case was called. The trial judge entered a capias but withdrew it the same day. Sentencing was reset for June 29. On that day, she arrived at 11 a.m., two and a half hours late. She was taken into custody and sentencing was reset for July 14.

At the July 14 sentencing hearing, she explained why she had been late to court on June 9 and 29. She explained that on June 29, she had arranged for her cousin to drive her to court, but her cousin had to rush to the hospital that morning for a medical emergency involving Thompson’s grandmother. Thompson had to arrange for alternative transportation at the last minute and had to make arrangements for her two children. Thompson’s attorney explained that Thompson was scheduled to be in court at 8:30. She had arrived at the end of the court session, and the judge had elected to have her taken into custody.

After hearing Thompson’s explanation for her late appearances, the court announced that due to Thompson’s having failed to timely appear, the sentencing agreement was void pursuant to paragraph 21 of the plea agreement and she could receive whatever the law allowed. The court then proceeded to impose a total sentence of five years in prison. There was no objection raised by Thompson’s attorney to the sentence imposed.

In her motion for postconviction relief, Thompson claimed, among other things, that her sentence was illegal because her late arrival to court was caused by circumstances beyond her control, and therefore the breach of the plea agreement was legally excused. Thompson claimed that she received ineffective assistance of counsel because her attorney failed to argue Florida law on the legal effect of her late arrival due to circumstances beyond her control. In an amendment to her motion, Thompson attached an affidavit of Patricia Gastrock, in which Gastrock attests that she had agreed to drive Thompson to her sentencing hearing on June 29, 2006, but that morning she left Thompson without a ride.

In denying the motion, the postconviction court found that the sentence was not contrary to the law because the plea agreement did not note any exceptions for arriving late due to circumstances beyond the defendant’s control. The court also found that counsel was not ineffective because he, in fact, had argued that her tardiness was due to circumstances beyond her control.

The sentencing transcript indicates that the trial court applied a strict interpretation to the provision of the plea agreement requiring timely appearance for sentencing. Even though there was no evidence before the court that Thompson’s tardiness was willful, Thompson’s counsel did not object to the trial court’s conclusion that Thompson had breached the plea agreement. Nor did Thompson’s counsel argue that a finding of willfulness was required before the court could apply paragraph 21 of the plea agreement and disregard the agreed-upon sentence.

In Robinson v. State, 946 So.2d 565 (Fla. 2d DCA 2006), this court reversed the denial of a claim of ineffective assistance of counsel under similar circumstances. We explained that non-willful failure to appear for sentencing will not vitiate a plea agreement. “ ‘[W]here timely appearance for sentencing is made a condition of a plea agreement, a non-willful failure to appear will not vitiate the agreement and permit the trial court to impose some greater sentence.’ ” 946 So.2d at 567 (quoting Johnson v. State, 501 So.2d 158, 160-61 (Fla. 3d DCA 1987)).

Applying Robinson here leads to the conclusion that Thompson pleaded a prima facie case of ineffective assistance of counsel in alleging that counsel failed to make the appropriate legal objection to the sentence imposed, where there was no finding and no evidence to support a finding that Thompson willfully breached the plea agreement. The postconviction court was required to conduct an evidentiary hearing on this claim.

In all other respects, we affirm the denial of Thompson’s motion.

Affirmed in part, reversed in part, and remanded for further proceedings.

FULMER and KHOUZAM, JJ„ Concur.


text:
    Caroline PEACOCK, Appellant, v. Myron L. ACE and M.L. Ace, Inc., Appellees.
    No. 2D09-355.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.
    Suzanne M. Boy and Douglas B. Szabo of Henderson, Franklin, Starnes & Holt, Fort Myers, for Appellant.

      Sonia M. Diaz and Christyna M. Torrez of Coleman, Hazzard & Taylor, P.A., Naples, for Appellees.
   PER CURIAM.

Caroline Peacock appeals an adverse final judgment for $272,499.33 entered in favor of Myron L. Ace and M.L. Ace, Inc. (collectively, Ace). The final judgment is erroneous on its face because it includes an award of $181,019.41 for accelerated rent to which Ace was not entitled. See Grove Rest. & Bar, Inc. v. Razook, 571 So.2d 596, 597 (Fla. 2d DCA 1990); Coast Fed. Sav. & Loan Ass’n v. DeLoach, 362 So.2d 982, 984 (Fla. 2d DCA 1978). Accordingly, we reverse the final judgment and remand for the entry of a new judgment that correctly calculates Ace’s damages.

Ms. Peacock also argues that the final judgment’s award of attorney’s fees in favor of Ace is fundamentally erroneous on its face because it does not contain specific findings concerning the number of hours reasonably expended and the reasonableness of the attorney’s hourly rate. See Markovich v. Markovich, 974 So.2d 600, 601 (Fla. 2d DCA 2008). We note that the record lacks a transcript of the final hearing or an approved statement of the proceedings as authorized by Florida Rule of Appellate Procedure 9.200(b)(4). “Even so, this court previously has determined that the absence of the required findings in the written order renders the order fundamentally erroneous on its face and that the lack of transcript ‘does not preclude appellate review.’ ” Harris v. McKinney, 20 So.3d 400, 403 (Fla. 2d DCA 2009) (quoting Baratta v. Valley Oak Homeowners’ Ass’n at the Vineyards, 891 So.2d 1063, 1065 n. 4 (Fla. 2d DCA 2004)). Therefore, on remand, the circuit court must make the necessary written findings in accordance with Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985).

Here, as we did in Harris, we certify the following question to be one of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

IS AN ORDER AWARDING ATTORNEY’S FEES PURSUANT TO FLORIDA PATIENT’S COMPENSATION FUND V. ROWE, 472 So.2d 1145 (Fla.1985), THAT LACKS THE REQUIRED FINDINGS REGARDING THE NUMBER OF HOURS REASONABLY EXPENDED AND THE REASONABLENESS OF THE HOURLY RATE CHARGED FUNDAMENTALLY ERRONEOUS ON ITS FACE, THUS REQUIRING REVERSAL, EVEN WHEN THE APPELLATE RECORD DOES NOT INCLUDE A TRANSCRIPT OR APPROVED STATEMENT OF THE PROCEEDINGS BELOW?

Reversed; question certified.

VTLLANTI, WALLACE, and LaROSE, JJ., Concur.

      . Although we do not have a transcript of the final hearing or a statement of the proceedings, the "DAMAGES SUMMARY” placed in evidence by Ace at the final hearing included a figure of $181,019.41 for rent owed by Ace to the previous lessor. This figure was reduced to present value. In light of the "DAMAGES SUMMARY,” the conclusion that the final judgment includes accelerated rent to which Ace was not entitled under any theory is inescapable. “An appellate court will reverse, even in the absence of a transcript, where an error of law is apparent on the face of the judgment.” Henderson v. Henderson, 905 So.2d. 901, 903 (Fla. 2d DCA 2005) (citing Chirino v. Chirino, 710 So.2d 696 (Fla. 2d DCA 1998)).


author: CLARK, J.

text:
    Andril Lynette JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3637.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2009.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

The appellant challenges the revocation of her probation, with the trial court finding that the appellant violated two conditions of the probation. As the appellant asserts, the evidence which the court considered was insufficient to establish the charged violation that the appellant moved from her residence without permission. But it is clear from the discussion below that the court would have revoked the probation and imposed the resulting sentence solely upon the other violation. The finding as to a violation for moving without permission is stricken, and the revocation order is otherwise affirmed. See Wilson v. State, 506 So.2d 1170 (Fla. 3d DCA 1987); Kane v. State, 473 So.2d 786 (Fla. 1st DCA 1985).

BARFIELD and VAN NORTWICK, JJ., concur.


text:
    Alvin C. THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5755.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2009.
    Alvin C. Thompson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J, WEBSTER and VAN NORTWICK, JJ., concur.


text:
    H.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1199.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.

      Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

H.A., a juvenile, appeals a petit theft conviction and sentence of six months probation based on the admission of photographs downloaded from a surveillance video from the night of the theft. Because we conclude that the photographs were properly admitted as duplicates pursuant to sections 90.953 and 90.954, Florida Statutes (2008), we affirm.

H.A. was charged with stealing cases of beer from a CVS store. A store employee testified that he saw H.A. and another individual take some Heineken and Corona beer before running out the door to a blue Nissan. The employee wrote down the license plate number and gave it to Miami-Dade Police, who traced it to H.A. The employee also identified photographs downloaded from the surveillance video from the night of the theft, and he testified that he originally saw the pictures on a video screen and that the store number, date and time were not printed on the photos. Despite the defense’s best evidence objection, the photos were introduced into evidence and the employee identified H.A. in the photos. The trial court entered an adjudicatory finding that H.A. committed the petit theft. This appeal followed.

H.A. contends that sections 90.952 to 90.954 required the State to produce the original videotape or demonstrate that the original was unavailable before the photographs could be properly admitted. We disagree. Section 90.953 provides that duplicates are admissible “to the same extent as an original” unless a genuine question is raised about the authenticity of the original or it would be unfair under the circumstances to admit the duplicates. Section 90.951(4)(a) defines a duplicate as: “A counterpart produced by the same impression as the original, from the same matrix; by means of photography, including enlargements and miniatures ....” (emphasis added). The still photographs produced from the surveillance video fall within the statutory definition and were properly admitted as duplicates. H.A. did not raise any genuine question as to the authenticity of the original video. He also failed to demonstrate how the trial court’s decision to admit the photographs in lieu of the video was unfair under the circumstances. Accordingly, we find no abuse of discretion in the trial court’s admission of the photographs. United States v. Smith, 27 Fed. Appx. 577, 582-83 (6th Cir.2001) (rejecting appellants’ contention that “still[ ] [photographs] were not the ‘best evidence’ of the images captured on the videotape” and holding that “still photographs made from surveillance videotapes are admissible”).

H.A. cites as support Russell v. State, 844 So.2d 725 (Fla. 5th DCA 2003) and McKeehan v. State, 838 So.2d 1257 (Fla. 5th DCA 2003), but in these cases, the contents of videotapes were introduced through testimony alone. Unlike photographs downloaded from the surveillance video in the instant action, oral testimony is not a “duplicate” of the original and these cases do not apply.

Affirmed.


author: RAMIREZ, C.J.

text:
    L.D., Petitioner, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES and Florida Guardian ad Litem Program, Respondents.
    No. 09-3194.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.

      Kele S. Williams, University of Miami School of Law, Children <& Youth Law Clinic, for petitioner.
    Karla Perkins, Assistant District & Legal Counsel, for the Florida Dept, of Children & Families; Hillary Kambour, for the Guardian ad Litem Program.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

This is a petition for writ of certiorari to review: (1) a non-final order denying L.D.’s motion to terminate visitation by a non-relative; and (2) a non-final order denying the Florida Department of Children and Families’ (“DCF”) Motion for Termination of Supervision. Because the trial court never entered a written order on DCF’s motion, we deny certiorari as to the department’s motion, but we quash the order denying L.D.’s motion.

W.W. is the four-year old son of petitioner L.D. He was adjudicated dependent as to the mother on November 22, 2005. N.H., a non-relative who knew the family, agreed to take custody of the child. L.D. and N.H. entered into a guardianship agreement on August 22, 2007. N.H. was given legal custody of the minor child, but the agreement did not terminate L.D.’s parental rights. Over the next two years, L.D. maintained a relationship with the child, successfully passed the General Educational Development tests, rented her own apartment, and enrolled as a full-time student at Miami Dade College.

On January 5, 2009, the mother filed a Motion for Reunification as Custodian/Guardian of Minor Child. N.H. signed a declaration in support of that motion. On April 29, 2009, the trial court granted the motion and awarded L.D. legal custody of the minor child. The court also entered a case plan that provided for six months of protective supervision. The April 29, 2009 Order awarded N.H. unlimited, unsupervised visitation rights with the child. A subsequent order on July 15, 2009, directed unsupervised weekend visits every other weekend, from Friday at 7:00 p.m. through Sunday at 7:00 p.m. The mother complied with this visitation order and the case plan. On October 28, 2009, expecting that DCF was ending protective supervision, she moved to end court-ordered visitation, specifying that visitation would be in her discretion after the case closed. The trial court denied the motion to terminate visitation, stating that N.H. was the child’s “psychological parent” and that it was in the child’s best interests to have continued visitation. The case was reset for November 18, 2009.

DCF subsequently filed a Termination of Supervision Report stating that L.D. “has been in compliance with her case plan. [L.D.] completed her Evidence Based-Parenting Classes, Dyadic Therapy, Individual Therapy and Domestic Violence classes.” The Report also states that “the child’s home environment is positive” and requested that supervision be terminated and the child remain in the custody of the mother. DCF also recommended that visitation with N.H. be in the mother’s discretion. The Guardian ad Litem filed a report stating that “all of [the Child’s] needs are being met and he has adjusted well. He is completely comfortable in this home.” The Guardian ad Litem recommended that the case be closed with clarity as to visitation for N.H. Neither DCF nor the Guardian raised any concerns about the mother’s ability to care for the child or the child’s safety.

The trial court orally denied DCF’s motion for termination of supervision because the parties could not agree on N.H.’s visitation rights. The court further ordered that the case remain open until it could review a case plan at a hearing on April 7, 2010.

The standard of review on a petition for a writ of certiorari is whether the circuit court departed from the essential requirements of law so as to materially injure the petitioner throughout the remainder of the proceedings. Baptist Hosp. of Miami, Inc. v. Garcia, 994 So.2d 390, 398 (Fla. 3d DCA 2008). To merit certiorari review, we must find that (1) the trial court departed from the essential requirements of the law; (2) this departure will result in material injury for the remainder of the case; and (3) the departure cannot be corrected on post-judgment appeal. See D.G. v. Department of Children and Families, 16 So.3d 972, 973 (Fla. 3d DCA 2009).

Florida law makes no provision for visitation between unrelated parties. A court has “no authority to compel visitation between a child and one who is neither a parent, grandparent, or great-grandparent. Visitation rights are, with regard to a non-parent, statutory, and the court has no inherent authority to award visitation.” Meeks v. Garner, 598 So.2d 261, 261 (Fla. 1st DCA 1992) (internal citations omitted). Chapter 39 does not provide for visitation by non-relatives. Furthermore, Florida courts have held that an order granting visitation rights to a non-parent of a child in the custody of a fit parent is unjustified and unenforceable. See Fischer v. Fischer, 544 So.2d 1079 (Fla. 2d DCA 1989); see also Sandor v. Sandor, 444 So.2d 1029 (Fla. 3d DCA 1984).

We find the facts of this case indistinguishable from the facts in D.G. v. Department of Children and Families, 16 So.3d 972 (Fla. 3d DCA 2009), where we granted certiorari review and quashed an order granting the maternal grandparents unsupervised visitation rights. We explained:

Section 39.509, Florida Statutes (2008), entitles grandparents to reasonable visitation rights, subject to certain exceptions when the grandchild “has been adjudicated a dependent child and [has been] taken from the physical custody of the parent.” However, all such visitation rights terminate “when a child has been returned to the physical custody of his or her parent.” § 39.509(4); T.M. v. Dep’t of Children & Families, 927 So.2d 1088, 1089 (Fla. 4th DCA 2006) (reversing visitation order in favor of maternal grandmother after the child was returned to the physical control of the mother); accord L.B. v. C.A., 738 So.2d 425, 427 (Fla. 4th DCA 1999); see also Von Eiff v. Azicri, 720 So.2d 510, 514 (Fla.1998) (“Neither the legislature nor the courts may properly intervene in parental decisionmaking absent significant harm to the child threatened by or resulting from those decisions”).

We cannot give greater rights to N.H. in our case, an individual who is not related to the child, than we did to the grandparents in D.G.

Petition granted, order quashed.


author: HAZOURI, J.

text:
    STATE of Florida, Appellant, v. S.P., a Child, Appellee.
    No. 4D08-4731.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.

      Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellee.
   HAZOURI, J.

The State of Florida appeals from the dismissal of a petition for delinquency for loitering and prowling filed against S.P., a child. At the time of the adjudicatory hearing on the charges, S.P. moved to dismiss because the state amended its charging document, which originally charged S.P. with loitering and prowling by attempting to open doors of various vehicles for no legitimate purpose to attempting to open doors on a number of residences. Based upon this change in the charging document, the trial court granted S.P.’s motion to dismiss. We reverse.

S.P. was arrested on a charge of loitering and prowling. The petition for delinquency on the charge alleged that S.P. loitered and prowled when he “attempted] to open the doors of various vehicles for no legitimate purpose.” However, according to the probable cause affidavit, S.P. was observed by the police trying the doors on a number of residences — not trying car doors.

In filing his motion to dismiss the amended petition, S.P. argued that the amended petition alleged an entirely different basis in action and in fact, making it a new and different law violation, as well as untimely because it was filed after the initial ninety-day period following his arrest. S.P. also argued that the change was substantive, with the petitions actually alleging different law violations, which subjected the new petition to the ninety-day speedy trial period. The state argued that it merely amended to correct a clerical error from vehicles to residences and, therefore, there was no new substantive violation because the charge of loitering and prowling remained the same, with the same elements. The state reasoned that it had to prove S.P. loitered or prowled in a place at a time or in a manner not usual for law abiding citizens, but did not have to prove he was opening vehicle doors or doors of residences. We agree.

We review an order granting a motion to dismiss de novo. State v. N.F., 924 So.2d 912, 913 (Fla. 5th DCA 2006).

The state relies upon M.F. v. State, 583 So.2d 1383 (Fla.1991). In M.F., the defendant was arrested on May 31, 1989, when he bought rock cocaine from an undercover officer. In the state’s petition for delinquency filed on June 27, it alleged that M.F. “did unlawfully and feloniously sell, purchase, manufacture, or deliver, or possess with intent to sell, purchase, manufacture, or deliver a controlled substance, to-wit: CANNABIS, ... in violation of [section] 893.13 [of the] Florida Statutes [1987].” Id. at 1384. The adjudicatory hearing was set for sixty-nine days after the date of arrest, at which time the state orally moved to amend to change the controlled substance to cocaine, a second degree felony. Over objection, the trial court permitted the amendment but granted a thirty-day continuance. In 1989, section 39.05(6), Florida Statutes (1987), required that a petition be filed within forty-five days of arrest. The defendant filed a motion to dismiss arguing that the state filed a new charge outside the forty-five-day filing period. The state responded that it was merely correcting a technical error. The trial court denied the motion to dismiss and the district court affirmed.

On appeal to the supreme court, the denial of the dismissal was affirmed. Initially, the court noted that “[o]nce a proper petition for delinquency has been timely filed, the state may correct defects or variances by amending the petition prior to the adjudicatory hearing.” Id. at 1385 (citing Florida Rule of Juvenile Procedure 8.110(c) and (d)). It further held:

[D]ue process of law requires the state to allege every essential element when charging a violation of law, either in adult criminal or juvenile proceedings, to provide the accused with notice of the allegations.... Accordingly, a charging document is subject to dismissal if it fails to properly allege every essential element of the offense or if it is not filed within the period of time allowed by law.
This Court has carved out an exception to the filing requirement where the state, because of a clerical-type error made in good faith, improperly alleges the elements of an offense in a timely-filed charging document. In such instances, we have held that the state may amend the charging document to correct the error after the applicable statutory period has elapsed, provided that the amendment was not intended to actually change the substantive charge and did not prejudice the rights of the accused to present a defense and get a fair trial.

Id. at 1385-86 (citations omitted).

The supreme court concluded by stating the following applicable principal:

We hold that the state may amend a timely-filed juvenile delinquency petition after the forty-five-day filing period has elapsed if the amendment, made prior to the adjudicatory hearing, is intended to merely correct a good faith clerical-type error and not to change the substantive allegation for other reasons. However, under no circumstances may the state amend a petition if the amendment prejudices the juvenile’s rights to prepare a defense and receive a full and fair adjudicatory hearing.

Id. at 1389. In applying this principle, the supreme court noted that the juvenile did not dispute that from the outset he had actual knowledge of the contents of the arrest report, which alleged the sale of cocaine rather than cannabis. The evidence showed it was a clerical error the state wanted to correct. The supreme court approved the trial court’s decision to permit the state to amend. M.F. did not show the amendment prejudiced his right to prepare a defense and get a fair hearing.

In the instant case, the defense had access to the police reports, which clearly referred to residences, not vehicles. The amended petition did not change victims or allege a different violation. Therefore, S.P. failed to show how he was prejudiced by the change in the Amended Petition for Delinquency. We, therefore, reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded for further proceedings.

DAMOORGIAN and CIKLIN, JJ., concur.

      . Florida Rule of Juvenile Procedure 8.110 was renumbered as Florida Rule of Juvenile Procedure 8.035 effective July 1, 1991. See In re Petition of the Fla. Bar to Amend Fla. Rules of Juvenile Procedure, 589 So.2d 818 (Fla.1991).


author: POLEN, J.

text:
    Onondieu DEMELUS, Appellant, v. KING MOTOR COMPANY OF FORT LAUDERDALE, Appellee.
    No. 4D08-3946.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.

      John C. Borrego of Fazio, DiSalvo, Cannon, Abers, Podrecca, Fazio & Carroll, Fort Lauderdale, for appellant.
    Nancy C. Ciampa of Carlton Fields, P.A., Miami, for appellee.
   POLEN, J.

The appellant, Onondieu Demelus (“De-melus”), appeals the trial court’s order granting summary judgment for King Motor Company of Fort Lauderdale (“King Motor”). This appeal addresses whether it was legally foreseeable that a vehicle would be stolen from King Motor’s premises and cause injury to a third party. We conclude that the manner of theft was not legally foreseeable and affirm.

King Motor is an automobile dealership that, at the time of the relevant facts, was located on East Sunrise Boulevard in Fort Lauderdale. Eight automobile franchises were located on King Motor’s premises. The property consisted of eleven acres and housed five showrooms and four buildings for vehicle repair and maintenance. At any given time, there were several hundred vehicles on the premises.

To secure its premises, King Motor employed an evening security guard who patrolled the well-lit property. Metal posts surrounded the perimeter of the property, such that ingress and egress of a vehicle was possible only through the designated entranceways. At night, the entranceways were gated, chained, and locked, and blocker vehicles were placed in front of each of these gates. The vehicles on the property were locked, and the keys to the vehicles were stored inside locked buildings. King Motor had a policy to ensure the security of its keys, and there is no evidence that King Motor’s key security policy was violated on the night of the theft. The showroom from which the keys were stolen had hurricane-proof windows. The building did not have an alarm system or video surveillance cameras, which King Motor contends is typical of most U.S. dealerships.

King Motor experienced thirty-six break-ins and thefts of vehicles during the six-year period prior to May 5, 2006, the date of the theft and accident. These thefts may be described as a combination of employee thefts, customer thefts during business hours, or unexplained thefts without evidence of a break-in. The police incident reports do not state that any of the prior incidents involved a criminal breaking into a locked showroom and stealing the keys to vehicles, breaking out of the premises through a locked gate, or ramming blocker vehicles to exit the premises.

On May 5, 2006, Demelus was injured in an automobile accident involving one of three vehicles that were stolen from King Motor’s property by a juvenile gang. The locked showroom had its hurricane-proof windows smashed to allow entry. Glass windows were also broken to gain access to the locked interior offices. The cubicles were ransacked, locked drawers were opened, and doors were kicked in. The room where the keys were kept was broken into, as was the box that held the keys. There was no evidence that the key to the stolen vehicle involved in the accident was not stored in a locked, secure area prior to the theft. After the thieves gained access to the vehicles with the keys and began driving, the thieves either rammed or moved the blocker vehicle that obstructed the gate to the premises. The thieves also rammed open the chained, locked gate. Thereafter, one of the stolen vehicles was involved in an accident with Demelus several blocks away.

In the underlying action, Demelus sued King Motor for damages he sustained in the automobile accident involving the vehicle stolen from King Motor. Demelus filed an affidavit by a purported security expert, who made eonclusory statements of law that King Motor’s security practices were negligent, that King Motor’s negligence caused Demelus’s injury, and that Demelus’s injury was preventable if King Motor had done more to prevent the theft. King Motor moved for summary judgment and claimed that the theft of the vehicle was unforeseeable. The trial court granted summary judgment for King Motor. We affirm.

The central question raised by this appeal is whether, given the unique facts of the case, the theft that led to Demelus’s injury was foreseeable. Foreseeability as it relates to duty in negligence cases is a question of law. Aircraft Logistics, Inc. v. H.E. Sutton Forwarding Co., 1 So.3d 309, 311 (Fla. 3d DCA 2009). Because the trial court resolved the case on summary judgment, our review is de novo. Fla. Bar v. Greene, 926 So.2d 1195, 1200 (Fla.2006); Johnson v. Boca Raton Cmty. Hosp., Inc., 985 So.2d 593, 595 (Fla. 4th DCA 2008).

“Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla.1992); see also United States v. Stevens, 994 So.2d 1062, 1067 (Fla.2008). Duty, however, is not limitless. To impose a duty, it is not enough that a risk merely exists or that a particular risk is foreseeable; rather, the defendant’s conduct must create or control the risk before liability may be imposed. See Aguila v. Hilton, Inc., 878 So.2d 392, 395, 396-97 (Fla. 1st DCA 2004).

Demelus relies primarily on the theory of negligent access to a vehicle, as established in Vining v. Avis Ren-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977), and applied recently in Hewitt v. Avis Rent-A-Car System, Inc., 912 So.2d 682 (Fla. 1st DCA 2005). We find these cases distinguishable and, therefore, not controlling. Demelus also relies on a theory of premises liability, which we find to be without merit because Demelus’s injury did not occur on King Motor’s premises.

In Vining, a rental car company left its rental car unattended in an airport parking lot with the keys in the ignition, the door open, and the car lights flashing. 354 So.2d at 55. The car was situated in a manner such that it could be easily driven onto the public roads without obstruction. Id. The vehicle was stolen, and the thief collided with the plaintiffs car, injuring the plaintiff. Id. The Florida Supreme Court endorsed the view of the New Jersey Superior Court and stated that:

[T]he key to duty, negligence and proximate cause when keys are left in an unlocked motor vehicle is the foreseeability to a reasonable man of an unreasonable danger presented to other motorists. If the danger is foreseeable, then a duty arises toward the members of the public using the highways, its breach is negligence, and the injury is the proximate result of the breach, or so a jury should be permitted to find.

Id. (quotations omitted).

The supreme court invoked the dangerous instrumentality doctrine when stating that “[t]he owner of a dangerous instrumentality must exercise due care” to ensure that a “danger of injury to the general public using the highways” does not occur. Id. at 56; see also Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000) (stating that an automobile in operation is a dangerous instrumentality). Additionally, the supreme court grounded its finding of a duty based on section 316.097, Florida Statutes (1975), which stated that “no person driving or in charge of any motor vehicle ... shall permit it to stand unattended without first stopping the engine, locking the ignition, and removing the key....” Vining, 354 So.2d at 56.

In Hewitt, during an eighteen-month period, no fewer than thirty-seven motor vehicles Avis owned or controlled were removed from Avis’s rental lot by Avis employees and “rented” in “side deals” or otherwise entrusted to acquaintances of the Avis employees. 912 So.2d at 683. Avis managerial employees were aware that vehicles were missing from the lot under circumstances that should have placed them on notice that they had been stolen. Id. The plaintiff alleged that despite this knowledge, Avis failed to establish and/or enforce safeguards to prevent the theft, use, entrustment and/or removal of its vehicles from the premises. Id. at 683-84. The stolen vehicle at issue was involved in an accident, and Avis keys were found in the ignition. Id. at 684.

The trial court in Hewitt granted summary judgment and stated that Avis had no duty to prevent its cars from being stolen. Id. Reversing, the First District Court of Appeal stated that a duty to secure a vehicle could be found independently of section 316.097. Hewitt, 912 So.2d at 684, 685. However, rather than finding that a duty existed as a matter of law, the First District chose to leave to the jury the question of whether Avis’s conduct created a foreseeable zone of risk, and therefore a duty. Id. at 686; cf. Aircraft Logistics, 1 So.3d at 311 (stating that foreseeability as it relates to duty is a question of law). The Hewitt court cited the following “special circumstances” to justify its decision to leave the question of foreseeability to the fact finder:

[T]he high number of thefts at Avis’s downtown facility during the short span of time preceding the accident; the general access its employees had to the vehicles’ keys; the absence of any safeguards by management against theft; management’s failure to take prompt action despite its awareness that its employees were involved in criminal activity; its failure to promptly report vehicle thefts to law enforcement; and the knowledge that Avis had, or should have had, of the harm that often occurs from the careless operation by thieves of stolen vehicles....

912 So.2d at 686.

Vining and Hewitt are not controlling because in these cases the keys to the vehicles were made readily available by the defendant’s own conduct, a situation that is not present in this appeal. Specifically, in Vining, the keys were left in the ignition, and in Hewitt, the employees entrusted the vehicles to acquaintances and made “side deals,” which the court viewed as factually analogous to leaving the keys in the vehicle. In other words, a duty arose in these cases because the defendants’ affirmative conduct created a foreseeable zone of risk; namely, that the vehicles might be stolen and subsequently used to injure a third party. In this appeal, King Motor did not create a risk; rather, King Motor’s nighttime security practices guarded against the risk that its vehicles would be stolen. Indeed, unlike in Vining and Hewitt, King Motor was not complicit in the theft. King Motor did not make its keys readily available to the thieves who caused Demelus’s injury; instead, the keys were stored in a locked office in a locked building. The thieves were able to obtain access to the keys only by breaking into the locked showroom and locked offices within the showroom. The thieves were then able to obtain access to the public roads only by ramming open the chained, locked gate and by moving blocker vehicles that were intended to obstruct the vehicular egress from the property.

Furthermore, the “special circumstances” that existed in Hevntt simply are not present here. Although King Motor previously experienced vehicle theft, it was not nearly as rampant as in Hewitt. In Hewitt, Avis experienced thirty-seven thefts within one-and-a-half years, whereas King Motor experienced thirty-six thefts over a six-year period. More importantly, none of the prior vehicle thefts occurred in the same manner as the thefts in this incident — by breaking into the showroom and its offices and by stealing keys to the vehicles. Unlike in Hewitt, King Motor employees did not have “general access” to the vehicles, as there were specific key security policies in place. Furthermore, there were multiple safeguards against nighttime theft, including having a security guard, locking the showrooms and offices where the keys were kept, locking and chaining the gates to the property and obstructing vehicular egress through the placement of blocker vehicles. Unlike in Hewitt, the record does not suggest undue delay in reporting the thefts, nor were King Motor’s employees involved in the theft the night of the accident that injured Demelus. Therefore, we find Demelus’s reliance on the negligent access to a vehicle theory to be unpersuasive.

Having concluded that the negligent access to a vehicle theory does not impose a duty on King Motor because of the lack of foreseeability, we next turn to the broader principles of negligence law, as established in McCain and its progeny. Since McCain, the Florida Supreme Court has significantly expanded the concept of duty in Florida negligence law and made foreseeability the sole determinant of whether a duty exists. See Stevens, 994 So.2d at 1067 (“[T]he ‘foreseeable zone of risk’ test discussed in McCain is the test to be applied under Florida law to determine whether a duty exists under our negligence law.”). Indeed, the supreme court has stated that the “imposition of a duty is nothing more than a threshold requirement that if satisfied, merely opens the ‘courthouse doors.’” Whitt v. Silverman, 788 So.2d 210, 221 (Fla.2001) (citation omitted).

Stevens is highly relevant to the determination of this appeal and must be distinguished. Stevens came to the Florida Supreme Court on a certified question. Like this case, Stevens addresses a party’s duty under Florida negligence law when there is intervening criminal activity and allegations of negligent security practices. Although Stevens involves allegedly negligent security practices regarding ultra-hazardous materials, the case was decided on general principles of Florida negligence law, rather than strict liability for ultra-hazardous materials. See id. at 1071 (Wells, J., dissenting) (arguing that Stevens should have been decided under strict liability principles relating to ultra-hazardous activities).

In Stevens, a decedent’s personal representative brought a wrongful death complaint against both the U.S. government and a private research laboratory after the decedent received anthrax in the mail, inhaled the anthrax, and died. 994 So.2d at 1064. The complaint alleged that the government possessed, was handling, and storing samples of anthrax at a research laboratory. Id. The government allegedly was aware that anthrax samples were missing. Id. The complaint alleged that despite this knowledge, the government failed to provide adequate security for the handling or shipping of the anthrax, and that as a result, the anthrax was “improperly intercepted” (i.e., stolen) either in transit or from another research facility to which the samples were sent. Id. The complaint alleged that the lab breached its duty of care to the decedent by failing to implement adequate security procedures at its facility. Id.

In moving to dismiss the complaint, the government argued that “it could not be liable for any third party criminal activity allegedly occasioned by negligent security practices because it owed no duty of protection to [the decedent], a stranger, and did not have a duty or ability to control the unidentified third party tortfeasor or tort-feasors responsible for intercepting and mailing the anthrax.” Id. at 1065. The plaintiff argued “that the complaint did not allege a claim of failure to control or prevent the mailing of the anthrax by a third party criminal, but, rather, a claim of duty of care “whenever a human endeavor creates a generalized and foreseeable risk of harming others.’ ” Id. The federal district court denied the government’s motion, and found that the plaintiffs claim fell under McCain’s “foreseeable zone of risk” theory. Id.

Addressing the issue on a certified question from the U.S. Eleventh Circuit Court of Appeals, the Florida Supreme Court agreed with the federal district court and stated that “negligence liability may be imposed on the basis of affirmative acts which create an unreasonable risk of harm by creating a foreseeable opportunity for third party criminal conduct, even though there is no ‘special relationship’ between the parties that independently imposes a duty to warn or guard against that misconduct.” Id. at 1068. Significantly, the court did not reject the plaintiffs argument that the government’s failure to adopt reasonable security measures was not a mere failure to act, but was actually an affirmative act. See Stevens, 994 So.2d at 1069 & n. 4. The supreme court stated that the plaintiffs complaint is sufficient to establish a duty of care “to open the courthouse doors” and considered relevant the facts that the government knew or should have known of the risk of bioterrorism given its history of missing laboratory specimens, that a reasonable laboratory operator would understand that the public would be exposed to an unreasonable risk of harm unless it implemented adequate security procedures to guard against the risk, and that the third party’s death was a foreseeable consequence of the failure to use reasonable care in adopting and implementing security measures to guard its biohazardous materials. Id. at 1069. Thus, Stevens is similar to this appeal in the sense that in both cases, the defendant is being accused of negligent security practices, which allegedly allowed third-party criminal conduct to occur, and that this criminal conduct caused the plaintiff to suffer an injury. We conclude that this case does not control, and the distinguishable factors merit discussion.

We consider Stevens to be distinguishable for three reasons. First, King Motor’s security practices did not create a risk of harm, let alone an unreasonable risk of harm. Second, to the extent that King Motor’s security practices were deficient, such a deficiency does not constitute an affirmative act under the facts of the case. Third, King Motor’s acts did not create a foreseeable opportunity for third-party criminal conduct.

At the most basic level, Stevens involved allegedly negligent security practices regarding ultra-hazardous materials, while this appeal involves allegedly negligent security practices regarding the operation of an auto dealership. We consider it much more likely that negligent security practices involving ultra-hazardous materials create a risk than negligent security practices of an automobile dealership. Allegedly negligent security practices involving anthrax create a risk because anthrax, when inhaled, is deadly. The government knew of this risk in Stevens, and therefore, it was foreseeable that harm would result from negligent security in guarding the anthrax samples. Unlike anthrax samples, automobiles are ubiquitous in our society. A locked, parked vehicle with the engine off is not a dangerous instrumentality. The risk of harm involving an automobile exists only when the automobile is turned on and driven. See Aurbach, 753 So.2d at 62 (stating that a vehicle in operation is a dangerous instrumentality). Thus, King Motor’s conduct did nothing to create a risk of harm, such as making the keys to the vehicles readily available, like in Vin-ing and Hewitt. Instead, King Motor sought to prevent its cars from being used. The operation of an automobile dealership in which the vehicles are locked and kept behind a locked, chained gate, with the keys to the vehicles kept in a locked building, does not create a risk of harm as a matter of law.

To the extent that King Motor’s security practices were deficient, the deficiency does not constitute an affirmative act. In Stevens, the court did not reject the plaintiffs argument that the government’s failure to adopt reasonable security measures was an affirmative act, and not a mere failure to act. Id. at 1069 & n. 4. In allowing the plaintiff to characterize the government’s behavior this way, it can be said that the government’s affirmative act of failing to adopt reasonable security measures created a foreseeable risk of bio-terrorism. See id. at 1068 (“[A]cts of commission ... historically generate a broader umbrella of tort liability than acts of omission ”). When ultra-hazardous materials are involved, this characterization is understandable. However, to the extent that King Motor’s security practices were deficient, its security practices are better understood as an omission, or a failure to act, rather than as an affirmative act, or commission. See id. at 1069 n. 4 (“[B]y ‘misfeasance’ the defendant has created a new risk of harm to the plaintiff, while by ‘nonfeasance’ he has at least made his situation no worse ....”) (quoting Prosser and Keeton on the Law of Torts § 56, at 373-75 (W. Page Keeton et al. eds., 5th ed. 1984)). Because the risk of being injured in an automobile accident already existed when Demelus chose to travel on the public roads, the fact that King Motor kept its cars secured on its premises makes Deme-lus’s risk of injury no worse. Because King Motor kept its vehicles secured, it did not create a risk of third-party criminal conduct. For King Motor to have created a risk of third-party criminal conduct, it would have had to, for example, affirmatively make its vehicles available to the thieves. Cf. Vining, 354 So.2d 54; Hewitt, 912 So.2d 682. Moreover, the mere assertion by Demelus’s expert that King Motor could have enacted more stringent security measures, regardless of their economic feasibility or practices of similar auto dealerships, does not create a material issue of fact to preclude summary judgment.

It is prudent to note that this particular form of theft was unforeseeable to King Motor, given its prior history of vehicle theft. Questions of foreseeability are fact-dependent. Because King Motor had not experienced similar thefts in the past, the vehicle theft at issue in this appeal was unforeseeable as a matter of law. Furthermore, King Motor’s conduct did not create a risk. Although the supreme court has characterized the imposition of a duty as a mere threshold, we hold that the facts of this case do not cross this threshold. Therefore, we agree with the trial court’s grant of summary judgment for King Motor.

Affirmed.

MAY and GERBER, JJ., concur.

      . Although King Motor moved to strike the affidavit of the purported expert, the trial court did not rule on the motion to strike before granting summary judgment.

      . The former section 316.097 is now found in a slightly-reworded form at section 316.1975(1), Florida Statutes (2009).


author: McCANN, JAMES W., Associate Judge.

text:
    Lewis LANGLAIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1462.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.
    Carey Haughwout, Public Defender and Tom Wm. Odom, 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.
   McCANN, JAMES W., Associate Judge.

The Appellant was charged by Information with grand theft of a motor vehicle (Count I) and felony driving while license revoked (habitual offender) (Count III). Both counts charged the defendant with third degree felonies punishable by a maximum of five years in the Department of Corrections.

On March 17, 2008, the Appellant signed a Plea of Guilty or No Contest to Criminal Charges in Circuit Court indicating that he was pleading guilty to the charges of Count I “Grand Theft” and Count II “DWLS” (driving while license suspended). The plea agreement contained a separate provision in which Appellant acknowledged that he understood that the maximum penalty provided by law is: “Count I — 5 years FSP” (Florida State Prison); and “Count II — 864 days BCJ” (Broward County Jail). A third provision of the agreement indicated that if the court accepts the Appellant’s plea, his sentence would be an adjudication of guilt with a concurrent sentence of 364 days in the Broward County Jail. The Appellant initialed each provision of the plea agreement, including those referred to above.

In the change of plea hearing, the trial judge explained the plea agreement to the Appellant stating, in pertinent part, “You’ve indicated an intent to enter a plea to Grand Theft and Driving While License Suspended. Is that what you want to do here today?” Appellant responded “yes.” Next, the court advised the Appellant that the maximum penalty for grand theft is five years in the Florida State Prison; and that the maximum sentence for “DWLS” is one year in the Broward County Jail. The trial court further explained that the negotiated plea with the State is an adjudication with a 364 day sentence in the Bro-ward County Jail with credit for time served of 88 days. After the court found that there was a sufficient factual basis for entry of the plea, the defendant pled no contest after which the court made the following pronouncement:

The court accepts your plea of no contest; finds you freely and voluntarily entered; judgment along [sic] sentence of the court; adjudication 364 days in Broward County Jail; credit for 88 days time served.

The judgment and sentence signed by the court on March 17, 2008, indicated that the Appellant entered a plea of no contest and was adjudicated guilty of Count I Grand Theft (motor vehicle), a third degree felony; and Count III “Felony DWLREV (habitual offender),” a third degree felony. The Appellant contends that he entered a plea of no contest to the lesser included offense charged in Count III of DWLS, the first degree misdemeanor, which carries a maximum sentence of one year in the county jail.

Based upon our review of the written plea agreement which utilized the abbreviation “DWLS” and the trial court’s oral pronouncement that the Appellant was entering a plea to “Driving While License Suspended” with a maximum sentence of “one year in the Broward County Jail,” it appears that there is a scrivener’s error in the Judgment and Sentence indicating that the Appellant entered a plea to, and was adjudicated guilty of the third degree felony of Driving While License Revoked (habitual offender); which is the as-charged offense in Count III.

The State argues that it never negotiated a plea to a lesser charge under Count III, or amended the Information to do so. However, the State raised no objection at the plea and sentence hearing when the court specifically advised the Appellant that he was entering a plea to Driving While License Suspended which carried a maximum sentence of one year in the Bro-ward County Jail. Similarly, the State should have registered an objection to the written plea of no contest form submitted to the court which contained the provisions that he was pleading to the first degree misdemeanor of “DWLS” and that it carried a maximum sentence of 364 days [sic] in the Broward County Jail. The time for the State to have raised an objection or issue as to the charge that the Appellant was entering a plea to, and which he would be adjudicated guilty of, was at the change of plea and sentencing hearing.

Both the Appellant and the State are entitled to a Judgment and Sentence that conforms to the plea agreement. See Delancey v. State, 653 So.2d 1062 (Fla. 4th DCA 1995). The Judgment and Sentence convicting the Appellant of the third degree felony of Driving While License Revoked (habitual offender) must be vacated and corrected to reflect that the defendant entered a plea to, and was convicted of Driving While License Suspended, a violation of Florida Statutes § 322.34(2)(b), a first degree misdemeanor.

We reverse and remand to the trial court with instructions to correct the Final Judgment and Sentence to reflect that the defendant was adjudicated guilty of Driving While License Suspended, a first degree misdemeanor.

WARNER and LEVINE, JJ., concur.

      . A co-defendant was charged in Counts II and IV.

      . The plea agreement erroneously labeled the DWLS (driving while license suspended) charge as Count II. In fact, Count II was a possession of cocaine charge against the co-defendant.

      .Driving While License Revoked (Habitual Offender). This was the as-charged offense.


text:
    Larry RUNGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4119.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.

      Larry Runge, Indiantown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Appellant Larry Runge appeals the trial court’s order summarily denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Runge raised ten separate claims in his motion, but in his appellate brief, he appears to have abandoned his tenth claim where he argued ineffective assistance of trial counsel for failure to claim entitlement to jail credits for time served in Dade County and King County Jails. We affirm the trial court’s denial of the tenth claim without prejudice to Runge’s right to seek any relief available on that issue under Florida Rule of Criminal Procedure 3.800(a). However, we reverse and remand the trial court’s summary denial of Runge’s nine remaining claims for the reasons below.

The trial court’s order denying post-conviction relief was based on the State’s response, which contained arguments that, at least some, if not all of the claims, were conclusively refuted by portions of the record. However, no portions of the record were actually attached to the State’s response or the trial court’s order adopting the State’s reasons as grounds for the summary denial. The State is not permitted to supplement the record on appeal by filing the relevant portions of the record directly in this Court. Hastings v. State, 670 So.2d 1176, 1177 (Fla. 4th DCA 1996).

Moreover, the State’s response, on which the trial court relied, included arguments that some of the claims were legally and factually insufficient. We agree with Runge’s argument that the trial court erred to the extent that it summarily denied his claims as legally insufficient without giving him an opportunity to amend them to cure any pleading defects. See Spera v. State, 971 So.2d 754, 761 (Fla.2007).

Finally, the trial court’s order did not address any of the claims raised with any degree of specificity. Even the State’s response addressed some claims by number and others more broadly as either legally insufficient or refuted by the record. As such, we cannot determine the precise grounds assigned by the trial court for its denial of the specific grounds in question. Accordingly, as to the nine claims remaining, we reverse and remand for the trial court to either grant leave to Runge to amend any particular claims under Spera, or deny specified claims as refuted by the record with supporting record attachments.

Affirmed in Part; Reversed and Remanded in Part.

TAYLOR, DAMOORGIAN and LEVINE, JJ., concur.