author: WARNER, J.

text:
    Clark CAPLAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2628.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.
    Rehearing Denied Jan. 22, 2010.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   WARNER, J.

The appellant Clark Caplan was convicted of trafficking in marijuana based upon the testimony of his co-defendant as well as that of a special agent of the Drug Enforcement Administration (“DEA”). Caplan sought to prevent the agent from testifying, because the state had failed to produce the federal DEA reports regarding the surveillance and arrest of Caplan. Although the trial court treated the failure to produce the reports as a discovery violation but held that it was not willful, we hold that, under the circumstances of this case, no discovery violation occurred.

Caplan supplied drugs to Merrell, his co-defendant, who also sold drugs. The day after Caplan delivered drugs to Merrell at his home, DEA agents and Palm Beach County Sheriffs agents went to Merrell’s home and eventually were able to search the residence, finding drugs. While they were there, Caplan called, and the agents recorded the call. During the call, Merrell told Caplan that he could not get rid of the marijuana, and Caplan agreed to return and pick it up. When Caplan arrived and began loading the marijuana in his car, the officers arrested both men.

Prior to trial, the defense filed a motion to compel production of all reports created by the DEA concerning its investigation and involvement in this case, but the trial court denied the motion, noting that it could not require the federal agents to provide the reports. At trial, the defense moved to strike a federal agent as a witness because of the failure to produce the DEA reports. The trial court treated it as a Richardson violation and held a hearing. Concluding that any violation was not willful, the court gave the defense the opportunity to depose the special agent. During the deposition the agent did not refer to the reports. Although the defense claimed that it was still prejudiced because it discovered that other agents were involved in surveillance of Merrell’s home on the day prior to the arrest, the court denied the motion and permitted the agent to testify.

Based upon the testimony of Merrell and the agent, the jury convicted Caplan. The court sentenced him to six years in prison with three years mandatory. Ca-plan appeals.

Florida Rule of Criminal Procedure 3.220(b)(1)(B) requires the state to produce during discovery “all police and investigative reports of any kind prepared for or in connection with the case” that are “within the state’s possession or control.” The state advised the court that it had been unable to procure the federal reports. Federal agents are precluded from providing reports of investigations without authorization. See 28 CFR § 16.22. Caplan knew about the reports prior to trial and also knew that the state could not produce them because it did not have the reports in its control. Caplan also requested the reports from the U.S. Attorney but could not obtain them. Thus, neither the state nor the defense had possession or control of information contained in the reports. Under those circumstances, the state had no obligation to produce the reports and thus committed no discovery violation by failing to produce them. See State v. Gonzalez Rodriguez, 483 So.2d 807 (Fla. 3d DCA 1986).

State v. Tascarella, 580 So.2d 154 (Fla.1991), on which the defense relies, is distinguishable. There the state listed several federal agents as witnesses. The defense sought to take their depositions, and the agents refused to appear, citing 28 CFR § 16.22 and its prohibition against agents giving any oral statements without authorization. After two attempts to take the agents’ depositions, the trial court determined that the defendants would be prejudiced if forced to confront the agents’ testimony at trial without pretrial discovery. Florida Rule of Criminal Procedure 3.220(h) permits pretrial depositions, and failure to comply with the rules of discovery can result in the exclusion of the witnesses’ testimony at trial. Fla. R.Crim. P. 3.220(n). The trial court entered an order excluding the agents’ testimony, and the state sought review.

The supreme court held that the trial court was required to follow the state procedural rules. Those rules were not preempted by federal law prohibiting the agent from testifying in a pre-trial deposition. Because of that refusal, exclusion of the agents’ testimony was one remedy available to the trial court under rule 3.220(n), and the state had not shown that the court abused its discretion in excluding the agents from testifying at trial.

Tascarella is distinguishable from this case, because in Tascarella the defendant had a right to take the deposition of the agents under the rules of discovery, and the state intended to use those agents as witnesses at trial. Therefore, the defendants were placed at a disadvantage. In this case, the state was not required to produce reports not within its control. Moreover, the state was not intending to use information in the reports. The agent did not refer to the report either in his deposition or at trial. Thus, the defense was not placed at a disadvantage to the state, because neither side had access to the reports.

The trial court did not err in refusing to exclude the DEA agent’s testimony. We thus affirm Caplan’s conviction and sentence.

POLEN and TAYLOR, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . Florida Rule of Criminal Procedure 3.220(b)(1)(B) states in its entirety:
      (1) Within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test, and photograph the following information and material within the state’s possession or control:

      (B) the statement of any person whose name is furnished in compliance with the preceding subdivision. The term "statement” as used herein includes a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording. The term "statement” is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which those reports are compiled;
      (emphasis added).


source: Caselaw Access Project

author: MAY, J.

license: Public Domain

text:
    The ESTATE OF Steven Adam TINERVIN as assignee of Zenaida R. Gonzales and Alfredo V. Gonzales, M.D., P.A., Appellants, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
    No. 4D08-2151.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.
    Rehearing Denied Jan. 28, 2010.

      Jane Kreusler-Walsh and Rebecca Mer-cier Vargas of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Jeffrey C. Fulford of Jeffrey C. Fulford, P.A., Stuart, for appellants.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for appellee.
   MAY, J.

The plaintiff appeals an adverse declaratory judgment in favor of an insurer. Specifically, the trial court found that the professional services exclusion of a business owner’s policy excluded coverage for services performed by the doctor’s wife in filing, and making the doctor aware of, lab reports. The trial court also found the insurer had a duty to defend. From the latter finding, the insurer filed a cross-appeal. We affirm.

The doctor is a pediatrician. He employed his wife in the office. Her duties included the filing of lab reports in the patient’s chart and providing them to the doctor for review.

The decedent was the doctor’s patient. The doctor diagnosed him as obese and having high blood pressure. An outside lab performed tests on the decedent, revealing abnormal values. In February, 2005, the lab mailed the abnormal test results to the doctor, who testified that his office usually receives reports within one or two days after blood is drawn. Yet, the first time he remembered seeing the lab results was three months later in May, 2005. The decedent died on June 2, 2005. The doctor opined that if he had seen the lab report earlier, he would have taken different actions in his treatment of the decedent.

The plaintiff brought a wrongful death action against the doctor, his only employee, and his professional association. The plaintiff alleged medical malpractice against the doctor and general negligence against the employee. The doctor and his employee requested coverage under the insurer’s business owner’s policy. The insurer refused to defend or indemnify the doctor and his employee based on the exclusion for injuries arising from professional services. That exclusion provided:

This insurance does not apply to:

j. Professional Services
“Bodily injury,” “property damage,” “personal injury” or “advertising injury” due to rendering or failure to render any professional service. This includes but is not limited to:
(4) Medical, surgical, dental, x-ray or nursing services treatment, advice or instruction;
(5) Any health or therapeutic service treatment, advice or instruction....

The insurer claimed that misfiling the lab results fell within the professional services exclusion because it was an “intricate part” of the medical services the doctor rendered. The plaintiff claimed, however, that the employee’s negligence was not excluded because her services were clerical, as she had no professional responsibility to read or interpret the lab reports.

The insurer refused to defend the wrongful death action. The doctor and his employee entered into a $5,000,000 consent judgment with the plaintiff. As part of the settlement, they assigned their coverage claims to the plaintiff. The plaintiff then brought an action against the insurer alleging that the insurer breached its duties to defend and indemnify the employee and the P.A.

The trial court denied the parties’ cross-motions for summary judgment, and conducted a non-jury trial. The trial focused on whether the employee provided professional services within the meaning of the policy’s exclusion. The plaintiff argued that the employee merely provided clerical services. The insurer maintained that the allegations against the employee involved the rendering of professional services.

The employee testified that she performed various clerical jobs for the doctor, which included opening the office, checking the mail, making appointments, setting up charts, and answering the phone. She did not examine patients, give medical advice, or interpret lab reports. However, she was a nurse by training and had been employed by the Philippine government as a military nurse; she was not licensed in the State of Florida. She took vital signs and wrote them in the patient’s chart. She received lab reports and clipped them to the outside cover of the patient’s chart. She never provided nursing treatment, advice, or instruction to the decedent. She testified that when she received abnormal test results, she put them with the patient’s chart on her husband’s desk. She prioritized the results so that the most serious results were on the top.

The doctor testified that he sometimes employed medical assistants, but none of them had any particular skill or training. He hired his wife to assist with his clerical and billing needs; not as a medical assistant. She never made clinical, medical, or professional decisions.

The defendant’s expert testified that “professionals” require specialized skill, and no specialized training is required to give lab reports to a doctor. In response, the insurer argued that the employee acted as a medical assistant because she operated medical equipment and performed functions that were the tasks of a professional medical assistant under section 458.3485, Florida Statutes (2007).'

The insurer further argued that the employee’s duties formed an “intricate part” of the medical services provided by the doctor, as she was his only employee in 2005. When she took a patient’s vital signs, the doctor relied on the information, which was critical to his diagnosis. Without her help, he would have to do everything himself.

In a letter to the attorneys following the trial, the trial court tentatively concluded there was a duty to defend, but that the coverage issue “boil[ed] down to whether one looks at the matter as a package of medical treatment or whether each employee’s acts are separated out.” The court thought the employee performed both clerical and professional acts. Specifically, her responsibility to provide the doctor with the lab results involved a clerical act and an aspect of medical treatment.

The trial court ultimately concluded the insurer had a duty to defend the wrongful death claims based on the allegation that the employee was a non-professional employee. However, the trial court found the insurer had no duty to indemnify because the professional services exclusion applied. The court found the alleged negligence was either the failure of the doctor to review the results or the failure of the employee to furnish the report to him. Either failure culminated in the doctor’s professional judgment that resulted in the decedent’s death. The trial court was not “inclined to ‘unbundle’ the acts which are part of providing medical services and put one act under a legal microscope.”

The standard of review of an order interpreting an insurance policy is de novo. Discover Prop. & Cas. Ins. Co. v. Beach Cars of W. Palm, Inc., 929 So.2d 729, 732 (Fla. 4th DCA 2006).

Our interpretation of insurance policy provisions is guided by a few well-recognized rules. An insurance policy’s coverage is defined by the plain language of the policy. Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1086 (Fla.2005). Clear and unambiguous terms are enforced as written. Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005). When the provisions are susceptible to two reasonable interpretations, the one providing coverage prevails. Id. Coverage clauses are broadly construed. Union Am. Ins. Co. v. Maynard, 752 So.2d 1266, 1268 (Fla. 4th DCA 2000). Exclusionary clauses are strictly con strued. Id. With these tenets in mind, we construe the policy at issue.

First, we find that the policy language is unambiguous. The professional services exclusion excludes coverage for “ ‘[b]odily injury,’ ‘property damage,’ ‘personal injury5 or ‘advertising injury5 due to rendering or failure to render any professional services.... ” Professional services include “but [are] not limited to ... [m]edical, surgical, dental, x-ray or nursing services treatment, advice or instruction.” Employees are not insured for ‘“[b]odily injury’ or ‘personal injury’ ... [ajrising out of his or her providing or failing to provide professional health care services.”

The plaintiff argues that the policy’s failure to define professional services renders the policy susceptible to more than one interpretation. We disagree. The policy clearly excludes coverage for claims “arising out of’ the providing or failing to provide professional services and claims “due to” the rendering or failing to render any professional service. Professional services include medical or nursing services.

Second, we find, as did the trial court, that the employee’s acts were causally connected to the professional services rendered by the doctor. The policy clearly excludes medical services, and the employee’s duties were an “intricate part” of the medical services provided by the doctor.

The plaintiff argues that because the employee’s act of opening the mail and attaching a lab report required no professional skill, her acts are not excluded from coverage. See Aerothrust Corp. v. Granada Ins. Co., 904 So.2d 470, 472 (Fla. 3d DCA 2005) (holding that a professional services exclusion did not apply because the services were rendered by employees who were “not required to have any specialized training or experience”). However, “[wjhether an act results from the nature of a professional service is determined by focusing upon the particular act itself, as opposed to the character of the individual engaging in the act.” Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So.2d 636, 638 (Fla. 3d DCA 1994).

We find Alpha Therapeutic Corp. v. St. Paul Fire & Marine Insurance Co., 890 F.2d 368 (11th Cir.1989), instructive. There, the Eleventh Circuit held that a medical technician’s error in transcribing test results was an error in performing a professional service.

Even if a medical technician is not a professional, there are certain professional duties that, when delegated to the medical technician, bring the technician within the definition of “professional” for insurance purposes....
Indeed, most professional services involve clerical duties that may lead to liability. While these duties typically are performed by a secretary or assistant, the professional is ultimately responsible for the duty.... While transposing the test results may be a clerical task, if the test results are transposed improperly, the testing process fails. Clearly, transposing test results and figures is an intricate part of testing plasma for hepatitis, which is a professional service. Thus, this court finds that the medical technician was performing a professional service when the error in question occurred. As such, the liability is excluded from coverage by the professional service exclusion clause....

Id. at 370-71.

We also agree with the trial court’s finding that the employee was a medical assistant under section 458.3485, Florida Statutes (2007). A “Medical Assistant” is defined as a “professional multiskilled person dedicated to assisting in all aspects of medical practice under the direct supervision and responsibility of a physician.” § 458.3485, Fla. Stat. (emphasis added). Here, the employee assisted the doctor in all aspects of his practice. She not only performed clerical tasks, but she took vital signs: temperature, pulse, height, blood pressure, and weight. By finding that the employee was a medical assistant, the court found that she was a professional and her duties included the rendering of professional services. Thus, she fell within the policy’s professional services exclusion.

On cross-appeal, the insurer argues the trial court erred in finding that it had a duty to defend. Once again, the trial court got it right. “An insurer’s duty to defend is distinct from and broader than its duty to indemnify'.” Keen v. Fla. Sheriffs’ Self-Ins. Fund, 962 So.2d 1021, 1024 (Fla. 4th DCA 2007). The duty to defend is determined solely by the allegations in the complaint, which must set forth facts that bring the case within the coverage of the policy. McCreary v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 758 So.2d 692, 695 (Fla. 4th DCA 1999). “[A]ny doubt about the duty to defend must be resolved in favor of the insured.” Amerisure Ins. Co. v. Gold Coast Marine Distribs., Inc., 771 So.2d 579, 580-81 (Fla. 4th DCA 2000).

The complaint in this case specifically alleged facts that fell within the insuring language of the policy. It alleged that in a non-professional manner, the employee negligently:

a) made clerical mistakes in the filing of significant laboratory results for STEVEN TINERVIN;
b) lost, misplaced or untimely filed significant laboratory results for STEVEN TINERVIN;
c) failed to forward or show the laboratory results of STEVEN TINERVIN to her husband, Dr. Gonzales;
d) read the previously obtained laboratory results during the May 2005 office visit and negligently told the physician that they were normal; and
e) was otherwise negligent in her nonprofessional office duties owed to STEVEN TINERVIN.

These allegations squarely fell within the policy’s duty to defend. It was only after the facts were flushed out in discovery that the duty to indemnify was found not to exist.

Affirmed.

DAMOORGIAN and CIKLIN, JJ, concur.

      . His wife will be referred to as the employee throughout the opinion.

      . The policy's insuring language contained the following relevant provisions:
      A. Coverages

        1. Business Liability
      a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury,” "property damage,” "personal injury" or "advertising injury” to which this insurance applies. We will have the right and duty to defend the insured against any "suit” seeking those damages....

      C. Who is an Insured
      Each of the following is also an insured:
      a. Your "employees,” other than either your "executive officers” ..., but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees” is insured for:
      (1) "Bodily injury" or "personal injury”:

      (d) Arising out of his or her providing or failing to provide professional healthcare services ....

      . The medical malpractice claim against the doctor was settled after the medical malpractice carrier paid the policy limits.

      . A medical assistant is defined as "a professional multiskilled person dedicated to assisting in all aspects of medical practice under the direct supervision and responsibility of a physician. This practitioner assists with patient care management, executes administrative and clinical procedures, and often performs managerial and supervisory functions. Competence in the field also requires that a medical assistant adhere to ethical and legal standards of professional practice, recognize and respond to emergencies, and demonstrate professional characteristics.” § 458.3485(1), Fla. Stat.


author: GROSS, C.J.

text:
    Antonio C. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1971.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 2009.
    Rehearing Denied Jan. 22, 2010.

      Carey Haughwout, Public Defender, Margaret Good-Earnest and Elisabeth Porter, Assistant Public Defenders, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

Antonio Carter was convicted after a jury trial of carjacking, strong arm robbery, and felony driving while license revoked. He was sentenced to three concurrent sentences — for carjacking, 40 years as an habitual offender with a prison releasee reoffender mandatory minimum of 30 years; for robbery, 30 years as an habitual offender with a prison releasee reoffender mandatory minimum of 15 years; and, for the felony driving charge, 5 years as an habitual offender. We affirm the carjacking and robbery convictions, and reverse the felony driving while license revoked conviction and the restitution order.

We state the facts at trial in the light most favorable to the state. Samuel La-roche, the victim, was a taxicab driver in Broward County. On August 11, 2007, at approximately 11:00 p.m., Laroche picked up two men and a woman near the Yankee Trader hotel. The trio would later be identified as Alvin Bell, Bonnie Broderick, and appellant. Bell, a disabled man, was in a wheelchair. Laroche helped secure the wheelchair in the trunk of his cab, leaving it open for the ride. Once the trio was in the cab, one of the passengers told Laroche to drive them to the Lafayette Motel, which was located a few miles from the Yankee Trader. During the ride, appellant was seated in the passenger side of the front seat, Bell was seated in the driver’s side of the back seat, and Broderick was seated in the passenger side of the back seat.

After they arrived at the motel, Laroche could not find his cell phone, which had been plugged into the cigarette lighter, and which he had used during the ride. Laroche got out of the cab and looked for his phone behind one of the seats. Appellant, Broderick, and Bell also exited the cab. After helping Bell into his wheelchair, appellant went to the driver’s seat and turned the engine off. Appellant then told Laroche he did not want to pay the fare. He also asked Laroche what he was searching for. Laroche replied that he was looking for his phone. Appellant asked if Laroche was accusing him of taking the phone, which Laroche denied. Appellant then struck Laroche with a closed fist.

Laroche fell to the ground. Appellant continued to hit him on the face and neck. As appellant was striking Laroche, Bell told him to stop and to let Laroche go. Once the beating stopped, Laroche stood up and looked for his designer glasses, which had fallen off. Laroche picked up the glasses, but appellant asked for them. Because he was afraid and did not want further confrontation, and because he did not think he had a choice, Laroche gave appellant his glasses. Standing beside the open trunk, appellant called to Laroche, who feared that appellant planned to put him inside. At that point, Laroche ran away.

Appellant slid into the driver’s seat of the cab, started the car, and drove off, along with Laroche’s driver’s license, immigration papers, and money. Laroche entered the motel, where he found Broder-ick. Bell was still outside the motel lobby. Laroche had motel security call the police, to whom he gave descriptions of his three passengers. Laroche described the woman as having tattoos. He said that appellant was a dark-skinned black man with no hair and indicated that the larger of the two men was in a wheelchair. About 20 minutes after appellant drove off, the police found the cab a few blocks from the Lafayette Motel. Laroche never retrieved his driver’s license, immigration papers, cell phone, or money from the car. The car’s ignition key was also missing.

The next day, Officer Chris Wilson, having been made aware of the Laroche carjacking, spotted a white woman with tattoos, a large black male in a wheelchair, and appellant, in a car at a gas station a few blocks from the site of the carjacking. These three people matched the descriptions of persons involved in the carjacking the day before.

Three days after the incident, Detective Jason Wood contacted Laroche and asked him to view several photographs. Without any prompting from Wood, Laroche recognized appellant’s photograph as depicting his assailant. Laroche testified that he was absolutely sure the person in the photograph was the person who struck him and took his car. He did not make an in-court identification of appellant.

The Carjacking Conviction

Appellant challenges his carjacking conviction with the argument that the use of force, a necessary element of the crime, was too disconnected from the taking of the taxicab. However, viewing the evidence in the light most favorable to the state, sufficient evidence exists to sustain the carjacking conviction.

Three elements comprise carjacking: “[1] the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, [2] with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, [3] when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.133(1), Fla. Stat. (2007). Section 812.133(3)(b), Florida Statutes (2007), further provides that “[a]n act shall be deemed ‘in the course of the taking’ [under element 3] if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” (Emphasis added.)

Appellant focuses on the third element of section 812.133(1), arguing that his taking of the taxicab was an afterthought to the use of force against Laroche. Appellant relies primarily on Flores v. State, 853 So.2d 566 (Fla. 3d DCA 2003), but that case is distinguishable on its facts.

In Flores, the defendant entered a hair salon and took the purses of its owner and patrons, saying he needed money for legal fees in an unrelated matter. Id. at 567. He then barricaded the owner and patrons in the salon’s bathroom, took the owner’s car keys, and drove off with her car. Id. The third district held that the carjacking charge should be reduced to grand theft. Id. The court reasoned that “the use of force” occurred “during the course of the robbery of the [ownerj’s purse in the salon, but not at the time of his subsequent theft of the [ownerj’s automobile outside.” Id. at 570. Further, the court wrote, the owner likely did not know of the theft of her car because she was confined to the bathroom. Id. The court also noted that, because of the defendant’s announced reason for the robbery, “it appears that his theft of the victim’s car was a fortuitous event occasioned only upon his subsequent discovery of the car keys in [the owner’s] purse as he searched for money.” Id. at 570 n. 5.

This case is distinguishable from Flores because appellant’s beating of Laroche intertwined with the taking of the taxicab in time and place, so that the use of force occurred “in the course of the taking” within the meaning of section 812.133(3)(b). Appellant turned off the car’s ignition, engaged the victim about not paying the fare, beat the victim, took his glasses, and drove the taxicab away as the victim watched. Thus, the “use of force, violence, assault, or putting in fear” occurred “prior to” the taking of the property in a “continuous series of acts or events.” § 812.133(3)(b), Fla. Stat. (2007). This was unlike the theft of the car in Flores, which was an afterthought to the purse robbery inside the hair salon.

The connection between the violence and the taking in this case resembles the situation in Baptiste-Jean v. State, 979 So.2d 1091 (Fla. 3d DCA 2008). There,

after tying and beating the victim while attempting to discover the location of valuables in his home, Baptiste-Jean and an accomplice pulled his car keys from his pocket, continued to beat him, and left the house taking the stolen items with them. Then, after loading the car which was parked in the driveway, the perpetrator started the vehicle with the keys and drove away.

Id. at 1092.

The third district held that these facts could support a carjacking conviction, observing that “while the violence involved in taking the keys may have ... occurred ‘prior to’ stealing the car, it took place within a logically interrelated ‘continuous series of acts or events,’ and thus ‘in the course of the taking of the vehicle itself as provided in subsection 812.133(3)(b).” Id. (citations omitted).

The Robbery Conviction

Appellant next challenges the sufficiency of the evidence to support the robbery conviction, which was primarily based on the taking of Laroche’s glasses. We reject that argument, because competent, substantial evidence supports the robbery conviction.

Robbery consists of three elements: “[1] the taking of money or other property which may be the subject of larceny from the person or custody of another, [2] with intent to either permanently or temporarily deprive the person or the owner of the money or other property, [3] when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.13(1), Fla. Stat. (2007). As with the carjacking statute, section 812.13(3)(b), Florida Statutes (2007), provides “[a]n act shall be deemed ‘in the course of the taking’ [under element 3] if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” (Emphasis added.)

Similar to his argument on the carjacking, appellant attacks the connection between the beating of Laroche and the taking of the glasses. However, the taking and the beating were part of a connected, continuous series of events, so that the use of force can be said to have arisen during the course of the taking. Laroche gave up his glasses because the beating made him afraid. This was sufficient evidence to support the robbery conviction.

Testimony Concerning Appellant’s Companions the Day after the Carjacking

Appellant sought to exclude the testimony of Officer Wilson that the day after the carjacking, he saw appellant in the presence of a black man in a wheelchair and a white, tattooed female at a gas station a few blocks from the site of the crime.

Appellant contends that this evidence was irrelevant and tended to convict him based on his choice of associates. A “trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion.” Heath v. State, 648 So.2d 660, 664 (Fla.1994) (citation omitted). The trial court did not abuse its discretion in admitting Officer Wilson’s testimony.

Three sections of the evidence code provide the framework for evaluating questions of relevance. The general rule is that “[a]ll relevant evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2007). “Relevant evidence is [defined as] evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2007). Section 90.408, Florida Statutes (2007), establishes a limitation on the introduction of relevant evidence: “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

Applying these statutes, Officer Wilson’s testimony about appellant’s companions on the day after the carjacking was relevant because it tended to prove the material fact of the identity of Laroche’s assailant. Identity was an issue at trial; although Laroche identified appellant in a photo lineup, he did not identify appellant as the robber at trial. Officer Wilson’s description of appellant, Broderick, and Bell matched the descriptions that Laroche gave to the police shortly after the crime occurred. Appellant’s association with the unusual combination of a large black man in a wheelchair and a woman with tattoos, in the same vicinity as the crime, tended to prove that he was the third person who got into the cab with them the day before. There was no unfair prejudice in this evidence. Unlike the cases cited by appellant, Officer Wilson’s description of the man in a wheelchair and the woman -with tattoos did not involve the admission of hearsay statements. Cf. Zuluaga v. State, 915 So.2d 1251 (Fla. 3d DCA 2005); Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981). The trial judge did not abuse her discretion in admitting the testimony.

The State Failed to Prove All the Elements of Felony Dñving While License Revoked

Under section 322.34, Florida Statutes (2007), a person commits felony driving on a revoked license when (1) his “driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and [2] [he] drives any motor vehicle upon the highways of this state while such license is revoked.” § 322.34(5), Fla. Stat. (2007). Authorizing a revocation for a “habitual traffic offender,” section 322.264, Florida Statutes (2007), provides:

A “habitual traffic offender” is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period.

Subsections (1) and (2) of section 322.264 specify the types of convictions that can give rise to the “habitual traffic offender” designation and suspension. Among these are driving a motor vehicle on a suspended or revoked license and “any violation of s. 316.193” (driving under the influence). § 322.264(l)(b), (d), Fla. Stat. (2007).

The state may use a defendant’s driving record from the Department of Highway Safety and Motor Vehicles to prove the fact of a section 322.264 suspension, that the statutory notice was given, and the convictions that gave rise to the suspension. See Rodgers v. State, 804 So.2d 480, 483 (Fla. 4th DCA 2001). If the record offered by the state fails to designate the requisite convictions to justify the habitual traffic offender designation under section 322.264, then the state has failed to make a prima facie case for a section 322.34 felony violation for driving on a revoked license. See State v. Byrd, 969 So.2d 581, 582 (Fla. 4th DCA 2007); Kallelis v. State, 909 So.2d 544, 545 (Fla. 4th DCA 2005).

Here, the driving record offered by the state failed to prove an essential element of the crime because it did not specify the convictions that gave rise to the habitual traffic offender suspension. We therefore reverse the conviction and sentence for felony driving on a revoked license.

Testimony Regarding Laroche’s Identification of Appellant from a Photo Line-up

Appellant moved pretrial to suppress Laroche’s identification of appellant in a photo line-up, arguing that the “procedure used to elicit the identification from eyewitness Samuel Laroche” was unnecessarily suggestive, resulting in a “substantial likelihood of irreparable misidentification.”

At the hearing on the motion to suppress, Detective Wood testified that on the day after the carjacking, he first encountered appellant, white female Bonnie Bro-derick, and Alvin Bell, a black male in a wheelchair, when law enforcement received a call that a black man was beating a white woman. Appellant, Broderick, and Bell were taken into custody in response to the call. At that time, Broderick told the police about the taxicab carjacking from the night before. Her version was consistent with Laroche’s statement. Based on that information, appellant became a suspect in the carjacking.

The Fort Lauderdale Police Department typically uses a sequential line-up where photographs are not on one sheet of paper, but are shown to a witness one at a time. The officers usually compile the line-ups themselves, the photographs are randomly ordered, and officers are taught to select decoy photographs based on like facial characteristics. While Wood had not taken formal classes in compiling photographic line-ups, he had in-house training and experience. Wood created a photographic line-up in which six photographs, including one of appellant, were shown in sequential order. Appellant’s picture was neither the first nor the last shown to Laroche. Wood used photographs of persons who shared appellant’s facial characteristics, but there were some differences.

Before Wood showed the line-up to La-roche, he admonished him that the suspect might not necessarily be in the line-up and that physical characteristics in the photographs, such as hair, may have changed. When Laroche saw appellant’s picture, he immediately recognized him, and Wood could see “the fear in his eyes.” Laroche told Wood that he was one-hundred percent positive that appellant was his assailant. Wood testified that he did not pressure Laroche or signal to him in any way when Laroche viewed appellant’s photograph.

Laroche testified that during the incident, he was able to get a good look at his assailant, but he was not able to provide a specific description of him. Several days after the carjacking, Laroche was shown the line-up and Wood neither said nor hinted about which photograph to pick. Consistent with Wood’s testimony, La-roche said that he immediately recognized appellant as his assailant. At the hearing, however, Laroche was not able to identify his assailant in the courtroom.

The trial court denied the motion to suppress and, at trial, allowed the testimony about Laroche’s out-of-court identification of appellant.

In determining whether to suppress an out-of-court identification, trial courts employ a two-step test: “(1) [D]id the police employ an unnecessarily suggestive procedure in obtaining an out-of-court identification!;?] (2) [I]f so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification[?]” Grant v. State, 390 So.2d 341, 343 (Fla.1980) (citing Manson v. Brathwaite, 432 U.S. 98, 110, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)). Thus, even if a trial court concludes that the procedure is unnecessarily suggestive under step one, it can admit the resulting out-of-court identification under the second step if the identification “possesses certain features of reliability.” See id. (citing Manson, 432 U.S. at 110, 97 S.Ct. 2243). However, if the court determines that the procedure was not unnecessarily suggestive, it need not reach the second step.

To determine whether an identification is reliable, which involves gauging the likelihood of misidentification, a trial court should consider the following factors:

[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior description of the criminal, [4] the level of certainty demonstrated by the •witness at the confrontation, and [5] the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The use of these factors has been adopted by Florida courts. See, e.g., Grant, 390 So.2d at 343 (quoting Neil, 409 U.S. at 199-200, 93 S.Ct. 375).

Defendant’s argument focuses on the first step of the Neil analysis, asserting that his photograph stood out due to perceived differences in the physical characteristics of the persons in the photographic line-up. This court has written that,

[generally, photographic arrays have been upheld where they have included a reasonable number of persons similar to any person then suspected whose likeness is included in the array. Photographs used in lineups are not unduly suggestive if the suspect’s picture does not stand out more than those of the others, and the people depicted all exhibit similar facial characteristics.

State v. Francois, 863 So.2d 1288, 1289-90 (Fla. 4th DCA 2004) (internal citation omitted).

In three cases involving photo line-up identifications similar to the one in this case, Florida courts have ruled that the police did not use an unnecessarily suggestive procedure.

First, in Green v. State, 641 So.2d 391, 394 (Fla.1994), the supreme court held that a photographic line-up was not unnecessarily suggestive where “[t]he police showed [the victim] an array of six photographs, all of which depicted men with similar characteristics.” The court further found that, “[ajlthough police indicated the suspect was in the photo line-up and [the defendant’s] photograph was darker than the others, there [was] no indication that officers directed [the victim’s] attention to any particular photograph.” Id.

Next, in Johnson v. State, 438 So.2d 774, 777 (Fla.1983), the supreme court did not find a line-up to be unnecessarily suggestive when the defendant argued that “he had a suntan and blonde hair and his inmate uniform was a lighter blue than that of the other inmates in the lineup.” In so holding, the court remarked that witnesses did not indicate that either of the two complained-of differences influenced their identifications. Id.

Finally, in Pierre v. State, 990 So.2d 565, 570 (Fla. 3d DCA 2008), the third district held that a photographic line-up was not unnecessarily suggestive, focusing on the fact that the police officer who administered the line-up “told the victim ... to focus on faces, not hairstyles, because hairstyles may change.”

In the instant case, the trial court based its determination that the line-up was not unnecessarily suggestive on its finding that “[t]here was not one glaring photo that would suggest that the defendant would stick out more so than anybody else.” Officer Wood did not indicate to Laroche which photograph he should choose, nor did he tell Laroche that a suspect was in the line-up. As in Pierre, Wood gave La-roche the standard admonition that physical characteristics, such as hair, may have changed. Substantial competent evidence supports the trial court’s ruling that the police’s handling of the photographic lineup was not unnecessarily suggestive.

Sentencing Issues

We find that the state offered adequate proof of appellant’s previous conviction and release from prison.

We reverse the restitution order because the trial court abused its discretion by not holding a restitution hearing before ordering appellant to pay restitution. Section 775.089(l)(a), Florida Statutes (2007), requires that a court “order the defendant to make restitution to the victim ... unless it finds clear and compelling reasons not to.” “Subsections 775.089(6) and (7) require a hearing!, before restitution is imposed,] to determine both the defendant’s ability to pay and the amount owed.” Exilorme v. State, 857 So.2d 339, 340 (Fla. 2d DCA 2003).

This case is controlled by L.S. v. State, 975 So.2d 554 (Fla. 4th DCA 2008). In the final hearing on a delinquency petition in that case, the owner of the vehicle testified as to the dollar amount of the damage done to his car by the child. Id. at 555. After finding the child guilty of delinquency, the trial court imposed restitution, basing its amount on the hearing testimony of the owner. Id. We held that the trial court erred by imposing restitution without notice or hearing:

While the testimony ... was sufficient to prove guilt, it was not by itself sufficient to fix the amount of restitution at that point. Nothing in the record up to that point placed the child on notice that the amount of restitution would be determined solely on the basis of the evidence adduced at the [final hearing].... Without such notice, the child [could not know] he would have to offer evidence as to the amount of any potential restitution at the hearing to determine whether he was even guilty of the charge.

Id.

Similar to L.S., the court in this case based its restitution order on Laroche’s testimony at trial. At sentencing, the trial court broached the issue abruptly, segueing from argument on the length of incarceration to restitution. Appellant timely objected to a restitution award without a hearing. Additionally, the trial court did not consider appellant’s financial resources or ability to pay. See § 775.089(6)(b), Fla. Stat. (2007); Filmore v. State, 656 So.2d 535 (Fla. 4th DCA 1995). For these reasons, we reverse the restitution order and remand for an evidentiary hearing.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

TAYLOR and HAZOURI, JJ., concur.

      . Vasquez v. State, 763 So.2d 1161, 1162 n. 2 (Fla. 4th DCA 2000) (citing Brennan v. State, 754 So.2d 1, 3 (Fla.1999)).


author: WELLS, Judge.

text:
    JESSLA CONSTRUCTION CORPORATION, Appellant, v. MIAMI-DADE COUNTY SCHOOL BOARD, Appellee.
    No. 3D09-361.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.
    Rehearing and Rehearing En Banc Denied Jan. 19, 2010.
    Duane Morris, Charles C. Papy, III, Lida Rodriguez-Taseff, and Warren D. Zaffuto, Miami, for appellant.
    Tews Cardenas, Joseph A. DeMaria and Brett M. Halsey, Miami, for appellee.
    Before COPE, WELLS, and CORTINAS, JJ.
   WELLS, Judge.

Jessla Construction Corporation appeals from a final judgment in favor of the Miami-Dade County School Board on Jessla’s wrongful termination claim. We affirm the judgment because the trial court correctly concluded that (1) the parties’ contract expressly authorizes either the project architect or “its authorized representative,” to certify that cause exists to terminate Jessla’s employment; (2) the individual who signed the termination certification was a representative of project architect, authorized to certify as to cause for Jessla’s termination; and, (3) the termination certification complied with the requirements of the contract so as to permit the School Board to terminate Jessla’s employment. Because the trial court’s determination that no new architect was employed on this project so as to require a new or additional certification is supported by competent, substantial evidence, and because we find no merit in any of Jessla’s remaining claims, we affirm the judgment on appeal.

Affirmed.


author: LAGOA, Judge.

text:
    NINE ISLAND AVENUE CONDOMINIUM ASSOCIATION, INC., Appellant, v. William SIEGEL, Appellee.
    No. 3D08-3084.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.
    Rehearing and Rehearing En Banc Denied Jan. 19, 2010.
    Becker & Poliakoff and David H. Rogel and Lilliana M. Fariñas-Sabogal, Coral Gables, for appellant.

      Nancy C. Wear; Diaz, Reus & Targ and Gary E. Davidson, Miami, for appellee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   LAGOA, Judge.

Nine Island Avenue Condominium Association, Inc. (“Association”) appeals from a final judgment awarding attorney’s fees to William Siegel (“Siegel”) following the trial court’s denial of a petition for temporary injunctive relief. Because we find the awarding of fees to be premature, we reverse.

The Association is the entity responsible for maintaining the common elements at the Nine Island Avenue Condominium located on Williams Island. The Association hired a contractor to perform structural concrete restoration repairs to the exterior of the condominium building. In order to make the repairs the contractor required access to Siegel’s unit, which Siegel denied.

On February 5, 2008, the Association filed a verified petition for non-binding arbitration, pursuant to section 718.1255, Florida Statutes (2008), before the Florida Department of Business and Professional Regulation. The Association sought:

[A]n order allowing its [cjontractor access to the unit owned by the [rjespon-dent to perform the work required in connection with concrete restoration, to recover damages for delays which have been caused in the work as a result of the inability to obtain access and to award [p]etitioner’s costs and reasonable attorneys’ fees incurred herein.

With its petition, the Association also filed a motion for temporary injunction and/or to stay/abate seeking either a temporary injunction to allow access to the unit, or an order abating the arbitration in order to allow the Association to seek injunctive relief in a court of competent jurisdiction. The arbitrator subsequently entered an order holding the arbitration in abeyance so that the Association “may seek injunctive relief in court.”

The Association then filed a petition for temporary injunctive relief in the trial court. After an evidentiary hearing, the trial court denied the petition finding that the Association did not establish that the work needed to be done on an emergency basis, and that it had an adequate remedy available to it in the pending arbitration proceeding.

Siegel then filed a motion for entry of judgment awarding attorney’s fees and costs as the prevailing party pursuant to both section 718.303, Florida Statutes (2008), and the Declaration of Condominium of Nine Island Avenue. After a hearing, the trial court granted the motion and subsequently entered a final judgment awarding attorney’s fees in favor of Siegel in the amount of $18,234. The Association appeals from the award of fees.

On appeal, the Association argues that the trial court erred in awarding prevailing party fees to Siegel at this stage in the proceeding. Specifically, the Association asserts that because the matter is still pending in arbitration, there has yet to be a final determination of the merits of the case sufficient to justify an award of prevailing party fees. Siegel, however, argues that the trial court’s denial of the Association’s petition for injunctive relief was a final appealable determination of the matter and that the trial court properly awarded fees to him as the prevailing party-

As this Court explained in Burnstein v. 5838 Condo., Inc., 430 So.2d 572, 572 (Fla. 3d DCA 1983), when a trial court enters a preliminary injunction, it is an interlocutory order, and as such “there can be no prevailing party for the purpose of awarding attorney’s fees until there is an end to the litigation.... ” In Bumstein, this Court concluded that an action for eviction and breach of lease remained pending after the association obtained a preliminary injunction against a tenant for noise abatement.

The same reasoning applies, as here, where the trial court has denied a petition seeking preliminary relief. An award of prevailing party fees must be based upon a final determination of the merits of the case. Steinhardt v. Eastern Shores White House Ass’n, Inc., 413 So.2d 785, 786 (Fla. 3d DCA 1982) (“In order that there be a prevailing party and a losing party, there must necessarily be a disposition of the case or controversy as by judgment or order.”); accord Allstar Builders Corp., Inc. v. Zimmerman, 706 So.2d 92, 92 (Fla. 3d DCA 1998) (“The prevailing party for attorney’s fees purposes is the party prevailing on the significant issues tried before the court.”). Therefore, even though a party is successful on an intermediate or interlocutory claim, that party is not entitled to prevailing party fees if the ultimate result is in favor of the other party. Kirou v. Oceanside Plaza Condo. Ass’n, Inc., 425 So.2d 650 (Fla. 3d DCA 1983) (finding that trial court erred in awarding fees to association, which had been successful on unit owner’s counterclaim, where, after trial, it ruled in favor of unit owner on the merits). This principle applies where the ultimate result is to be determined through arbitration. See Capron Trail Cmty. Dev. Dist. v. Frenz Enters., Inc., 674 So.2d 875 (Fla. 4th DCA 1996) (holding that trial court’s award of attorney’s fees to plaintiff in declaratory action was premature where arbitration concerning the contract was still pending).

Here, the Association petitioned for a temporary injunction seeking access to the unit to allow for repairs it claimed were necessary. After the denial of the petition, the matter was returned to arbitration. While we note that the trial court could have granted Siegel’s motion for fees conditionally upon his ultimate success in arbitration, the trial court instead awarded Siegel $18,234 in attorney’s fees and entered judgment in his favor as the prevailing party.

We therefore find that the trial court’s award of fees was error as the non-final order denying the petition for injunction did not end the litigation between the parties. Because no final determination on the merits has yet been made, no prevailing party exists, and we reverse the trial court’s entry of final judgment awarding attorney’s fees to Siegel.

Reversed and remanded for proceedings consistent with this opinion.

      . That section provides, in relevant part:
      718.303. Obligations of owners; waiver; levy of fine against unit by association (1) Each unit owner, each tenant and other invitee, and each association shall be governed by, and shall comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws and the provisions thereof shall be deemed expressly incorporated into any lease of a unit. Actions for damages or for injunctive relief, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against:
      (a) The association.
      (b) A unit owner.

        The prevailing party in any such action or in any action in which the purchaser claims a right of voidability based upon contractual provisions as required in s. 718.503(l)(a) is entitled to recover reasonable attorney’s fees.

      (emphasis added).

      . Section XVII B. of the Declaration states:
      In any proceeding arising because of an alleged failure of a Unit owner to comply with the terms of the Declaration, the Articles of Incorporation and By-Laws of the Association, and any and all rules of regulations adopted pursuant thereto, as they may be amended from time to time, the prevailing party shall be entitled to recover the costs of the proceeding and such reasonable attorney fees (at the trial level and at all levels of appeal) as may be awarded by the court.

      . During the pendency of this appeal, the Association prevailed in the arbitration proceeding involving the Association's claim for damages caused by the delay in access, as well as the claim for access to the unit itself. Pursuant to section 718.1255(4)(k), Florida Statutes (2009), the prevailing party in the arbitration is entitled to the costs and reasonable attorney's fees once the arbitration award is final. An arbitration decision is final if the parties have agreed to be bound by the arbitrator’s decision. See id. An arbitration decision is also final if a complaint for a trial de novo is not filed in a court of competent jurisdiction within 30 days of the arbitration decision. Id. Because the time for filing such a complaint has not yet expired, a final determination of the merits of this case still remains pending. If a complaint for a trial de novo is filed, the parties must await a determination in that proceeding to ascertain the prevailing party for purposes of fees and costs.


author: PER CURIAM.

text:
    William NEVERS, Appellant, v. ELECTRIC MOBILITY CORPORATION, a New Jersey Corporation, Appellee.
    No. 3D08-2358.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 2009.
    Rehearing Denied Jan. 20, 2010.
    Phillip J. Goldstein, Miami; Hersch & Talisman and Patrice A. Talisman, Coconut Grove, for appellant.
    Wilson, Elser, Moskowitz, Edelman, Dicker and Anthony P. Strasius and Edgardo Ferreyra, Jr., Miami, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Tengbergen v. State, 9 So.3d 729, 736 (Fla. 4th DCA 2009) (citing Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001)).


author: GERBER, J.

text:
    Darrell PRESCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1786.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GERBER, J.

The defendant below appeals his conviction for fleeing and eluding a law enforcement officer under section 316.1935(1), Florida Statutes (2006). The defendant argues that the crime’s standard jury instruction uses a word different from the statute, and that the trial court erred in denying the defendant’s request to use the correct word from the statute. We find the terminology difference to be immaterial and affirm.

Section 316.1935(1) provides, in pertinent part, “[i]t is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order.” § 316.1935(1), Fla. Stat. (2006) (emphasis added). However, the standard jury instruction provides that, to prove this crime, the State must prove the following three elements:

1. [Defendant] was operating a vehicle upon a street or highway in Florida.
2. A duly authorized law enforcement officer ordered the defendant to stop or remain stopped.
3. [Defendant], knowing [he][she] had been directed to stop by a duly authorized law enforcement officer ... willfully refused or failed to stop the vehicle in compliance with the order.

Fla. Std. Jury Instr. (Crim.) 28.6 (emphasis added).

The defendant requested the trial court to replace the word “directed” in paragraph 3 with “ordered” as used in the statute. The defendant alleged that “directed” somehow broadens the crime’s scope beyond the statute’s intent. The trial court decided to follow the standard instruction. After the defendant’s conviction, this appeal followed.

The defendant has the burden of demonstrating that the trial court abused its discretion in giving the standard instruction. Stephens v. State, 787 So.2d 747, 755-56 (Fla.2001). The defendant has not met his burden. We recognize that, “[w]hile the standard jury instructions are intended to assist the trial court in its responsibility to charge the jury on the applicable law, the instructions are intended only as a guide, and can in no [way] relieve the trial court of its responsibility to charge the jury correctly in each case.” Steele v. State, 561 So.2d 638, 645 (Fla. 1st DCA 1990). However, we find the words “ordered” and “directed,” as used in the standard instruction, are synonymous. Accordingly, the instruction’s use of “directed” in paragraph 3 is immaterial. Thus, the trial court did not abuse its discretion in following the standard instruction and rejecting the defendant’s requested instruction. See Duncan v. State, 986 So.2d 653, 656 (Fla. 4th DCA 2008) (“An appellate court will not reverse a trial court’s decision regarding a jury instruction absent prejudicial error that would result in a miscarriage of justice.”).

To avoid this issue from recurring, we encourage the Supreme Court Committee on Jury Instructions in Criminal Cases to replace the word “directed” with “ordered” in paragraph 3 of the standard instruction.

Affirmed.

POLEN and MAY, JJ., concur.


text:
    Maureen KOSZOLA and John Koszola, Appellants, v. SARATOGA BAY HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, Appellee.
    No. 4D08-4172.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Rehearing Denied Jan. 29, 2010.
    Maureen Koszola and John Koszola, West Palm Beach and Downers Grove, Illinois, pro se.
    Siobhan Helene Shea of Siobhan Helene Shea Appellate Practice, Palm Beach, for appellee.
   GERBER, J.

We affirm the trial court’s final judgment granting declaratory and injunctive relief to the appellee on the finding that the appellants violated the appellee’s declaration and rules and regulations regarding signage and nuisance. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (‘Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”).

We also affirm the denial of the appellants’ post-judgment motions seeking to disqualify the trial court. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1338 (Fla.1990) (“[W]e cannot operate a judicial system ... on the basis of the factually unsubstantiated perceptions of the cynical and distrustful.”) (citation omitted); State v. Shaw, 643 So.2d 1163, 1165 (Fla. 4th DCA 1994) (“Motions to disqualify shall not be used by disgruntled litigants as mere licenses to judge-shop.”).

Affirmed.

POLEN and MAY, JJ., concur.


text:
    Jorge CASTRO, Appellant, v. STATE of Florida, Appellee.
    No. 4B09-1095.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Jorge Castro, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jorge Castro appeals the summary denial of his motion for postconviction relief, which alleged four grounds. Castro’s first point is not refuted by the record and should be considered at an evidentiary hearing. At issue is Castro’s claim that counsel failed to use, at trial, telephone records which he claims reflect that he was on a telephone call at the exact time he was allegedly pointing a rifle at the police. The other grounds alleged in the motion for postconviction relief were properly denied as legally inadequate or conclusively refuted by the record.

Affirmed in part, reversed in part, and remanded.

GROSS, C.J, WARNER and DAMOORGIAN, JJ., concur.


text:
    Nicholas DIMONDA, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-164.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Rehearing Denied Jan. 28, 2010.
    Dan Hallenberg of The Law Office of Dan Hallenberg, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Nicholas Dimonda appeals the twenty-five year sentence imposed following the revocation of his probation, claiming the trial court misconceived the law in declining to impose a downward departure sentence. The trial judge’s comments during the sentence hearing showed that he was aware of his authority to depart but simply exercised his discretion in declining to do so. Accordingly, we dismiss the appeal as we are without jurisdiction to consider a challenge that the trial court abused its discretion in declining to enter a downward departure sentence. Hochhauser v. State, 785 So.2d 1239 (Fla. 4th DCA 2001); see also Marshall v. State, 978 So.2d 279 (Fla. 4th DCA 2008).

Dismissed.

WARNER, FARMER and LEVINE, JJ., concur.


text:
    TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, et al., Appellants, v. DYNALECTRIC COMPANY, Appellee.
    No. 3D09-901.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    May, Meacham & Davell, William C. Davell, and Christopher D. Barber, Fort Lauderdale, for appellants.
    Moore & Lee, Stuart H. Sakwa, and Joshua M. Atlas, Ft. Lauderdale; Sutherland Asbill & Brennan and Benjamin Sawyer, for appellee.
    Leiby Stearns and Roberts and Robert S. Tanner, Sunrise, for Associated Builders and Contractors Florida East Coast Chapter, Inc., as amicus curiae.
    Before GERSTEN, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Based on the first-to-perfect rule, see, e.g., Hollywood Lakes Country Club, Inc. v. Silver & Waldman, P.A., 737 So.2d 1194 (Fla. 3d DCA 1999), this cause is reversed, and remanded with instructions that the cause be transferred to the Broward County Circuit Court.

Reversed and remanded with instructions.


text:
    Cedrick CRAFT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-170.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Cedrick Craft, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, LAGOA, and SALTER, JJ.
   PER CURIAM.

Appellant Cedrick Craft’s appeal is dismissed as this Court lacks jurisdiction. Appellant’s motion to rectify the court record is not an appealable order. Additionally, to the extent that Appellant is appealing the January 29, 2008 order denying his Rule 3.850 post-conviction motion through a filing styled “Motion to Rectify Court Record,” the trial court’s denial of the motion to rectify — even if treated as a motion for rehearing — was not timely filed within 15 days of the trial court’s order denying the Rule 3.850 motion, and, therefore, did not delay rendition of the January 29, 2008 order. See Cole v. State, 905 So.2d 905 (Fla. 1st DCA 2005).

Dismissed.


text:
    Jean NORVILUS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2222.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Jean Norvilus, in proper person, for appellant.
    Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and SHEPHERD and ROTHENBERG, JJ.
   PER CURIAM.

The defendant, Jean Norvilus, appeals a trial court order denying his motion to withdraw his guilty plea because it was untimely. Norvilus pled guilty to second-degree murder and the trial court sentenced him to a twenty-five-year minimum mandatory sentence on June 16, 2008. On July 15, 2008, Norvilus submitted his motion to withdraw his guilty plea to the South Florida Reception Center for mailing. The clerk of the court filed the motion on July 25, 2008. In its order, the trial court stated the defendant’s motion was filed on July 25, 2008, and denied it as untimely.

When a pro se inmate files a motion, the mailbox rule applies, in which the motion is deemed to be filed at the moment the inmate loses control over the document by entrusting its further delivery or processing to agents of state. Haag v. State, 591 So.2d 614, 617 (Fla.1992). Thus, Norvi-lus’s motion is deemed to be filed on the date he handed the motion to the South Florida Reception Center, which was July 15, 2008. Because Norvilus filed within thirty days of the date of sentencing, pursuant to Florida Rule of Criminal Procedure 3.170(i), we reverse for further proceedings on the merits.


text:
    Rodrigo BONILLA, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D09-3209.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Rodrigo Bonilla, in proper person.

      Bill McCollum, Attorney General, for respondent.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   PER CURIAM.

We deny the defendant’s petition for writ of habeas corpus arguing ineffective assistance of appellate counsel. However, to preserve the defendant’s rights, we certify direct conflict with Montgomery v. State, - So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), which is currently pending review before the Florida Supreme Court. State v. Montgomery, 11 So.3d 943 (Fla.2009).

Habeas corpus denied; conflict certified.


text:
    Earl MURRAY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3106.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Earl Murray, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Earl Murray seeks certiorari review in this Court of a trial court order treating Defendant’s “Motion for Writ of Error Co-ram Nobis 3.800(A) of Lack of Subject Matter Jurisdiction” as a motion for post-conviction relief, pursuant to Florida Rule of Criminal Procedure 3.850, and denying the same as untimely. We treat Murray’s certiorari petition as a notice of appeal and affirm.


text:
    Edward J. LOCASCIO, Appellant, v. David GOLDBERG and Steven Befera, Appellees.
    No. 3D09-1496.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Rehearing Denied Jan. 20, 2010.
    Austin Carr, Coral Gables, for appellant.
    Rojas Law Firm and Teresa Gail Sosby, Miami, for appellee, Goldberg; Josephs Jack and Susan S. Lerner, Miami, for ap-pellee, Befera.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378 (Fla.1993).


author: LaROSE, Judge.

text:
    Brian GADDY, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1469.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Brian Gaddy appeals the trial court’s order revoking his probation. The trial court found that Mr. Gaddy violated three probation conditions: failing to report to his probation officer (condition two), moving from his approved residence without permission (condition four), and committing four new law violations (condition five). Mr. Gaddy argues that only hearsay testimony established the alleged violations of condition five. He seeks a new revocation hearing to determine if the trial court would revoke probation solely on the remaining two grounds. The State concedes error as to the evidence supporting the new law violations. However, the State contends, and we agree, that competent, substantial evidence otherwise supports the probation revocation. It is only necessary to remand to correct the trial court’s order.

The trial court placed Mr. Gaddy on two years’ probation in September 2008, for fleeing or attempting to elude a law enforcement officer in a vehicle driven at high speed or with wanton disregard for persons or property, a second-degree felony. See § 316.1935(3)(a), Fla. Stat. (2007). In December 2008, Mr. Gaddy moved from his approved residence without prior permission. The Department of Corrections did not know his whereabouts and, thus, classified him as an absconder. Mr. Gad-dy also failed to report to his probation officer. An affidavit of violation was filed alleging these violations of conditions two and four.

Subsequently-filed affidavits alleged that Mr. Gaddy committed four new law violations, in violation of condition five. At the revocation hearing, the State presented only hearsay evidence to support these violations. A trial court may consider hearsay testimony at a violation of probation hearing. See Robinson v. State, 744 So.2d 1188, 1189 (Fla. 2d DCA 1999). But, hearsay may not be the sole basis supporting a ground for revocation. Id. at 1189 n. 1 (citing Kipp v. State, 657 So.2d 931, 932 (Fla. 2d DCA 1995)); Franklin v. State, 226 So.2d 461, 462 (Fla. 2d DCA 1969) (explaining that the introduction of hearsay in a revocation hearing is not error per se, so long as there is other proper and legally admissible evidence upon which the trial court can base its decision to revoke probation on a specific ground). The State failed to prove by competent, substantial evidence that Mr. Gaddy violated condition five.

Nevertheless, the State established violations of conditions two and four by competent, substantial evidence. Standing alone, these violations justify revocation of probation. See Franklin, 226 So.2d at 462; Robinson v. State, 773 So.2d 566, 567-68 (Fla. 2d DCA 2000) (striking three grounds for revocation of probation but affirming revocation where defendant violated condition requiring him to file monthly reports); Green v. State, 19 So.3d 449 (Fla. 2d DCA 2009) (holding that revocation of probation and sentence need not be reconsidered where one condition was not established but where competent, substantial evidence supported the trial court’s findings of violations of other conditions). We are convinced beyond a reasonable doubt that the trial court would have revoked probation on these two grounds alone.

Accordingly, we affirm the revocation of Mr. Gaddy’s probation and the three-year prison sentence imposed. We remand for the trial court to strike the findings of violations of condition five and to enter a corrected revocation order reflecting violations of conditions two and four. Mr. Gad-dy need not be present for the correction of the revocation order.

ALTENBERND and WHATLEY, JJ„ Concur.


text:
    Christopher Todd McCORMICK, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D08-5591, 2D08-5592.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.

      James Marion Moorman, Public Defender, and Jean Marie Henne, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Mr. McCormick may have to file a timely and facially sufficient motion, pursuant to Florida Rule of Criminal Procedure 3.850, seeking to withdraw his plea on the ground that it was involuntary because he was misadvised as to whether the East Pasco County sentences would be concurrent to previously imposed West Pasco County sentences. See Sawyers v. State, 566 So.2d 942 (Fla. 2d DCA 1990); Raben v. State, 715 So.2d 331 (Fla. 1st DCA 1998).

SILBERMAN, VILLANTI, and LaROSE, JJ., Concur.


author: SUAREZ, J.

text:
    Maximo M. MARTIN, Appellant, v. DEPARTMENT OF REVENUE, on behalf of Yolanda D. MENDIETA, Appellee.
    No. 3D09-1780.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Maximo M. Martin, in proper person.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Tallahassee, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and SHEPHERD and SUAREZ, JJ.
   SUAREZ, J.

Affirmed. See Macias v. Dep’t of Revenue ex rel. Garcia, 16 So.3d 985 (Fla. 3d DCA 2009).


text:
    Delbis DIAZ, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D06-3141, 3D06-3229, 3D07-708.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before WELLS, CORTINAS and ROTHENBERG, JJ.
   WELLS, Judge.

These consolidated appeals arise from issues associated with the resentencing of defendant Delbis Diaz in lower tribunal case number F95-29916, following this court’s remand. See Diaz v. State, 913 So.2d 707 (Fla. 3d DCA 2005). In case 3D07-708, Diaz appeals the final order rendered October 23, 2006, which denied Diaz’ motion for disqualification of the trial judge. We find no merit to Diaz’ claim and accordingly affirm the order denying that motion. In cases 3D06-3141 and 3D06-3229, Diaz appeals the denial of his motions for post conviction relief, which argued that on resentencing, an illegal sentence was imposed. Diaz asserts that “[t]he Trial Court erred in finding that Appellant was a Habitual Offender without making the requisite statutory findings”; and that “[t]he Trial Court erred in failing to make the required findings to support a conviction for a third degree felony or a misdemeanor of the criminal mischief offense that was used for habitual offender enhancement.” In a supplemental brief filed on Diaz’ behalf, it is additionally argued that “during Mr. Diaz’ resentencing hearing, the trial court erred in relying on transcripts of an earlier sentencing hearing as proof that Mr. Diaz qualified to be sentenced as a habitual offender.” We likewise find no merit to any of these claims. The record confirms the sentence imposed was not an illegal sentence.

Accordingly, we affirm the consolidated cases.


author: ROTHENBERG, J.

text:
    Jason A. ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-659.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and ROTHENBERG, JJ.
   ROTHENBERG, J.

Jason A. Robinson (“Robinson”) appeals from two trial court orders revoking his probation in case number 97-29016 (wherein Robinson was serving the probationary portion of his sentence for lewd assault and sexual battery), and case number 98-39739-00 (wherein Robinson was serving the probationary portion of his sentence for conspiracy to violate Florida’s RICO Act and shooting a deadly missile). Because we find that both grounds raised by Robinson in this appeal are well-taken, we grant the relief requested.

First, Robinson claims that there was insufficient evidence to support the trial court’s finding that he violated his probation by committing the offense of perjury in an unofficial proceeding. We agree and note that the State properly confesses error as to this claim. Second, Robinson correctly contends that the written orders revoking his probation do not conform to the trial court’s oral pronouncement because the orders state that one of the grounds for revocation of Robinson’s probation was his failure to pay the costs of his supervision and court costs, but the trial court made no such oral finding.

Because there are other substantial violations remaining, and they are supported by competent substantial evidence, we affirm the revocation of Robinson’s probation but remand with instructions to strike the findings that the defendant violated his probation by committing perjury in an unofficial proceeding and by failing to pay the costs of his suspension and court costs. See Crawford v. State, 982 So.2d 1 (Fla. 2d DCA 2008); Rojas v. State, 484 So.2d 629, 680 (Fla. 3d DCA 1986).

Affirmed, but remanded with, instructions to enter a corrected order.


text:
    G.F.B. ENTERPRISES, LLC, Appellant, v. John NIVEN and Mary Niven, Appellees.
    No. 3D09-924.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Kirschbaum, Birnbaum, Lippman & Gregoire and Nancy Gregoire, Fort Laud-erdale; Goldsmith & Atlas and Glen Goldsmith and Mark Atlas, Miami, for appellant.
    Robin Bresky, Boca Raton, for appel-lees.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965); Estate of Orlanis ex rel. Marks v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So.2d 811 (Fla. 3d DCA 2007), review denied, 991 So.2d 387 (Fla.2008); Niven v. G.F.B. Enters., LLC, 849 So.2d 1093 (Fla. 3d DCA 2003).


text:
    Carol Bernadette SUE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-160.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Clayton R. Kaeiser, Miami, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See State v. Freijo, 987 So.2d 190 (Fla. 3d DCA 2008).


text:
    Charles YOUNG, Appellant, v. Walter A. McNEIL, Secretary Florida Department of Corrections, Appellee.
    No. 3D09-429.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Charles Young, in proper person.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and CORTINAS, JJ.
   PER CURIAM.

This is an appeal of an order denying a petition for writ of habeas corpus. In his petition, Charles Young challenged the sufficiency of the evidence to support his conviction for capital sexual battery. The trial court denied the petition, and the defendant has appealed.

In the answer brief, the State argues that we should affirm because the petition was filed in the incorrect court. Although the petitioner is incarcerated in Miami-Dade County, the conviction was imposed by the Circuit Court of the Fifth Judicial Circuit in and for Marion County, Florida. “ ‘[A] circuit court has no jurisdiction to review the legality of a conviction in another circuit....’” Calloway v. State, 699 So.2d 849, 850 (Fla. 3d DCA 1997) (quoting State v. Broom, 523 So.2d 639, 641 (Fla. 2d DCA 1988)); see also Johnson v. State, 947 So.2d 1192, 1192-93 (Fla. 3d DCA 2007). We therefore affirm on the basis that the petition was filed in the wrong court. This ruling is without prejudice to the petitioner to refile in the Fifth Judicial Circuit. We express no opinion on the merits of the petitioner’s claim, nor any opinion on whether habeas corpus is an appropriate remedy under the circumstances of this case.

Affirmed.


author: McCANN, JAMES W., Associate Judge.

text:
    Casey REEVES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4997.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.
    Carey Haughwout, Public Defender, and Margaret Good Earnest, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   McCANN, JAMES W., Associate Judge.

On April 14, 2008, the Appellant, Casey Reeves, entered into a negotiated plea bargain with the State which was accepted by the court. The Appellant was immediately adjudicated and sentenced to five years in the Department of Corrections, with the agreement that he would be furloughed until the mitigation hearing. If he timely appeared at the mitigation hearing without any new law violations, his sentence would be reduced to a year and one day in the Department of Corrections. For reasons not germane to this appeal, the actual mitigation hearing did not occur until November 13, 2008, at which time the court found that the Appellant had a new law violation, and denied the Motion to Mitigate.

Since the State, the defendant and the court agreed at the time of the Change of Plea, Judgment and Sentence, that the defendant would be entitled to a mitigation of sentence hearing sixty-three days after the date sentence was imposed, we treat that as a stipulated motion and order, pursuant to Rule 3.050, Fla. R.Crim. P., to enlarge the sixty day time limit to file and hear a Rule 3.800(c) motion to mitigate sentence. The sixty day time limit would otherwise be jurisdictional. See State v. Woodard, 866 So.2d 120 (Fla. 4th DCA 2004); Seeber v. State, 956 So.2d 1240 (Fla. 4th DCA 2007).

However, this does not result in an enlargement of time to file a notice of appeal of an alleged violation of the plea agreement pursuant to Rule 3.170(1), Fla. R.Crim. P., and Rule 9.140(b)(2)(A)(ii)(b). A notice of appeal on such grounds was required to be filed within thirty days of the Judgment and Sentence.

The plea agreement entered into by the Defendant, the State and the court resulted in an immediate adjudication and sentence to five years in the Department of Corrections with a contemplated furlough of sixty-three days, at which time the Appellant would turn himself in to the trial court; and, if there were no new law violations, his sentence would be mitigated to one year and one day in the Department of Corrections. Unlike the more common plea agreement whereby the plea is entered and accepted by the court, followed by an agreed upon postponed sentencing date (with the term of sentence conditioned on the defendant timely appearing for sentencing without any new law violations), the method employed in this case by the State, Appellant and the court resulted in all applicable time periods beginning to run on the date of sentencing, including, but not limited to, the thirty day time period to file a notice of appeal.

We are compelled to treat this case in the posture that it comes to us. Both the Notice of Appeal and the Statement of Judicial Acts to be Reviewed reflect that this court is to review the trial court’s Denial of the Defendant’s Motion to Mitigate Judgment of Conviction and Sentence. It is well settled that an order denying a motion to mitigate a judgment and sentence pursuant to Rule 3.800(c), Fla. R.Crim. P., is a non-appealable order. Howard v. State, 914 So.2d 455 (Fla. 4th DCA 2005); Brovm v. State, 954 So.2d 1253 (Fla. 4th DCA 2007); Oser v. State, 699 So.2d 844 (Fla. 4th DCA 1997).

Accordingly, we sua sponte dismiss the appeal.

WARNER and LEVINE, JJ., concur.

      . Judgment and Sentence was entered in this cause on April 14, 2008. An amended Notice of Appeal of the "Denial of Defendant’s Motion to Mitigate Judgment of Conviction and Sentence” was filed on December 8, 2008. The defendant may still seek review of the perceived errors alleged on this appeal pursuant to a timely filed motion pursuant to Rule 3.850, Fla.R.Crim.P.


text:
    ACTION FABRICATION, INC., Appellant, v. CALDER RACE COURSE, INC., Appellee.
    No. 3D08-3230.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Mineo & Mineo and Peter Mineo, Jr., Fort Lauderdale; Marjorie Gadarian Graham, Palm Beach Gardens, for appellant.
    Isicoff, Ragatz & Koenigsberg and Eric D. Isicoff and Teresa Ragatz, Miami, for appellee.
    Before COPE, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See § 489.128, Fla. Stat. (2005).


author: CORTEÑAS, J.

text:
    Louis LaTORRE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D09-151.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Hugh J. Morgan, Key West, for appellant.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before COPE, CORTINAS, and ROTHENBERG, JJ.
   CORTEÑAS, J.

Louis LaTorre filed a motion for appointment of a public defender to represent him during an appeal and subsequently filed an application for determination of indigent status with the clerk of the court. When seemingly no action was taken by the clerk following receipt of the application, LaTorre set his motion for hearing. The clerk was asked by the judge at the hearing whether LaTorre had filed the requisite financial affidavit, and the clerk responded that the affidavit should be in the file and added “I believe he was — he did qualify.” Despite the statement made by the clerk, it is undisputed that no determination of indigence was made on the face of the application. The trial court inquired about LaTorre’s financial status, the amount of the bond posted on his behalf, the attorney’s fees expended in defending his case, and LaTorre’s transfer of his property to his wife. After considering LaTorre’s testimony, the trial court determined that LaTorre was not indigent and denied his motion.

Section 27.52(3), Florida Statutes (2008), provides:

APPOINTMENT OF COUNSEL ON INTERIM BASIS. — If the clerk of the court has not made a determination of indigent status at the time a person requests appointment of a public defender, the court shall make a preliminary determination of indigent status, pending further review by the clerk, and may, by court order, appoint a public defender, the office of criminal conflict and civil regional counsel, or private counsel on an interim basis.

Because there is no evidence that the clerk had conclusively determined that La-Torre was in fact indigent, we find no error in the trial court making a preliminary determination that LaTorre was not indigent. We remand for the clerk to make a determination under section 27.52, Florida Statutes (2008). On remand, La-Torre’s homestead property shall not be considered in the determination of indigent status. See § 27.52(2)(a)(2), Fla. Stat. (2008).

Affirmed and remanded with instructions.