author: PALMER, J.

text:
    Robert J. COURTEMANCHE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D08-1573.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      William R. Ponall, of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Robert Courtemanche (defendant) appeals his judgments and sentences which were entered by the trial court after a jury found him guilty of committing the crimes of trafficking in methamphetamine (meth), possession of ether and/or pseudo-ephedrine, and possession of cannabis. The defendant was charged based on physical evidence that was seized during the execution of a search warrant on a shed located on his property. Finding no reversible error, we affirm.

The defendant first argues that the trial court abused its discretion in admitting into evidence testimony concerning his possession of meth at the time he was arrested, arguing that said evidence of an uncharged collateral crime (i.e., Williams rule evidence), was inadmissible because it was completely irrelevant and extraneous to the charged offenses. The State responds to this claim of error by arguing that this court should affirm the trial court’s admission of the evidence concerning the defendant’s possession of meth at the time of his arrest because said evidence was inseparable from the crimes charged and, thus, relevant to adequately describe the events at issue. We agree.

“[Cjollateral crime evidence may be admissible if it is inextricably intertwined with the crime charged.” Fitzsimmons v. State, 935 So.2d 125, 128 (Fla. 2d DCA 2006)(citing Griffin v. State, 639 So.2d 966, 968 (Fla.1994)). In State v. Rambaran, 975 So.2d 519, 524 (Fla. 3d DCA 2008), the Third District explained that

evidence is inextricably intertwined if it is necessary to: (1) establish the entire context out of which the charged crimes arose, (2) provide an intelligent account of the crimes charged, or (3) adequately describe the events leading up to the crimes.

(Citations omitted.)

The evidence demonstrating that the defendant was in possession of three baggies of meth at the time he was arrested was properly admitted at trial because such evidence was inextricably intertwined to the crimes charged. The State’s evidence demonstrated that the defendant’s arrest took place at the same time as the police were executing a search warrant at the defendant’s property and seizing trafficking amounts of meth from his shed a short distance away. Furthermore, the record also indicates that any error occasioned by the admission of this evidence was harmless in light of the abundance of evidence demonstrating the defendant’s guilt.

The defendant next argues that the trial court reversibly erred in denying his motion for mistrial which was raised during the prosecutor’s cross-examination of the defendant concerning the contents of a confession letter written by him. The motion for mistrial was based on the argument that, during his cross-examination, the prosecutor made an improper comment regarding the defendant’s exercise of his right to remain silent.

During his cross-examination of the defendant, the prosecutor first questioned him about his defense theory: that it was his friend and not him that was involved in manufacturing meth in the shed located on his property. The prosecutor then questioned the defendant about his confession letter.

Q And you knew at the time that you wrote this letter and asked your attorney to give it to the Court and to give it to the State that you were charged with trafficking in methamphetamine, didn’t you?
A Did I know that I was charged with it?
Q Yes, sir.
A Yes, sir, I knew I was charged with trafficking in methamphetamine as soon as they arrested me.
Q So a letter that you provide to the State, through your attorney, to provide to the Court, through your attorney, and you know that you’re charged with trafficking in methamphetamine says and I quote, yes, I made a very stupid mistake. The time when you’re here—
A By letting him manufacture methamphetamine in my shed, yes, I did. Q Well, the letter that you provided through your attorney doesn’t say I made a stupid mistake by hanging out with Andy Harris, letting him climb my trees, letting him go in and out of the shed—
A When you—
Q Sir, can I finish my question? Letting him go into my shed at his liberty ten to 15 feet where my wife and daughter
Q You didn’t say that in the letter, did you?
A No. But that right there covers it.
Q Well, it covers now when you take the stand after never telling anybody any of this stuff before and for the first time spill all this stuff out in front of the jury, you didn’t—

(Emphasis added.) At side-bar, the parties proceeded as follows:

[DEFENSE COUNSEL]: That is a clearly impermissible comment on his right to remain silent, number one. And number two, that law also says that if It’s a comment that is fairly susceptible to being interpreted as an impermissible comment on his right to remain silent, therefore the defendant ought to have the benefit of a mistrial in this case, Judge. And I so move that we have a mistrial in this case.
THE COURT: Response?
[PROSECUTOR]: Judge, my whole line of inquiry was referring to this letter where moments before the defendant said everything that he is now saying to this jury was covered right there in this letter which it clearly is not. It’s not contained in the letter which at the time he was waiving his Fifth Amendment right to be heard. The letter is already in evidence. My entire comment was directed towards his comment that everything he’s now told us was in that letter where it is clearly not.
[PROSECUTOR]: Well, and the context of this should be clear on the record, Judge. That the defendant has now testified that all these prior sales, everything that was in his shed, all the prior interaction with Andy Harris that’s documented in the Lake County cases that they have all the information about and yet they’re telling the State that they should try to dance around those issues and you can’t ask him about that, that should be the context that all of this is read in. And everything that I’ve asked so far and will continue to ask will be fair comment on the evidence that the defendant has put in now. So if there’s an appeals court reviewing this and they’re saying what is the context that the prosecutor is working in here. This defendant gets up here and has now blamed all this stuff on somebody else on cases he knows are pending in another county, that he’s got all the arrest reports on, that he has listened to audio tapes of transactions on, that he has watched video tape transactions on, that from the State’s perspective he has accepted and was in possession of cash from those sales and deliveries, and to now just say that the State has to dance around any issue of what he might have said about these sales and deliveries in the past is completely unfair and it has to be read in the context of the comments.
[DEFENSE COUNSEL]: I can go with that. I see exactly what he’s saying and he’s framed the issue against himself and that is exactly what he’s doing, so the Court of Appeals has it right in front of them. Yeah. I say yeah. Because he is very well prepared. He is getting on the stand. He is telling his story for the first time today. And I think they ought to be able to delve into the fact that he didn’t say anything in the past and that’s an exercise on his rights, I can live with that.
THE COURT: Okay.

(Emphasis added.) When the trial resumed, no curative instruction was issued by the trial court and the prosecutor proceeded with his cross-examination. Notably, the prosecutor did not ask the defendant to answer his previous question, but instead, moved on to a different area of inquiry.

The defendant maintains that the trial court reversibly erred by denying his mistrial motion, arguing that the prosecutors question was clearly susceptible of being interpreted by the jury as a comment on his exercise of his right to remain silent. However, the record indicates that defense counsel abandoned his objection to the prosecutor’s comment during the course of the parties’ side-bar discussion. Furthermore, the record also indicates that any error occasioned by the prosecutor’s question was harmless in light of the abundance of evidence indicating the defendant’s guilt, especially his own confession letter.

The defendant next argues that the trial court abused its discretion by admitting into evidence the confession letter which the defendant sent to the prosecutor and the trial judge before he decided to withdraw his guilty plea agreement and proceed to trial. The defendant contends that the admission of the letter was improper because it was the product of the defendant’s decision to enter a guilty plea. We disagree.

The defendant maintains that the trial courts decision to permit the State to introduce his confession letter into evidence •violated section 90.410 of the Florida Statutes (2007), and rules 3.170(f) and 3.172(i) of the Florida Rules of Criminal Procedure because the letter “was the product of the defendant’s decision to enter a plea of guilty”.

Section 90.410 of the Florida Statutes provides:

90.410. Offer to plead guilty; nolo contendere; withdrawn pleas of guilty Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.

§ 90.410, Fla. Stat. (2007). Rule 3.172ffi of the Florida Rules of Criminal Procedure provides:

Rule 3.172. Acceptance of Guilty or Nolo Contendere Plea
(i) Evidence. Except as otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

Fla. R.Crim. P. 3.172(i). Rule 3.170(f) of the Florida Rules of Criminal Procedure provides:

Rule 3.170. Pleas
(f) Withdrawal of Plea of Guilty or No Contest. The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty or no contest of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty or no contest. The fact that a defendant may have entered a plea of guilty or no contest and later withdrawn the plea may not be used against the defendant in a trial of that cause.

Fla. R.Crim. P. 3.170(f).

Here, the defendant’s proffered testimony demonstrated that the defendant’s confession letter was not drafted in accordance with any negotiations pertaining to his decision to enter into a plea deal, but rather, the confession letter was an unsolicited, unilateral utterance. As such, the record fails to support the defendant’s claim of error. See Stevens v. State, 419 So.2d 1058, 1062 (Fla.1982).

The defendant lastly argues that the prosecutor’s closing argument contained improper comments which warrant the grant of a new trial. Specifically, the defendant maintains that, although no objection was raised by defense counsel below with regard to comments made by the prosecutor during his closing argument, the unobjected-to comments which “ridiculed the defendant’s decision to take his case to trial and expressed his personal opinion that the defendant was guilty of the charged offenses” constitute fundamental, reversible error. We disagree.

During his closing argument, the prosecutor set forth a lengthy summary of the evidence which was presented during the trial. The portions of said argument which the defendant claims constitute fundamental error read:

Well, no matter how overwhelming the evidence is against you, no matter if your fingerprint is on the trafficking amount of methamphetamine; no matter if all the listed chemicals that you’re charged with possessing are in your shed that’s ten to 15 feet away from your house; no matter if you were in that shed every day for the last month leading up to your arrest; no matter if you had methamphetamine on you when you were arrested; you’re entitled to a jury trial if you ask for one....
And that just because the defendant decides to exercise his right to go to trial, what I’m suggesting to you is we don’t have to sit there and say, well, there must be something. There isn’t anything. There isn’t anything. The defendant is guilty and at this stage, after you’ve seen all the evidence, each and every element of each charge that’s pending against Mr. Courtemanche has been proven beyond and to the exclusion of every reasonable doubt. All the credible evidence that you see proves each element beyond and to the exclusion of every reasonable doubt....
This defendant is guilty of trafficking in methamphetamine whether you believe him or not. And he’s just as guilty on the other two crimes, possession of listed chemical and possession of cannabis.

The State responds to the defendant’s claim of fundamental error by arguing that, even if the prosecutor’s comments were improper because they included his personal opinion as to the guilt of the defendant, since the State’s evidence clearly demonstrated the defendant’s guilt, any error committed by the prosecutor was harmless beyond a reasonable doubt. We conclude that, since the record in this case contains an abundance of evidence demonstrating the defendant’s guilt, including his confession letter, the defendant’s claim of fundamental error is meritless.

AFFIRMED.

JACOBUS, J., and SMITH, T„ Associate Judge, concur.

      . See Williams v. State, 110 So.2d 654 (Fla.1959)(explaining that a party may introduce similar crime evidence when it is 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).


source: Caselaw Access Project

author: COHEN, J.

license: Public Domain

text:
    Charley D. PRICE, Appellant, v. John F. KRONENBERGER, Appellee.
    No. 5D09-667.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      Jack W. Shaw, Jr., of Jack W. Shaw, Jr., P.A., Winter Park, for Appellant.
    Austin N. Aaronson of Aaronson, Austin, P.A., Winter Park, for Appellee.
   COHEN, J.

Charley D. Price appeals a final judgment dismissing his complaint for lack of personal jurisdiction. We review this matter de novo and reverse. See Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002).

Price and John F. Kronenberger, Appel-lee, were members of the Korean War Veteran’s Association (hereinafter “KWVA”). About a year after being expelled from the KWVA, Kronenberger, an Illinois resident, sent an e-mail to various members informing them that Price, a Florida resident, earned his law degree from a “correspondence school where you send in a check and they send you a degree. Monticello is an Internet University that grants Juris Doctor degrees with no schooling required.” The e-mail also stated, “After a call to the American Bar Association it was learned that there is no Monticello School of Law accredited in the US.” This e-mail was received by members throughout the country, some of whom live in Florida. Price attached this e-mail to his complaint when he sued Kro-nenberger for defamation.

Kronenberger moved to dismiss the complaint, asserting lack of personal jurisdiction because the complaint did not sufficiently allege facts to confer jurisdiction and also did not allege he had sufficient minimum contacts with the state. The crux of Kronenberger’s argument, both to the trial court and on appeal, is that personal jurisdiction cannot be asserted over him because he only generally addressed the e-mail to members of KWVA and did not specifically target Florida residents as recipients. This argument is predicated on section 48.193(2), Florida Statutes (2007), which provides for general jurisdiction over a non-resident who is “engaged in substantial and not isolated activity” in this state. Although the trial court was persuaded by this argument, we are not, because the allegations of the complaint plainly implicate section 48.193(l)(b).

Section 48.193(l)(b) provides specific long-arm jurisdiction over a nonresident who commits a tortious act in this state. A complaint that alleges a nonresident committed a tortious act based on communications directed into Florida tele-phonically, electronically, or in writing sufficiently alleges personal jurisdiction under section 48.193(l)(b). See Wendt, 822 So.2d at 1260; Acquadro v. Bergeron, 851 So.2d 665, 670 (Fla.2003). Price’s complaint did just this when it alleged Kronenberger sent the e-mail to various members of KWVA, some of whom live in Florida.

By publishing the e-mail in Florida and directing the defamatory comments at a Florida resident, Kronenberger established minimum contacts with this state. See Silver v. Levinson, 648 So.2d 240, 243-44 (Fla. 4th DCA 1994) (Connecticut resident could reasonably anticipate being haled into Florida court where he sent a defamatory letter into Florida, directed at a Florida resident, that was “designed to have an effect” in Florida); Smith v. Cuban Am. Nat’l Found., 657 So.2d 86, 86 (Fla. 3d DCA 1995) (personal jurisdiction properly exercised over nonresident defendant who allegedly made defamatory statements about a Florida resident in an interview that occurred in Washington D.C., where it was foreseeable that the documentary containing the interview would be, and was, aired in Florida). Neither Dring v. Sullivan, 423 F.Supp.2d 540 (D.Md.2006), nor Burleson v. Toback, 391 F.Supp.2d 401 (M.D.N.C.2005), dictate a contrary result.

In Dring, 423 F.Supp.2d at 545, the court found it could not exercise personal jurisdiction over the nonresident defendant because the relevant provision of Maryland’s long-arm statute provided jurisdiction when the out-of-state tortious act was committed by a person who regularly conducted business or engaged “in any other persistent course of conduct in the State.” Notably, no such requirement is contained in Florida’s long-arm statute. Burleson, 391 F.Supp.2d at 414, is likewise distinguishable because the court found, in part, that there was no evidence that the nonresident defendants’ electronic activity of allowing its users to post comments on a website forum was directed into North Carolina. In stark contrast, Kronenber-ger specifically sent his defamatory e-mail to certain members of KWVA, some of whom live in Florida. By doing so, he directed his electronic activity into Florida.

Based on the foregoing, we find that Price’s complaint sufficiently alleged facts to support personal jurisdiction over Kro-nenberger and that by sending the e-mail into Florida, Kronenberger established sufficient minimum contacts such that he could reasonably anticipate being haled into a Florida court. Consequently, we reverse the final judgment dismissing Price’s complaint and remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

GRIFFIN, J., and BERGER, W., Associate Judge, concur.

      . This opinion in no way reflects on the mer- . its of Price's complaint.


author: PER CURIAM.

text:
    Kevin H. KENNEDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2757.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      Kevin H. Kennedy, Daytona Beach, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
   PER CURIAM.

Appellant Kevin H. Kennedy appeals the trial court’s summary denial of his Rule 3.800(a) motion in which he alleges that one of four sentences he received is illegal because it exceeds the statutory maximum. He also alleges that he did not receive the correct amount of jail credit. It appears from the record that the sentence about which Kennedy complains is the result of a scrivener’s error, which should be corrected. As to Kennedy’s jail credit claim, it appears that Kennedy may not have received the appropriate amount of jail credit, and the trial court’s denial of this claim was erroneous.

On July 2, 2007, Kennedy entered pleas in four different cases. He admitted a violation of probation in Case No. 2006-CF-772 and was sentenced to eight years in the Department of Corrections for burglary of a dwelling, a second-degree felony (Count I) and five years for organized fraud, a third-degree felony (Count II). These sentences were imposed concurrently with one another and with his sentences in Case Nos. 2007-CF-117, 2007-CF-567 and 2007-CF-581. Case No. 2007-CF-117 contained identical counts, but the counts were transposed; that is, the organized fraud charge was stated as Count I and the burglary charge was stated as Count II. However, the written judgment and sentence matches that rendered in case no. 2006-CF-772; that is, an eight-year sentence on Count I and a five-year sentence on Count II. Kennedy received a one day jail credit in this case.

The trial court denied Kennedy’s Rule 3.800 motion, erroneously stating that in Case No. 2007-CF-117, Kennedy had been sentenced to five years on Count I (Organized Fraud) and eight years on Count II (Burglary). Additionally, as to jail credit, the court said that Kennedy was not entitled to duplicate credit and referred to forms provided by Citrus County that it attached to the order.

On appeal, the State agrees that the sentence duration is the result of a scrivener’s error that should be corrected. Given the inconsistencies in the written judgment and sentence, the recitation of facts in the court’s order, the records of the Citrus County Clerk of Court and the DOC records, this issue requires clarification or correction.

As to Kennedy’s claim of additional jail credit, the State contends that Kennedy was in custody on unrelated charges during the time for which he seeks additional credit and, in any event, he received concurrent sentences and is not entitled to duplicate credit.

Kennedy agrees that as to Count I, organized fraud, he was arrested on January 24, and released on his own recognizance the next day, so he is only entitled to one day of credit on that count. Kennedy also agrees that he was arrested on April 30, 2007, for unrelated new offenses; however he claims that he was charged with burglary in an amended information that was filed on May 23, 2007, while he was in custody. He alleges the Citrus County “time-served form” for Case No. 2007-CF-117 does not reflect him as being in custody because the State did not notify the jail that it was amending the information on May 23, 2007, to reflect the filing of the additional count of burglary against him. Kennedy alleges that he is entitled to jail credit from the date of the filing of the amended information on May 23, 2007, to the July 2, 2007, sentencing date, which is forty days credit for time served on Count II.

To refute Kennedy’s claim that he is entitled to additional credit, the trial court attached to its order Citrus County Detention Facility “credit for time-served” forms, which reflect that in Case No. 2007-CF-117, Kennedy served one day from January 24, 2007, until January 25, 2007. The court also attached “credit for time-served” forms for Kennedy’s other cases, which reflect that he was incarcerated on other charges at various times from July 8, 2006, until his sentencing date of July 2, 2007, which, in the aggregate, total 155 days.

The docket sheet attached to Kennedy’s motion shows that the amended information adding the burglary charge was filed on May 23, 2007, and that Kennedy was arraigned on this new charge on June 6, 2007. Therefore, it appears Kennedy was in custody on the burglary charge from the date the amended information was filed and would be entitled to credit from that date until he was sentenced on July 2, 2007. McQueen v. State, 870 So.2d 77 (Fla. 2d DCA 2003).

We accordingly reverse and remand for a determination on the scrivener’s error and/or resentencing on Count I, and for award of additional forty days credit for time served on Count II, or attachment of records sufficient to demonstrate lack of entitlement to the credit.

REVERSED and REMANDED.

GRIFFIN, ORFINGER and COHEN, JJ., concur.

      . In Case No. 2007-CF-567, Kennedy was sentenced to five years in the Department of Corrections for Possession of Cocaine and in Case No. 2007-CF-581, he was sentenced to five years in the Department of Corrections; for Burglary of a Conveyance (Count I) and five years in the Department of Corrections for Grand Theft (Count II). Kennedy received credit for time served on each of his cases, which was a different number of days in each case.


author: ORFINGER, J.

text:
    JUSTICE ADMINISTRATIVE COMMISSION, Petitioner, v. Osa J. HARP, IV, Esquire, Respondent.
    No. 5D09-3058.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      Christian D. Lake, Assistant General Counsel, The Justice Administrative Commission, Tallahassee, for Petitioner.
    No appearance for Respondent.
   ORFINGER, J.

The Justice Administrative Commission (JAC) seeks certiorari review of an order requiring it to pay the attorney’s fees of a mother’s court-appointed private counsel in a termination of parental rights proceeding. Because the mother executed a voluntary written surrender of her parental rights pursuant to section 39.806(l)(a), Florida Statutes (2008), before the termination proceedings were initiated, she was not entitled to publicly-funded counsel. Consequently, the order appointing counsel, and more specifically, the order requiring the JAC to pay appointed counsel, was error. As a result, we grant the petition and quash the circuit court’s order.

Osa J. Harp, IV, was appointed to represent the mother in a dependency case. While the dependency case was ongoing, the mother voluntarily surrendered her parental rights in writing. The Department of Children and Families then filed a termination action, and the trial court appointed Mr. Harp to represent the mother. After the termination case was concluded, Mr. Harp petitioned the trial court for fees. The JAC objected, arguing that because the mother voluntarily executed a written surrender of parental rights, she had no right to court-appointed counsel. Nevertheless, the trial court ordered the JAC to pay Mr. Harp a fee for representing the mother during the termination proceeding.

Section 29.007(2), Florida Statutes (2009), authorizes the JAC to pay attorney’s fees to private attorneys appointed by the court to represent indigents or other litigants in civil proceedings that require court-appointed counsel in accordance with state and federal constitutional guarantees or statutes. See also § 27.40, Fla. Stat. (2009). Section 39.807(1), Florida Statutes (2009), which establishes the statutory right to appointed counsel in termination proceedings, provides:

39.807. Right to counsel; guardian ad litem.
(l)(a) At each stage of the proceeding under this part, the court shall advise the parent of the right to have counsel present. The court shall appoint counsel for indigent parents....
(d) This subsection does not apply to any parent who has voluntarily executed a written surrender of the child and consent to the entry of a court order therefor.

§ 39.807(l)(a),(d), Fla. Stat. (2009). By its plain language, section 39.807(l)(d) does not authorize the court to appoint counsel to a parent who has executed a voluntary written surrender of his or her parental rights. When the language of the statute is plain and not ambiguous, the statute must be interpreted in accordance with that plain language. See generally State v. Bradford, 787 So.2d 811, 817 (Fla.2001).

Nothing in the record before us suggests that the voluntariness of the mother’s surrender of parental rights was in question or that the mother sought to set aside her consent prior to the entry of the final order terminating her parental rights. In that instance, the JAC concedes an indigent parent would be entitled to court-appointed counsel. However, under the circumstances presented here, the circuit court had no authority to appoint counsel for the mother, and the JAC is not required to pay any attorney’s fees for the termination proceeding.

We conclude the trial court’s order departed from the essential requirements of law, grant the petition for writ of certiorari and quash the order under review.

CERTIORARI GRANTED; ORDER QUASHED.

GRIFFIN and PALMER, JJ., concur.

      . Mr. Haip did not file a response to this petition.

      . Although the order under review directed the JAC to make payment to Mr. Harp for his services in the dependency proceeding, the real issue is whether an earlier, erroneous payment of fees for the termination proceeding could be used to set-off the payment for the fees due in the dependency proceeding.

      . Florida Rule of Juvenile Procedure 8.515(a)(1), relating to termination proceedings, similarly provides in relevant part:
      Rule 8.515. Providing Counsel to Parties, (a) Duty of the Court.
      (1) At each hearing, the court shall advise unrepresented parents of their right to have counsel present, unless the parents have voluntarily executed a written surrender of the child and consent to the entry of a court order terminating parental rights.

      . In an analogous situation, a parent who defaults by failing to appear at a termination hearing is deemed to have consented to the termination of his or her parental rights, and, therefore, is not entitled to court-appointed counsel. See Justice Admin. Comm'n v. Berry, 5 So.3d 696 (Fla. 3d DCA 2009) (holding that trial court cannot determine putative fathers to be indigent where their whereabouts were unknown and they did not appear at termination proceedings; there is no law requiring appointment of counsel for parent who does not appear for termination proceeding, and trial court departed from essential requirements of law in requiring JAC to pay fees for attorneys appointed to represent putative fathers).


text:
    Terrance GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3087.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      Terrance Graham, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Terrance Graham filed a pro se appeal from an order denying his motion to mitigate sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). We treat the appeal as a petition for certiorari, grant the petition, and quash the order.

Graham was initially charged by information in January 2003, with drug-related sale and possession charges within 1000 feet of a place of worship. He pled guilty and was sentenced to forty-two and one-half months of incarceration, followed by three years of drug offender probation. After completing his incarcerative term, Graham violated a condition of his probation by testing positive for drugs. As a result, the terms of his probation were modified, and he was ordered to attend a residential drug treatment program.

Graham’s attempt at rehabilitation proved unsuccessful, and he was discharged from the residential drug treatment program, constituting another violation of probation. Graham was then given the opportunity to attend drug court. However, Graham did not successfully complete this either, and he was resen-tenced on June 4, 2009, to approximately eleven and one-half years of incarceration with credit for time served.

Instead of appealing his new sentence, Graham timely filed a motion to mitigate sentence under Florida Rule of Criminal Procedure 3.800(c) on the sixtieth day after he was sentenced and mere hours before the trial court lost jurisdiction to rule on it. Graham neither filed a motion for enlargement of time, nor offered any reasons why he waited so long to file his rule 3.800(c) motion. Apparently unaware that it had the discretion to extend the time for ruling on this motion, the trial court denied it, simply stating, “[T]he Court does not have jurisdiction to modify the Defendant’s sentence more than 60 days after renditioh. See Fla. R.Crim. P. 3.800(c).”

Relevant to the instant appeal, rule 3.800(c) states, “A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it within 60 days after [its] imposition.... ” The denial of a rule 3.800(c) order is not appealable when decided on the merits. Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001). However, when the basis for denial was a lack of jurisdiction, certiorari is proper for purposes of challenging that ruling. See Eberheart v. State, 5 So.3d 791 (Fla. 5th DCA 2009); Ukaj v. State, 969 So.2d 1172 (Fla. 5th DCA 2007); Wills v. State, 963 So.2d 356 (Fla. 5th DCA 2007); Del Valle v. State, 948 So.2d 78 (Fla. 5th DCA 2007); Arnold v. State, 621 So.2d 503 (Fla. 5th DCA 1993). Thus, we treat this appeal as a petition for writ of certiorari.

The issue presented is whether a trial court maintains jurisdiction to hear a timely filed motion to mitigate under rule 3.800(c) when the motion is filed so late that the trial court is not afforded a reasonable opportunity to rule upon the motion within the sixty-day time frame set forth in the rule. Appellate courts have handled this issue differently. In Brantley v. Holloway, 685 So.2d 31, 31 (Fla. 2d DCA 1996), a defendant filed a writ of mandamus after the trial court denied his motion for sentence reduction on the basis that it was not filed within sixty days of his sentence. Noting that the trial court erred in finding the motion was not timely filed, the court, nonetheless, refused to grant mandamus, reasoning that because the motion was not filed until the sixtieth day, the trial court did not have a “meaningful opportunity to rule on his motion within the allotted jurisdictional time.” See also Howard v. State, 914 So.2d 455, 456 (Fla. 4th DCA 2005). The Fourth District recently reiterated this position in State v. Schlabach, 1 So.3d 1091 (Fla. 4th DCA 2009), certifying conflict with the Second District in Childers v. State, 972 So.2d 307 (Fla. 2d DCA 2008).

Following the supreme court opinion in Abreu v. State, 660 So.2d 703 (Fla.1995), this court has consistently held that trial courts retain jurisdiction to hear timely filed motions pursuant to rule 3.800(c) past the sixty-day time frame. See Wills, 963 So.2d at 356; Timmer v. State, 840 So.2d 1160 (Fla. 5th DCA 2003); Haber v. State, 849 So.2d 1148 (Fla. 5th DCA 2003). In Timmer, we held that where the motion for mitigation was timely filed, no formal motion for enlargement of time under rule 3.050 was required when the scheduling of the hearing beyond the sixty-day period was beyond the defendant’s control. As articulated in Abren, there is a balancing of interests between “promoting] justice and equity while also allowing for the efficient operation of the judicial system.” Abreu, 660 So.2d at 704. Under these circumstances, that scale tips toward a decision on the merits. Our view is that based upon the provisions of rule 3.050, the lower court does not lose jurisdiction to rule on a timely filed motion for mitigation of sentence under rule 3.800(c) because the trial court is unable to reach the merits of the motion prior to the expiration of sixty days. Trial courts are to use due diligence in ruling on the motion with reasonable dispatch, and the trial court’s decision is not subject to appellate review. Id.

We express no opinion as to the ultimate resolution of the motion for mitigation. Accordingly, we grant certiorari.

PETITION FOR CERTIORARI GRANTED; ORDER QUASHED.

ORFINGER and LAWSON, JJ., concur.

      . This is an issue we commend to the Florida Bar Criminal Rules Committee.


text:
    Colleen A. FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2168.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      Colleen A. Fleming, Florida City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the denial of her rule 3.800 motion directed to her seven-year prison sentence after she violated her probation on a sale of cocaine charge. We affirm the lower court’s order in all respects except as to Appellant’s claim for jail credit. Appellant contends that she is entitled to jail credit for the time she spent in jail after sentencing waiting for a bed in a court-ordered drug treatment facility, which she ultimately completed. The trial court denied this request believing that this jail time should not be credited because it was served post sentencing, while Appellant was technically on probation. This was error. Fulton v. State, 659 So.2d 491 (Fla. 5th DCA 1995); Scott v. State, 805 So.2d 926 (Fla. 2d DCA 2001).

On remand, the lower court shall award to Appellant an additional forty days in jail credit. In all other respects, the lower court’s order is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

MONACO, C.J., TORPY and GRIFFIN, JJ., concur.


text:
    Lawrence ENO, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1104.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      Lawrence Eno, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We recall our prior per curiam decision and issue the following opinion on rehearing.

Lawrence Eno appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion raised six claims, three of which are not conclusively refuted by the record attachments to the trial court’s order, requiring a reversal as to the denial of those claims. See, e.g., McLin v. State, 827 So.2d 948, 954 (Fla.2002).

In his first claim, Eno alleged that his trial counsel was ineffective for failing to advise him that his open plea could result in a seven-year minimum mandatory sentence and failing to point out to the court that the information does not support a seven-year minimum mandatory. The trial court correctly concluded that the first portion of this claim is conclusively refuted by the record. At the plea proceeding, defense counsel expressly stated that the plea arrangement resolved charges from three felony cases with an agreed overall sentencing cap of ten years in state prison, and a seven-year minimum mandatory sentence applicable to the charge of trafficking in methamphetamine. Then, in response to the trial court’s questioning, Eno acknowledged under oath his understanding that one of the charges to which he was entering a plea carried a seven-year minimum mandatory sentence — and that this would be the lowest sentence that he could receive upon entering his pleas.

On rehearing, however, Eno correctly points out that nothing attached to the trial court’s order refutes his claim that the information charged him with trafficking in fourteen grams of methamphetamine — which only carries a three-year minimum mandatory sentence — and that his trial lawyer was ineffective for misadvising Eno and the court that a seven-year minimum mandatory sentence applied when only a three-year minimum mandatory sentence applied. Accordingly, we reverse the summary denial of that portion of Eno’s first claim not refuted by the attachments to the trial court’s order, and remand with instructions that the trial court either supplement its denial with attachments that do refute this allegation, or grant Eno a hearing on this claim. We also agree with Eno that the record attachments do not refute his claims of ineffective assistance of counsel premised upon counsel’s failure to finalize an earlier, more favorable plea offer, which Eno told his lawyer he wanted to accept (Enos claim two) and failure to finalize a substantial assistance agreement that would have resulted in a further reduction of Eno’s sentence, which he also communicated to his lawyer that he wanted to enter (Eno’s claim three). In all other respects, the trial court’s order is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

ORFINGER and LAWSON, JJ., concur.

GRIFFIN, J., concurs in result only.

      . In another claim, Eno alleged errors to his Criminal Punishment Code Scoresheet. Because it is clear from the record attachments to the trial court’s order that Eno would have received the same sentence irrespective of the alleged errors, we have affirmed the summary denial of his claim without elaboration. See State v. Anderson, 905 So.2d 111, 118 (Fla.2005) (applying the "would-have-been-imposed” standard to rale 3.850 motions alleging scoresheet error). However, if Eno is granted any relief with respect to his first, second or third claims, and is ultimately re-sentenced, the trial court should address Eno’s claimed scoresheet errors prior to any resentencing.

      . See § 893.135(l)(f)l.a„ Fla. Stat. (2007).


author: EVANDER, J.

text:
    Tyrone L. LEONARD, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-2383.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    Tyrone L. Leonard, DeFuniak Springs, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, for Respondent.
   EVANDER, J.

Leonard has filed a petition, alleging that his appellate counsel was ineffective. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.141(c), and conclude that counsel should have challenged the imposition of an illegal minimum mandatory ten year sentence on Leonard’s conviction for aggravated assault with a firearm.

Leonard was convicted, after a jury trial, of attempted first degree murder with a firearm, shooting at, within, or into an occupied vehicle, and aggravated assault with a firearm. As to the aggravated assault count, the jury made a special finding that Leonard had actually possessed a firearm during the commission of the crime, but declined to find that he had discharged the firearm. He was sentenced to life in prison on the attempted murder charge, fifteen years on the second count, and a minimum mandatory ten year sentence on the aggravated assault with a firearm conviction. His sentences were to run concurrently. Leonard’s convictions and sentences were affirmed by this court without opinion. See Leonard v. State, 987 So.2d 91 (Fla. 5th DCA 2008).

In his petition, Leonard correctly argues that the trial court was required to impose a three, not ten, year minimum mandatory sentence on his conviction for aggravated assault with a firearm. Section 775.087(2)(a)(l), Florida Statutes (2006), requires the imposition of a ten year minimum mandatory sentence for certain enumerated offenses and a three year minimum mandatory sentence for other enumerated offenses. See Figueroa-Montalvo v. State, 10 So.3d 173 (Fla. 5th DCA 2009). As to aggravated assault, a plain reading of the statute calls for imposition of a three year minimum mandatory prison sentence:

Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
[enumerated offenses]
and during the commission of the offense, such person actually possessed a ‘firearm’ or ‘destructive device’ ... shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted for aggravated assault, possession of a firearm by a felon, or burglary of a conveyance shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a ‘firearm’ or ‘destructive device’ during the commission of the offense. (emphasis added)

§ 775.087(2)(a)(l), Fla. Stat. (2006).

Because the State has provided the relevant trial records from which this court can conclude that the sentence imposed was illegal, a new appeal would be redundant. See Johnson v. Wainwright, 498 So.2d 938, 939 (Fla.1986). Accordingly, we vacate the sentence imposed on Leonard’s aggravated assault with a firearm conviction and remand for resentencing. The remainder of the issues raised in Leonard’s petition are without merit.

Petition GRANTED in part; DENIED in part; REMANDED.

ORFINGER and COHEN, JJ., concur.

      . See Fla. R.Crim. P. 3.800(b)(2).


author: PLEUS, JR., Senior Judge.

text:
    The LANDMARK WINTER PARK, LLC, Appellant, v. Thomas COLMAN and Gail Colman, Appellee.
    No. 5D08-3893.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      Jeffry R. Jontz, of Swann & Hadley, P.A., Winter Park, for Appellant.
    James M. Campbell, Orlando, for Appel-lee.
   PLEUS, JR., Senior Judge.

This is an appeal from a final judgment awarding attorney’s fees, paralegal’s fees and costs to Thomas Colman and Gail Col-man (Buyers), and against The Landmark Winter Park, LLC (Seller). We find no abuse of discretion by the trial court with respect to the award of attorney’s fees and paralegal’s fees and affirm as to those awards. See Hinkley v. Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955 (Fla. 5th DCA 2007). We remand the judgment, however, as it concerns the award of costs.

The Statewide Uniform Guidelines For Taxation of Costs in Civil Actions expressly states that the Guidelines are advisory only and that the taxation of costs in any particular proceeding is within the broad discretion of the trial court. However, appellate courts have consistently held that certain costs and expenses are not taxable because they are considered overhead. See In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612 (Fla.2005); Robbins v. McGrath, 955 So.2d 633 (Fla. 1st DCA 2007); compare Weeks v. Golden, 846 So.2d 1247 (Fla. 1st DCA 2003) (finding that the general rule as to treating postage, envelopes and copying as overhead and not taxable as costs did not apply where the prevailing party was incarcerated and representing himself; thus, the cost of such items was not a normal incident of the litigant’s business overhead and more likely were incurred specifically for the purposes of the litigation); Noel v. Broward Gen. Med. Ctr., 725 So.2d 438 (Fla. 4th DCA 1999) (finding that the trial court was within its broad discretion to tax those items used neither at trial nor to support a motion for summary judgment if the court concluded that the taking of such depositions was “reasonably necessary,” and where the appellants failed to identify the specific costs they claimed were not reasonable or necessary).

It was the Buyers’ burden to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken. In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d at 616; see also Ocean Club Cmty. Ass’n, Inc. v. Curtis, 935 So.2d 513 (Fla. 3d DCA 2006). The Buyers offered no testimony as to why the costs requested should not be treated as overhead and taxed to Seller contrary to the established case law.

We conclude it was improper for the trial court to tax the following overhead costs to the Seller: postage, online research, facsimile charges, courier services, photocopies, scanning documents and trial supplies. Although the Seller contested costs billed to the clients for parking, overtime paralegal work, after-hours heating and air conditioning, mileage, meals and long distance phone calls, it appears these charges were deducted from the amount requested in the attorney’s fee affidavit and were not part of the final award. If not, on remand, these costs should be deducted. The trial court, however, did not abuse its discretion by taxing Seller for the court reporter’s fees for the depositions not used at trial in light of the fact that the Guidelines expressly state that the court reporter’s per diem for all depositions can be taxed. Additionally, the cost of photocopies for the trial exhibits is taxable under the Guidelines. See Vogel v. Allen, 443 So.2d 368 (Fla. 5th DCA 1983) (holding that photo copies were part of normal office expenses of counsel and were not recoverable, except for a copy of the city map of Bunnell as it may have been relevant demonstrative evidence).

We affirm the award of attorney’s fees and paralegal’s fees. We remand for the trial judge to reconsider the award of costs. We are unable to determine from the record the precise amount of the items which should not have been taxed. The trial court should deduct the amount of any costs taxed for postage, online research, facsimile charges, courier services, photocopies, scanning documents and trial supplies, as well as parking, overtime paralegal work, after-hours heating and air conditioning, mileage, meals and long distance phone calls, if not already deducted, and enter an amended judgment.

AFFIRMED IN PART; REMANDED FOR ENTRY OF AMENDED JUDGMENT.

SAWAYA and ORFINGER, JJ., concur.


text:
    CRYSTAL MOTOR CAR COMPANY OF HERNANDO, LLC, Appellant, v. Andrea BAILEY, Appellee.
    No. 5D08-3729.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      Tracy Martinell Henry and Michael D. Siegel of Dalan, Katz & Siegel, P.L., Clearwater, for Appellant.
    Roger L. Fishell, Sarasota, for Appellee.
   PALMER, J.

Crystal Motor Car Company (Crystal Motor) appeals the non-final order entered by the trial court denying its motion to compel arbitration. Determining that Crystal Motor was entitled to receive an evidentiary hearing on its motion, we reverse.

Andrea Bailey filed a complaint against Crystal Motor alleging sixteen separate claims of liability arising out of an agreement to purchase a motor vehicle from Crystal Motor. Bailey alleged that Crystal Motor breached the terms of the agreement by seeking additional consideration for the transaction, taking possession of the car from Bailey without notice, and maintaining possession of Bailey’s trade-in vehicle.

Crystal Motor filed a motion to compel arbitration alleging that the parties’ motor vehicle agreement contained an arbitration clause applicable to Bailey’s claims. Bailey filed a response to the motion with an affidavit contending that she did not sign any arbitration provision and that her signature on the document presented with Crystal Motor’s motion to compel arbitration was a forgery.

In denying the motion to compel arbitration, the trial court expressly found that a factual issue existed concerning the validity of Bailey’s signature. The court ruled:

The Defendant’s Motion to Compel Arbitration is DENIED as Plaintiff has raised an issue regarding the validity of the signature of the Plaintiff on the arbitration agreement document, thereby casting doubt on the validity of the arbitration agreement.

Crystal Motor contends that the trial court committed reversible error when it ruled on its motion to compel arbitration without first holding an expedited eviden-tiary hearing since there were factual disputes as to whether Bailey executed a document containing an arbitration agreement. We agree.

Section 682.03 of the Florida Statutes governs proceedings to compel arbitration. The statute reads, in pertinent part:

682.03. Proceedings to compel and to stay arbitration
(1) A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

§ 682.08(1), Fla. Stat. (2008). The clear wording of the statute requires the trial court to conduct a hearing on a party’s motion to compel when there is a “substantial issue” regarding the making of the arbitration agreement. As such, the trial court should have conducted an evi-dentiary hearing before entering an order denying Crystal Motor’s motion to compel arbitration. Accordingly, we reverse and remand for an evidentiary hearing.

REVERSED and REMANDED.

MONACO, C.J., and SAWAYA, J„ concur.

      . Appellate jurisdiction is proper pursuant to rule 9.130(a)(3)(C)(iv) of the Florida Rules of Appellate Procedure which authorizes appeals to the district courts of non-final orders that determine the entitlement of a party to seek arbitration.


author: LAWSON, J.

text:
    John C. DANN, Appellant, v. Francis Huff DANN, Appellee.
    No. 5D08-3659.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    Robert L. Appleget, Jr., and Anne E. Raduns-Owen, Ocala, for Appellant.
    Francis Huff Dann, Belleview, pro se.
   LAWSON, J.

John C. Dann, the former husband, appeals a final judgment of dissolution contending that the trial court abused its discretion in its equitable distribution scheme and in imputing income to him for purposes of child support. Finding that we lack jurisdiction, we dismiss the appeal.

The final judgment was rendered and filed on August 20, 2008. The former husband served an untimely motion for rehearing of the final judgment fifteen (15) days after the final judgment was filed. Filing one of the motions listed in Florida Rule of Appellate Procedure 9.020(h), including a motion for rehearing, will suspend rendition of the final order only if the motion is timely under the rules applicable to the proceeding in the lower tribunal. Florida Family Law Rules of Procedure provide that motions for rehearing are governed by the general rules of procedure. Fla. Fam. L.R.P. 12.530 referring to Fla. R. Civ. P. 1.530. Florida Rule of Civil Procedure 1.530(b) provides that “[a] motion for new trial or for rehearing shall be served not later than 10 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action.” In sum, a motion for rehearing served in a civil ease more than ten (10) days from the entry of judgment is insufficient to extend the date of rendition of judgment. E.g., American Biologicals, Inc. v. Technical Chem. & Prod., Inc., 766 So.2d 284 (Fla. 4th DCA 2000) (holding a motion for rehearing did not toll the running of the appeal time because it was not served as required by rule 1.530(b) within ten days of filing the judgment); Migliore v. Migliore, 717 So.2d 1077 (Fla. 4th DCA 1998) (holding that a motion for rehearing must be served within ten days and that it is not timely merely because it was filed within ten days); Audi v. Fed’l Nat’l Mortg. Assn., 685 So.2d 102 (Fla. 4th DCA 1997) (holding a motion for rehearing served fifteen days after the judgment is untimely); see generally Philip J. Padova-no, Florida Appellate Practice § 2.4 (2007-08 ed.) (“If the untimely rehearing motion is denied by the lower court after the expiration of the original thirty-day time period to appeal the judgment, the right of appeal will be foreclosed.”).

In this case, the former husband had ample opportunity to file a timely notice of appeal despite his untimely motion for rehearing. Specifically, the untimeliness of the former husband’s rehearing motion was highlighted in the former wife’s counsel’s September 5, 2008 memorandum of law in opposition to the former husband’s motion for rehearing, and then again when the trial court entered an order denying the former husband’s motion for rehearing on September 18, 2008 — two days prior to expiration of the thirty-day time period to appeal the final judgment. In that order, the trial court expressly found that the former husband’s motion for rehearing was served on the former wife more than ten (10) days after the date of filing of the judgment as required by Florida Rule of Civil Procedure 1.530(b). Inexplicably, however, the former husband was again untimely as he did not file a notice of appeal until October 20, 2008.

Accordingly, we dismiss the appeal for lack of jurisdiction.

DISMISSED.

ORFINGER and EVANDER, JJ., concur.


text:
    Sandie JOHNSON, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, etc., Appellee.
    No. 5D08-1778.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      Martin J. Cohen and Michael A. Stein-berg, of Michael Steinberg & Assoc., Tampa, for Appellant.
    Geoffrey M. Christian, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Sandie Johnson appeals from an adverse determination of the State of Florida Department of Management Services, Division of Retirement Commission (Commission) on her claim for in-line of duty disability retirement benefits under the Florida Retirement System. Because the Commission’s determination is founded on competent substantial evidence, we affirm.

Ms. Johnson was an employee of the Marion County School Board and was injured in the line of duty. At the time of her injury, Ms. Johnson’s creditable service in the state retirement program totaled less than the ten-year period required at the time for normal vesting. Thus, in order to recover retirement disability benefits, Ms. Johnson had to demonstrate an in-line of duty, work-related injury, which caused a total and permanent disability. After Ms. Johnson’s initial claim for benefits was denied, she appealed to the Commission, which conducted an evidentiary hearing on her claim. Following the hearing, the Commission concluded that Ms. Johnson failed to prove by competent evidence that she was totally and permanently disabled, concluding instead that at most, she demonstrated a temporary, moderate disability. This appeal followed.

The standard of review for determinations of whether a claimant for disability retirement benefits is totally and permanently disabled is whether the finding is supported by competent, substantial evidence. Oller v. Div. of Ret., 415 So.2d 801, 801-02 (Fla. 1st DCA 1982); Amico v. Div. of Ret., Dep’t of Admin., 352 So.2d 556, 557 (Fla. 1st DCA 1977).

As a non-vested member of the Florida Retirement System, Ms. Johnson was entitled to in-line of duty disability benefits only if her injury or illness arose out of and in the actual performance of the duties required by her employment and was the substantial cause or aggravating cause of her total and permanent disability. See § 121.091(4)(a), Fla. Stat. (2008); Otero v. State Ret. Comm’n, 720 So.2d 1147, 1148 (Fla. 5th DCA 1998); Blanton v. Div. of Ret., 480 So.2d 134, 135 (Fla. 1st DCA 1985). This is generally a factual determination, and the burden of proof is on the member seeking to show entitlement to the disability retirement benefits. See Fla. Admin. Code R. 60R-1.0047. Here, although the evidence presented at the hearing was disputed, the Commission’s final order, denying benefits on the basis that Ms. Johnson failed to establish a total and permanent disability, is supported by competent, substantial evidence. We cannot reweigh the evidence. Accordingly, we affirm the Commission’s order.

AFFIRMED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


text:
    Andre Romaro DANIELS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-4151.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    Andre R. Daniels, Bristol, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 2008-CF-002212-A, in the Circuit Court in and for Seminole County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, LAWSON, and COHEN, JJ., concur.


text:
    Wayne E. SEYMOUR, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3867.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    Wayne E. Seymour, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The Appellant, Wayne Seymour, appeals the summary denial of his rule 3.800(a) motion. In his motion, the Appellant claimed he was entitled to additional jail time credit. The court’s order summarily denying the Appellant’s motion did not include any record attachments to conclusively refute this claim for relief. The court’s order notes that there was a plea agreement setting the amount of jail credit. However, the agreement was not attached to the order. See Fla. R.App. P. 9.141(b)(2)(D); Friss v. State, 881 So.2d 38 (Fla. 5th DCA 2004).

Therefore, the order summarily denying the Appellant’s rule 3.800(a) motion is reversed and the matter remanded to the trial court to attach those portions of the record conclusively showing that the Appellant is not entitled to relief.

REVERSED and REMANDED.

TORPY, COHEN and JACOBUS, JJ„ concur.

      . Fla. R.Crim. P. 3.800(a).


text:
    Douglas NELSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-3840.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    Douglas Nelson, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the judgments and sentences in eases number 05-2008-CF-010576-A and 05-2008-CF-010577-A in the Circuit Court for the Eighteenth Judicial Circuit in and for Brevard County. See Fla. R.App. P. 9.141(e)(5)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA, and LAWSON, JJ., concur.


text:
    Eddie HALFACRE, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2683.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    Eddie L. Halfacre, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Eddie Halfacre appeals from the summary denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The motion alleges several errors on the criminal punishment code scoresheet used to calculate Halfacre’s sentence. As the State properly concedes, Halfacre is entitled to relief with respect to one of the claimed errors.

Halfacre seeks relief in Lake County case no. 03-1512, where he was sentenced to 109.35 months of incarceration for the third degree felony of unlawful acquisition of or attempt to acquire a controlled substance by fraud. This sentence exceeds the normal five-year maximum penalty for a third degree felony because 109.35 months was the lowest permissible sentence calculated on Halfacre’s scoresheet for this case. See § 921.0024(2), Fla. Stat. (2003). It is clear from the face of the record that four of the convictions scored as part of Halfacre’s “prior record” were for offenses committed after Halfacre committed the offense in this case. In denying relief, the trial court incorrectly concluded that it was proper to score these offenses because Halfacre pled guilty to the offenses prior to his sentencing in this case. However, the Criminal Punishment Code defines “prior record” as convictions for offenses “committed by the offender ... prior to the time of the primary offense.” § 921.0021(5), Fla. Stat. (2003). Halfacre is correct that a sentencing court may not score as prior record a conviction for an offense which was committed after the primary offense. Id.; see also, Perkowski v. State, 920 So.2d 836, 838 (Fla. 4th DCA 2006) (“It is clear based on the plain language of the rule that a sentencing court may not score as a prior conviction an offense which was committed after the primary offense.”) (citations omitted). Because the sentencing court could not have imposed a sentence of 109.35 months in this case absent the scoresheet error, the error is not harmless and must be corrected. See Brooks v. State, 969 So.2d 238, 243 (Fla.2007). Correction of the error will result in a 2.4-month reduction in Halfacre’s sentence.

The other errors alleged by Halfacre relate to the scoring, as prior record, of a number of his convictions from the year 1985. Halfacre alleges that these convictions arose from a single criminal episode and argues that, as such, they could not all be scored as prior record. Contrary to Halfacre’s argument, there is nothing in the Criminal Punishment Code which precludes the scoring of prior record points for multiple convictions arising out of a single criminal episode and contained in a single judgment. These convictions were properly scored.

Accordingly, we affirm the trial court’s ruling as to the 1985 convictions and reverse as to the scoring of offenses committed after the date of the offense in this case. On remand, the trial court must resentence Halfacre using a corrected scoresheet.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

GRIFFIN and TORPY, JJ., concur.

      . See § 893.13(7)(a)9. & (7)(c), Fla. Stat. (2003).


text:
    David Terrence STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2650.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    David Terrence Stephens, Okeechobee, pro se.

      Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

This appeal represents Appellant’s fifteenth collateral pleading attacking his conviction in Orange County Circuit Court case number 1998-CF-16826 and is completely lacking in merit. We ordered Appellant to show cause why he should not be barred from any further such frivolous filings, but no response has been received. Accordingly, Appellant is prohibited from filing any further appeal, petition, pleading or motion pertaining to the conviction and sentence rendered in the above case unless reviewed and signed by an attorney who is a member in good standing of The Florida Bar. See Baker v. State, 878 So.2d 1236 (Fla.2004); State v. Spencer, 751 So.2d 47 (Fla.1999).

AFFIRMED with directions.

GRIFFIN, SAWAYA and JACOBUS, JJ., concur.


author: ALTENBERND, Judge.

text:
    Robert Raymond BIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-247.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Robert Raymond Biggs appeals the withhold of adjudication and sentence of probation that he received on the charge of domestic battery by strangulation. This is an Anders appeal, and we affirm.

On October 25, 2008, at approximately 4:00 a.m., Mr. Biggs was arrested at his residence in Holiday, Florida, for false imprisonment and aggravated battery involving strangulation. According to his girlfriend, he was under the influence of a prescription drug when he struck her repeatedly in the face with his fists. He then put his hands around her neck, strangling her to the point that she had trouble breathing. Thereafter, he dragged her into the bathroom and told her not to leave the room or he would hurt her.

As a result of this arrest, he was charged with the third-degree felony of domestic battery by strangulation. See § 784.041(2)(a), Fla. Stat. (2008). He later signed a written plea form indicating that he had a college education. He pleaded guilty to the charge in exchange for a withhold of adjudication and two years’ probation, including an anger management program and a substance abuse and psychological evaluation. The trial court entered the appropriate judgment and probation order to fulfill this agreement after conducting a thorough change of plea hearing on December 16, 2008. The record contains no objection of any sort or any preserved issue.

Mr. Biggs, as was his legal right, timely appealed the withhold of adjudication and order of probation. Nothing in this record, however, suggests that his public defender in the trial court could have identified any issue that could be argued in this court in good faith. The clerk of circuit court dutifully prepared a complete record, including a transcript of the plea hearing. Mr. Biggs was appointed an experienced appellate public defender who reviewed the record and found no issue worthy of briefing. Accordingly, he filed an Anders brief. Because Mr. Biggs did not choose to abandon the appeal at that time, an experienced assistant attorney general reviewed the file and also found no issue for consideration by this court. Thereafter, three judges of this court were selected to consider this case, and we too reviewed the record in search of an issue. None was located.

Mr. Biggs is merely one of many defendants who have received favorable outcomes in full accordance with their negotiated agreement with the State and then have chosen to expend the resources of this state on an appeal that has no basis in fact or law. These cases slow the review of other cases that may have merit. While the constitutional right to appeal is vital to the legitimacy of our criminal justice system, it seems unfortunate that we cannot devise methods, fair to all parties, to minimize the number of appellate proceedings that occur after defendants receive precisely the judgments and sentences that they have agreed to receive in signed, written negotiated plea agreements that were discussed and reviewed in open court at a plea hearing where the trial court conducted a proper colloquy without any objection.

Pursuant to Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii), a defendant who enters a guilty or nolo contendere plea and who has not specifically reserved his or her right to appeal a pre-plea ruling of the trial court may challenge on appeal solely (1) the trial court’s lack of subject matter jurisdiction; (2) the violation of the plea agreement, if preserved by a motion to withdraw the plea; (3) an involuntary plea, if preserved by a motion to withdraw the plea; and (4) a sentencing error, if preserved. See Fla. R.App. P. 9.140(b)(2)(A)(ii)(a)-(d); see also Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979). Unless the trial court or the defendant’s attorney explains these extreme limitations to the defendant, we are inclined to believe that the typical defendant may believe that he or she has some realistic hope of sue-cess on appeal and may believe that the appeal could result in some reduction in the bargained-for sentence.

It is at least plausible that some standard language near the end of the plea colloquy, confirming with the defendant that the judgment and sentence just imposed are in full compliance with the negotiated plea agreement and then explaining that the trial court is aware of no issue that could be argued in good faith in the appellate court, might reduce the number of these unnecessary appeals.

It might also be more efficient if appeals in cases involving written negotiated pleas were not transferred to the Public Defender of the Tenth Judicial Circuit but remained the responsibility of the office of the public defender who filed the appeal. Whatever the solution, at this point, in a case like this one emanating from a circuit other than the Tenth Judicial Circuit, neither the defendant nor his or her attorney has any significant incentive to do anything other than to file a frivolous appeal of the judgment and sentence at the expense of the taxpayers and to the prejudice of other defendants with meritorious appeals who must wait in prison while we fulfill our duty reading records without legal issues.

Affirmed.

VILLANTI, J., Concurs.

WALLACE, J., Concurs in result only.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: MORRIS, Judge.

text:
    Donald M. MONTANEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 2D09-2838.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.

      Jay A. Hebert and Jonathon W. Douglas, Clearwater, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Respondent.
   MORRIS, Judge.

Donald M. Montanez petitions for a writ of certiorari directed at the trial court’s order which denied his motion for immunity and motion to dismiss. We conclude that the trial court did not err, and we therefore deny the petition.

I. Facts

In this case Montanez, the owner of a tow truck company, shot and killed Glen Rich, whose car had been towed by one of Montanez’s employees. Rich was shot while attempting to recover his vehicle after he and some of his friends confronted Montanez and Montanez’s employees at the location where the vehicle had been towed. During the confrontation, Rich gained entry to the vehicle and attempted to drive the vehicle away. At some point, he drove the vehicle towards Montanez and one of Montanez’s employees. The circumstances then took a tragic turn. Montanez claimed that he fired his weapon as he dove out of the way to avoid being hit by the vehicle. The physical evidence revealed that the bullet entered the front side passenger window and then struck Rich, suggesting that Montanez fired the weapon as the vehicle was passing him.

As a result of Rich’s death, Montanez was charged with second-degree murder and shooting at or into a vehicle. Thereafter, Montanez filed his motion for immunity and motion to dismiss. He argued that pursuant to section 776.082, Florida Statutes (2005) (known as the “Stand Your Ground” law), he was entitled to immunity from prosecution for Rich’s death. Monta-nez argued that he had a reasonable belief that Rich was using the vehicle as a deadly weapon and that he [Montanez] fired the shot in defense of his life as well as in defense of his employee’s life.

After an evidentiary hearing, the trial court denied the motions. The court noted that when a vehicle is proceeding forward, there is a zone of uncertainty as to the possible direction of that vehicle. The court further explained that under certain circumstances, where the vehicle is being used in a threatening manner towards individuals, it might not be unreasonable for such individuals standing in that zone of uncertainty to display a weapon in self-defense. The court ultimately found, however, that in this case, Montanez discharged his firearm after the zone of uncertainty had passed; thus, according to the trial court, the threat of imminent death or great bodily harm had also passed. On that basis, the trial court held that Montanez was not justified in discharging the firearm and that he was not entitled to immunity.

II. Analysis

“To obtain a writ of certiorari the petitioner must establish: (1) a departure from the essential requirements of the law; (2) resulting in material injury for the remainder of the case; (3) that cannot be remedied on postjudgment appeal.” Vermette v. Ludwig, 707 So.2d 742, 744 (Fla. 2d DCA 1997). The last two prongs of this test are jurisdictional and must be met before this court can determine whether there was a departure from the essential requirements of the law. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995).

We have some doubt as to whether Montanez has established that he will suffer irreparable harm that cannot be remedied on postjudgment appeal should the prosecution of these charges proceed. If he is convicted of the charges at trial, he will still have an opportunity to file a direct appeal at which point his conviction could be overturned. See, e.g., McDaniel v. State, 24 So.3d 654, 656-57 (Fla. 2d DCA 2009) (reversing and remanding appellant’s conviction in relevant part because trial court utilized wrong standard in determining that appellant was not entitled to immunity).

On the other hand, section 776.032(1) addresses immunity from both criminal prosecution and civil suits, and this court has previously held that “[b]ecause of the nature and purpose of a claim of immunity from suit, an appeal after final judgment would not be an adequate remedy; a party can not [sic] be reimmunized from suit after-the-fact.” Vermette, 707 So.2d at 744 (citing Stephens v. Geoghegan, 702 So.2d 517, 521 (Fla. 2d DCA 1997)). In his motions, Montanez did not seek protection from civil suit. Nonetheless, a determination that he was not entitled to immunity under section 776.032 could leave him vulnerable to the possibility of defending a civil suit.

Yet even assuming Montanez did establish irreparable harm that could not be remedied on postjudgment appeal, he has not established that the trial court departed from the essential requirements of the law.

The parties agree that the trial court correctly utilized the preponderance of the evidence standard in deciding the issue of immunity, as set forth in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). But Montanez argues the trial court departed from the essential requirements of the law when the trial court commented in its order that “[t]he events in this case did not occur in a house or a vehicle which is where this Court believes immunity is intended to apply.”

We do not read the trial court’s comment to be the basis for its holding that immunity did not apply to Montanez. Rather, it is apparent from the order that the trial court’s decision was based on its determination that the zone of uncertainty had passed, i.e., that Montanez “knew the location of the individuals relative to the [vehicle] and that all individuals got out of the way of Glen Rich’s vehicle.” Thus, according to the trial court, “Montanez knew or should have known that he and [the relevant employee] were no longer in the ‘zone of uncertainty’ when he fired his weapon.” The court’s later comment regarding its belief that immunity was intended to apply to situations where a person was inside a house or vehicle appears to be an afterthought. That interpretation is further supported by the court’s additional discussion — within the same paragraph — that because firearms are inherently dangerous, their use is “best left to well trained individuals who have a duty to serve and protect.” Under the facts of this case, we view such opinions from the trial judge as merely dicta.

Even if we assumed that this latter challenged comment was a partial basis for the trial court’s reasoning, we would be constrained to deny the petition. “The departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. There must be a violation of a clearly established principle of law resulting in a miscarriage of justice.” Housing Auth. of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004) (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000)). While it is true that “[a] failure to observe ‘the essential requirements of law has been held synonymous with a failure to apply the ‘correct law[,]’ ... [t]he district courts of appeal ‘should not be as concerned with the mere existence of legal error as much as with the seriousness of the error.’ ” Id. at 7 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528, 530 (Fla.1995)).

In this case, even if we construe the trial court’s comment to be an application of the incorrect law, we do not deem the error to be so serious as to constitute a departure from the essential requirements of the law resulting in a miscarriage of justice. We reach that decision because it is apparent that the trial court was not focused so much on the fact that Montanez was not in his home or vehicle but rather that Monta-nez was no longer in the zone of uncertainty. Thus, because the trial court supplied another legally permissible reason for the denial, any legal error resulting from the other finding does not rise to the level warranting the exercise of our certiorari power.

We likewise do not find a departure from the essential requirements of the law in the trial court’s factual determination. It is clear from the record that at the time Montanez fired the shot, the vehicle was passing him. Thus we are not persuaded that he was still in the zone of uncertainty such that he was entitled to discharge the weapon in self-defense. Further, Montanez testified that at the time he fired the shot, he did not know where the employee whom he claimed he was protecting was located. That testimony was apparently problematic to the trial court as evidenced by its determination that “Montanez knew or should have known that he and [the relevant employee] were no longer in the ‘zone of uncertainty’ when he fired his weapon.” The implication from that finding is that before a person is justified in discharging a weapon in defense of others, that person must be reasonably certain that the person whom they are defending is in immediate danger of death or great bodily harm. Such a determination is in accord with the objective, reasonable person standard by which claims of justifiable use of deadly force are measured. We find no error in such a determination.

We hold that based on the facts of this case, the trial court did not depart from the essential requirements of the law, and we therefore deny Montanez’s petition for writ of certiorari.

Denied.

WHATLEY, J., Concurs.

WALLACE, J., Concurs in result only.

      . Montanez was also charged with four counts of aggravated assault, but those charges are not relevant for purposes of this certiorari proceeding.

      . We additionally note that he will still be able to present self-defense as an affirmative defense at trial. See Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008) (noting that petitioner could still raise immunity issue as affirmative defense at trial).

      .Section 776.032(1) provides that "[a] person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force.”

      . See Peterson, 983 So.2d at 29 (“[W]hen immunity under [the “Stand Your Ground” law] is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes ... [and] must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.”).

      . Another one of Montanez's employees was actually struck by the vehicle, but that employee testified he put himself in harm’s way and Montanez did not claim he fired his weapon in defense of that particular employee.

      . See Fla. Std. Jury Instr. (Crim.) 3.6(f) (providing that when a person claims to have acted in self-defense or in defense of others, they must be judged by the circumstances with which they were faced at the time the deadly force was used and to justify the use of deadly force, "the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force”).


author: WALLACE, Judge.

text:
    Johnathan MIRTO, a/k/a Johnathan Dennis Mirto, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D08-5863, 2D09-2209.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Johnathan Mirto appeals the revocation of his community control and his resulting sentences. We affirm the judgments and sentences but remand for the circuit court to enter a written order of revocation of community control.

Mr. Mirto argues that the State failed to present sufficient nonhearsay evidence to sustain the revocation of his community control. We disagree. The State presented sufficient competent, substantial evidence to support the circuit court’s findings that Mr. Mirto had violated the conditions of his community control.

Mr. Mirto also argues that the circuit court erred because it did not enter a timely written order revoking his community control. We agree. “[T]he [circuit] court is required to enter a formal order of violation of [community control] that lists the specific conditions the court determined [the defendant] violated.” Cato v. State, 845 So.2d 250, 251 (Fla. 2d DCA 2003). On March 26, 2009, Mr. Mirto filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2) that sought a written order revoking his community control. The circuit court granted Mr. Mirto’s motion on July 8, 2009, and rendered a written order revoking his community control on the same date. However, this order of revocation is a nullity because it was not filed within sixty days of the filing of the motion. See Whitmore v. State, 910 So.2d 308, 308 (Fla. 2d DCA 2005) (finding that an order granting a rule 3.800(b)(2) motion was a nullity because it was filed sixty-two days after the filing of the motion). Thus the circuit court failed to enter a written order of revocation.

Accordingly, we affirm Mr. Mirto’s judgments and sentences but remand for the circuit court to enter a formal order of revocation of community control. See Cato, 845 So.2d at 251.

Affirmed and remanded with directions.

NORTHCUTT and CRENSHAW, JJ„ concur.


author: POLEN, J.

text:
    COHEN & COHEN, P.A., COBIS, a Florida partnership, Bernard Cohen, individually, and Irwin Cohen, individually, Appellants, v. GERSON, PRESTON, ROBINSON & COMPANY, P.A., and Conrad Scherer, LLP, a Florida limited liability partnership, Appellee.
    No. 4D08-1479.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.
    John G. Crabtree and George R. Baise, Jr., of Crabtree & Associates, P.A., Key Biscayne, and Donald T. Norton of Cohen & Cohen, P.A., Hollywood, for appellants.
    Barry J. Stone, Robert C. Buschel, and William J. Berger of Rothstein Rosenfeldt Adler, Fort Lauderdale, for appellee Conrad Scherer, LLP.
   POLEN, J.

Appellants, Cohen & Cohen, P.A., CO-BIS, a Florida partnership, Bernard Cohen, individually, and Irwin Cohen, individually, (the Cohen Entities) appeal the trial court’s amended final judgment awarding Appellee, Conrad Scherer, LLP, the Cohen entities’ former attorneys, $159,543.09 in damages and $10,127.93 in prejudgment interest. Appellants raise several issues regarding the trial court’s interpretation of the subject retainer agreement. We affirm the trial court’s interpretation of the contract and write only to address the trial court’s failure to affix a date on which prejudgment interest began to accrue.

The parties’ dispute arose after the Cohen Entities hired William Scherer Jr., a principal of Conrad Scherer, LLP, to represent them in five separate but intertwined legal matters. The parties acknowledge in the retainer agreement that the whole of Conrad Scherer’s representation involved several matters for which no affirmative recovery was anticipated. Accordingly, the parties agreed to the following nonstandard fee arrangement which would be paid out of any gross recovery:

75% of any recovery up to the first $100,000 recovered
50% of any recovery between $100,000.01 and $300,000
40% of any recovery between $800,000.01 and $500,000
33 1/3% of any recovery in excess of $500,000

The retainer agreement was later amended by addendum in order to reduce the fee to 33 1/3% of all amounts recovered. The addendum provided, “All other terms of the retainer shall remain in full force and effect.”

As to costs, the retainer agreement stated that costs were in addition to any attorney’s fees and that costs or charges advanced by Conrad Scherer on behalf of the client were to be “reimbursed to the law firm from any net recovery, if a recovery is obtained.” The agreement also held the Cohen Entities responsible for costs “which have been paid or are due.”

An accounting firm retained by Conrad Scherer to assist in the litigation brought suit against Conrad Scherer alleging breach of contract for Conrad Scherer’s failure to pay for its services. Conrad Scherer answered the complaint raising an affirmative defense that it retained the accounting firm’s services acting as the Cohen Entities’ agent.

Conrad Scherer filed a third party complaint against the Cohen Entities seeking damages on grounds of breach of contract, indemnification, and promissory estoppel for the Cohen Entities’ failure to pay the several costs incurred by Conrad Scherer for the purpose of representing the Cohen Entities. Among other forms of relief, Conrad Scherer sought a judgment for those costs plus prejudgment interest.

The Cohen Entities brought a counterclaim against Conrad Scherer for breach of contract and an accounting, claiming that Conrad Scherer collected $141,308.04 more in attorney’s fees than it was entitled to under the retainer agreement. Specifically, according to the Cohen Entities, Conrad Scherer was entitled to 33 1/3% of their net recovery from the five different matters. Thus, Conrad Scherer should have offset the recovery gained in some matters by the amount of the adverse judgment sustained in other matters before calculating its fee.

Following a bench trial, the trial court denied the Cohen Entities’ claims and awarded Conrad Scherer the principal sum of $159,543.09 for costs incurred during its representation of the Cohen Entities and $10,127.93 in prejudgment interest.

The Cohen Entities argue the trial court erred in awarding prejudgment interest without making a finding of the specific date on which the loss was incurred and the interest rate applied. Conrad Scherer acknowledges that the trial court must affix a date on which prejudgment interest begins to accrue and suggests that the trial court relied on a letter dated Decern-ber 8, 2004 in which Conrad Scherer requested payment of the unpaid bills.

Both parties cite H & S Corp. v. U.S. Fidelity & Guaranty Co., 667 So.2d 393 (Fla. 1st DCA 1995), in which the court held that the trial court’s failure to make a finding regarding a fixed date of actual expenditure before awarding and calculating prejudgment interest required the case to be remanded for further proceedings. Id. at 399.

The Cohen Entities’ argument that the trial court erred in failing to make a finding as to the interest rate applied is without merit.

The amount of interest to be paid, absent a controlling contractual provision, is a matter of policy to be determined by the legislature. The judiciary does not have discretion in this matter but must apply the statutory interest rate in effect at the time the interest accrues.

Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985). Accordingly, we reverse and remand for the trial court to determine a date on which prejudgment interest began to accrue.

Affirmed in part, reversed in part, and remanded.

MAY and GERBER, JJ., concur.


author: MAY, J.

text:
    Randy COHEN, Appellant, v. Sonia APONTE, Appellee.
    No. 4D09-1985.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.
    Kevin D. Franz and William S. Reese of Lane, Reese, Summers, Ennis & Perdomo, P.A., Coral Gables, for appellant.
    Christopher F. Lanza, Miami, for appel-lee.
   MAY, J.

An attention to detail and questioned compliance with the requirements of section 48.161, Florida Statutes, are at issue in this appeal. The defendant argues that the trial court erred in denying his motion to quash service of process for noncompliance with section 48.161. We agree and reverse.

The plaintiff filed a complaint against the defendant and his employer involving an auto accident. After filing the complaint, the plaintiff was unable to locate the defendant and his employer. The plaintiff moved for an extension of time to serve the defendants; the court granted the motion. The plaintiff then served the employer, but was unable to locate the defendant.

The plaintiff filed an amended complaint and alleged that numerous attempts were made to locate and serve the individual defendant, but it appeared he was no longer within the court’s jurisdiction or was concealing his location. The amended complaint further alleged that the plaintiff conducted a diligent search; and that pursuant to section 48.161, the plaintiff was serving a copy of the complaint and summons on the Secretary of State with a copy sent to the defendant’s last known address by certified mail.

On September 18, 2008, the complaint and summons were sent to the Secretary of State and to the defendant via certified mail. The Secretary of State filed the summons and complaint on September 23, 2008. On October 3, 2008, the plaintiff received the notice of acceptance from the Secretary of State. On the same day, the plaintiff mailed the notice of acceptance to the defendant. On October 9, 2008, the plaintiff received the return receipts from the certified mail sent to the defendant indicating that the defendant was unknown at the address. On October 28, 2008, the plaintiff filed the defendant’s return receipts and affidavit of compliance.

The defendant moved to quash service and to dismiss for lack of jurisdiction, arguing that the plaintiff failed to make a diligent search or perfect service of process. Specifically, the defendant argued that the affidavit of compliance was not filed on or before the return day of process and that the plaintiff did not move for an enlargement of time to file the affidavit of compliance. The court denied the motion.

We have de novo review of trial court orders on a motion to dismiss for lack of personal jurisdiction. Beckley v. Best Restorations, Inc., 13 So.3d 125, 126 (Fla. 4th DCA 2009).

Section 48.161(1) provides:

Notice of service and a copy of the process shall be sent forthwith by registered or certified mail by the plaintiff or his or her attorney to the defendant, and the defendant’s return receipt and the affidavit of the plaintiff or his or her attorney of compliance shall be filed on or before the return day of the process or within such time as the court allows....

(emphasis added). “Perfection of substituted service requires strict compliance with the statutory prerequisites because such service is an exception to personal service.” Wyatt v. Haese, 649 So.2d 905, 907 (Fla. 4th DCA 1995).

The statute has three requirements: (1) notice by registered or certified mail; (2) filing the defendant’s return receipt; and (3) filing an affidavit of compliance “on or before the return day of the process or within such time as the court allows....” Id.; § 48.161(1). Here, the plaintiff complied with the first requirement, but failed to timely comply with the second and third.

The Secretary of State accepted and filed the summons and complaint on September 23, 2008. The return day of process was October 13, 2008, twenty days after service. However, the plaintiff did not file the returns or the affidavit of compliance until October 28, 2008, fifteen days late. See Parish Mortg. Corp. v. Davis, 251 So.2d 842, 343-44 (Fla. 3d DCA 1971) (finding that section 48.161 was not complied with when the affidavit of compliance was filed after the return day of process, and the notice of service was not mailed to the defendant “forthwith”).

We therefore reverse and remand the case to the trial court to quash service of process without prejudice to allow the plaintiff an opportunity to perfect service. See Dubois v. Butler, 901 So.2d 1029, 1031 (Fla. 4th DCA 2005) (reversing an order denying a motion to dismiss, quashing the service of process, and remanding to the trial court where the plaintiffs could perfect service pursuant to section 48.161(1)).

Reversed and Remanded.

POLEN and GERBER, JJ., concur.

      . The affidavit of compliance is dated October 24, 2008.