author: MAY, J.

text:
    Marvin Ray HOWARD and Jannie L. Driskell, Appellants, v. BOULANGER DRYWALL CORP., a Florida corporation, Appellee.
    No. 4D09-125.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 2009.

      Christopher E. Cosden of The Wilbur Smith Law Firm, Fort Myers, for appellants.
    David L. Matthews and Caroline M. Iov-ino of Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC., Miami, for appellee.
   MAY, J.

The plaintiffs appeal an adverse summary judgment in a negligence action against the defendant subcontractor for personal injuries resulting from a work-related fall. They argue the trial court erred in granting the defendant’s motion for summary judgment. We disagree and affirm.

The plaintiffs, an employee of a window subcontractor and his wife filed a two count amended complaint against another subcontractor, who installed safety railings at the construction site. Count I alleged that the defendant negligently installed a safety railing on the third floor of a building under construction. Count II sought loss of consortium. The employee fell from a third story balcony while working on a unit’s sliding glass door track. Among other things, the amended complaint alleged that the defendant was “negligent for not installing and/or constructing the Safety Boot Rail System in accordance with specific and detailed instructions provided with this Safety Boot Rail System to assure that it functions as designed.”

The court held a hearing on the defendant’s motion for summary judgment. The uncontested facts established that the defendant was responsible for installing the guardrails, but not responsible for selecting or paying for the type of material used or for maintaining the guardrail system. Multiple witnesses gave deposition testimony, which was admitted into evidence. The defendant also submitted an affidavit from an independent safety consultant, who, having viewed the guardrails, attested to their proper construction. At the conclusion of the hearing, the trial court indicated that it would grant the motion on the negligence issue. It subsequently entered an order.

The court then granted rehearing and considered an affidavit from the plaintiffs’ human factors and industrial safety expert. Following the rehearing, the court entered a second order granting summary judgment. In it, the court stated:

The record establishes that the design, maintenance and component parts of the safety rails were provided and directed by the general contractor, Alliance Construction. The record establishes no inferences that Boulanger had any responsibility other than the erection of the safety rails from the materials provided by the general contractor. The general contractor specifically provided chains to be used. There is no evidence or inference that Defendant Boulanger Drywall undertook any duty to do anything other than assembly. There is no evidence or inference of negligence in the assembly of the safety rail component parts as supplied by the general contractor.

From this order, the plaintiffs now appeal.

We review final summary judgments de novo. Laremont v. Absolute Health Care for Women of All Ages, P.A., 988 So.2d 735, 737 (Fla. 4th DCA 2008).

Here, the defendant provided testimony from multiple sources establishing that the safety rail system was installed properly and in conformance with OSHA standards. The defendant did not choose the material used as a guardrail; rather, the general contractor provided the material for the guardrail. Still other testimony established that the general contractor and an independent safety company were responsible for the guardrail’s maintenance, not the defendant. Therefore, the defendant “tenderfed] competent evidence in support of his motion.” Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 480 (Fla. 4th DCA 2006).

On rehearing, the plaintiffs submitted an affidavit from their human factors and industrial safety expert. The affidavit attested that “[t]he Safety Boot guardrail system was not properly installed” based upon his reference to the manufacturer’s installation instructions depicting the required railings. Significantly, the affidavit was not based upon his personal knowledge. The expert had simply reviewed the installation booklet, viewed photographs of the chain-link guardrails, and provided his opinion. There was no proof that he ever examined the safety rail system or had any other personal knowledge regarding the system. See Castro v. Brazeau, 873 So.2d 516, 517 (Fla. 4th DCA 2004).

This is a classic example of why motions for summary judgment exist within the Florida Rules of Civil Procedure. The defendant established that it did not negligently install the guardrail system. The plaintiffs were unable to establish the existence of a genuine issue of material fact. The trial court correctly entered a summary judgment and we affirm.

Affirmed.

DAMOORGIAN and CIKLIN, JJ., concur.

      . And, there was more. Evidence revealed that another worker on the job may have taken the chains down, allowing the employee to fall while the chains were unattached. Alternatively, the fact that the employee traveled eighteen to twenty feet away from the balcony it suggested that he tripped over a hose or door frame, or perhaps became dizzy due to a health condition.


source: Caselaw Access Project

author: STEVENSON, J.

license: Public Domain

text:
    Anthony GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3864.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 2009.
    Rehearing Denied Jan. 14, 2010.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

When Anthony Green was charged with five new criminal offenses, the trial court, following a hearing, revoked his probation and sentenced him to 180 months in prison. We affirm the revocation, but remand for the entry of an order of revocation that lists only the three charges proven by the State.

In 1999, Green pleaded no contest to robbery with a firearm, and the trial court sentenced him to fifteen years of probation. On June 5, 2008, an affidavit of violation of probation was filed, alleging that Green had violated his probation by resisting an officer with violence, tampering with evidence, battering a law enforcement officer, possessing cocaine, and possessing narcotics equipment. These charges arose from an incident on June 2, 2008, when a road patrol officer in Boyn-ton Beach noticed a silver Saturn run a red light at 1:30 a.m. The officer attempted to make a traffic stop; however, instead of stopping, the Saturn slowed down to approximately five miles per hour and turned left onto another road. Finally, the Saturn stopped, and Green emerged. The officer initiated a felony stop, and Green apologized for not stopping sooner, explaining he had not seen the patrol car. When asked to place his hands on his head, Green fled. When the officer caught him, he observed Green fiddling with something in the bushes. Two additional officers arrived to provide assistance, and Green struggled with them and hit one in the head before being placed under arrest. One of these officers recovered a bag of cocaine and Green’s cell phone from the nearby bushes.

After a revocation hearing, the trial court determined the State had satisfied the court’s conscience by a greater weight of the evidence that Green willfully and substantially violated his probation. See Jenkins v. State, 96B So.2d 311, 313 (Fla. 4th DCA 2007) (“ ‘[A] violation which triggers a revocation of probation must be both willful and substantial, and the willful and substantial nature of the violation must be supported by the greater weight of the evidence.’ ” (quoting Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992))). “ ‘The determination of whether a violation of probation is willful and substantial is a question of fact and will not be overturned on appeal unless the record shows that there is no evidence to support it.’ ” Jenkins, 963 So.2d at 313 (quoting Davis v. State, 796 So.2d 1222, 1225 (Fla. 4th DCA 2001)).

On appeal, Green contends the State failed to prove the allegations of tampering with evidence and possession of narcotics equipment. On this first point we agree, and the State does not argue otherwise in its answer brief. Green further avers that the remaining findings that he possessed cocaine, battered a law enforcement officer, and resisted an officer with violence, standing alone, would be insufficient to constitute a willful, substantial, and material violation warranting probation revocation and a maximum sentence. On Green’s second point, we cannot agree.

In Jackson v. State, 807 So.2d 684 (Fla. 2d DCA 2001), the appellate court concluded the State had proven only two out of the three alleged violations by a preponderance of the evidence. Id. at 685. That court nonetheless affirmed the revocation of probation and sentence because the record left no question that the trial court would have revoked Jackson’s probation for any one of the three violations. Id. However, it also ordered the trial court to strike from the revocation order the violation that lacked sufficient proof. Id. at 686. Upon consideration of the entire record in the instant case, we are confident the trial court would have revoked Green’s probation based on the three sufficiently proven charges and would have imposed the same sentence.

We note, however, that the record in the instant case is devoid of an order revoking probation. Dawkins v. State, 936 So.2d 710 (Fla. 2d DCA 2006), involved a similar situation and explained that an appellate court can either “relinquishf] jurisdiction to the trial court by nonpublished order to enter an order of revocation” or, alternatively, require the order of revocation be entered on remand from the appellate court. Id. at 712 (citing Dolinger v. State, 779 So.2d 419, 420-21 (Fla. 2d DCA 2000), which remanded for entry of a written order of revocation where record clearly showed trial court had revoked appellant’s probation but neglected to enter a written order). Because the record in the instant case clearly reflects the trial court revoked Green’s probation, we follow Dolinger and remand with directions for the trial court to enter an order of revocation in accordance with Florida Rule of Criminal Procedure 3.995. On remand, pursuant to Jackson, the order of revocation should reflect only the three charges proven by the State.

Revocation affirmed, remanded for entry of revocation order consistent with this opinion.

POLEN and GERBER, JJ., concur.


author: WELLS, J.

text:
    U.S. BANK NATIONAL ASSOCIATION as Trustee for the Benefit of Harborview 2005-10 Trust Fund, Appellant, v. Danny TADMORE, deceased, etc. et al., Appellees.
    No. 3D09-1389.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.
    Adorno & Yoss, John J. Shahady, Fort Lauderdale, Jack R. Reiter and Jordan S. Kosches, Miami, for appellant.
    Siegfired, Rivera, Lerner De La Torre & Sobel, Guillermo M. Mancebo and Vincent B. Flor; Gonzalo R. Dorta, Miami, for appellee.
    Before WELLS, SHEPHERD, and CORTINAS, JJ.
   WELLS, J.

In this mortgage foreclosure action, U.S. Bank National Association (“the Bank”) appeals from an order obligating it to “diligently proceed with the [instant] pending foreclosure action ... within thirty (30) days” or pay monthly maintenance fees on the condominium unit in foreclosure. We treat the instant order as an order granting an injunction which we reverse because there is no basis for imposing such fees as a sanction or otherwise in this case. See, e.g., Hughes v. First Fed. Sav. & Loan Assoc., 621 So.2d 557 (Fla. 4th DCA 1993) (finding that an order requiring a party to deposit mortgage payments into the registry of the court as they accrued, pending resolution of the foreclosure claim, was reviewable as an injunction under Rule 9.130(a)(3)(B)).

This action commenced in February 2008 with the Bank seeking to foreclose a first mortgage on a condominium unit owned by Danny Tadmore. The Condominium Association for the property where this unit is located was joined as a defendant in this action. The matter thereafter was delayed first, because the original summons for Mr. Tadmore and his unknown spouse was lost, and then, because Tadmore’s estate had to be added as a party after the Bank learned that he had expired.

On February 20, 2009, approximately a year after this action was filed, the Condominium Association filed a motion to compel the Bank to either proceed with its foreclosure action or to commence paying the $939.56 monthly maintenance fee for the decedent’s condominium unit to the Association. At the time this motion was filed, no notice that the case was ready to be set for trial had been filed and no Rule 1.420(e) motion to dismiss for lack of prosecution had been made. See Fla. R. Civ. P. 1.440(b) (providing that after an action is at issue, “any party” may file and serve a “notice that the action is at issue and ready to be set for trial”); see also Fla. R. Civ. P. 1.420(e) (providing generally that where no activity appears on the face of the record for a period of 10 months, notice is given, and no record activity occurs within the next 60 days, an action may be dismissed by the court on its own motion or on the motion of an interested person).

Rather than attempting to move this action to completion by having it set for trial, the Association claimed that it was being unreasonably prejudiced by the Bank’s “undue delay in pursuing their [sic] foreclosure” action, making it fair and equitable for the court to order the Bank to pay monthly assessment payments to the Association. The trial court agreed. We reverse.

As the Association concedes, the Bank is not contractually obligated to pay condominium maintenance fees on this unit. Nor, as section 718.116(l)(b), Florida Statutes (2009) confirms, is it legally obligated to do so before it obtains title:

(b) The liability of a first mortgagee ... who acquire[s] title to a unit by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that become due prior to the mortgagee’s acquisition of title is limited to the lesser of:
1. The unit’s unpaid common expenses and regularly periodic assessments which accrued or came due during the 6 months immediately preceding the acquisition of title ... or
2. One percent of the original mortgage debt....

See Bay Holdings, Inc. v. 2000 Island Blvd. Condo. Ass’n, 895 So.2d 1197, 1197 (Fla. 3d DCA 2005) (noting that section 718.116(1) is a “safe harbor provision” that “provides a statutory cap on liability of foreclosing mortgagees for unpaid condominium assessments that become due prior to the first mortgagee’s acquisition of title pursuant to a foreclosure proceeding”).

Since no claim was made below to justify imposition of a sanction against the Bank for failing to proceed as quickly as the Condominium Association would like, and no basis for imposition of a sanction appears in the record to exist, the instant order cannot be sustained on this ground. Finally, we reject the notion that equity and fairness supports this order. The law is that a first mortgagee may be required to pay condominium maintenance fees after it acquires title and then only in a limited amount. Since equity follows the law, it cannot be utilized to impose this obligation without limitation before title is passed. See Davis v. Starling, 799 So.2d 373, 378 (Fla. 4th DCA 2001) (noting that “equity follows the law and cannot be used to eliminate its established rules”); Laws v. Laws, 364 So.2d 798, 801 (Fla. 4th DCA 1978) (“It is apparent that the trial court was attempting to do ‘equity’ in the case, but in that quest for ‘equity1, the legal rights of the respective parties cannot be trammelled”); 22 Fla. Jur.2d Equity § 2 (“[I]f an issue is clearly governed by established legal rules, equity may not interfere and disregard the controlling legal principles. Thus, equity is often under the influence of legal rules; in its quest to do equity, a court cannot trammel the legal rights of the parties.”) (footnotes omitted); see also Nordberg v. Green, 638 So.2d 91, 93 (Fla. 3d DCA 1994) (“[C]ourts of equity have [no] right or power under the law of Florida to issue such order it considers to be in the best interest of ‘social justice’ at the particular moment without regard to established law.” (quoting Flagler v. Flagler, 94 So.2d 592, 594 (Fla.1957))).

Accordingly, the order on appeal is reversed.


author: SHEPHERD, J.

text:
    Reinaldo HERNANDEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D09-1348.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.
    Reinaldo Hernandez, in proper person.
    John D. Maher and Louis A. Gutierrez, Tallahassee, for appellee, Florida Unemployment Appeals Commission.
    Before WELLS, SHEPHERD, and CORTIÑAS, JJ.
   SHEPHERD, J.

Reinaldo Hernandez appeals an order from the Florida Unemployment Appeals Commission, affirming an appeals referee’s decision denying Hernandez unemployment compensation benefits on the ground that he voluntarily left employment without good cause. We find no reason to disturb the order under review.

The record reflects that Hernandez was employed by Oxford Building Services, a janitorial service, as a cleaning person. He was scheduled to work seven days per week: Monday through Friday, 6:00 a.m. to 2:00 p.m., and from 6:00 a.m. to 11:00 a.m. on weekends. On Sunday, November 16, 2008, approximately one week after he was hired, his car broke down. He tried to reach his supervisor, but could not. He left a message for the supervisor, stating he would not be able to come to work for two or three days because he had car problems. The next day, Hernandez again called his supervisor. His supervisor advised him he had no way of covering for him and had replaced him with someone else.

Section 443.101(l)(a) of the Florida Statutes (2008) provides that an individual shall be disqualified from unemployment benefits if “he or she has voluntarily left his or her work without good cause attributable to his or her employing unit” or “has been discharged ... for misconduct connected with his or her work.” Misconduct is not an issue in this case. The question before the appeals referee was whether or not Hernandez voluntarily left his work “without good cause attributable to his [employer].” “Good cause” includes “only that cause attributable to the employing unit or ... illness or disability of the individual requiring separation from his or her work.” § 443.101(l)(a)l, Fla. Stat. (2008).

The referee in this case found as follows: The claimant voluntarily quit has position on or about November 16, 2008. The claimant was the moving party to cause the separation when he was not able to report to work. The claimant was having transportation problems and was not able to get to work. Although the claimant notified the employer, the employer could not hold his position. The claimant had good personal reasons for him to leave his job, but they were not attributable to the employer. Accordingly, it is held the claimant quit without good cause.

This case is similar to Coolaire Nordic Int’l Corp. v. Fla. Dep’t of Commerce, Div. of Employment Sec., 356 So.2d 1317 (Fla. 4th DCA 1978). In that case, Coolaire moved its plant from Perrine, Florida, in the area of Green’s (its employee) residence, to Hollywood, Florida, as a result of a merger. Id. at 1318. For a period of six months, the employer provided transportation from Perrine to Hollywood for its employees. Id. Near the end of the period, Coolaire notified its employees that free transportation would be terminated, and requested employees to make their own arrangements. Id. For a while, Green rode to work in a private car pool, and thereafter arranged for transportation with another employee who had the use of a company car, until the employer decided to take back the car. Green advised his employer he was quitting because he had no transportation. Id. The court held that Green voluntarily left his employment without good cause attributable to his employer because it was his responsibility to find transportation to work. Id.

Similarly here, it was Hernandez’s responsibility to make alternate arrangements to get to work. See Glenn v. Fla. Unemployment Appeals Comm’n, 516 So.2d 88, 89 (Fla. 3d DCA 1987) (“Whenever feasible, an individual is expected to expend reasonable efforts to preserve his employment.”). Although Hernandez had good reasons for leaving his employment, his reasons ultimately were personal and not attributable to his employer. Thus, upon a full review of the record, we find competent substantial evidence exists to support the findings of the appeals referee. Hernandez v. Fla. Unemployment Appeals Comm’n, 995 So.2d 620, 620 (Fla. 3d DCA 2008) (‘^Whether an unemployment compensation claimant voluntarily left employment for good cause is a question of fact to be determined by an appeals referee.” (quoting Space Science Servs. v. Fla. Unemployment Appeals Comm’n, 968 So.2d 1036, 1038 (Fla. 5th DCA 2007))).

Affirmed.


author: PER CURIAM.

text:
    Kenny JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5219.
    District Court of Appeal of Florida, First District.
    Dec. 3, 2009.

    Kenny Jackson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, LEWIS, and WETHERELL, JJ., concur.


author: GRIFFIN, J.

text:
    A.C., C.M., T.M., D.O., and P.W., Children, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-2421.
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 2009.

      Robert Wesley, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Orlando, for Petitioner.
    Bill McCollum, Attorney General, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent.
   GRIFFIN, J.

A.C., C.M., T.M., D.O., and P.W. [collectively “Petitioners”] seek a writ of certio-rari directed to similar custody orders issued after each failed to appear at their adjudicatory hearing, the date of which was advanced by the court and of which they were unaware.

All of the children had trial dates scheduled for either July 20, July 23, or July 28, 2009. All were represented by the public defender and all were given notice of these dates at their arraignments, which occurred in May. According to the Petition, sometime after the arraignments, thousands of cases were reassigned from one of the four juvenile divisions in the Ninth Judicial Circuit in Orange County which had been eliminated at the beginning of 2009. Because a backlog of juvenile cases continued to build, a senior judge was scheduled to run an additional docket during the week ending June 26, 2009, and the clerk was charged with scheduling hearings on that docket for that week. Petitioners assert that the clerk failed to assign cases and when it was belatedly discovered that no cases had been assigned to the extra docket as they should have been, the administrative judge decided to reassign to that docket cases that had already been set for trial at a later time. Petitioners’ cases were among those reassigned cases. Petitioners contend that their attorneys had insufficient time to notify them of the earlier trial dates, or to prepare for them.

According to Petitioners, a stack of orders, dated June 12, 2009, resetting juvenile trials for the week ending June 26, 2009, was received by the Office of the Juvenile Public Defender at the end of the day on Tuesday, June 16, 2009. P.W.’s trial was reset to June 24. A.C., C.M., T.M., and D.O. were all ordered to appear for trial on June 26. All of them failed to appear on these dates and, despite counsel’s objection, the trial court issued custody orders for all of them for their failure to appear.

Petitioners argue that they were arrested and jailed upon unlawful orders and that the harm to them will be compounded as the failure to appear is memorialized in their juvenile record and assessed as a risk factor, which adds points toward a threshold that will determine whether they are jailed in future proceedings. See § 985.255(l)(g)(l) Fla. Stat. (2009).

The transcript in all of Petitioners’ cases revealed that they lasted no more than two to three minutes, that counsel requested that a custody order not be issued, objected to the case being reset with such short notice, informed the court that he or she had not been able to contact Petitioners and asked that the original trial date be restored. In each case, the court concluded that notice was reasonable and that if Petitioners did not receive notice, it was due to his or her own failure to keep in touch with his or her counsel.

There is no rule of juvenile procedure that speaks specifically to service of orders resetting trials or the amount of notice required when a trial is reset. Petitioners assert that notice given only to their counsel was not “reasonable notice” as is required by rule 8.100(f). The State contends that service upon counsel is all that is required and that twelve days is a reasonable amount of time under rule 8.100(f). We agree that service on counsel for the juveniles is sufficient, but we disagree that the time allowed for notice of the advancement of the trial dates was sufficient. Subsection (c) of rule 8.085 provides that notices of hearings shall be served a “reasonable time” before the time specified for the hearing. “While there are no hard and fast rules about how many days constitute a ‘reasonable time,’ the party served with notice must have actual notice and time to prepare.” Crepage v. City of Lauderhill, 774 So.2d 61, 64 (Fla. 4th DCA 2000) (quoting Harreld v. Har-reld, 682 So.2d 635, 636 (Fla. 2d DCA 1996)); State Dep’t of Transp. v. Plunske, 267 So.2d 337, 339 (Fla. 4th DCA 1972). Although general time parameters are usually recognized, what constitutes “reasonable notice” will necessarily depend on the interests at stake. See, e.g., J.B. v. Dep’t of Children & Family Servs., 734 So.2d 498 (Fla. 1st DCA), rev. granted, 749 So.2d 503 (Fla.1999), decision quashed on other grounds, J.B. v. Florida Dep’t of Children & Family Services, 768 So.2d 1060 (Fla.2000); Harreld, 682 So.2d at 636; Anderson v. Sun Trust Bank/North, 679 So.2d 307 (Fla. 5th DCA 1996); Montgomery v. Cribb, 484 So.2d 73, 74 (Fla. 2d DCA 1986); Henzel v. Golstein, 349 So.2d 824 (Fla. 3d DCA 1977). See also Reynolds v. Reynolds, 187 So.2d 372, 373 (Fla. 2d DCA 1966).

In Crepage, the Fourth District, in evaluating the reasonableness of notice given before a forfeiture hearing, observed:

The amount of notice, like other components of procedural due process, depends on the nature of the proceeding. For example, the amount of notice that is necessary to provide a meaningful opportunity to be heard is not the same for an evidentiary hearing as it is for a status conference. The opportunity to be heard at an evidentiary hearing requires time to secure the attendance of witnesses and to prepare for the presentation of evidence and argument.

774 So.2d at 65 (quoting J.B., 734 So.2d at 500). In this case, the proceedings at issue were all adjudicatory hearings, for which significant preparation is required, and the defendants, who have the constitutional right to be present at all stages of a trial, are entitled to actual notice of the hearing. See Baker v. State, 979 So.2d 453 (Fla. 2d DCA 2008).

In this case, the State did not present any evidence that Petitioners actually knew about the moved-up dates of their trials; to the contrary, there was evidence that they did not know about them. Counsel representing several of the defendants said their office had tried but had not succeeded in contacting their clients to let them know about the advancement order. It may well be that the public defenders assigned to these cases failed to act with the requisite dispatch when they received the orders on June 16 rescheduling the adjudicatory hearings, and the trial court understandably was not impressed with the argument that their clients were not amenable to contact. Nevertheless, we think that the amount of time the public defenders were given to notify their clients that their hearings had been advanced by a month to a date only six to eight working days hence was not reasonable under the circumstances. Accordingly, the custody orders based on the failure to appear in response to those orders are quashed.

WRIT GRANTED; ORDERS QUASHED.

SAWAYA and EVANDER, JJ„ concur.

      . There are some factual differences between these cases. The order resetting the trials of A.C., T.M. and D.O. show that copies were provided to the public defender, the state and DCFS/DJJ. They do not reflect that they were provided to the child. The order resetting C.M.'s trial shows that it was also sent to the child at the address noted on the order. The order resetting P.W.'s hearing does not reflect service upon anyone.

      . Florida Rule of Juvenile Procedure 8.085(b) provides that service of pleadings and papers upon a party shall be made on the attorney, if the party is represented, unless service on the party is ordered by the court.


author: COHEN, J.

text:
    STATE of Florida, Appellant, v. Johnnie Lee WEAVER, a/k/a Jonny L. Waver, Appellee.
    No. 5D09-828.
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 2009.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellee.
   COHEN, J.

Appellee was arrested and pled guilty to felony driving while license suspended. He entered an “open” plea (ie., without the benefit of a plea bargain) and his sentencing scoresheet reflected a minimum sentence of 27.375 months in the Department of Corrections. Appellee sought a downward departure, arguing the offense was committed in an unsophisticated manner, was an isolated incident, and he showed remorse. See § 921.0026(2)(j), Fla. Stat. (2007). Although the trial court did not believe the offense was committed in an unsophisticated manner, he did not think it necessary to send Appellee to prison. Instead, the trial court departed downward from the sentencing guidelines, suspending Appellee’s 27.375 months’ prison sentence contingent upon successful completion of probation. The State then filed this appeal.

Appellee shouldered the burden of establishing, by a preponderance of the evidence, facts reasonably justifying a downward departure. See § 921.002(3) Fla. Stat. (2007). To impose a downward departure sentence, the trial court must employ a two-step process. It must first determine whether there are valid legal reasons supported by an adequate factual basis; if so, the court must then decide whether the interests of justice are best served by a departure from the guidelines. State v. Tyrrell, 807 So.2d 122, 125 (Fla. 5th DCA 2002).

In deciding to downwardly depart, the trial court considered, on one hand, that Appellee had been convicted of at least four felonies, some involving violence, and had also been convicted of driving on a suspended license six times within the last eight years. On the other hand, Appellee was 54 years old at the time of sentencing and was arrested as he drove home from church services. However, because the trial court did not find the event was unsophisticated and certainly, based upon Ap-pellee’s criminal history, could not find it was isolated, Appellee failed to show a valid legal basis for a downward departure. Instead, the trial court used his experience and compassion to attempt to fashion a sentence he believed best served the interests of justice under the circumstances, the second step in the downward departure analysis.

Although we understand the trial court’s reasoning, Appellee’s failure to establish a valid legal reason for the downward departure mandates reversal. Accordingly, we remand for resentencing pursuant to the sentencing guidelines.

REVERSED and REMANDED.

SAWAYA and LAWSON, JJ„ concur.


text:
    Luke C. McMILLAN and Terese McMillan, Appellants, v. William A. SHIVELY, Appellee.
    No. 1D08-5402.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.

      Joel F. Foreman of Foreman & Olvera, P.A., Lake City, for Appellants.
    Brett Hartley of New Smyrna Beach, for Appellee.
   PER CURIAM.

Appellants seek review of the trial court’s order denying their specific performance count based on the determination that the action was barred by the statute of limitations. Section 95.11(5)(a), Florida Statutes (2008), requires an action for specific performance of a contract be brought within one year, and the statute of limitations begins to run on the date the contract is breached. Cent. Nat’l Bank of Miami v. Centr. Bancorp, Inc., 411 So.2d 358, 362 (Fla. 3rd DCA 1982); see also City of Orlando v. Williams, 493 So.2d 15, 16 (Fla. 5th DCA 1986).

Appellants concede a breach occurred in 2003. However, appellants argued below that a subsequent implied in fact contract arose following the original breach based on the conduct of the parties. “[A]n implied contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words.” 17A Am. Jur. 2d Contracts § 12 (2009). “In a contract implied in fact the assent of the parties is derived from other circumstances, including their course of dealing or usage of trade or course of performance.” Rabon v. Inn of Lake City, Inc., 693 So.2d 1126, 1131 (Fla. 1st DCA 1997) (citing Restatement (Second) of Contracts § 4, cmt. a (1982)).

Here, a review of the record evidences the trial court failed to consider appellants’ argument regarding an implied in fact contract. The final order does not address the argument and rests on a determination that an initial enforceable contract was created with a breach occurring in 2003. While this is true, the parties’ conduct following the material breach of the first contract may have created a new, enforceable contract. As such, we reverse the order with directions that the trial court hold further proceedings considering appellants’ implied in fact contract argument.

REVERSED.

WOLF, PADOVANO, and THOMAS, JJ., concur.


text:
    Larry M. BANKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3605.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Larry M. Banks, pro se, Petitioner.
    Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is sua sponte treated as one alleging ineffective assistance of appellate counsel, and is granted. Appellate counsel was ineffective in failing to respond to orders of this court and permitting the appeal from judgment and sentence in case number 1D08-3029 to be dismissed. Upon issuance of mandate in this cause, copies of the opinion shall be filed in that appeal and with the clerk of the circuit court. The appeal will be reinstated by separate order. The trial court is directed to appoint competent counsel to represent petitioner in that appeal if he qualifies for such an appointment.

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Gerald D. PARRISH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4011.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Gerald D. Parrish, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Gerald Parrish is hereby afforded a belated appeal from the order of the Circuit Court for Leon County denying postconviction relief by order of January 13, 2009, in its case number 2006 CF 3876. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Jonathan MOSBY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4344.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Jonathan Mosby, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition is granted and Jonathan Mosby is hereby afforded a belated appeal from judgment and sentence in Duval County Circuit Court case number 2008-CF-13598-AXX. Upon issuance of mandate in this cause, a copy of the opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent Mosby in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

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


text:
    Anthony M. KOVALESKI, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-4370.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Anthony M. Kovaleski, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner did not timely appeal the order which dismissed his circuit court petition. The petition for writ of mandamus is therefore denied. See Pacha v. Salfi, 381 So.2d 373 (Fla. 5th DCA 1980).

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


text:
    Michael HORNE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4476.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Michael Horne, pro se, Petitioner.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner argues that he received ineffective assistance of appellate counsel on direct appeal of his judgment and sentence for attempted second-degree murder in the Circuit Court for Leon County. After briefing was complete in his appeal, but before this court issued its opinion, this court held that giving of the standard jury instruction on manslaughter in a case of this nature was fundamental error. Montgomery v. State, — So.3d-, 2009 WL 350624 (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla.2009). This case is indistinguishable from that of Toby v. State, — So.3d -, 2009 WL 3232116 (Fla. 1st DCA 2009). We therefore grant the petition, reverse the conviction, and remand to the trial court for further proceedings. We certify the same question of great public importance that was certified in Montgomery and Toby:

IS THE STATE REQUIRED TO PROVE THAT THE DEFENDANT INTENDED TO KILL THE VICTIM IN ORDER TO ESTABLISH THE CRIME OF MANSLAUGHTER BY ACT?

PETITION GRANTED.

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Raynard D. WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4547.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Raynard D. Wilson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Raynard D. Wilson is hereby afforded a belated appeal of the order denying postconviction relief dated December 22, 2008, in case number 2003-CF-009684-AXXXMA in the Circuit Court for Duval County. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    Anthony M. KOVALESKI, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-4583.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Anthony M. Kovaleski, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner did not timely appeal the order which dismissed his circuit court petition. The petition for writ of mandamus is therefore denied. See Pacha v. Salfi, 381 So.2d 373 (Fla. 5th DCA 1980).

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


text:
    Anthony M. KOVALESKI, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-4584.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Anthony M. Kovaleski, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner did not timely appeal the order which dismissed his circuit court petition. The petition for writ of mandamus is therefore denied. See Pacha v. Salfi, 381 So.2d 373 (Fla. 5th DCA 1980).

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


text:
    Anthony M. KOVALESKI, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-4585.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.

      Anthony M. Kovaleski, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner did not timely appeal the order which dismissed his circuit court petition. The petition for writ of mandamus is therefore denied. See Pacha v. Salfi, 881 So.2d 373 (Fla. 5th DCA 1980).

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


text:
    Anthony M. KOVALESKI, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-4586.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Anthony M. Kovaleski, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner did not timely appeal the order which dismissed his circuit court petition. The petition for writ of mandamus is therefore denied. See Pacha v. Salfi, 381 So.2d 373 (Fla. 5th DCA 1980).

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


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    Michael Wayne SMELLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4669.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Michael Wayne Smelley, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Michael Wayne Smelley is hereby afforded a belated appeal from judgment and sentence in case number 2007-CF-2753-C in the Circuit Court for Okaloosa County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The trial court shall appoint counsel to represent petitioner in his appeal if he qualifies for such an appointment.

KAHN, LEWIS, and WETHERELL, JJ., concur.


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    L.M. and his wife, A.L., Petitioners, v. In re the Matter of the ADOPTION OF J.A.M.L., Respondent.
    No. 3D09-3274.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 2009.
    Alan I. Mishael, Miami Beach, for petitioners.
    Linda Kelly Kearson, Miami, for respondent.
    Before COPE, CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

The petitioners, L.M. and A.L., seek a writ of certiorari quashing the trial court’s “Order on Petitioners Verified Petition for Adoption,” filed December 4, 2009. For the reasons that follow, we grant the petition, quash the order under review, and remand for a hearing forthwith to determine whether the petitioners’ Amended Verified Petition for Adoption complies with section 117.05(5)-(5)(b)(l), Florida Statutes (2009).

L.M. and his wife, A.L., filed a Verified Petition for Adoption of the child, J.A.M.L. The order under review dismissed the verified petition with leave to amend, finding, in part, that the foreign birth mother’s consent for adoption and relinquishment of parental rights was invalid because it did not have an “acknowledgment signed and sealed by a U.S. consular official.” The trial court acknowledged that section 92.50(3), Florida Statutes (2009), does not require that an oath, affidavit, and ac-knowledgement in a foreign country be before a United States consular official, but found that this Court’s decision in Defense Control USA, Inc. v. Atlantis

Consultants Limited Corp., 4 So.3d 694 (Fla. 3d DCA 2009), requires it. Specifically, the trial court relied upon the following language in Defense Control:

Declarations are sanctioned by the federal statute and by Florida statute section 92.525(2), requiring a signed written statement made under penalties of perjury, while “affidavits” are governed by a separate Florida law, section 92.50, requiring a separate acknowledgment signed and sealed by a notary, judicial officer, or (if executed in a foreign country) a U.S. consular official.

Id. at 698 (emphasis added).

The trial court misinterpreted this Court’s decision in Defense Control, and therefore, departed from the essential requirements of law. Defense Control does not require that an acknowledgment in an affidavit, which is executed in a foreign country, be “signed and sealed” by a U.S. consular official. Rather, the language was intended to mean that if an affidavit is executed in a foreign country, one option is to have it acknowledged by a U.S. consular official — not that it must be “signed and sealed” by a U.S. consular official. This Court’s decision in Defense Control complies with section 92.50(3), which provides as follows:

(3) IN FOREIGN COUNTRIES.— Oaths, affidavits, and acknowledgments, required or authorized by the laws of this state, may be taken or administered in any foreign country, by or before any judge or justice of a court of last resort, any notary public of such foreign country, any minister, consul general, charge d’affaires, or consul of the United States resident in such country. The jurat, or certificate of proof or acknowledgment, shall be authenticated by the signature and official seal of the officer or person taking or administering the same; provided, however, when taken or administered by or before any judge or justice of a court of last resort, the seal of such court may be affixed as the seal of such judge or justice.

Because the trial court departed from the essential requirements of law by concluding that the foreign birth mother’s consent for adoption and relinquishment of parental rights was invalid, we grant the petition, and quash the order under review.

In denying the Verified Petition for Adoption, the trial court also found that the verification and acknowledgment of A.L.’s signature did not comply with section 117.05(5)-(5)(b)(1), Florida Statutes (2009). The appendix to petitioners’ writ of certiorari includes a draft of their Amended Verified Petition for Adoption, which includes a verification and acknowledgment of A.L.’s signature and two affidavits from individuals purporting to satisfy the requirements of section 117.05(5)-(5)(b)(l). Accordingly, we remand for a hearing forthwith to address the Amended Verified Petition for Adoption, and we further order that the hearing be conducted forthwith because J.A.M.L. turns sixteen on December 10, 2009, after which time he will be ineligible to exercise his right under federal immigration law to seek to obtain permanent residency status in the United States as a result of being adopted. See 8 U.S.C. § 1101(b)(1)(E).

Accordingly, we grant the petition for writ of certiorari, quash the order under review, and remand for a hearing consistent with this opinion.


author: LEVINE, J.

text:
    Alan I. KARTEN, Trustee of that certain trust created under a trust document, dated 1985, a/k/a Alan I. Karten, a plan for self-employed individuals, Appellant, v. Robert I. WOLTIN and Carl Karmin, Appellees.
    No. 4D08-4057.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 2009.
    Norman Malinski of the Law Offices of Norman Malinski, P.A., Aventura, for appellant.
    James K. Pedley, Fort Lauderdale, for appellees.
   LEVINE, J.

This appeal presents the question of whether a minority shareholder could pursue as a direct action a claim for breach of fiduciary duty against the majority shareholders of a closely held corporation or whether, as the trial court concluded, he was required to file a derivative action. We find that, based on the facts in this case, the appellant was required to utilize a shareholder’s derivative action to pursue his cause of action.

The appellant, Karten, and appellees, Woltin and Karmin, were shareholders in 201 East Atlantic, Inc., which owned and operated a restaurant, Louie Louie Too. The appellant owned 25% of the stock and the appellees, Woltin and Karmin, owned 50% and 25%, respectively. In June 2006, the appellant brought an action for breach of fiduciary duty against the appellees. This complaint alleged that the appellees combined their ownership interests to control the corporation and deprive the appellant of profits.

Specifically, the appellant alleged that in 1999 the appellees opened a competing bar and restaurant without offering the appellant an opportunity to be part of the ownership of the new business venture. The appellant asserted that corporation assets were diverted to the rival restaurant and bar and that he was prevented from performing his duties as director and officer of the corporation, such as being barred from entering the premises of Louie Louie Too. The appellant further claimed that the appellees voted at a shareholder meeting to “deprive” the appellant of profits of the corporation and pay appellee, Woltin, an unauthorized and excessive salary. The appellant claimed that he was the only shareholder who was damaged by the ap-pellees’ actions.

The appellees moved for summary judgment, asserting that the appellant’s cause of action could be brought only as a shareholder’s derivative action pursuant to section 607.07401, Florida Statutes, and that the appellant was prevented from proceeding in an individual direct action, since the appellant failed to allege injuries separate and distinct from those suffered by all other shareholders. The court granted summary judgment, finding that the allegations must be brought as a derivative claim under section 607.07401 and that the appellant’s allegations did not set forth any unique facts of a direct loss to the appellant.

The standard of review of an order granting summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

The only issue on appeal is whether the appellant may bring a direct action to pursue his claim for breach of fiduciary duty, or whether he is required to bring a derivative action. “Generally, a shareholder cannot sue in the shareholder’s name for injuries to a corporation unless there is a special duty between the wrongdoer and the shareholder, and the shareholder has suffered an injury separate and distinct from that suffered by other shareholders.” Braun v. Buyers Choice Mortgage Corp., 851 So.2d 199, 203 (Fla. 4th DCA 2003). Shareholders may bring a direct suit only “in their own right to redress an injury sustained directly by them individually.” Fort Pierce Corp. v. Ivey, 671 So.2d 206, 207 (Fla. 4th DCA 1996).

We look to the body of the complaint to determine whether the injury is direct to the shareholder or to the corporation. Braun, 851 So.2d at 203. In Braun, this court found that “[t]he fact that [the shareholder] may have lost the value of his investment because [the corporation] went out of business is, at best, an indirect injury.” Id. This court also found that a “lost opportunity” to make money was a “direct injury” to the corporation, and such an injury equally affects all shareholders. Id.

In Orlinsky v. Patraka, 971 So.2d 796 (Fla. 3d DCA 2007), the district court found that a 25.83% minority shareholder in a closely held corporation was required to file a shareholder derivative suit when alleging corporate waste. “A shareholder must file a derivative action for breach of fiduciary duty, claiming that the payment of excessive compensation constitutes corporate waste.” Id. at 801-02. Similarly, in the present case, the appellant is a 25% minority shareholder in a closely held corporation, also alleging excessive payment and other examples of mismanagement and waste.

None of the allegations of injuries and mismanagement cited by the appellant constitutes the type of individualized harm required to file a direct action and avoid the strictures of a derivative cause of action under section 607.07401. Any of the allegations would affect the relative value of all the shares owned by all the shareholders, of which the appellant is only a 25% owner.

Accordingly, we affirm the trial court’s granting of summary judgment.

Affirmed.

WARNER, J., and McCANN, JAMES W., Associate Judge, concur.

      . In a related closed case, Karten v. 201 East Atlantic Investments, Inc., 974 So.2d 1079 (Fla. 4th DCA 2008), Karten brought a complaint against Woltin and Karmin and the corporation seeking an accounting and dissolution of the corporation. This court per cu-riam affirmed the opinion of the trial court that "[a]ny action seeking compensation from the Defendants on behalf of the Corporation should have been brought by Plaintiff as a Shareholder's Derivative Action pursuant to F.S. § 607.07401.” In the closed case, unlike the present case, the corporation was also included as a party-defendant.

      . We decline appellant’s request that we adopt Delaware’s standard in determining whether the shareholder’s claim is direct or derivative, but note that even utilizing this standard, the appellant would not have demonstrated the requisite individualized harm to the suing stockholder. See Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031 (Del.2004).


author: DAMOORGIAN, J.

text:
    Samuel DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4385.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 2009.

      Philip J. Massa, Regional Counsel, and Cynthia L. Comras, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Samuel Dawson appeals the trial court’s order adjudicating him guilty of first degree murder with a firearm, sale of cocaine, and shooting into an occupied vehicle. He also appeals, his sentence of life in prison without the possibility of parole or early release. We affirm.

Dawson’s conviction and appeal arise from a drug deal gone wrong. Dawson sold drugs to the victim alongside the victim’s vehicle. When the victim attempted to drive off without paying, Dawson reached into the victim’s vehicle and grabbed the victim’s gold necklace. To avoid being dragged by the vehicle as it drove off, Dawson let go of the necklace. Dawson then shot the victim in the head and fled the scene.

During the police investigation of the victim’s murder, Dawson was a person of interest, but was not arrested immediately. An individual (“the informant”), who had learned of the police investigation and was facing unrelated charges himself, offered to wear a wire to record a conversation between himself and Dawson in the hope of receiving favorable treatment in exchange for his cooperation. The police made no promises to the informant. The informant’s efforts proved fruitful and yielded a taped conversation in which Dawson admitted to committing the murder and described the event in detail. At trial, the recorded conversation was admitted in evidence over defense counsel’s objection, and Dawson was convicted.

We write briefly to address Dawson’s points on appeal. Dawson first argues that the recorded conversation should have been excluded from evidence because the informant did not testify at trial that he consented to being recorded. This argument is without merit. See State v. Welker, 536 So.2d 1017, 1020 (Fla.1988) (“There is nothing in chapter 934 pertaining to security of communications which suggests that the consent must be proven only by the testimony of the consenting party.... [T]he deputy’s testimony that [the informant] consented to the intercept sufficed to permit the introduction of the tape recordings.”); see also § 934.03(2)(c), Fla. Stat. (2006).

Dawson’s second argument, that the trial court erred in denying his motion for judgment of acquittal, appears to be premised on our agreeing that the trial court erred in admitting the recorded conversation. With the recorded conversation properly in evidence, however, there was sufficient evidence for a jury to conclude that Dawson was guilty of all the crimes for which he was convicted. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (“If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.”).

Similarly, Dawson claims that the trial court erred in giving the felony murder instruction because there was no evidence of the underlying felonies of attempted robbery or attempted burglary. However, “the underlying felony need not actually be charged to support a felony murder conviction.” Rivera v. State, 717 So.2d 477, 487 (Fla.1998). Indeed, “in a felony murder case, the corpus delicti is the fact of death through criminal agency, and proof of the underlying felony is not required.” Foster v. State, 886 So.2d 1037, 1038 (Fla. 4th DCA 2004).

Given the substantial competent evidence in the record to support the jury instruction, we cannot say that the trial court abused its discretion in giving the felony murder instruction. See Newman v. State, 976 So.2d 76, 78 (Fla. 4th DCA 2008). For example, in the recorded conversation, Dawson told the informant that he grabbed the victim’s necklace when the victim put the car in gear and told the victim, “give it up.” The recording also revealed that Dawson let go of the necklace only so he would not be dragged by the victim’s vehicle as the victim drove away. This evidence is sufficient to support giving an instruction for attempted robbery as the underlying felony. See § 812.13(1), Fla. Stat. (2006) (defining robbery as the “taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear”). Additionally, a firearms examiner testified that Dawson’s arm had to be inside the victim’s vehicle when the shot was fired for the bullet casing to end up in the backseat. This testimony, in conjunction with Dawson’s telling the victim to “give it up,” supports the trial court’s decision to give an instruction for the underlying felony of attempted burglary. See § 810.02(l)(b)l, Fla. Stat. (2006) (defining burglary as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter”).

Finally, Dawson argues that the trial court sentenced him as a prison releasee re-offender (“PRR”) for the first degree murder with a firearm conviction, and that this sentence is in error because the State did not prove that Dawson qualified as a PRR. From our review of the record, it is clear that Dawson was not sentenced as a PRR. At sentencing, the State informed the trial court that it was not going to proceed on the PRR status, and the trial court stated that pursuing such a status would make no difference as to the conviction for first degree murder with a firearm. Indeed, section 775.082(1), Florida Statutes (2006), requires a mandatory minimum of life imprisonment without eligibility for parole for a capital felony. With respect to Dawson’s other arguments on appeal, we find that no error occurred.

Affirmed.

MAY and CIKLIN, JJ., concur.


text:
    Anna K. KARAYIANNAKIS, Appellant, v. Gary R. NIKOLITS, CFA, as Property Appraiser for Palm Beach County; Ann Gannon, as Tax Collector for Palm Beach County; and Jim Zingale, as Executive Director of the Department of Revenue, State of Florida, Appellees.
    No. 4D09-8.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 2009.
    Nicholas E. Karatinos and Theodore “Ted” E. Karatinos of Holiday, Bomhoff & Karatinos, P.L., Lutz, for appellant.
    Jeffrey M. Clyman, West Palm Beach, for appellee, Gary R. Nikolits, as Property Appraiser for Palm Beach County, Florida.

      Bill McCollum, Attorney General, and Mark T. Aliff, Assistant Attorney General, Tallahassee, for appellee, Department of Revenue.
   DAMOORGIAN, J.

The appellant, Anna K. Karayiannakis, appeals the trial court’s entry of final summary judgment in favor of the appellees, Gary Nikolits (Property Appraiser for Palm Beach County), Ann Gannon (Tax Collector for Palm Beach County), and Jim Zingale (Executive Director of the Department of Revenue, State of Florida). We affirm.

The focus of this appeal is the property appraiser’s treatment of the appellant’s real property for taxation purposes. None of the facts were in dispute, so the issue before the trial court was purely legal. We will review the court’s entry of summary judgment de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (the standard of review on summary judgment is de novo); see also Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005) (the standard for reviewing constitutional interpretations is de novo); Mastaler v. Hollywood Ocean Group, L.L.C., 10 So.3d 1114, 1115 (Fla. 4th DCA 2009) (the standard for reviewing statutory interpretations is de novo).

The appellant owns title to a two-story apartment building containing five units. She lives in one of the units and rents the other four units to tenants. In the tax years 2006 and 2007, she claimed all of her apartment building and the surrounding land as her homestead for property taxation purposes. The property appraiser measured the dimensions of her building and determined that her residence represented approximately thirty-seven percent of the building’s total footprint. As such, the property appraiser concluded that only thirty-seven percent of the land and improvements qualified for special taxation treatment under article VII, sections 4(d) and 6 of the Florida, Constitution. The remaining sixty-three percent of the land and improvements were not afforded any special treatment.

In both 2006 and 2007, the appellant filed petitions with the Value Adjustment Board challenging the property appraiser’s treatment of her property. When she failed to obtain administrative relief, the appellant sued the appellees. The appel-lees moved for summary judgment. The trial court granted the motion and entered final judgment for the appellees.

The appellant contests the trial court’s ruling that her land can be divided into homestead property and non-homestead property, with only the homestead portion qualifying for special property tax treatment under the Florida Constitution. She agrees that her apartment building may be so divided. We do not see any distinction between the property appraiser’s treatment of the appellant’s land and apartment building, and hold that both may be divided between the portion that is used as the appellant’s homestead and the portion that is used as rental property.

“Every person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner” is entitled to the homestead taxation exemption set forth in article VII, section 6 of the Florida Constitution and to a limit on the annual increase in the assessed value of that homestead property pursuant to article VII, section 4(d). Section 196.031(l)(a), Florida Statutes (2007), in which article VII, section 6 is codified, provides that the homestead exemption extends to “the residence and contiguous real property.”

We disagree with the appellant’s contention that the language “contiguous real property” indicates that all of her real property, including that being used as rental property, is entitled to the special tax treatment afforded by article VII, sections 4(d) and (6). The Florida Legislature’s construction of these constitutional provisions guides our analysis. See Greater Loretta Improvement Ass’n v. State ex rel. Boone, 234 So.2d 665, 669 (Fla.1970).

For taxation and finance purposes, the Florida Legislature defines “real estate used and owned as a homestead” as follows:

“Real estate used and owned as a homestead” means real property to the extent provided in s. 6(a), Art. VII of the State Constitution, but less any portion thereof used for commercial purposes, with the title of such property being recorded in the official records of the county in which the property is located. Property rented for more than 6 months is presumed to be used for commercial purposes.

§ 196.012(13), Fla. Stat. (2007) (emphasis added). “Real property” is defined as “land, buildings, fixtures, and all other improvements to land.” § 192.001(12), Fla. Stat. (2007). Thus, any portion of a person’s land, buildings, fixtures, and other improvements that is being used for commercial purposes does not qualify as “real estate used and owned as a homestead.”

In addition to these definitions, the legislature imposed express limitations on the property tax exemption and assessment cap for homestead property. The tax exemption “applies only to those parcels classified and assessed as owner-occupied residential property or only to the portion of property so classified and assessed.” § 196.031(5), Fla. Stat. (2007) (emphasis added). And only property that receives a homestead exemption is subject to section 193.155, Florida Statutes (2007), the codification of article VII, section 4(d)’s assessment cap for homestead property.

The language in these statutes shows that real property is divisible for tax exemption purposes and that the special tax treatment afforded to homestead property in article VII, sections 4(d) and 6 does not apply to non-homestead property. Property used for commercial purposes, which includes rental property, is non-homestead property. Accordingly, the appellant is not entitled to special tax treatment for the portion of her property that she rents to tenants. Our holding is supported by public policy, which favors construing tax exceptions and exemptions against the taxpayer. See Markham v. PPI, Inc., 843 So.2d 922, 925 (Fla. 4th DCA 2003).

We reject the appellant’s equal protection argument without further comment. The property appraiser properly assessed the appellant’s land and apartment building, and the trial court did not err in granting summary judgment in favor of the appellees.

Affirmed.

MAY and CIKLIN, JJ., concur.

      . The term "homestead” is used in two other contexts in the Florida Constitution. First, it is used to define property that is protected from forced sale by creditors under article X, section 4(a)-(b) of the Florida Constitution. Second, it is used in the context of devise and descent in article X, section 4(c). The definition of "homestead” in those two contexts is distinct from that term’s definition in the context of property taxation. See Phillips v. Hirshon, 958 So.2d 425, 427 n. 3 (Fla. 3d DCA 2007) ("It is well appreciated in the case law concerning homestead that the definition of homestead property for Article VII, section 6 purposes is not the same as Article X, section 4 of the Florida Constitution.”); see also Crain v. Putnam, 687 So.2d 1325, 1326 (Fla. 4th DCA 1997) ("We recognize that the homestead provisions found in Article VII and Article X of our constitution are separate and distinct, and principles relating to one do not necessarily govern the other.”).

      . We cite to the 2007 statutes, noting that the relevant statutory sections did not change between 2006 and 2007.


text:
    Jamaal Ali BILAL, f/k/a, John L. Burton, Petitioner, v. Bill McCOLLUM, Attorney General, George Sheldon, Secretary, Sexual Violent Predator Program, for the Department of Children & Family Services, Timothy Budz, Executive Director, Florida Civil Commitment Center, and Jeanine Cohen, Esquire, Respondents.
    No. 1D09-5090.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Jamaal Ali Bilal, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The amended petition seeking belated appeal or writ of habeas corpus is denied.

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


text:
    Nathaniel KINSY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2593.
    District Court of Appeal of Florida, Fifth District.
    Dec. 10, 2009.

      Nathaniel Kinsy, Graceville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

This case involves the frustration of a plea agreement due to the forfeiture of gain time. Appellant was sentenced to prison followed by probation in 2002. After his release from prison, he violated his probation. In 2007, Appellant pled guilty to the violation of probation and a new offense of possession of cocaine, pursuant to a negotiated plea agreement. The record reflects that everyone thought that Appellant would serve thirty-six months in the Department of Corrections on all of his charges, coterminous. Appellant was also to be credited with jail credit for the time he spent in jail after his arrest on the VOP charge. What was not addressed specifically, however, was the forfeiture of gain time on his 2002 sentences. After he returned to prison, his gain time was forfeited. The net result is that Appellant’s sentences for the 2002 charges will end eight months and one day after his sentence on the possession of cocaine charge.

Ordinarily, relief under these circumstances is available only under rule 3.850. See, e.g., Dellahoy v. State, 816 So.2d 1253 (Fla. 5th DCA 2002). Here, however, Appellant contends that he is entitled to relief under rule 3.800 because he was not afforded credit for the prison time he served on the 2002 charges. The trial court summarily denied Appellant’s motion concluding that Appellant waived credit for this time as evidenced by the written plea agreement and plea transcript. Although these documents are no model of clarity, we conclude that the best interpretation is that Appellant only waived so much of this time to result in coterminous sentences arising from his 2007 plea agreement. On remand, therefore, the trial court should award Appellant an additional eight months and one day in credit on the 2002 charges.

Because time is of the essence here to avoid any prejudice to Appellant, we request that the trial court implement the mandate as expeditiously as possible.

REVERSED and REMANDED.

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


text:
    Amanda Lynn SOUTHERLAND, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-332.
    District Court of Appeal of Florida, Fifth District.
    Dec. 11, 2009.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We affirm the trial court’s order revoking Southerland’s probation. The trial court had the inherent authority to vacate its prior order which was entered without notice to the State. See State v. Burton, 814 So.2d 136 (Fla.1975) (trial court had inherent authority to vacate order which was product of fraud, collusion, deceit, or mistake); State v. Brooks, 161 Ariz. 177, 777 P.2d 675 (1989) (trial court had inherent authority to vacate order purporting to terminate probation where order was entered as result of mistake or inadvertence). Furthermore, we see no reason why the trial court could not, as it did in this case, timely correct its acknowledged error where this court could have subsequently done so pursuant to a writ of certiorari. See, e.g., Rho-Sigma, Inc. v. Int’l Control and Measurements, Corp., 691 So.2d 16 (Fla. 3d DCA 1997) (trial court departed from essential requirements of law where it entered discovery order without notice to aggrieved party).

AFFIRMED.

GRIFFIN, SAWAYA and EVANDER, JJ., concur.


author: PALMER, J.

text:
    PETRO STOPPING CENTERS, L.P., etc., et al., Appellant, v. Margarit GALL, Appellee.
    No. 5D08-2868.
    District Court of Appeal of Florida, Fifth District.
    Dec. 11, 2009.

      Robert H. Sturgess and Paul E. Bueker of Marks Gray, P.A., Jacksonville, for Appellant.
    Michael K. Roberts of Law Offices of J. Scott Nooney & Associates, Jacksonville, for Appellee.
   PALMER, J.

ON MOTIONS FOR CLARIFICATION AND REHEARING

The parties have filed motions for rehearing and clarification in connection with the opinion issued by this court on September 25, 2009. We deny the motions for rehearing but grant the motion for clarification, withdraw our previous opinion, and substitute this corrected opinion in its stead.

Petro Stopping Centers, L.P. and Barry Flowers (hereinafter collectively referenced to as Petro) appeal the non-final order entered by the trial court denying their motion for summary judgment. In its motion, Petro claimed it was immune from liability for the tort claims of its employee, Margarit Gall, pursuant to Florida’s workers’ compensation statutes. Concluding that Petro was entitled to receive summary judgment in its favor, we reverse.

Gall filed a complaint against Petro alleging that she was injured while operating a meat tenderizer owned by Petro. Gall claimed that Petro’s general manager, Barry Flowers, was aware that the tenderizer was inherently dangerous because its safety guard had been intentionally removed. Gall’s complaint sought recovery of tort damages.

Although workplace injuries are normally subject to the exclusive liability provisions of Florida’s workers’ compensation statutes, section 440.11 of the Florida Statutes sets forth limited exceptions to such exclusivity. One exception applies when an employer engages in conduct that the employer knew was virtually certain to result in injury or death to the employee. See § 440.11(l)(b), Fla. Stat. (2006). In her complaint, Gall alleged that Petro and Barry Flowers engaged in such conduct and, accordingly, Gall was entitled to pursue a tort claim.

Petro filed a motion seeking summary judgment, contending that it was entitled to immunity from Gall’s tort suit pursuant to section 440.11 of the Florida Statutes because Gall had actively pursued to conclusion a claim for workers’ compensation benefits and, thus, Gall was barred from seeking a tort recovery pursuant to the doctrine of election of remedies. Specifically, Petro claimed that the parties had entered into a mediated settlement agreement with regard to Gall’s workers’ compensation claim which barred Gall from pursuing the instant tort claim.

The trial court denied Petro’s motion for summary judgment, finding that Petro had failed to demonstrate that Gall had elected the receipt of workers’ compensation benefits as her exclusive remedy. The trial court reasoned that an election of remedy required a conclusion on the merits of Gall’s workers’ compensation claim, citing Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1105 (Fla.2006), and that there must be evidence of a conscious intent to elect the workers’ compensation remedy and to waive her other rights. The trial court concluded that Gall had not litigated her workers’ compensation case to a conclusion on the merits because “a meditated settlement agreement is not a conclusion on the merits and therefore cannot be the basis of an election of remedies. Hernandez v. United Contractors Carp., 766 So.2d 1249 (Fla. 3d DCA 2000).” Furthermore, the trial court found that Gall had not shown a conscious intent to choose workers’ compensation benefits to the exclusion of her tort claim simply because she actively pursued the instant tort litigation.

Upon review, we conclude that the trial court erred in denying Petro’s summary judgment motion because the parties’ mediated settlement agreement constituted a conclusion on the merits of Gall’s workers’ compensation claim and because her active pursuit of the instant tort litigation did not preclude a finding that she had elected her remedy.

The Second District, in Vasquez v. Sorrells Grove Care, Inc., 962 So.2d 411 (Fla. 2d DCA 2007), summarized the current Florida law regarding the doctrine of election of remedies in workers’ compensation cases as follows:

The doctrine of election of remedies presupposes the right to elect between two available remedies, each of which is equally available to the claimant. Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1105 (Fla.2006). Applying this definition, it would at first appear that the doctrine of election of remedies should not apply in the context of workers’ compensation because once the claimant is determined to be an employee, the claimant is limited to the exclusive remedy of workers’ compensation; he or she does not have two alternative remedies from which to choose. See Michael v. Centex-Rooney Constr. Co., 645 So.2d 133, 135 n. 1 (Fla. 4th DCA 1994). However, Florida courts have not followed this analysis. In fact, even where a claimant’s status as a nonemployee would appear to preclude that claimant’s election of workers’ compensation as a remedy, the claimant’s election of workers’ compensation pursuant to the doctrine of election of remedies has been held to be binding. Id.; see also Mandico v. Taos Constr., Inc., 605 So.2d 850, 853 (Fla.1992); Ferraro v. Marr, 490 So.2d 188, 189 (Fla. 2d DCA 1986); Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA 1995).
Recognizing that “the point upon which a worker’s action with regard to a compensation claim constitutes an election of the workers’ compensation remedy to the exclusion of a civil action is not entirely clear,” Jones, 932 So.2d at 1105, Florida courts have fashioned an election of remedies analysis that is based not on the claimant’s employment status but on evidence of the claimant’s conscious intent “ ‘to elect the compensation remedy and to waive his [or her] other rights,’ ” id. at 1106 (quoting Wheeled Coach Indus., Inc. v. Annulis, 852 So.2d 430, 433 (Fla. 5th DCA 2003)). In this regard, the “ ‘[m]ere acceptance of some compensation benefits ... is not enoughId. at 1105 (alteration in original) (quoting Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984)). Rather, the remedy chosen must be “pursued to full satisfaction,” Lowry, 650 So.2d at 656, a phrase that has been interpreted to mean a “determination or conclusion on the merits,” id. at 657.
In Jones, the Florida Supreme Court concluded that an employee who had received workers’ compensation benefits for a workplace injury but who had not pursued the compensation case to a conclusion on the merits was not estopped from later filing a civil tort claim if he could show that an exception to the workers’ compensation statute existed. In reaching this conclusion, the court noted that Jones had not litigated whether the conduct of the employer met the exception requirements in the workers’ compensation forum even though he did receive benefits from that forum. 932 So.2d at 1107. Furthermore, the court reasoned that the facts did not indicate that Jones’ petition in the workers’ compensation proceeding demonstrated a conscious intent to choose the workers’ compensation benefits and reject any potential tort claim. Id. The court determined that even his “stipulation” that he suffered a compen-sable injury was not sufficient to constitute a knowing waiver of his common law rights. Id. Accordingly, the court concluded that Jones had not elected the workers’ compensation benefits to the exclusion of his right to pursue a civil tort claim even though he filed a claim in the workers’ compensation forum, stipulated that the injury was covered by the workers’ compensation provisions, and accepted benefits from that proceeding. Id.

Id. at 413-414.

In this case, the parties entered into a mediated settlement agreement which provided that Petro accepted Gall as being permanently and totally disabled (and, accordingly, was liable for making payments due as a result of that determination), and agreed to pay her attorney’s fees and costs. The settlement agreement further provided that it resolved the issues contained in the currently pending petition for benefits and noted that the parties would comply with the terms of the agreement without the necessity of a court order. We conclude that this mediated settlement agreement was a conclusion on the merits of Gall’s claim for workers’ compensation benefits. Therefore, Petro was entitled to receive a summary judgment in this case on the basis of Gall’s election of remedies.

The Hernandez case cited by the trial court to support the contrary conclusion is factually distinguishable. In Hernandez, the court properly noted that “mere acceptance of some compensation benefits ... is not enough to constitute an election. There must also be evidence of conscious intent to elect the compensation remedy and waive ... other rights.” In this case, Gall actively pursued the receipt of workers’ compensation benefits to a conclusion on the merits, which established that she was permanently and totally disabled and that she was entitled to receive benefits that flowed therefrom. As such, she elected her remedy. Importantly, the test for election of remedies, as set forth by the Supreme Court in Jones, does not require a party to show both litigation of a workers’ compensation case to conclusion on the merits and a separate conscious intent to elect workers’ compensation benefit to the exclusion of tort benefit. Rather, litigating a workers’ compensation case to a conclusion on the merits manifests a conscious intent to choose workers’ compensation benefits to the exclusion of tort benefits.

Accordingly, Petro’s motion for summary judgment should have been granted.

REVERSED and REMANDED.

GRIFFIN and SAWAYA, JJ., concur.

      . Jurisdiction is proper pursuant to rule 9.130(a)(3)(C)(v) of the Florida Rules of Ap-pelíate Procedure.


author: KELLY, Judge.

text:
    Percy L. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-471.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2009.
    Percy L. Jackson, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Percy Jackson was arrested in Manatee County on Sarasota County arrest warrants and on local Manatee County charges. He was convicted of the Manatee County charges and sentenced to 364 days in the Manatee County jail, with a period of probation to follow, and he received credit for all the time he spent in jail prior to sentencing. After his release from the Manatee County jail, Jackson was jailed in Sarasota County on the earlier Sarasota charges. When the Sarasota court sentenced Jackson, it gave him credit for all the time he spent in jail in Sarasota awaiting sentencing on those charges. In a motion for jail credit pursuant to Florida Rule of Criminal Procedure 8.800(a), Jackson sought additional credit against the Sarasota sentences for the time he spent in jail in Manatee County prior to sentencing on the Manatee County charges.

As the trial court correctly determined, Jackson is not entitled to further jail credit on the sentences imposed in Sarasota County. The Sarasota County sentences were not concurrent with the earlier Manatee County sentences and Jackson had already received full credit for that time against the Manatee County sentences. As explained in Miller v. State, 297 So.2d 86, 38 (Fla. 1st DCA 1974), Jackson is not entitled to duplicate credit:

[A] defendant should, of course, be given full credit on his sentence or sentences by the court for time spent in jail awaiting disposition of a charge or charges against him; but where a defendant is held to answer for numerous charges, he is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition of multiple charges o[r] cases....
When a defendant is held in jail to answer for multiple charges or cases, the first sentencing judge who sentences him to jail or to the state prison shall give him credit on the sentence or sentences in that case for all time spent in jail between the date of his arrest in that case and the date of such sentence even though the defendant may have also been held to answer for other charges during some or all of such time. If the defendant’s jail time exceeds the sentence or sentences pronounced by the first sentencing judge, the next sentencing judge shall give the defendant credit for such excess on the sentence pronounced by him. Since a defendant will not be given credit by the first sentencing judge for any jail time incurred prior to his incarceration on the offense or offenses for which the first sentencing judge sentences him, credit for such prior jail time shall be given him by the judge who sentences him for the offense for which he was held during such prior time. Each judge imposing sentence shall state in the sentence the period of time covered by any jail time allowance so that a judge imposing a subsequent sentence will not duplicate jail time credit.

In Daniels v. State, 491 So.2d 543, 545 (Fla.1986), the supreme court highlighted the distinction between a case like Jackson’s and a case in which a defendant receives concurrent sentences on multiple charges:

[W]e find that when, pursuant to section 921.161(1), a defendant receives pre-sen-tence jail-time credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time served.... We distinguish this situation from one in which the defendant does not receive concurrent sentences on multiple charges; in such a case the defendant “is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.” Martin v. State, 452 So.2d 938, 938-39 (Fla. 2d DCA 1984) (quoting Miller v. State, 297 So.2d 36, 38 (Fla. 1st DCA 1974)).

Affirmed.

WALLACE and CRENSHAW, JJ., Concur.


text:
    Vernon S. POLK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3938.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2009.
    Vernon S. Polk, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the judgment and sentence rendered on December 22, 2008, in Escambia County Circuit Court case number 2005-CF-005101-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

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


text:
    Antonio JAMISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0010.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2009.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant, and Antonio Jamison, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Antonio Jamison, filed an appeal pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm Appellant’s conviction and sentence but remand with instructions to correct the written judgment. Appellant was convicted and sentenced for trafficking in cocaine in excess of 28 grams but less than 200 grams, as charged in the amended information. However, the written judgment states that Appellant was convicted of trafficking in cocaine in excess of 28 grams but less than 200 grams while armed with a weapon.

AFFIRMED and REMANDED with directions to enter a corrected written judgment.

HAWKES, C.J., WOLF and DAVIS, JJ., concur.


text:
    Joseph M. HEWITT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3546.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2009.
    Joseph M. Hewitt, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The circuit court is directed to hold an evidentiary hearing, if needed, and rule on the pending motion for postconviction relief within 60 days. Although we grant the petition, we withhold the actual issuance of the writ, trusting that it is unnecessary in light of this ruling.

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


text:
    Darrow GRACEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5609.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2009.

      Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Darrow Gracey, entered an open plea to the court on all charges in case numbers 06-515, 06-597, and 07-088. In case number 06-515, Appellant was convicted of possession of more than twenty grams of marijuana with the intent to sell on count one and possession of more than twenty grams of marijuana on count two. Appellant argues, and we agree, that these convictions violate double jeopardy because they are based on the same quantum of marijuana. Keene v. State, 600 So.2d 513 (Fla. 2d DCA 1992). Although the arrest report references a second baggie of marijuana, there was no indication in the record that the second baggie contained more than twenty grams of marijuana; thus, the second baggie could not provide the factual basis for the charge of possession of more than twenty grams of marijuana. Accordingly, we reverse and remand with directions to vacate Appellant’s conviction and sentence for possession of more than twenty grams of marijuana in case number 06-515. We affirm all of Appellant’s remaining convictions.

AFFIRMED in part, REVERSED in part, and REMANDED.

HAWKES, C.J., WOLF and DAVIS, JJ., concur.


text:
    Shernerd RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4687.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2009.
    Shernerd Richardson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Fla. Parole Comm’n, 807 So.2d 788 (Fla. 1st DCA 2002).

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