text:
    Joshua WEST, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2748.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2009.

      Joshua West, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the denial of his rule 3.800(a) motion seeking credit for seven days of jail time served in Georgia. We affirm because the relief that Appellant is seeking is not available under rule 3.800(a), but rather must be raised on direct appeal or in a timely rule 3.850 motion. See Gomez v. State, 984 So.2d 577, 578 (Fla. 4th DCA 2008) (“[A] claim seeking additional jail credit for time served in jail in another state is not cognizable in a 3.800(a) motion.”); Garnett v. State, 957 So.2d 32, 33 (Fla. 2d DCA 2007) (en banc) (“If a defendant is seeking out-of-state jail credit in a postconviction proceeding, it would appear that the proper method to seek such relief would normally require a timely allegation of ineffective assistance of trial counsel under rule 3.850.”).

The result in this case would have been the same even if the trial court had properly considered Appellant’s motion under rule 3.850. Therefore, we see no reason to remand this case to the trial court for consideration under that rule.

First, the motion is legally insufficient under rule 3.850 because it was not signed and is not under oath as required by paragraph (c) of the rule.

Second, even if the motion had been signed and under oath, summary denial would have been appropriate under paragraph (d) of the rale because the record reflects that Appellant was arrested in Camden County, Georgia, for two violations of Georgia law—noise violation (loud music from vehicle) and driving with suspended license'—not for his outstanding Duval County warrant. Thus, as found by the trial court, the face of the record refutes Appellant’s assertion that he was being held in Georgia “solely for the Duval County warrant, and no other charge or reason.”

Third, the law is clear that a defendant is not “entitled” to credit for time served in another state even if the Florida case is the sole basis for defendant’s incarceration in the other state. See Kronz v. State, 462 So.2d 450, 451 (Fla.1985) (holding that the award of such credit is within the trial court’s “inherent discretionary authority”). This being so, a defendant is certainly not “entitled” to credit for out-of-state time served unrelated to the Florida case, and we are unaware of any authority that would even permit the trial court to award credit under such circumstances. Thus, even if Appellant’s trial counsel failed to preserve this issue for direct appeal by requesting that the trial court give Appellant credit for the time served in Georgia, counsel could not have been ineffective for failing to do so.

We recognize that the supreme court held in State v. Mancino, 714 So.2d 429, 433 (Fla.1998), that “credit time issues are cognizable in a rule 3.800 motion when it is affirmatively alleged that the court records demonstrate on their face an entitlement to relief.” However, Mancino involved a claim for credit for time served in Florida, not in another state. And, as explained in Gomez,

a rule 8.800(a) movant cannot show that the face of the record conclusively shows an “entitlement” to out-of-state jail credit which, according to Kronz is discretionary, not mandatory. A sentence that fails to award out-of-state jail credit is not “illegal” for purposes of rule 3.800(a) because a trial court has discretion to award the credit or deny it. Mancino was premised on the notion that a trial court lacked discretion to deny credit for time served in county jails before sentencing. 714 So.2d at 433. Such is not the case with out-of-state jail credit which is expressly discretionary.
Further, under the definition of an illegal sentence approved in Carter [v. State, 786 So.2d 1173 (Fla.2001) ], a sentence that fails to award out-of-state jail credit is not illegal because, depending on the factual circumstances, the court may or may not abuse its discretion in failing to award the credit. Carter’s definition of an illegal sentence provides that it must be a sentence that cannot be imposed under “any set of factual circumstances.” 786 So.2d at 1181. The question of whether a trial court abused its discretion in denying out-of-state jail credit turns almost exclusively on the particular factual scenario presented by the case. Thus, the failure to award out-of-state jail credit does not result in a sentence that no judge could legally impose under “any set of factual circumstances” because, under some circumstances, the denial of such credit would not be an abuse of discretion.

984 So.2d at 579.

We also recognize that we have previously reviewed claims such as Appellant’s on appeal from the denial of a rule 3.800(a) motion. See, e.g., Krause v. State, 857 So.2d 343 (Fla. 1st DCA 2003); Harriman v. State, 798 So.2d 819 (Fla. 1st DCA 2001). However, the issue in those cases was whether the trial court had the authority to grant credit for time served in an out-of-state jail, not whether rule 3.800(a) was a proper vehicle for the defendant to seek that relief. Thus, those cases do not control our decision in this case, nor do they preclude us from following Gomez and Garnett and holding that post-conviction claims seeking out-of-state jail credit are not cognizable under rule 3.800(a).

For the foregoing reasons, the trial court’s order is affirmed.

AFFIRMED.

HAWKES, C.J., and WETHERELL, J., concur; WOLF, J., concurs in result.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Rafael A. Llovera LINARES, Petitioner, v. DEPARTMENT OF CORRECTIONS OF FLORIDA, Respondent.
    No. 1D09-4536.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2009.
    Rafael A. Llovera Linares, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

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


text:
    Rafael A. Llovera LINARES, Petitioner, v. DEPARTMENT OF CORRECTIONS OF FLORIDA, Respondent.
    No. 1D09-4538.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2009.
    Rafael A. Llovera Linares, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

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


text:
    Rafael A. Llovera LINARES, Petitioner, v. DEPARTMENT OF CORRECTIONS OF FLORIDA, Respondent.
    No. 1D09-4537.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2009.
    Rafael A. Llovera Linares, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

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


text:
    Lawyer R. WEST, Petitioner, v. STATE of Florida, THIRD JUDICIAL CIRCUIT COURT, et al., Respondents.
    No. 1D09-4804.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2009.

      Lawyer R. West, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

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


author: TORPY, J.

text:
    A.H., Father of A.G. and J.G., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D09-611.
    District Court of Appeal of Florida, Fifth District.
    Nov. 23, 2009.
    Sara R. Howeller, Goldenrod, for Appellant.
    Anthony C. Musto, Hallandale Beach, for Appellee.
   TORPY, J.

Appellant challenges the order terminating his parental rights to his children, A.G. and J.G., based on his purported default for failure to attend the final hearing. Because the trial judge excused Appellant from attending the hearing and suggested that his attorney could appear in his stead, we reverse the order and remand this cause for an adjudicatory hearing on the merits.

The Florida Department of Children and Families sought to terminate Appellant’s parental rights to A.G. and J.G., alleging that he had abandoned them. Appellant appeared at an advisory hearing on April 9, 2008, where the court appointed attorney Randolph Kramer to represent him in the proceeding and set the case for trial in May 2008. The court advised Appellant that if he did not appear for trial, his rights could be terminated, stating:

Sir, listen to me very carefully. If you fail to appear for trial, it is the same as surrendering your parental rights. Upon a showing of manifest best interest, your parental rights to these two children will be surrendered. So you need to stay in contact with your attorney.

The trial was later continued until January 8, 2009.

One month before trial, Appellant emailed his attorney explaining that he would be unable to attend the trial because he was not “financially equipped to be flying to and fro, or physically fit to travel such distances.” He indicated that he received epidural injections in his back every three weeks and due to the continuances, he had to change his travel reservations many times, which had become very expensive. Mr. Kramer filed the email with the court.

Appellant appeared telephonically at a status hearing on January 5, 2009, during which Appellant informed the court that he could not attend the trial. The court responded: “Okay. Well, your attorney will be here,” to which Appellant replied, “Okay.” The court did not remind Appellant that failure to appear in person may constitute consent to termination of his parental rights.

When Appellant failed to appear three days later for the termination trial, the Department asked the court to enter a consent to termination based on Appellant’s failure to appear. Mr. Kramer objected “for the record,” without further elaboration, and reminded the court of Appellant’s statements at the status hearing that he lived in New York and would not be there for trial. The court, nevertheless, granted the default. Immediately thereafter, Mr. Kramer requested that he be “discharged from any further responsibility in this matter.” The court granted his request, and the hearing proceeded without the presence of Appellant or his attorney. The court entered a consent to termination on behalf of Appellant, found that he had abandoned his children and terminated his parental rights.

Section 39.801(3)(d), Florida Statutes (2008), addresses requirements that must be met before a court may terminate parental rights for a parent’s failure to appear at an adjudicatory hearing, and provides:

(d) If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given such notice. If a parent appears for the advisory hearing and the court orders that parent to personally appear at the adjudicatory hearing for the petition for termination of parental rights, stating the date, time, and location of said hearing, then failure of that parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.

(Emphasis supplied).

We conclude that the court failed to comply with this statute. Although the court advised Appellant at the initial advisory hearing in April 2008 that his failure to appear for trial could result in termination of his rights, at the status hearing almost nine months later, the court failed to give this instruction to Appellant, even when Appellant informed the court that he would not be present. Indeed, the court intimated that Appellant’s attorney could appear for him.

Moreover, even if the trial court had complied with section 39.801, it was still error to enter a consent by default on the facts presented here. Constructive consent should be the disfavored result in termination of parental rights cases. B.H. v. Dep’t of Children & Families, 882 So.2d 1099, 1100 (Fla. 4th DCA 2004). While the statute authorizes a default for failure to appear, the “courts should ordinarily refrain from determining a termination of parental rights by default where an absent parent is making reasonable effort to be present at the scheduled hearing and is delayed by forces or circumstances beyond the parent’s control.” R.P. v. Dep’t of Children & Families, 835 So.2d 1212, 1214 (Fla. 4th DCA 2003). Courts should never determine termination of parental rights cases on a “default basis or by ‘gotcha’ practices when a parent makes a reasonable effort to be present at a hearing and is delayed by circumstances beyond his control.” B.H., 882 So.2d at 1100.

Here, it is clear from the record that the court was aware that Appellant was not going to appear at the adjudicatory hearing. Appellant’s counsel filed an email with the court stating the reasons for this absence. The court was aware that Appellant was in New York, and at the status hearing, the court acknowledged that Appellant would not be at the adjudicatory hearing three days later. The court’s response to Appellant’s confirmation that he would not be at the hearing reasonably could have led Appellant to believe that his presence was not required and that his attorney could and would represent his interests in his absence. Instead, Appellant’s attorney failed to request a continuance, made a half-hearted objection to the request for a default and sought to be discharged at the first available opportunity. Under these unique facts we are constrained to conclude that the trial court abused its discretion when it entered the default.

REVERSED AND REMANDED.

EVANDER and COHEN, JJ„ concur.


text:
    William FULLER, Appellant, v. OKALOOSA CORRECTIONAL INSTITUTION and Division of Risk Management, Appellees.
    No. 1D09-1166.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2009.

      Steven P. Pyle, Winter Park, and Bill McCabe, Longwood, for Appellant.
    Frank C. Bozeman, III and Colleen Cleary Ortiz of Bozeman, Jenkins & Matthews, P.A., Pensacola, for Appellees.
   PER CURIAM.

Claimant, a corrections officer, challenges an order of the Judge of Compensation Claims (JCC) denying compensation for a cardiac condition. Claimant argues competent substantial evidence (CSE) does not support the JCC’s finding that the Employer rebutted the presumption of compensability provided for in section 112.18, Florida Statutes (2007), by showing a non-occupational cause of the condition. We agree and reverse.

Background

In 1995, prior to entering into service as a corrections officer with the Employer, Claimant suffered a fainting episode which required medical attention. Claimant was hospitalized and underwent a battery of tests, all of which were negative for any cardiac condition or heart disease. In 1997, Claimant became employed with the Employer as a corrections officer after successfully passing a physical examination which failed to reveal any evidence of a cardiac condition.

In 2003, while Claimant was employed with the Employer, Claimant had another fainting episode that was attributed to either sick sinus syndrome or vasovagal syncope, conditions which cause a decreased heart rate which, in turn, causes an individual to become dizzy and pass out. As a result, a pacemaker was implanted to prevent the recurrence of such syncopal events.

Claimant filed a claim for compensation for this condition, and the JCC found that whether Claimant was suffering from sick sinus syndrome or vasovagal syncope, both were cardiac conditions and thus, Claimant was entitled to the presumption afforded by section 112.18(1), Florida Statutes. Nevertheless, the JCC found the E/C rebutted the presumption because logic dictated that the same condition that caused the decreased heart rate that resulted in the 1995 syncopal episode (which predated Claimant’s employment) was also responsible for the 2003 event. Significantly, this finding was supported by the opinion testimony of the Employer’s independent medical examiner (IME), Dr. Videau, who testified that the most likely diagnosis was vasovagal syncope, which was pre-existing and, thus, not job-related. On appeal, this court affirmed the JCC’s finding and the resulting denial of compensation. Fuller v. Okaloosa Corr. Inst., 13 So.3d 470 (Fla. 1st DCA 2009) (PCA).

In 2007, Claimant had another fainting episode. At the time of this event, however, a rapid heart rate was recorded by Claimant’s pacemaker. Because the pacemaker was implanted to prevent a decreased heart rate and episodes relating therefrom and further, because an elevated heart rate was recorded, Dr. Mathias, Claimant’s cardiology IME, ruled out vaso-vagal syncope as the cause of the 2007 event — the cause ascribed by the Employer’s IME, Dr. Videau. Dr. Mathias further opined that the most likely diagnosis of the condition causing the 2007 event was right ventricle outflow tract (RVOT) tachycardia, which is a rapid heartbeat from the right ventricle. Dr. Mathias could not state whether Claimant had this same condition prior to his employment. Contrarily, Dr. Videau, testified he did not believe Claimant had RVOT tachycardia.

Claimant filed a claim for compensability of the RVOT tachycardia. The JCC found RVOT tachycardia was the only suggested diagnosis which would explain why Claimant suffered the 2007 syncope. The JCC found Claimant established entitlement to the presumption of compensability afforded by section 112.18(1). Nevertheless, the JCC again found the E/C rebutted the presumption because he found it reasonable and logical to conclude RVOT tachycardia caused not only the 2007 episode, but the 1995 and 2003 episodes as well. In explaining the means by which the E/C overcame the presumption of compensability, the JCC stated:

Unlike 2007 when the pacemaker was in place to act as a heart monitor, claimant was not subject to any form of heart monitoring in 1995 or 2003. As a result, there is no evidence Claimant’s syncope episodes in 1995 and 2003 were caused by a decrease in heart rate as opposed to an increase in heart rate. If, as Claimant contends and as Dr. Mathias opines, his proper diagnosis is RVOT tachycardia, I find it both reasonable and logical to conclude RVOT tachycardia caused not only the 2007 episode, but the 1995 and 2003 episodes as well.

On appeal, Claimant argues CSE does not support the JCC’s finding the Employer rebutted the presumption of compensa-bility afforded by section 112.18(1), because no medical evidence established Claimant had a cardiac condition or disease, most notably RVOT tachycardia, pri- or to entering service as a corrections officer.

Analysis

We begin by noting that the unique procedural posture of this case constrains our analysis. Here, the JCC found Claimant, a corrections officer, had disabling RVOT tachycardia, a cardiac condition, which was undetected on Claimant’s pre-employment physical. Accordingly, the JCC concluded Claimant was entitled to the presumption of compensability found in section 112.18(1). These findings and conclusions are not challenged on appeal and thus, the foundation of our opinion is predicated on a presumed, but rebuttable, finding that Claimant’s 2007 episode was caused by RVOT tachycardia which was accidental and suffered in the line of duty pursuant to section 112.18(1). Because Claimant successfully passed the pre-em-ployment physical, a necessary condition for the application of the presumption, the 1995 fainting episode becomes relevant only to the extent, if any, that it supports the Employer’s burden in rebutting the presumption of occupational causation relative to the RVOT tachycardia.

The presumption afforded by section 112.18(1)(2007) relieves a qualifying claimant from the necessity of proving occupational causation of the heart disease resulting in disability or death. See Talpesh v. Village of Royal Palm Beach, 994 So.2d 353 (Fla. 1st DCA 2008). In Punsky v. Clay County Sheriff’s Office, 18 So.3d 577 (Fla. 1st DCA 2009), this court stated as follows:

In summary, there is a clear path for the application of the section 112.18(1) presumption. The presumption does not vanish upon presentation of contrary evidence. Instead, it remains with the claimant who establishes his or her entitlement to the presumption and the presumption is itself sufficient to support an ultimate finding of industrial causation unless overcome by evidence of sufficient weight to satisfy the trier of fact that the tuberculosis, heart disease or hypertension had a non-industrial cause. It is the evidence of non-industrial causation that may be found to rebut the presumption, not the mere existence of risk factors or conditions.

Punsky, 18 So.3d at 583 (internal citations omitted). Because a claimant’s burden of proving major contributing cause (MCC) by medical evidence, is fully met where the presumption contained in section 112.18(1) is applied, the Employer, in rebutting the presumption must likewise disprove occupational causation by medical evidence. See § 440.151(1), Fla. Stat. (2007) (requiring claimant to prove causation of occupational disease by presenting medical evidence establishing major contributing cause of disease is nature of employment); § 112.18(1), Fla. Stat. (2007) (stating any condition caused by heart disease shall be presumed to have been accidental and to have been suffered in the line of duty).

At oral argument, the Employer asserted that the strongest evidence of a nonoccupational cause of Claimant’s RVOT tachycardia comes from the testimony of Dr. Mathias, Claimant’s IME. Dr. Mathias offered no opinion, stated within a reasonable degree of medical certainty, establishing Claimant had RVOT tachycardia prior to his entry into service as a corrections officer. Moreover, Dr. Mathias testified he could not say whether RVOT tachycardia was responsible for the 1995 fainting episode.

Dr. Videau, whose medical diagnosis of vasovagal syncope was rejected by the JCC, testified within a reasonable degree of medical certainty that Claimant did not have RVOT tachycardia — ever. Because the JCC found RVOT tachycardia is the cardiac condition to which the section 112.18(1) presumption applies, it was incumbent on the E/C to demonstrate by medical testimony established within a reasonable degree of medical certainty, that the RVOT tachycardia was caused by some non-work-related factor. See Lentini v. City of W. Palm Beach, 980 So.2d 1232, 1233 (Fla. 1st DCA 2008) (stating where claimant can offer no evidence of occupational causation and relies exclusively on statutory presumption, E/C must produce CSE that establishes disease was caused by some non-work-related factor). Because no medical evidence established a non-occupational cause of Claimant’s RVOT tachycardia within a reasonable degree of medical certainty, we are constrained to reverse because CSE does not support the JCC’s finding that the E/C rebutted the statutory presumption of compensability afforded by section 112.18(1), Florida Statutes (2007).

REVERSED and REMANDED for further entry of an order consistent with this opinion.

BENTON and THOMAS, JJ., and HANKINSON, JAMES C., Associate Judge, concur.


author: LEWIS, J.

text:
    Ivan Waylen EASTERLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3802.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2009.

      Brooke Elvington, Tampa, for Appellant.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Ivan Waylen Easterly, Appellant, seeks review of his conviction of engaging in sexual activity with a minor between the ages of twelve and eighteen while in a position of familial or custodial authority. He raises three issues: (1) whether the trial court abused its discretion in declining to dismiss the State’s second amended information due to its refusal to narrow the timeframe of the charged offenses; (2) whether the trial court abused its discretion in admitting similar fact evidence; and (3) whether fundamental error occurred when the prosecutor argued, in the State’s rebuttal closing argument, that the evidence had “torn away” the presumption of innocence. Finding no error, we affirm and write to explain our decision.

FACTS

The State filed an amended information charging Appellant with two crimes: engaging in sexual activity with a child twelve years of age or older but less than eighteen, while standing in a position of familial or custodial authority, in violation of section 794.011(8)(b), Florida Statutes (2004) (count one); and unlawful activity by a person twenty-four years of age or older with a person sixteen or seventeen years of age, in violation of section 794.05, Florida Statutes (2004) (count two). The time period alleged for the commission of both crimes was “on or about or between April 1, 2004, and June 30, 2004.” The alleged victim was K.D., who was Appellant’s stepdaughter and the mother of his biological child, according to the State’s uncontested evidence.

Upon Appellant’s motion, the trial court ordered the State to file a statement of particulars with as much detail as possible about the date, time, and location of the offenses. After the State failed to timely comply with the order, Appellant filed a motion to compel the State’s compliance. In response, the State filed a second amended information, which contained essentially the same language as the amended information, except that it added an allegation that the offense listed in each count occurred “one or more times.” Appellant, in turn, filed a motion to dismiss, arguing that the alleged offenses were not “continuing offenses” and that the changes in the second amended information had compounded the problem by making issues of time, date, and place more uncertain.

At a hearing on the motion, defense counsel argued that the State was required to narrow the timeframe because it knew of at least two separate dates when K.D. alleged Appellant sexually abused her. The prosecutor explained that Appellant had sexually abused K.D. on a regular basis, but that K.D. could recall only one or two specific incidents. The prosecutor further explained that K.D. had a clear memory of one incident in particular’ and that the State intended to elicit the details of that event at trial. Finally, the prosecutor argued that the State’s difficulty in narrowing the timeframe resulted from the fact that, although it had conclusive evidence that K.D. had conceived a child by Appellant, there was no evidence that either of the specific incidents K.D. recalled was the one that led to the conception.

Defense counsel argued that the issue was not when K.D. became pregnant, but when she was sexually abused. Defense counsel pointed out that, in deposition, K.D. had specifically described an incident that occurred on May 1, 2004, and one that occurred on May 2, 2004. The court asked defense counsel if he was willing to stipulate to one of those incidents as the one that resulted in the pregnancy, and defense counsel responded that he was not required to do so. The trial court denied the motion to dismiss, opining that the State had narrowed the timeframe as much as possible.

The State had previously filed a Williams rule notice, indicating that it intended to introduce evidence of five offenses that Appellant perpetrated against K.D. outside the timeframe alleged in the information. Two of these offenses occurred between February 1, 2001, and March 24, 2001; one occurred between March 25, 2001, and December 31, 2001; and two occurred between January 20, 2005, and March 19, 2005. The offenses varied in detail, from the fondling of KD.’s breasts and vaginal area, to penile-vaginal penetration or union, to the penetration of or union with KD.’s vagina by Appellant’s tongue. One of the offenses included the use of force. The State alleged that three of these offenses occurred in the family home in the vicinity of Chiefland, Florida, and two occurred in the family home in the vicinity of Trenton, Florida.

Appellant filed a motion in limine, arguing that the proposed Williams rule evidence was improper because his identity was not at issue and the acts were not similar enough to one another. He also argued that, due to the number of incidents and the length of time they spanned, the proposed Williams rule evidence would become a feature of the trial.

After hearing oral arguments from both parties, the trial judge observed that, based on arguments he had previously heard, it appeared that Appellant intended to argue that he was asleep when he impregnated K.D. and did not know what he was doing. The judge opined that if Appellant raised such a defense, the number of instances would “become relevant as to whether that was a reliable defense.” The trial court also agreed with the State that the evidence was admissible to show absence of mistake, and accordingly, denied the motion in limine.

Prior to trial, Appellant requested a special jury instruction, which included his knowledge that he was committing the charged act as an element of the crime. The trial court denied the request, determining instead to use the standard instruction. The case proceeded to trial.

In the defense’s opening statement, counsel conceded that K.D. was sixteen years old in April, May, and June of 2004 and that a DNA test established that her child’s DNA matched Appellant’s DNA. Defense counsel stated that Appellant had “no clue” how K.D. became pregnant with his child and that he could only speculate. Defense counsel alleged that “there was one event,” that Appellant could not describe it, and that Appellant “was not the one [who] initiated it.”

K.D. gave the following testimony. One night between April 1, 2004, and June 30, 2004, she was alone with Appellant in the family home in Trenton. The home was not air-conditioned, so K.D. went to lie down in the coolest room in the house, the one Appellant and her mother shared. K.D. later awoke to find Appellant under the covers with her, fondling her breasts and, later, her vagina. She tried to push Appellant off of her and to knee him, but he did not stop. Later in the encounter, Appellant “started performing penis-vaginal” intercourse. K.D. again tried to push Appellant off and to knee him, and Appellant held her by the shoulders, pushing her “more down onto the bed.” During this encounter, Appellant’s eyes were closed but would “open once in a while, basically quiver[ing] open and then close, like he was trying to pretend that he was asleep.” Appellant had sexual intercourse with K.D. more than once between April 1, 2004, and June 30, 2004, but she could specifically recall only one incident that occurred during that timeframe.

K.D. testified that she learned she was pregnant in June of 2004 and that her child was born on January 19, 2005. The State later presented evidence that, based on a DNA test, there was a greater than 99.99 percent probability that Appellant was the biological father of this child. Based on this evidence, an expert in forensic DNA and population genetics opined that Appellant was the father.

After the trial court gave a limiting instruction regarding the Williams rule evidence, K.D. testified as follows regarding three events that occurred in the family home in Chiefland. K.D.’s first sexual encounter with Appellant occurred when she was “about 12 going on 13.” At that time, K.D. and her sister were sharing a bedroom, and Appellant came in to say “good night.” K.D. was lying on a mattress on the floor, and her younger sister was lying in a twin bed. After saying “good night,” Appellant lay on the floor next to K.D. and acted as if he had fallen asleep. As K.D. was beginning to fall asleep, she felt Appellant’s arm around her. Appellant had placed his hand under her shirt and was beginning to fondle her. K.D.’s sister was “sound asleep” at the time. There was no talking between K.D. and Appellant. Appellant later began to fondle her vaginal area. A week or two later, Appellant repeated the “same general routine,” but this time, he engaged in penile-vaginal intercourse with her. Another incident occurred where Appellant woke K.D. up and “started performing oral sex on [her].” This incident also occurred while she was sleeping in the room with her sister.

K.D. testified that Appellant continued to sexually abuse her after she gave birth. Specifically, she recalled an incident that occurred when her family was moving residences. Because the family had already packed most of its belongings, there was only one bed in the house, the one that Appellant and KD.’s mother had shared. K.D. went to sleep on that bed and was awakened by Appellant, who was having vaginal intercourse with her.

KD.’s sister testified that she had never seen Appellant “wandering around at night” and had never awakened to find him near her bed.

In his own defense, Appellant testified that K.D. would sometimes sleep on a camping mat, but that he had never gone into her bedroom and lain down next to her on the mat. He denied ever touching K.D. “in her sexual, private areas” or fondling her breasts or vaginal area while the family was living in Chiefland. He also denied having had “any sort of sexual intercourse” with K.D. in that home. Appellant testified that, to his knowledge, he had also never sexually molested K.D. in the home in Trenton or at any time after the birth of her child.

Appellant further testified that he would often awake to find K.D. in the bed with him instead of his wife. He stated that he would argue with his wife about this occurrence and that it would then “stop for a short period of time.” He claimed that his wife had informed him that she would sometimes have sex with him while he was asleep. He recalled that such occurrences “gained in frequency as [they] were married a longer time” and continued throughout the marriage. Appellant testified that when he heard of the accusations against him, he requested a DNA test because “[w]hat was being said wasn’t rationale [sic],” as he “had no knowledge of anything like that ever happening.” Appellant’s parents corroborated his claim that he had a tendency to engage in sexual intercourse while he was sleeping. They testified that Appellant’s wife had bragged to them about such occurrences.

At the charge conference, defense counsel again raised the issue of inserting “knowingly” into the jury instructions. The State acquiesced in the request, and the trial court approved it. The case proceeded to closing arguments.

The State began its closing argument by echoing comments from its opening statement that K.D. had lost her childhood “at the hands of this man.” The prosecutor then discussed the May 2004 incident in detail. The prosecutor argued that the May 2004 incident “was not the first time this had ever happened, nor was it the last time.” Arguing that Appellant began taking a “markedly different approach” toward K.D. once she reached puberty, the prosecutor recalled some of K.D.’s testimony regarding inappropriate kissing, hugging, and compliments from Appellant. After stating that Appellant’s inappropriate behavior began before K.D. was sixteen years old, the prosecutor advised the jury that it could consider the previous events only for “very specific reasons,” according to the court’s instructions. The prosecutor discussed testimony from Appellant’s wife that he had not had any sleeping disorders and testimony from K.D.’s sister that Appellant had never approached her during the night. The prosecutor then pointed out that Appellant had “unerringly” found K.D. in the night, indicating that he was conscious of his actions. The State did not discuss the details of the pre-2004 incidents again except to state that Appellant began to abuse K.D. when she reached puberty. In the State’s rebuttal closing argument, the prosecutor made the following claim:

The testimonial evidence in this case, the physical evidence in this case, has not only removed the presumption of innocence from this man, it has torn it away and shown him for what he did to [K.D.] on [sic] May of 2004 when he raped her.

There was no objection to this comment. Later, the trial court instructed the jury that it must presume Appellant’s innocence. The court further explained, “The presumption stays with the defendant as to each material allegation in the information through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.”

Ultimately, the jury found Appellant guilty as charged of both counts alleged in the information. The trial court adjudicated Appellant guilty only as to the charge of engaging in sexual activity with a minor between the ages of twelve and eighteen while in a position of familial or custodial authority, and Appellant was sentenced to thirty years in prison.

ANALYSIS

I. Timeframe Alleged in Information

First, we consider Appellant’s argument that the trial court erred in declining to dismiss the second amended information after the State refused to provide a statement of particulars as ordered. Generally, a trial court’s ruling on a motion to dismiss based on the State’s failure to comply with an order requiring a statement of particulars is reviewed under the abuse of discretion standard. State v. Del Gaudio, 445 So.2d 605, 608 (Fla. 3d DCA 1984) (limitation of holding on other grounds recognized in McKinney v. Yawn, 625 So.2d 885, 888 n. 1 (Fla. 1st DCA 1993)).

Florida Rule of Criminal Procedure 3.140(n) entitles a criminal defendant to a statement of particulars “when the indictment or information on which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable the defendant to prepare a defense.” Rule 3.140(n) provides that “[t]he statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney.”

The Florida Supreme Court’s opinion in Dell’Orfano v. State, 616 So.2d 33 (Fla.1993), provides strong guidance for when a trial court must require the State to narrow a timeframe alleged in an information charging crimes of child sexual abuse. In Dell’Orfano, the court considered whether a trial court erred in dismissing an information charging sexual abuse of a child because the State had failed to provide a statement of particulars narrowing the timeframe of the alleged crimes to less than twenty-seven months. See id. at 34. In considering the propriety of the dismissal, the supreme court observed that the issue implicated “two conflicting public policy concerns”: (1) the State’s interest in vigorously enforcing laws against child abuse; and (2) defendants’ interests in being sufficiently apprised of the charges against them “such that they can prepare an adequate defense.” Id. at 34. The supreme court declined to adopt a bright-line rule governing when a timeframe is too lengthy. Id. It observed, however, that “a multi-year period clearly would be excessive where the State is able to narrow the time-frame further but simply refuses to do so.” Id. Similarly, the court noted, “Obviously, if the State knows the specific date on which an offense occurred, the State must provide that information when ordered to give a statement of particulars.” Id. at 35 n. 1.

The Dell’Orfano court held that “a trial court on a proper motion is required to dismiss an information or indictment involving lengthy periods of time if the State in a hearing cannot show clearly and convincingly that it has exhausted all reasonable means of narrowing the time frames further.” Id. The court noted that a defendant would be entitled to a hearing if he or she made allegations that, if true, “would support the existence of prejudice in preparing a defense attributable to the length of time stated in the charging instrument.” Id. at 35 n. 2. Under the Dell’Orfano holding, once the defendant shows entitlement to a hearing, and the State shows that it cannot narrow the timeframe, the burden shifts to the defendant to show that the defense more likely than not will be prejudiced by the length of the timeframe. Id. at 35. The Dell’Or-fano court declined to hold that the twenty-seven month period at issue was too lengthy as a matter of law. See generally id. Instead, it remanded the case to the trial court for a hearing. Id. at 36.

In its arguments below, the State made it clear that the crime with which it was attempting to charge Appellant was the one that led to KD.’s pregnancy. Although the State knew the specific date of one incident of sexual abuse, it could not be certain that this incident was the one that caused the pregnancy. At the same time, the State could not be certain that this incident did not cause the pregnancy. For this reason, it would have been improper for the State to charge Appellant with two separate crimes based on both the pregnancy and the May 1, 2004, incident. To be sure the timeframe alleged in the information captured the act that led to the pregnancy, the State needed to expand it beyond May 1, 2004.

We are aware that the State could have chosen to proceed specifically on the May 1, 2004, incident without attempting to prove that Appellant fathered the victim’s child. However, the State’s decision to charge Appellant for the offense that led to the pregnancy, even though it could not pinpoint a date of the offense, was a matter of prosecutorial discretion. In Dell’Or-fano, the supreme court noted, “[Cjommon sense dictates that admitted wrongdoing should not be shielded from prosecution merely because the State is unable to provide greater specificity in an information or indictment.” Dell’Orfano v. State, 616 So.2d 33, 35 (Fla.1993). Similarly, when evidence as conclusive as a defendant’s fathering his stepdaughter’s child exists, the defendant should not be shielded from prosecution for the offense leading to that pregnancy simply because the State cannot isolate the date of the offense leading to the pregnancy. Under the circumstances of this case, the State satisfied the Dell’Or-fano requirement that it exhaust all reasonable means of narrowing the time-frame.

Moreover, even if the State had not satisfied that requirement, Appellant did not show prejudice in the State’s failure to narrow the timeframe further, which he was required to do under the supreme court’s opinion in Dell’Orfano. Although the State did not provide the date of the May 1, 2004, incident in a statement of particulars, Appellant was aware that the State would question K.D. regarding this incident. Appellant was prepared to cross-examine her about the date of that offense, but he chose not to do so. Furthermore, at the pre-trial hearing, Appellant did not argue that he had an alibi defense or any other defense that would have made the narrowing of the three-month timeframe advantageous to him. In view of these facts, the three-month time-frame, which is far shorter than the time-frames in the cases Appellant cites, was not excessive, and the trial court did not abuse its discretion in refusing to dismiss the case.

II. Similar fact evidence

Next, we consider Appellant’s argument that the trial court erred in admitting evidence of the other acts of sexual abuse he perpetrated against the victim. A trial court’s decision to admit similar fact evidence, or Williams rule evidence, is reviewed for abuse of discretion. See Moore v. State, 943 So.2d 296, 297 (Fla. 1st DCA 2006) (finding no abuse of discretion in the admission of evidence of similar acts of child molestation); Hodges v. State, 885 So.2d 338, 357 (Fla.2004) (stating, generally, that the admission of collateral crime evidence is within a trial court’s discretion).

Under the Williams rule, evidence of a criminal defendant’s other crimes or bad acts is generally admissible if it is relevant to a material fact in issue, unless it is relevant only to demonstrate the defendant’s bad character or propensity to engage in criminal conduct. Hodges, 885 So.2d at 357 (citing Williams v. State, 110 So.2d 654, 663 (Fla.1959)). Generally, such evidence is admitted to show “motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality.” Schwab v. State, 636 So.2d 3, 7 (Fla.1994) (quoting Williams, 110 So.2d at 662)). The Williams rule has been codified at section 90.404(2)(a), Florida Statutes (2007), which provides as follows:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Courts applying the Williams rule have observed that “the relevance of collateral crime evidence is often a function of similarity.” McLean v. State, 934 So.2d 1248, 1255 (Fla.2006) (citations omitted). As a general rule, similarity is of particular importance when the similar fact (or collateral crime) evidence is being admitted to show identity, absence of mistake, or common plan or scheme. Id.

The Legislature has adopted a relaxed standard of admissibility for similar fact evidence in child molestation cases. See § 90.404(2)(b), Florida Statutes (2007); McLean, 934 So.2d at 1258-59. Section 90.404(2)(b) states, “In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.” The Florida Supreme Court has explained that this provision “broadly provides that evidence of the defendant’s commission of other acts of child molestation is admissible regardless of whether the charged and collateral offenses ... share any similarity.” McLean, 934 So.2d at 1259.

Even under the relaxed standard of admissibility codified at section 90.404(2)(b), however, evidence of other acts of child molestation is subject to relevancy requirements and the section 90.403 balancing test. McLean, 934 So.2d at 1259. For this reason, the similarity of the charged offense to the collateral offenses is still important to a trial court’s decision regarding the admissibility of the collateral offenses. Id. As the supreme court explained in McLean, the less similar the collateral offenses are to the charged offense, the less relevant they are and the more likely it is that their probative value will be “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” Id. (quoting § 90.403, Fla. Stat. (2005)). The McLean court cautioned that, “[w]hen necessary to ensure that a defendant receives a fair trial, the trial court should either exclude the evidence or substantially limit its presentation so that it does not become a feature of the trial.” Id. at 1251. Evidence of similar past acts becomes a feature of the trial when it “transcends the bounds of relevancy to the crime being charged” and “the prosecution devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant.” Conde v. State, 860 So.2d 930, 945 (Fla.2003) (quoting Williams v. State, 117 So.2d 473, 475 (Fla.1960)).

Here, the collateral offense evidence the trial court admitted was highly relevant due to Appellant’s defense that he did not know he had molested K.D. All of the acts were similar because they occurred against the same victim in a familial setting while the victim was asleep or attempting to go to sleep. The acts show an absence of mistake and a plan, particularly because the State adduced evidence that Appellant never molested K.D.’s sister, even though he claimed to have been unaware of his actions. Appellant argues that the number of similarities is insufficient. However, the number of similarities is not as important as the nature of the similarities in comparison to the purpose in admitting the evidence because, even under the general Williams rule standard, similarity is only a way of showing relevance. Appellant argues that the evidence was irrelevant because if he was unconscious of his actions during one incident, he also may have been unconscious of his actions during the others. The State correctly argues, however, that the evidence showed that Appellant targeted K.D., as opposed to any other person in the house. The State’s arguments at trial show that it used the evidence for this purpose.

Appellant contends that the collateral offense evidence was unduly prejudicial because it tended to show that he was a child predator. However, as explained above, the evidence was made necessary by the defense strategy and the jury instructions. Each separate offense made it less likely that Appellant was molesting K.D. unconsciously because the evidence showed that, each time, Appellant targeted K.D. rather than her sister, who testified that she never had an experience similar to the ones K.D. described. Under these facts, we cannot agree with Appellant that the trial court abused its discretion in determining that the potential for this evidence to cause unfair prejudice substantially outweighed its probative value.

In contesting the admission of the similar fact evidence, Appellant also argues such evidence improperly became a feature of the trial, due to the State’s theme that Appellant took K.D.’s childhood. This specific argument was not preserved for review by a contemporaneous objection. To preserve an argument for appeal, trial counsel must make an objection that is sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal. Castor v. State, 365 So.2d 701, 703 (Fla.1978). If an error is not preserved, it may not form the basis for a reversal unless it constitutes fundamental error. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003). An error is generally not considered fundamental if it could have been readily cured by a contemporaneous objection. See Rodriguez v. State, 664 So.2d 1077, 1077 (Fla. 3d DCA 1995).

Below, Appellant argued that the evidence threatened to become a feature of the trial due to the number of incidents and the amount of time it would take for the State to elicit testimony about them. He did not raise any concerns regarding the State’s argument that K.D.’s childhood was taken. All of the discussion of the tendency of the evidence to become a feature of the trial occurred during the pretrial stage of the case. The theme of the State’s case emerged only at trial, where there was no objection. The unfair prejudice caused by the State’s theme could have been averted if Appellant had raised a proper objection when the State began its arguments regarding the loss of KD.’s childhood. Accordingly, we find no reversible error in the trial court’s allowing the State to use such a theme.

To the extent Appellant argues that the evidence became a feature of the trial independently of the State’s theme, there is no error. A review of the State’s arguments reveals that it did not unduly focus on the collateral offenses, other than, perhaps, by forwarding this theme. The prosecutor went into more detail about the May 1, 2004, incident than any other. He also cautioned the jury that evidence of the other acts were to be considered for limited purposes, and he made clear that the relevance of that evidence was to show absence of mistake.

III. Comment on the Presumption of Innocence

Finally, Appellant argues that fundamental error occurred when the prosecutor made the following argument to the jury:

The testimonial evidence in this case, the physical evidence in this case, has not only removed the presumption of innocence from this man, it has torn it away and shown him for what he did to [K.D.] on May of 2004 when he raped her.

Fundamental error is that which “reach[e]s down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Odom v. State, 15 So.3d 672, 675 (Fla. 1st DCA 2009) (citations omitted). As noted above, any error that could be readily cured by a contemporaneous objection is generally not considered fundamental. See Rodriguez, 664 So.2d at 1077.

Appellant contends that the challenged comment is indistinguishable from one deemed erroneous in Nurse v. State, 932 So.2d 290 (Fla. 2d DCA 2005). In Nurse, the court opined that the following comment was “improper”:

At the beginning of this trial in jury selection and when the judge read to you the law he explained to you that the defendant carries the presumption of innocence and that the State has the burden of proving this case beyond a reasonable doubt. [Mr. Nurse] no longer has that presumption.

Id. at 292. Notably, the Nurse court did not decide the case on that basis or opine that the comment constituted fundamental error. See id. In fact, there was no basis for the Nurse court to decide whether the comment could rise to the level of fundamental error because the defense counsel in that case had raised a contemporaneous objection.

The comment in the instant case is distinguishable from the comment in Nurse because, here, the comment was tied directly to the prosecutor’s perspective on the strength of the evidence, while in Nurse, the comment suggested that the presumption of innocence no longer applied at all, simply because the presentation of the evidence had concluded. Because the prosecutor in the instant case tied the comment to his belief that the evidence was strong, the comment comes across as an opinion about the evidence, rather than a statement of the law, unlike in Nurse. Moreover, any confusion the jurors may have had regarding the presumption of innocence was likely cleared up by the subsequent, proper instruction on the subject. Thus, Appellant has not shown error. Furthermore, even if we found the comment to be erroneous, we would not find it fundamentally so because any potential misinterpretation of the prosecutor’s comment could have been readily cured by a contemporaneous objection, followed by a curative instruction.

CONCLUSION

For the foregoing reasons, Appellant’s conviction for engaging in sexual activity with a person between the ages of twelve and eighteen while in a position of familial or custodial authority is AFFIRMED in all respects.

WEBSTER and DAVIS, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . Although the State did charge Appellant with two separate crimes occurring during the relevant timeframe, and Appellant was found guilty as charged, the trial court did not adjudicate Appellant guilty of count two. It is unclear what facts the State was relying on to support its allegations in count two.

      . Arguably, the State could have isolated the date of conception to within a smaller period of time. However, Appellant has not contested the State’s contention that it could not do so. Instead, he has maintained simply that the date of conception is irrelevant, as he was not charged with impregnating the victim. This argument misses the point that the State’s intention was to charge him with committing the offense that led to the pregnancy.


author: WOLF, J.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Bradley James JACKSON, Appellee/Cross-Appellant.
    No. 1D08-3265.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2009.

      Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant/Cross-Appellee.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellee/Cross-Appellant.
   WOLF, J.

The State appeals the trial court’s imposition of a downward departure sentence. The trial court failed to file written reasons for departure; therefore, the sentence may be affirmed only if the trial court orally provided valid reasons for departure. See Pease v. State, 712 So.2d 374, 374 (Fla.1997).

Here, the trial court orally stated it was downwardly departing because it found appellee was amenable to drug rehabilitation. However, “drug rehabilitation ... does not constitute a valid legal ground for a downward departure sentence;” therefore, a departure sentenced based on this reason cannot be affirmed. State v. Owens, 848 So.2d 1199, 1203 (Fla. 1st DCA 2003). See also § 921.0026(3), Fla. Stat. (2008) (“the defendant’s substance abuse or addiction ... does not, under any circumstances, justify a downward departure ....”); § 921.0026(2)(d), Fla. Stat. (2008) (providing as a valid ground for departure, “[t]he defendant requires specialized treatment ... that is unrelated to substance abuse or addiction. ...”).

In Pope, the supreme court found “when the initial reasons [for departure] had been reversed by an appellate court,” or “when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines.” Pope v. State, 561 So.2d 554, 556 (Fla.1990) (emphasis added) (citing Shull v. Dugger, 515 So.2d 748 (Fla.1987)). See also Owens, 848 So.2d at 1203 (reversing and remanding for resentencing without departure); Jerry v. State, 19 So.3d 1167 (Fla. 1st DCA 2009) (reversing and remanding for resentencing within the guidelines where the trial court’s reasons for downward departure were invalid); State v. Dunn, 9 So.3d 666 (Fla. 1st DCA 2009) (reversing and remanding for resen-tencing within the guidelines where the trial court failed to provide reasons for departure). Therefore, we reverse and remand for resentencing within the guidelines.

Appellee argues that on remand the trial court may again impose a departure sentence, relying on several recent cases from the Third District permitting resentencing outside of the guidelines where a downwardly departing sentence is reversed for lack of written reasons. See State v. Williams, 20 So.3d 419 (Fla. 3d DCA 2009) (reversing and remanding “for resentenc-ing, to include written reasons” for downward departure); State v. Davis, 997 So.2d 1278, 1279 (Fla. 3d DCA 2009) (reversing a downward departure sentence for lack of written reasons, finding on remand “[tjhis ruling does not preclude the imposition of a sentence that departs from the sentencing guidelines....”); State v. Berry, 976 So.2d 645, 645 (Fla. 3d DCA 2008) (noting a downward departure sentence without valid reason for departure must be remanded for resentencing within the guidelines, but finding “[t]he defendant suggests there is a valid reason for departure” which “can be raised in the trial court on remand”). The Third District gave no reason for allowing the trial court a second opportunity to depart from the guidelines. We certify conflict with Williams, Berry, and Davis, to the extent they conflict with this opinion.

Reversed and remanded for resentenc-ing within the guidelines.

HAWKES, C.J., and WETHERELL, J., concur.

      . We note appellee's cross-appeal in which he asserted the trial court erred in finding it lacked jurisdiction to consider his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b), requesting the trial court enter written reasons for departure. However, given our disposition in this case, this issue is moot. See State v. Cantrell, 872 So.2d 949 (Fla. 5th DCA 2004).


text:
    Willie Jacari WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-814.
    District Court of Appeal of Florida, Fifth District.
    Nov. 24, 2009.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Pierre v. State, 990 So.2d 565 (Fla. 3d DCA 2008).

GRIFFIN, SAWAYA and EVANDER, JJ., concur.


text:
    G.W., Petitioner, v. Karen RUSHING, Clerk of Circuit Court, Respondent.
    No. 2D09-3986.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 2009.

      G.W., pro se.
    Irene G. Plank, Sarasota, for Respondent.
   PER CURIAM.

G.W. complains that the circuit court clerk for Sarasota County failed to transmit a notice of appeal to this court, thus depriving him of appellate review and, inferentially, this court of its obligation to initiate an appellate proceeding over which it has jurisdiction. He advanced this claim by submitting a document to this court entitled “Petitioner’s Verified Motion for Belated Appeal,” styled “[G.W.] v. [L.M.]” reflecting the parties to the circuit court action. Mindful that petitions for belated appeal pertain only to criminal matters, this court by order treated the proceeding as a petition for writ of mandamus and has restyled the case “G.W. v. Karen Rushing, Clerk of Circuit Court.” We deny the petition as moot.

G.W.’s petition asserts that he filed a notice of appeal on October 17, 2008, for review of an order of September 24, 2008. He attached as an appendix to his petition a letter sent to him from the circuit court clerk dated November 25, 2008, that referenced an order issued by Judge Curley signed November 14, 2008. This order directed the circuit court clerk to “remove from the court file the Notice of Appeal that Mr. [G.W.] filed pro se.” The order also directed the clerk to provide a copy of that order to G.W., as well as an earlier order issued by Judge Donnellan signed December 29, 2006, that decreed G.W. to be a vexatious litigant as authorized by section 68.093, Florida Statutes (2006), and instructed the clerk “not to accept any pleadings, notices or other documents from Petitioner [G.W.] unless signed by a member in good standing of the Florida Bar.” Judge Donnellan’s order determining G.W. to be a vexatious litigant, sixteen pages in length, chronicles in exhaustive detail his long and unusually abusive history in the matter of G.W. v. L.M. and includes as one of several appendices thirty-five pages of docket entries in that circuit court proceeding.

Concerned that the circuit court clerk may have neglected to perform a ministerial duty by failing to transmit the notice of appeal to this court, we entered an order directing her either to provide a certified copy of the notice to this court or to show cause why the petition for writ of mandamus should not be granted. The circuit court clerk responded on October 16, 2009, by confirming that Judge Curley, by order of November 14, 2008, had instructed the clerk to remove the notice of appeal from the court file. Hence, this response concludes, “[W]e are unable to transmit to your court a certified copy of the notice of appeal referencing the instant case number at this time.” From that response, it appeared that the circuit court clerk did not follow the practice of placing submissions deemed to be unauthorized by those restricted from access to the courts in an inactive file. See, e.g., Helm v. Hillsborough County, 849 So.2d 322, 324 (Fla. 2d DCA 2003); Pettway v. State, 725 So.2d 428, 429 (Fla. 2d DCA 1999); Attwood v. Singletary, 659 So.2d 1127, 1128 (Fla. 2d DCA 1995).

Two weeks after providing that response, the circuit court clerk alerted the clerk of this court that the notice of appeal in question had been located, and she properly certified it and transmitted it to this court to initiate an appeal, now assigned case number 2D09-5107. Based on the information provided by the circuit court clerk, it appears that the clerk failed to perform her ministerial duty when she did not transmit G.W.’s notice of appeal for a period of one year, until ordered to do so by this court. See Allston v. State, 685 So.2d 1312, 1313 (Fla. 2d DCA 1996) (holding that forwarding a notice of appeal from the clerk of the lower tribunal to the appellate court is a ministerial duty). It is a fundamental principle of jurisprudence that a trial court does not have the authority to dictate what matters are within, or without, the jurisdiction of the appellate court that reviews its orders and judgments. See Martin v. Circuit Court, Seventeenth Judicial Circuit, 627 So.2d 1298, 1300 (Fla. 4th DCA 1993) (“The Clerk of the Circuit Court has a ministerial duty to receive and file notices of appeal, and any contrary directive from the chief judge issued without due process is an invalid exercise of power.”).

Just as this court considers notices to invoke discretionary jurisdiction and notices of appeal it receives to be the property of the supreme court and its clerk, notices of appeal filed with the circuit court clerk to review circuit court orders likewise should be regarded as the property of this court and its clerk. In recent years circuit court judges in this district have twice stricken notices of appeal, and the clerks of Manatee and Polk Counties, appreciating their ministerial duties, have transmitted the notices to this court’s clerk, along with the orders from the circuit court striking them. With this opinion, we reiterate that the circuit court clerk has the duty to properly transmit notices of appeal to this court. However, because the clerk has now fulfilled that duty, the petition for writ of mandamus is denied as moot.

Petition denied.

DAVIS, SILBERMAN, and MORRIS, JJ., Concur.

      . The circuit court proceeding giving rise to this one appears to be a paternity case. Consistent with the legislative intent to protect the anonymity of parties to such actions, § 742.09, Fla. Stat. (2009), this court truncates the names of the litigants in its orders and opinions.

      . The circuit court normally would entertain jurisdiction over mandamus proceedings in which the clerk of the circuit court is a respondent. See Itturaldes v. Gardner, 820 So.2d 444 (Fla. 5th DCA 2002). However, in view of the unusual facts of this case and the allegation that the circuit court clerk has interfered with this court’s jurisdiction, this matter is appropriately addressed to this court.

      . We have observed that G.W.’s disputes with L.M. appear to be associated with a paternity case, governed by the Florida Family Law Rules of Procedure, and he may not qualify for vexatious litigant status. See § 68.093(2)(a), Fla. Stat. (2006). That issue, however, is not before the court in this proceeding.


author: COPE, J.

text:
    Leonardo MARRERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-188.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Carlos J. Martinez, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and SUAREZ, JJ.
   COPE, J.

This is an appeal of a conviction for criminal mischief. The question is whether the evidence was legally sufficient to establish that the damage was $1000 or greater. See § 806.13(l)(b)3., Fla. Stat. (2006). We affirm.

After gambling losses, defendant-appellant Marrero drove his Ford F150 pickup truck into an entrance at the Miccosukee Casino. The entrance consisted of four impact-resistant glass doors, sixteen or seventeen feet tall, each framed in special aluminum materials. One of these was a door with an automated entry system for the handicapped. The doors had been operational prior to the crash, but were destroyed, and had to be replaced. In addition, a patron of the casino was injured.

The State charged the defendant with criminal mischief. The offense is a third-degree felony if the damage is $1000 or greater. For this crime, the amount of damage is measured by the cost of repair or cost of replacement., If there is no competent evidence of value, then the conviction must be for the lowest level of offense, a misdemeanor of the second degree. See id. § 806.13(l)(b)l.

In this case the State did not present any evidence of the cost of repair or replacement of the four doors. The defense moved for a judgment of acquittal on that count, which was denied. The defendant was convicted as charged, and has appealed.

As a general rule, it will be necessary for the State to present evidence of the cost of repair or replacement in a criminal mischief case, if the State wishes to convict the defendant of mischief exceeding either the $200 or $1000 threshold. See id. § 806.13(l)(b)2., 3.

It has been said that “a trial court may conclude ‘that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory damage threshold has been met....’” T.B.S. v. State, 935 So.2d 98, 99 (Fla. 2d DCA 2006) (quoting A.D. v. State, 866 So.2d 752, 753 (Fla. 2d DCA 2004)); S.P. v. State, 884 So.2d 136, 138 (Fla. 2d DCA 2004); Clark v. State, 746 So.2d 1237, 1241 (Fla. 1st DCA 1999).

In this case the jury had a videotape of the collision which destroyed four extremely tall impact-resistant doors, including one door with a special mechanism for handicapped entry. We agree with the trial court that based on common experience, the jury could reasonably conclude that the cost of repair or replacement easily exceeded $250 per door or $1000 in the aggregate. We therefore affirm the conviction and the restitution order.

Affirmed.

      .The statute provides, in part:
      806.13 Criminal mischief: penalties; penalty for minor.—
      (l)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.
      (b)l. If the damage to such property is $200 or less, it is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
      2.If the damage to such property is greater than $200 but less than $1,000, it is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
      3.If the damage is $1,000 or greater or if there is interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $1,000 or more in labor and supplies to restore, it is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . By contrast, under the theft statute, the general rule is that value means fair market value at the time of theft. Bloodsaw v. State, 994 So.2d 378, 379 (Fla. 3d DCA 2008).

      . Although not pertinent to the sufficiency of the evidence on the criminal conviction, at the restitution hearing there was testimony from the contractor hired by the casino. Replacement of the doors cost $47,500 and the cost of temporarily boarding up the entrance was $8,500.


author: ROTHENBERG, J.

text:
    CELISTICS, LLC, Appellant, v. Juan Manuel GONZALEZ, Appellee.
    No. 3D09-874.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Bernard S. Mandler; Schwarzberg & Associates and Steven L. Schwarzberg and Grace M. Murillo, West Palm Beach, for appellant.
    Bennett Aiello Cohen Fried and Paul Aiello and Juan M. Gonzalez, Miami, for appellee.
    Before COPE and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The defendant, Celistics, LLC (“Celis-tics”), appeals from a non-final order denying its motion to dismiss, based on the trial court’s finding that the forum selection clause in the Service Agreement (“Agreement”), which the parties are allegedly subject to, is permissive, not mandatory. Because we conclude that the forum selection clause is mandatory, we reverse the order under review and remand for entry of an order granting Celistics’ motion to dismiss.

The plaintiff, Juan Manuel Gonzalez (“Gonzalez”), an Argentinean national, filed a complaint against Celistics, which is headquartered in Miami-Dade County, asserting claims for unpaid wages and vacation pursuant to section 448.08, Florida Statutes (Count I); breach of written employment agreement (Count II); breach of written severance agreement (Count III); and restitution based on the theory of equitable estoppel (Count IV). The complaint alleges that Celistics induced Gonzalez to relocate to the United States with his family to accept employment with Cel-istics for a term of at least one year. Prior to relocating, Celistics confirmed its assurances in writing, and in reliance, Gonzalez and his family relocated, incurring significant financial obligations. Despite Celistics’ assurance that the duration of Gonzalez’s employment would not be for less than one year, Celistics terminated Gonzalez after five months.

Celistics filed a motion to dismiss. At the hearing, one of the primary issues addressed by the parties was whether venue necessarily lies in Madrid based on the forum selection clause, which provides as follows: “In the event of any doubt, question or conflict which may arise from the interpretation or implementation of this agreement, the parties agree to select the venue and jurisdiction of the Courts and Tribunals of the city of Madrid.” Following the hearing, the trial court entered an order denying Celistics’ motion to dismiss, finding that the forum selection clause is permissive as it does not contain any words of exclusivity. Celistics’ non-final appeal followed.

As the trial court’s order denying Celis-tics’ motion to dismiss was based on the interpretation of the contractual forum selection clause, this Court’s standard of review is de novo. See Weisser v. PNC Bank, N.A., 967 So.2d 827, 830 (Fla. 3d DCA 2007); DVDPlay, Inc. v. DVD 123 LLC, 930 So.2d 816, 818 (Fla. 3d DCA 2006); Regal Kitchens, Inc. v. O’Connor & Taylor Condo. Constr., Inc., 894 So.2d 288, 290 (Fla. 3d DCA 2005) (“The trial court’s interpretation of the contractual venue provision presents a question of law. For this reason, our standard of review is de novo.”).

“[C]ontracting parties have the right to select and agree on a forum in which to resolve future disputes.” Golden Palm Hospitality, Inc. v. Stearns Bank Nat’l Ass’n, 874 So.2d 1231, 1234 (Fla. 5th DCA 2004); see also Prof'l Planning Servs., Inc. v. Sunshine Staff Leasing, Inc., 695 So.2d 883, 884 (Fla. 5th DCA 1997) (“Parties to a contract can agree to the venue of any action to enforce a contract.”). There is, however, a distinction between mandatory and permissive forum selection clauses. See Regal Kitchens, 894 So.2d at 290. As the Florida Supreme Court recognized in Garcia Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So.2d 273 (Fla.1987), mandatory forum selection clauses provide “for a mandatory and exclusive place for future litigation,” whereas permissive forum selection clauses “constitute nothing more than a consent to jurisdiction and venue in the named forum and do not exclude jurisdiction or venue in any other forum.” Id. at 274-75; see also Shoppes Ltd. P’ship v. Conn, 829 So.2d 356, 357-58 (Fla. 5th DCA 2002) (“Florida courts recognize a distinction between mandatory jurisdiction clauses in contracts which require that a particular forum be the exclusive jurisdiction for litigation concerning the contract, and permissive jurisdiction clauses which only provide that there may be jurisdiction over such litigation in a particular forum.”). The general rule is that a forum selection clause will be considered permissive if it lacks words of exclusivity. See Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So.2d 827 (Fla. 4th DCA 2004); Sauder v. Rayman, 800 So.2d 355, 358 (Fla. 4th DCA 2001) (holding that “[florum selection clauses are permissive rather than mandatory where they lack words of exclusivity”).

Celistics argues that, although the forum selection clause in the Agreement does not use the words “shall” or “must,” it is nonetheless mandatory. In support of its argument, Celistics relies on Golf Scoring Systems in which the Fourth District held that the following forum selection clause was mandatory: “The parties hereto consent to Broward County, Florida, as the proper venue for all actions that may be brought pursuant hereto.” The Fourth District noted that, although the forum selection clause did not use “magic words” of exclusivity, such as “shall” or “must,” the language employed in the clause “does clearly indicate that it is mandatory in nature.” Id. at 829. The Fourth District reasoned that the word “the” before the phrase “proper venue” limits venue to only one venue — Broward County — “to the exclusion of all others.” Id.

As in Golf Scoring Systems, the forum selection clause in the Agreement does not use the “magic words” “shall” or “must,” or other words or phrases, such as “forsaking any other jurisdiction,” “exclusively,” or “only,” which generally are words of exclusivity. See Weisser, 967 So.2d at 331 (holding that forum selection clause is mandatory where it provides that “[t]he parties further consent to the exclusive jurisdiction” in specified venues); Bombardier Cap. Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 133 (Fla. 4th DCA 2001) (holding that forum selection clause, which provides “shall be brought only in a court located in the city and state of New York,” was mandatory); World Vacation Travel, S.A., de C.V. v. Brooker, 799 So.2d 410, 411 (Fla. 3d DCA 2001) (holding that forum selection clause is mandatory as it provides, “[i]n case of any controversy or dispute in the interpretation of this agreement, both parties agree and accept to be subjected to the jurisdiction and competence of the Administrative Authorities and Courts of the city of Cancun, Municipality of Benito Juarez, in the State of Quintana Roo, Mexico, and the Federal Consumer Office, forsaking any other jurisdiction which either party may claim by virtue of its residency”). Nonetheless, the forum selection clause in the Agreement does employ language of exclusivity — “the parties agree to select the venue and jurisdiction of the Courts and Tribunals of the city of Madrid.” The word “agree” is defined as “[t]o concur; come into harmony; give mutual assent; unite in mental action; exchange promises; make an agreement; arrange; to settle,” Black’s Law Dictionary 66 (6th. 1994), and the term “select” is defined as “[t]o take by preference from among others; to pick out; to cull.” Id. at 1359. Thus, based on the plain and unambiguous language, the parties agreed that if there was any litigation stemming from the “interpretation or implementation” of the Agreement, it would take place in Madrid, to the exclusion of all other possible venues. Accordingly, we conclude that the forum selection clause is mandatory, not permissive, and therefore, reverse the non-final order denying Celistics’ motion to dismiss, and remand for entry of an order granting the motion to dismiss.

Reversed and remanded.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. THOMAS J. COWELL, D.C., P.A., a/a/o Rasha Okosh, Respondent.
    No. 3D09-2296.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Thomas L. Hunker for petitioner.
    Stuart B. Yanofsky for respondent.
    Before GERSTEN, SHEPHERD and LAGOA, JJ.
   PER CURIAM.

Based on the authority of United Automobile Insurance Company v. A 1st Choice Healthcare Systems, 21 So.3d 124 (Fla. 3d DCA 2009), we grant the petition for writ of certiorari and quash the order of the Circuit Court Appellate Division.

Petition granted; order quashed.


text:
    Everick E. DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2306.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Everick Davis, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG and LAGOA, JJ.
   PER CURIAM.

Appellant appeals from the trial court’s July 21, 2009 order denying his second motion for rehearing. Appellant’s first motion for rehearing was denied and furnished to appellant on April 6, 2009. Because the appellant’s unauthorized, successive motion for rehearing did not suspend the rendition time for review of the order denying his motion for 3.850 relief, the present appeal, filed several months after the denial of the “first” motion for rehearing, is hereby dismissed as untimely. See Dominguez v. Barakat, 609 So.2d 664 (Fla. 3d DCA 1992).


text:
    Bernadette BARTOLILLO, Appellant, v. CARNIVAL CORPORATION, d/b/a Carnival, Appellee.
    No. 3D08-2196.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.

      Sarnoff & Bayer, and Marc David Sarnoff, Coconut Grove, for appellant.
    Mase Lara Eversole, and Curtis J. Mase, and Rachel S. Cohen, Miami, for appellee.
    Before RAMIREZ, C.J., and SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. Leslie v. Carnival Corp., 22 So.3d 561 (Fla. 3d DCA 2008).


text:
    ESTATE OF Josefina MADRIGAL, Appellant, v. Romulado MADRIGAL, Appellee.
    No. 3D08-2838.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Adrian Philip Thomas, P.A., and Adrian P. Thomas and Jeffrey S. Bunin, Fort Lauderdale, for appellant.
    Kathleen M. Weber Raskin, Miami, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The Estate of Josefina Madrigal appeals from an order revoking probate of the Last Will and Testament of Josefina Madrigal, based on the trial court’s conclusion that it was procured by the undue influence of the sole beneficiary. We affirm.

A presumption of undue influence arises “if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will.” In re Estate of Carpenter, 253 So.2d 697, 701 (Fla.1971). As this Court explained in Diaz v. Ashworth, 963 So.2d 731, 735 (Fla. 3d DCA 2007):

[Wjhere the proponent of a will satisfies, prima facie, the will is facially proper, and the contestant thereafter satisfies, prima facie, a presumption of undue influence in the making of the will, the proponent of the will has the burden of proving the will was not the product of undue influence. That burden must be met by a preponderance of the evidence as determined by the trier of fact.

In the instant case, following an evidentiary hearing, the trial court entered an order making specific findings of facts and concluding that the sole beneficiary procured the testator’s last will and testament by undue influence. As the trial court’s findings of fact are supported by competent, substantial evidence, and the findings of fact support the trial court’s conclusion of undue influence, we affirm the order under review. See Estate of Brock, 692 So.2d 907, 913 (Fla. 1st DCA 1996) (“[OJur scope of review requires us to accept the factual findings of the trial court so long as there is support for them by competent substantial evidence. It is axiomatic that the trial court’s resolution of conflicting evidence will not be disturbed by a reviewing court in the absence of a clear showing of error, or that the conclusions reached are erroneous.”).

Affirmed.


author: SCHWARTZ, Senior Judge.

text:
    Jaime FONTALVO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1228.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Nicolas A. Olano, Miami, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.

      Before SHEPHERD and SUAREZ, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The defendant’s Rule 3.850 motion to withdraw his plea on the ground that its deportation consequences had not been adequately explained was denied after an evidentiary hearing, on the ground, citing Kindelan v. State, 826 So.2d 1004 (Fla. 3d DCA 2001), that as a legal permanent resident he was not subject to deportation and thus was unqualified for relief under State v. Green, 944 So.2d 208 (Fla.2006). While understandable in view of the confusing statement in Kindelan, 826 So.2d at 1005, n. 1, that “[i]t is undisputed that a resident alien who is not given permanent resident status is ‘excludable’ from this country by the INS,” this conclusion is incorrect. See United States v. Bugarin, 312 Fed.Appx. 147, 149 (10th Cir.2009) (“Because Bugarin is a permanent resident alien, he will be subject to deportation upon his release from prison and may be ineligible for benefits such as early release, certain prison programs, or assignment to a minimum-security prison during his incarceration.”); see also Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 293, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (St. Cyr, a lawful permanent resident (LPR) pled guilty to an aggravated felony, thus making him subject to deportation.); Discipio v. Ashcroft, 417 F.3d 448, 449 (5th Cir.2005) (“Petitioner Ferdinando Discipio, a permanent resident of the United States, became subject to deportation under the Immigration and Nationality Act after a Massachusetts court convicted him of possession with intent to distribute Perco-cet.”).

Because the court therefore erroneously did not reach the merits of the defendant’s showing under Green, we reverse the order below for such a determination.

Reversed and remanded.

      . The lower court may, in its discretion, receive further testimony on the issue.


author: WELLS, Judge.

text:
    Robert A. STOK and Abe Stok, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, Barclays Capital Real Estate, Inc., d/b/a Homeq Servicing Corporation, a Delaware corporation, Appellee.
    No. 3D09-1680.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Robert A. Stok, in proper person.
    Broad and Cassel and Daniel A. Miller, West Palm Beach, for appellee.
    Before WELLS, SHEPHERD, and SALTER, JJ.
   WELLS, Judge.

Pursuant Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) (providing that appeals to the district courts of appeal of non-final orders, while limited, include those that determine “the entitlement of a party to arbitration”), we review the order under appeal and affirm.


author: SUAREZ, J.

text:
    Ronald JENKINS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1892.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Ronald Jenkins, Jr., in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Christianne HARRIS, Appellant, v. PAUL SWEENEY, INC., a Florida corporation, d/b/a Advanced Cleaning Systems, and Global Disaster Recovery, Inc., a Florida corporation, Appellees.
    No. 3D09-680.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.

      Martin, Lister & Alvarez and Tamatha S. Alvarez, Weston, for appellant.
    Campbell & Malafy and John Campbell, Marathon, for appellees.
    Before RAMIREZ, C.J., and ROTHENBERG and LAGOA, JJ.
   ROTHENBERG, J.

Christianne Harris (“Harris”) appeals the denial of her motion for attorney’s fees. Upon the appellees’ proper confession of error, we reverse and remand for further proceedings consistent with this opinion.

In April 2007, the appellees, Paul Sweeney, Inc., and Global Disaster Recovery, Inc., (collectively, “the Plaintiffs”), filed a complaint against WPC Industrial Contractors (“WPC”) and Harris, alleging that they had not been paid for emergency repairs and salvage work performed at Harris’ home, pursuant to a contract between the Plaintiffs and WPC. As to Harris, the complaint asserted a claim for quantum meruit.

In October 2007, Harris filed a motion to dismiss, and on December 12, 2007, Harris filed a motion for attorney’s fees pursuant to section 57.105, Florida Statutes (2007), based on the same arguments raised in her motion to dismiss. WPC and the Plaintiffs settled, and on December 4, 2008, the Plaintiffs filed notices of voluntary dismissal as to WPC and Harris. As a result of the voluntary dismissals, Harris’ motion to dismiss was never heard. Thereafter, Harris scheduled a hearing to obtain a ruling on her motion for attorney’s fees.

At the hearing, the trial court stated that it could not locate Harris’ motion for attorney’s fees. Although the Plaintiffs’ counsel acknowledged in open court that he had received a copy of the motion, the trial court, relying solely on Harris’ motion to dismiss, which did not contain a prayer for fees, denied Harris’ motion for attorney’s fees. The trial court concluded that because Harris had not pled her entitlement to attorney’s fees and the Plaintiffs did not acquiesce to Harris’ claim, Harris’ claim for attorney’s fees was waived. Harris promptly filed a motion for rehearing and reconsideration. Although Harris attached a copy of the docket sheet reflecting that the motion for attorney’s fees had in fact been filed on December 12, 2007, the trial court denied the motion for rehearing and reconsideration. Harris’ appeal follows.

The Plaintiffs acknowledge that because Harris filed a timely motion for attorney’s fees, the trial court abused its discretion by denying Harris’ motion for attorney’s fees on the basis that Harris never made a claim for attorney’s fees. The Plaintiffs, however, request that this Court affirm the denial of Harris’ motion for attorney’s fees by applying the tipsy coachman doctrine, arguing that the case law Harris relies on cannot support an award of attorney’s fees. To make such a finding, however, would require this Court to make findings of fact, which this Court is not free to do. Accordingly, we reverse the order under review and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . See Dade County Sch. Bd, v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) ("[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).


text:
    Leslie V. McMILLAN, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, etc., Appellee.
    No. 3D08-3002.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Leslie V. McMillan, in proper person.
    Garnett W. Chisenhall, Tallahassee, for appellee.
    Before GERSTEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Shojaie v. Gables Court Prof'l Ctr., Inc., 974 So.2d 1140, 1141-42 (Fla. 3d DCA 2008) (holding that employee failed to provide the appellate court with a record sufficient to review the matter on appeal, requiring affirmance); Mendez v. Fla. Dep’t of Health, 943 So.2d 909, 911 (Fla. 1st DCA 2006) (“The Board’s imposition of a penalty is reviewed under an abuse of discretion standard.”).


author: LAGOA, Judge.

text:
    Gabriel RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-623.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Gabriel Rodriguez, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before WELLS, LAGOA, and SALTER, JJ.
   LAGOA, Judge.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Appellant asserts that in his probation violation case he is entitled to credit for time served. The trial court’s order denying appellant’s motion, however, fails to attach any records refuting appellant’s allegation. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to the credit for time served.

For the reasons stated, we reverse the denial of credit for time served and remand for further proceedings on that claim. We affirm, however, the denial of the defendant’s remaining claims without discussion.

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