text:
    Jamar Y. GHENT, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2486.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 2010.
    Rehearing Denied March 5, 2010.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for appellant.
    No appearance required for appellee.
   POLEN, J.

The appellant, Jamar Ghent, appeals the post-conviction court’s denial of Ghent’s pro se rule 3.850 motion. This appeal addresses when a judgment and sentence become final for the purpose of a rule 3.850 motion and whether the post-conviction court erred in denying Ghent’s request for an extension of time to file a rule 3.850 motion. We affirm.

Ghent was found guilty and convicted by a jury for three counts of robbery with a firearm and for one count of aggravated assault with a firearm. The trial court sentenced Ghent to life without parole, with a mandatory minimum of life, as a prison releasee reoffender for the robbery charges, and to ten years as a habitual felony offender, with a mandatory minimum of five years, as a habitual felony offender for the aggravated assault charge. Ghent timely appealed, and we affirmed per curiam on November 3, 2004. Ghent v. State, 886 So.2d 237 (Fla. 4th DCA 2004). We issued our mandate on November 19, 2004.

On November 14, 2006, Ghent filed a pro se “Motion for Enlargement of Time” to file a rule 3.850 motion, in which Ghent requested a ten-day extension so that he could obtain a printout of his inmate trust account pursuant to section 57.085, Florida Statutes (2006). From the summary record, it appears that the post-conviction court did not rule on Ghent’s “Motion for Enlargement of Time.” On November 26, 2006, Ghent filed a pro se rule 3.850 motion, which alleged ineffective assistance of counsel. On January 9, 2007, the court ordered the State to respond. The State responded on June 30, 2008, and argued that Ghent’s motion was procedurally time-barred.

On July 14, 2008, the post-conviction court dismissed Ghent’s rule 3.850 motion as being untimely. The court stated that Ghent had until November 19, 2006, to file his motion, which was two years from the date we issued our mandate, and that Ghent’s motion was time-barred because he filed it after the two-year period specified in rule 8.850(b). Ghent then filed a pro se motion for extension of time to file a notice of appeal, which the post-conviction court treated as a timely notice of appeal.

On appeal, Ghent, through counsel, claims that his judgment and sentence did not become final until the time expires to file a petition for writ of certiorari in the United States Supreme Court and, therefore, his rule 3.850 motion was timely. Ghent, however, does not claim that he actually petitioned for writ of certiorari, and there is no evidence in the summary record to suggest that he did. Ghent also claims that the trial court should have granted his request for an extension of time to file his rule 8.850 motion.

In Huff v. State, 569 So.2d 1247 (Fla.1990), the Florida Supreme Court stated with respect to a rule 3.850 motion:

If a writ of certiorari is filed with the United States Supreme Court, the two-year time period does not begin to run until the writ is finally determined. If no writ of certiorari is filed with the United States Supreme Court, as in the case at bar, the judgment and sentence become final when direct review proceedings are completed and jurisdiction to entertain the motion for postconviction relief returns to the trial court.... Therefore, in cases where no writ of certiorari is filed with the United States Supreme Court, the two-year period for filing a motion pursuant to rule 3.850 commences when this Court issues mandate.

Id. at 1250 (citations omitted).

Although the Huff court referred to a mandate being issued from the Florida Supreme Court, we hold that the quoted language from Huff applies equally to a mandate issued from a district court of appeal when review is not sought in the Florida Supreme Court and no petition for writ of certiorari is filed in the United States Supreme Court.

Because Ghent did not petition for writ of certiorari in the United States Supreme Court, Ghent’s two years for filing a rule 3.850 motion began to run from the date we issued our mandate in Ghent’s direct appeal, i.e., November 19, 2004. Thus, Ghent’s filing on November 26, 2006, was untimely because it was not filed within the two-year period specified in rule 3.850(b), and the post-conviction court properly dismissed Ghent’s motion.

We next address Ghent’s second argument, that the post-conviction court should have granted his pro se “Motion for Enlargement of Time.” A post-conviction court may extend the time for filing a rule 3.850 motion upon a showing of good cause if the request for an extension is made before the expiration of the two-year period specified in rule 3.850. State v. Boyd, 846 So.2d 458, 460 (Fla.2003); see also Fla. R.Crim. P. 3.050(1) (2006). “Good cause” means “a substantial reason, one that affords a legal excuse, or a cause moving the court to its conclusion, not arbitrary or contrary to all the evidence, and not mere ignorance of law, hardship on petitioner, and reliance on another’s advice.” Boyd, 846 So.2d at 460 (quoting In re Estate of Goldman, 79 So.2d 846 (Fla.1955)) (internal brackets omitted). We conclude that Ghent failed to show good cause.

Ghent sought an extension because he claimed that he was waiting for a printout of his inmate trust account, citing section 57.085. Presumably Ghent sought this printout under the mistaken belief that he must establish his indigence before he could file a rule 3.850 motion. Section 57.085, however, applies to prisoner civil suits, not criminal or collateral criminal proceedings. § 57.085(10), Fla. Stat. (2006) (“This section does not apply to a criminal proceeding or a collateral criminal proceeding.”). Furthermore, the model form for rule 3.850 motions that Ghent used plainly states in the instructions, “[n]o filing fee is required when submitting a motion for postconviction relief.” See Fla. R.Crim. P. 3.987 (2006).

Ghent’s sole ground for seeking an extension — seeking proof of his indigence — is rebutted both by the plain language of the statute he cites in support of his motion and by the instructions on the first page of the model form that he used for his rule 3.850 motion. Both of these sources establish that proof of indigence is not required for a rule 3.850 motion; thus, Ghent did not establish good cause for seeking an extension to file his rule 3.850 motion. Finally, where the appellant filed a motion for extension of time five days before the expiration of the two-year period, without any means of bringing it to the court’s attention and obtaining a timely ruling, the trial court’s denial (or failure to rule) would hardly constitute an abuse of discretion.

Affirmed.

WARNER and STEVENSON, JJ„ concur.


source: Caselaw Access Project

author: WETHERELL, J. THOMAS, J.,

license: Public Domain

text:
    Robert L. SMITH, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D08-2054.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2010.

      Robert L. Smith, pro se, Appellant.
    Bill McCollum, Attorney General and Donna La Plante, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant seeks review of the final order dismissing his negligence action against the Department of Corrections (DOC) as “frivolous” and entering a civil restitution lien against him in the amount of $250,000. We affirm the dismissal of the negligence action, but we vacate the lien.

On January 29, 1998, Appellant was convicted of first degree murder and sentenced to life in prison without the possibility of parole. He was committed to the custody of DOC on March 31, 1998. On October 7, 2002, DOC staff at the Walton County Correctional Institution (Walton Cl) confiscated 47 of Appellant’s personal photographs because he had 97 photographs in his possession, and DOC rules allowed him to have only 50 photographs. Appellant was given 30 days to have the photographs picked up or mailed to someone outside of the institution, and he was informed that the photographs would be destroyed after the expiration of the 30-day period.

On November 5, 2002, the 29th day after the photographs were confiscated, Appellant was transferred to the Miami-Dade County jail to attend court proceedings. He did not return to Walton Cl until December 23, 2002, and when he asked about the status of the 47 photographs upon his return, he was informed that DOC destroyed the photographs on December 5, 2002.

On January 18, 2005, after exhausting the administrative grievance process at DOC, Appellant filed a complaint alleging that DOC violated its rules and breached a duty of care owed to Appellant by destroying the photographs while he was away from Walton Cl. Appellant subsequently filed an amended complaint, and on March 8, 2006, DOC filed an answer denying liability and asserting a counterclaim pursuant to section 960.297(1), Florida Statutes (2005), for the costs of Appellant’s incarceration.

Appellant filed a motion for partial summary judgment in which he argued that the counterclaim was barred by the statute of limitations. Appellant contended that the cause of action asserted in the counterclaim accrued on March 31, 1998, when he was first committed to the custody of DOC, and that the applicable statute of limitations for the action expired on March 31, 2002, long before the counterclaim was filed by DOC.

On March 26, 2008, after a hearing, the trial court denied Appellant’s motion for partial summary judgment and entered a civil restitution lien against Appellant in the amount of $250,000. The trial court also sua sponte dismissed Appellant’s complaint as frivolous under section 57.085(8)(d). This timely appeal followed.

We find no error in the trial court’s dismissal of Appellant’s complaint under section 57.085(8)(d), and affirm that issue without discussion. However, for the reasons that follow, we conclude that the counterclaim asserted by DOC was barred by the statute of limitations and reverse the trial court’s denial of Appellant’s motion for partial summary judgment on that ground.

Our review of the trial court’s denial of Appellant’s motion for summary judgment on the counterclaim is de novo. See Volusia County v. Aberdeen, 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Id. No factual disputes exist with respect to the statute of limitations issue, and as discussed below, Appellant was entitled to a judgment as a matter of law on that issue.

In section 960.29, the legislature made the finding that “there is an urgent need to alleviate the increasing financial burdens on the state ... caused by the expenses of incarcerating convicted offenders.” In an effort to remedy that problem, the legislature expressed its intent to “impose a long-term civil liability for the costs of incarceration, by means of the civil restitution lien, against a convicted offender ....” § 960.29(l)(d), Fla. Stat.; see also § 960.29(4), Fla. Stat. (stating that the civil restitution lien is intended to assist the state in collecting the costs “incur[red] as a result of the implementation of a convicted offender’s sentence”).

An offender’s liability for the costs of incarceration exists as a matter of law upon the offender’s conviction. §§ 960.292(1), 960.293(2), Fla. Stat. The amount of the liability is established by section 960.263, which provides in pertinent part:

(2) Upon conviction, a convicted offender is liable to the state ... for damages and losses for incarceration costs and other correctional costs.
(a) If the conviction is for a capital or life felony, the convicted offender is liable for incarceration costs and other correctional costs in the liquidated damage amount of $250,000.

“The civil restitution lien shall be made enforceable by means of a civil restitution hen order.” § 960.292, Fla. Stat. The sentencing court has the authority to enter such orders on its own motion or upon motion by the state. § 960.292(1), Fla. Stat.; see also Wilson v. State, 957 So.2d 683 (Fla. 5th DCA 2007); Cruz v. State, 742 So.2d 489 (Fla. 3d DCA 1999); City of Ft. Lauderdale v. Ilkanic, 683 So.2d 563 (Fla. 4th DCA 1996), approved, 705 So.2d 1371 (Fla.1998). Alternatively, the state may seek recovery of the amounts provided for in section 960.293 “in a separate civil action or as a counterclaim in any civil action.” See § 960.297(1), Fla. Stat.

This case involves a civil restitution lien order entered based upon a counterclaim filed pursuant to section 960.297(1), not a civil restitution lien order entered by the sentencing court under section 960.292(2). This distinction is significant because, as a civil action, the counterclaim is subject to the provisions of chapter 95 and the rules of civil procedure.

Section 95.011 provides that a “civil action ... including one brought by the state ... shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere.” (emphasis added). Section 95.11(3)(f) provides that a four-year statute of limitation applies to “[a]n action founded on a statutory liability.” An action brought pursuant to 960.297(1) is founded on the statutory liability incurred by the convicted offender upon his conviction. See §§ 960.292(1), 960.293(2), Fla. Stat. Therefore, because section 960.297(1) does not prescribe a time period within which the state must bring an action under the statute, the four-year statute of limitations in section 95.11(3)(f) applies. See Joshua v. City of Gainesville, 768 So.2d 432 (Fla.2000) (holding that general statute of limitations applied where statutory subsection on which claim was based did not specify limitations period).

In denying Appellant’s motion for partial summary judgment, the trial court ruled that the time for filing a claim for the costs of incarceration did not begin to run until Appellant filed his action for damages against DOC. This was error.

The statute of limitations begins to run when the last element of the cause of action occurs. See § 95.031(1), Fla. Stat. The plain language of section 960.293(2) provides that a life-sentenced offender is liable to the state for incarceration costs in a liquidated amount “upon conviction.” See also § 960.292(1), Fla. Stat. (“Upon conviction, the convicted offender shall incur civil liability for damages and losses to ... the state ... as set forth in s. 960.293.” (emphasis added)). By the terms of the statute, the offender’s conviction is the last element of the action to occur. Thus, we conclude that the state’s cause of action under section 960.297(1) to recover “the damages and losses set forth in s. 960.293” accrues upon the offender’s conviction.

The filing of the action as a counterclaim does not impact the statute of limitations. The counterclaim authorized by section 960.297(1) is, in this case, a permissive counterclaim because it does not arise out of the same transaction or occurrence giving rise to Appellant’s complaint. See Fla. R. Civ. P. 1.170(b). The statute of limitations will not bar the filing of a compulsory counterclaim, see Allie v. Ionata, 503 So.2d 1237 (Fla.1987), but it is well-settled that a permissive counterclaim will be barred if it is filed beyond the statute of limitations. See DuBreuil v. James, 365 So.2d 184 (Fla. 3d DCA 1978).

In an effort to avoid the application of the statute of limitations to bar its counterclaim, DOC argued that a cause of action under section 960.297(1) does not accrue until the offender is released from prison, and because Appellant is still incarcerated, the statute of limitations has not yet started to run. This argument is contrary to the plain language of sections 960.292(1) and 960.293(2), which state that a convicted offender is hable to the state for incarceration costs “upon conviction.” Nothing in these statutes suggest that liability for incarceration costs is not triggered until the offender is released, particularly with respect to life-sentenced offenders such as Appellant for which the term of incarceration is known at the time of sentencing and the statute liquidates the costs at $250,000. See also Miami-Dade County v. Moss, 842 So.2d 284 (Fla. 3d DCA 2003) (holding that the county was entitled to recover compensation for the number of days in the convicted offender’s sentence, rather than only the number of days actually served).

The legislature amended section 960.297 in 2009 to prescribe a specific statute of limitations for actions to recover incarceration costs. See ch. 2009-63, § 17, Laws of Fla. The statute, as amended effective July 1, 2009, provides that “[c]ivil actions authorized by this section may be commenced at any time during the offender’s incarceration and up to 5 years after the date of the offender’s release from incarceration or supervision, whichever occurs later.” See § 960.297(3), Fla. Stat. (2009). However, this new statute of limitations does not apply in this case because the state’s cause of action against Appellant under section 960.297(1) was extinguished by the existing statute of limitations on January 29, 2002, well before the new statute became effective. See Wiley v. Roof, 641 So.2d 66, 68 (Fla.1994); Garza v. Jordan Farms, 532 So.2d 720, 721 (Fla. 1st DCA 1988).

We recognize that our holding has the potential to limit the state’s ability to recover incarceration costs from convicted offenders under section 960.297, but it does not affect the state’s ability to pursue a restitution lien through the sentencing court under section 960.292(2). Moreover, our holding will serve to ensure that the civil restitution lien statute is used for its intended purpose — to compensate the state for the expenses of incarcerating convicted offender — rather than being used to deter prisoners from making claims against DOC. See Dep’t of Corr. v. Goad, 754 So.2d 95, 96 (Fla. 1st DCA 2000), approved, 845 So.2d 880 (Fla.2003); Hager v. Miller, 2000 WL 35526607 (M.D.Fla. Mar. 28, 2000); Green v. State, 998 So.2d 1149, 1150 (Fla. 2d DCA 2008) (Altenbernd, J., concurring); see also Fla. S. Comm. on Crim. Just., Staff Analysis for SB 2298 , at 8, 10, 20 (Mar. 20, 2009) (on file with comm.) (reporting that DOC uses section 960.297 to seek reimbursement for incarceration costs “to offset claims paid to offenders” and stating that the new statute of limitations has the potential to “deter frivolous filings by inmates” and “result in increased collection of [incarceration] costs”). Although we certainly do not condone frivolous prisoner lawsuits, there are a myriad of other statutes that are more appropriately used to address that problem. See, e.g., §§ 57.085(8), 944.279(1), 944.28(2)(a), Fla. Stat.

In sum, we affirm the trial court’s dismissal of Appellant’s negligence action against DOC, but we reverse the trial court’s denial of Appellant’s motion for summary judgment on the counterclaim and vacate the civil restitution lien entered against Appellant.

AFFIRMED in part; REVERSED in part; lien VACATED.

LEWIS, J., concurs; THOMAS, J., specially concurring in result only.

THOMAS, J.,

specially concurring in result only.

I concur in result only because we are bound by the decision of the Florida Supreme Court in Wiley v. Roof, 641 So.2d 66 (Fla.1994), which held that the legislature cannot retroactively revive time-barred civil actions under the due process clause of the Florida Constitution. In Wiley, the court held that an alleged victim of sexual abuse and incest could not file a civil action to recover damages, despite a statute which revived her time-barred claim. Id. at 68. I respectfully submit the better view is expressed in the United States Supreme Court’s decision in Chase Securities Corporation v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945), which reaffirmed its decision issued 60 years earlier in Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885), holding that a statute of limitation is a creature of legislative grace and, consistent with the Fourteenth Amendment, the legislature can revive time-barred civil actions where the claim does not involve the vested title of real or personal property. Chase Securities, 325 U.S. at 311-12, 65 S.Ct. 1137.

In Wiley, the Florida Supreme Court cited the dissenting opinion in Campbell, and interpreted Florida’s constitutional due process provision more expansively than the Fourteenth Amendment to prohibit the legislature from retroactively enlarging statutes of limitation. Wiley, 641 So.2d at 68. The Florida Supreme Court stated, “Once barred, the legislature cannot subsequently declare that ‘we change our mind on this type of claim’ ” and revive a time-barred suit for damages. Id. This was not the view of the unanimous holding in Chase Securities, which held that the legislature’s power includes the authority to revive such claims:

Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded.... They are by definition arbitrary, and their operation does not discriminate between the just and unjust claim, or the voidable or unavoidable delay. They have come into the law not through judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a ‘fundamental’ right ... of the individual .... The history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.

325 U.S. at 314, 65 S.Ct. 1137 (emphasis added; citations and footnotes omitted).

The Court in Chase Securities recognized that “[assuming that statutes of limitation like other types of legislation could be so manipulated that their retroactive effects would offend the Constitution, certainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is per se an offense against the Fourteenth Amendment.” 325 U.S. at 315-16, 65 S.Ct. 1137 (emphasis added).

In my view, the United States Supreme Court expressed the more persuasive rationale that the legislature does have the power to revive time-barred civil actions. Thus, I would hold that the 2009 legislation which eliminated the statute of limitation applicable here would allow for the State’s counterclaim, but for the Florida Supreme Court’s holding in Wiley. Because I am bound by Wiley, I concur in the result of the majority opinion.

       The substance of SB 2298 was adopted into SB1722, which became chapter 2009-63, Laws of Florida. Compare Fla. SB 2298, §§ 14-15 (2009) with Fla. S. Jour. 1449 (Reg. Sess. May 8, 2009) (conference committee amendment for SB 1722).


author: MAY, J.

text:
    John GERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4332.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.
    Rehearing Denied Feb. 15, 2010.
    Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   MAY, J.

The defendant appeals his sentence for home invasion robbery with actual possession of a firearm and attempted sexual battery with threat of great bodily force. He argues the trial court erred in considering his refusal to make statements during the preparation of the presentence investigation report [PSI] in denying his request to mitigate his sentence. We disagree and affirm.

The defendant, a co-defendant, and a third unknown man entered the victim’s apartment. As the defendant held the victim on the floor with a gun to her head, the co-defendant attempted a sexual battery. The three men then stole various items from the victim’s apartment. The co-defendant encouraged the defendant to kill the victim, which he refused to do. The jury convicted both the defendant and co-defendant.

At the sentencing hearing, defense counsel requested a youthful offender sentence and the defendant’s mother and sister addressed the court. The court and defense counsel then had the following exchange:

THE COURT: I don’t think that ... [the defendant] is going to fall into the category of youthful offender here. [W]hat do I make of the fact that the PSI is essentially barren because [the defendant] ... refused to make any comments for the PSI? Should I take that as an individual who has such thorough contempt for the [s]ystem that on top of the facts of the case are something that I should consider in imposing a disposition here?
MR. GLENN [Defense]: I’m not sure what you’re asking me Judge.
THE COURT: He was given an opportunity to speak to the folks at DOC to provide mitigating information, information about his background—
MR. GLENN: Yes.
THE COURT: And he refused to participate. Should I — you know, I — I’m sentencing the whole person and should I factor into that calculation an individual who has such apparent contempt for the [s]ystem that on top of the facts of the case itself when given the opportunity to participate, ... [he] declined?
MR. GLENN: My client does not wish to do that.
THE COURT: I’m sorry?
MR. GLENN: My client does not wish to do that. He — he feels more comfortable not making comments and part of that is based on attorney advice.
THE COURT: Okay. Well, you know, there’s a — there’s a variety of factors here and I remember the evidence quite well. [S]ir, if you don’t wish to make any comments here, that’s fine. It will impact the disposition here. So you may want to think if you do not wish to make any comments here. Let me call Mr. Battista’s case, so I can get him on the way and you can let me know if your client has changed his mind at all.

After handling another matter, the court resumed the hearing. Defense counsel advised the court that his client had a “couple of brief comments” to make. The defendant then asked for less time so he could go back to his family and change his life.

After asking whether there was anything else from the defense, the court asked the defendant why he did not answer questions in preparation of the PSI. The defendant explained that he was sick that day. The court then remarked: “I’m not sure that that covers it, but — .” The State then indicated it had nothing further.

The court articulated its findings for mitigation of the sentence: (1) the defendant’s “comments go a little ways to mitigating the sentence;” (2) the defendant’s record was much less than his co-defendant; and (3) the defendant refused to shoot the victim when instructed to do so by the co-defendant. The court indicated these factors warranted a sentence less than the life sentence imposed on the co-defendant, but not a youthful offender sentence. The court then sentenced the defendant to fifty years on count one with a ten-year minimum mandatory and fifteen years on count two to run concurrent. The defense did not object to the trial court’s comments and did not file a motion under Florida Rule of Criminal Procedure 3.800.

Absent fundamental error, a party must make a specific legal argument to the trial court to preserve an issue for review. Jackson v. State, 983 So.2d 562, 568 (Fla.2008); Lloyd v. State, 876 So.2d 1227, 1228 (Fla. 4th DCA 2004). Here, no objection was made.

The defendant argues, however, that the court committed fundamental error by violating his Fifth Amendment right to remain silent when it considered his silence during the preparation of his PSI in sentencing him. He further argues that the court erred in considering his lack of remorse and refusal to admit guilt. We disagree.

As a general rule, trial courts have considerable discretion in sentencing within the minimum and maximum allowed by law. Nusspickel v. State, 966 So.2d 441, 444 (Fla. 2d DCA 2007). The exception to this rule is where the imposition of sentence violates a defendant’s constitutional rights. Dowling v. State, 829 So.2d 368, 370 (Fla. 4th DCA 2002).

The Supreme Court of Florida has explained that due process prevents a court from using the fact that a defendant maintains his innocence against him at any stage of the proceedings. Holton v. State, 573 So.2d 284, 292 (Fla.1990). “Although remorse and an admission of guilt may be grounds for mitigation of a sentence or a disposition, the opposite is not true.” K.N.M. v. State, 793 So.2d 1195, 1198 (Fla. 5th DCA 2001). A trial court abuses its discretion and infringes on constitutional rights when it imposes a harsher sentence because a defendant exercises the right to remain silent, protests his innocence, or fails to show remorse. See Donaldson v. State, 16 So.3d 314 (Fla. 4th DCA 2009).

The question then is whether the trial court relied on the defendant’s silence or lack of remorse in fashioning the sentence. And if so, was its reliance on the defendant’s silence during the presentence investigation impermissible. No Florida case appears to have addressed whether a trial court can rely on a defendant’s silence during a presentence investigation. However, cases from outside of Florida have permitted trial courts to consider a defendant’s silence in a PSI when fashioning a sentence. See Kansas v. Spencer, 31 Kan.App.2d 681, 70 P.3d 1226 (2003); Lee v. Wyoming, 36 P.3d 1133 (Wyo.2001).

In Spencer, the trial court considered the defendant’s invocation of his Fifth Amendment right in refusing to make a statement in the PSI report. 681 P.3d at 1229. The Kansas Court of Appeal found no violation when the trial court placed the defendant in “high risk status” because of the defendant’s refusal to make a statement or provide information in the PSI report. Id. at 1229-30. Similarly, in Lee, the Wyoming Supreme Court affirmed the trial court’s consideration of the defendant’s failure to submit to a psychological evaluation in sentencing the defendant. “A defendant’s failure to cooperate in the PSI is certainly a valid factor for a trial court to consider in contemplating the appropriate sentence.” 36 P.3d at 1141.

Here, defense counsel requested a youthful offender sentence for the defendant. The defendant was given an opportunity to present facts for the court s consideration on whether to impose such a sentence. § 958.07, Fla. Stat. (2007). Indeed, the presentence investigation specifically allowed the defendant to present his “educational background, ... employment background, ... financial status, ... social history, ... residence history, ... views of the person preparing the report as to the offender’s motivations and ambitions and an assessment of the offender’s explanations for his or her criminal activity, [a]n explanation of the offender’s ... version and explanation of any previous offenses.” § 921.231(l)(d)-(m), Fla. Stat.; see also Fla. R.Crim. P. 3.710. But, the defendant declined. Not only did the defendant decline to comment on the crime, which he is entitled to do, he also failed to provide information for the trial court’s consideration on his request for mitigation of sentence.

In the discussion that preceded the sentencing, the trial court commented on the defendant’s failure to provide information for the PSI report. But, there is no indication that the trial court relied on the defendant’s silence in sentencing him. The trial court gave the defendant another opportunity to speak. This second opportunity yielded only that the defendant had been sick when the presentence investigation was conducted. When a defendant provides no mitigating information, there is little for the court to consider.

Further, in pronouncing sentence, there is no suggestion that the trial court used the defendant’s silence, lack of remorse, or failure to admit guilt against him; quite the contrary. The court’s comments were directed to the heinous nature of the crime. And despite that fact, the court found the defendant was entitled to a shorter, not harsher, sentence than his co-defendant because he refused to further harm the victim when encouraged to do so by the co-defendant. In actuality, there is no indication that the defendant received any harsher sentence because of his silence.

We acknowledge the defendant’s Fifth Amendment right to remain silent even during the presentence investigation. Holton, 573 So.2d at 292. We also acknowledge that a trial court is in essence forced to consider the lack of information in a PSI when the defendant chooses to exercise that right as it relates to mitigating information. This is especially true when a court is asked to mitigate a sentence. We find no error in these proceedings.

Affirmed.

POLEN and GERBER, JJ., concur.

      . See also New Hampshire v. Burgess, 156 N.H. 746, 943 A.2d 727, 739 (2008) (no error in considering the defendant’s "lack of involvement” or "failure to participate” in preparation of the PSI because his failure "to participate in the PSI is relevant to the defendant’s potential for rehabilitation, which is an appropriate sentencing consideration”); Ohio v. Hoying, No. 04-CA-71, 2005 WL 678989, at *5-6 (Ohio Ct.App.2d Dist. Mar. 25, 2005) (trial court correctly considered the defendant’s refusal to cooperate with the presen-tence investigation); Wisconsin v. Arrington, 317 Wis.2d 730, 2009 WL 749561 (Wis.Ct. App. Mar. 24, 2009) (trial court’s remark concerning the defendant’s failure to cooperate with presentence investigator as reflective of his character and conduct was not error).

      . The trial court s question concerning whether the defendant's silence should be considered contemptuous appears to suggest the court's displeasure with the defendant's refusal to cooperate. However, it could just have easily been an expression of frustration by the court that it had insufficient information to consider for mitigation. Courts should, however, be vigilant to avoid any suggestion of improper considerations when making remarks during sentencing.


author: PER CURIAM.

text:
    Reginald MONTGOMERY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1859.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.
    Reginald Montgomery, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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

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

Reversed and remanded for further proceedings.


author: EVANDER, J.

text:
    Desiree CASTELLANO, Petitioner, v. Marc WINTHROP, Respondent.
    No. 5D09-2798.
    District Court of Appeal of Florida, Fifth District.
    Jan. 29, 2010.

      Elizabeth Berenguer Megale, Orlando, for Petitioner.
    Kelly J.H. Garcia and Megan Costa De-Vault, of Akerman Senterfitt, Orlando, for Respondent.
   EVANDER, J.

Desiree Castellano (“the Mother”) has filed an amended petition for writ of cer-tiorari seeking review of an order of the trial court disqualifying her counsel (“Firm”). The disqualification was based on the Firm’s receipt, review, and use of respondent, Marc Winthrop’s (“the Father”) USB flash drive that contained electronic files including, inter alia, attorney/client communications, client litigation notes, and attorney work product. The Mother contends that the disqualification order represents a departure from the essential requirements of the law because a less drastic civil remedy was sufficient to address any potential wrongdoing. We deny the Mother’s petition.

This case commenced in 1999 when the Mother filed a petition to establish paternity. In 2002, a modified final judgment of paternity was entered. However, the parties have continued over the years to engage in protracted litigation particularly as to the issues of child custody and medical treatment of the child.

In February 2009, the Mother came into possession of a USB drive that belonged to the Father. It is not necessary to detail the manner in which the Father’s USB drive came into the Mother’s possession. It is sufficient to state that after the Mother’s version of the events was rejected by the court, the trial court could properly find that the USB drive was illegally obtained by the Mother without the knowledge or consent of the Father.

After reviewing the USB drive, the Mother then retained the Firm. The Firm spent in excess of 100 hours reviewing the files contained on the flash drive and subsequently filed a “Petition to Vacate Stipulated Final Order of Modification Due to Father’s Repeated Intentional Fraud Upon the Court” (“Petition to Vacate”) on behalf of the Mother. The Petition to Vacate was based on information obtained from the USB drive. The Father and/or his counsel correctly deduced that the Mother had somehow obtained the Father’s USB drive and demanded its immediate return. The Firm refused to return the USB drive and, instead, filed its contents in the court file and also facilitated delivery of the USB drive to law enforcement. The Father then filed an emergency motion seeking, inter alia, the return of the USB drive, disqualification of the Mother’s counsel, and the imposition of other sanctions against the Mother. The presiding trial judge had a senior judge, The Honorable George A. Sprinkel, IV, appointed to preside over the hearing on the Father’s motion.

Judge Sprinkel conducted a lengthy evi-dentiary hearing on the Father’s emergency motion. Although the facts were hotly disputed below, the Mother does not challenge the factual findings for purposes of this certiorari review. Among the lower court’s findings of fact were:

(1) The USB drive was illegally obtained by the Mother;
(2) The USB drive contained the electronic equivalent of thousands of pages of documents and communications, including:
(a) Attorney/client communications between the Father and his counsel;
(b) Attorney/client notes concerning litigation strategy.
(c) Work product and mental impressions of the Father’s attorneys concerning pending litigation issues, including detailed outlines for witness questioning and potential impeachment evidence to be used in future hearings;
(d) Confidential medical information of the Father and his current wife;
(e) Confidential financial information of the Father’s current wife and her family;
(f) Confidential business information of the Father and his clients.
(3) Despite receiving the USB drive “under very, very suspicious circumstances,” the Firm spent in excess of 100 hours reviewing its contents “although it was apparent within moments of inspection that it belonged to the Father and contained attorney/client communications with the Father’s current counsel ..., as well as a complete history and chronology of strategy, work product, and confidential communications spanning the near decade-long period of this litigation.”
(4)Based upon a preliminary review of the Father’s confidential documents, the Mother failed to establish that a crime or fraud was being perpetrated, planned, or carried out by the Father.

Judge Sprinkel then determined that disqualification of the Firm was required because “an informational advantage was obtained.” Judge Sprinkel further ordered that the Petition to Vacate be struck and the confidential information previously placed in the court file be sealed. The Mother and the Firm were ordered to return the USB drive and any and all copies that were in their possession or control. The Mother and the Firm were also ordered to remove from their computers all of the Father’s confidential and privileged information and to make their computers available for third-party inspection to confirm the deletion of this information — all at the Firm’s expense. The Firm and the Mother were further ordered to provide, by affidavit, the identity of all persons who have reviewed, received, or been provided with the confidential and privileged information and to indemnify the Father for any damages he might suffer from the improper use thereof. The Mother was also enjoined from using any of the information illegally obtained. Lastly, the court reserved jurisdiction to determine whether the Father was entitled to an award of attorney’s fees.

In her petition, the Mother only challenges the lower court’s decision to disqualify the Firm. She contends that the other remedies ordered by the trial court (return and non-use of the confidential and privileged information and indemnification of the Father for any damages incurred) was sufficient to “resolve any problems” and that disqualification of the Mother’s counsel would only serve to prejudice the Mother. We reject the Mother’s argument.

While recognizing that disqualification of a party’s chosen counsel is an extraordinary remedy that should be resorted to sparingly, disqualification is appropriate where a party obtains an unfair informational or tactical advantage through the disclosure of privileged information to that party’s counsel. See Atlas Air, Inc. v. Greenberg Traurig, P.A., 997 So.2d 1117 (Fla. 3d DCA 2008); Abamar Housing & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 724 So.2d 572 (Fla. 3d DCA 1998); Double T Corp. v. Jalis Dev., Inc., 682 So.2d 1160 (Fla. 5th DCA 1996); Gen. Accident Ins. Co. v. Borg-Warner Acceptance Corp., 483 So.2d 505 (Fla. 4th DCA 1986). Given the nature of the information obtained by the Firm from the USB drive, it cannot be reasonably disputed that an informational and tactical advantage was obtained by the Mother.

For the benefit of other attorneys facing a similar dilemma, we note that the Florida Bar Commission on Professional Ethics has opined that when an attorney receives confidential documents he or she knows or reasonably should know were wrongfully obtained by his client, he or she is ethically obligated to advise the client that the materials cannot be retained, reviewed, or used without first informing the opposing party that the attorney and/or client have the documents at issue. If the client refuses to consent to disclosure, the attorney must withdraw from further representation. Fla. Bar Profl Ethics Comm., Formal Op. 07-1.

Petition for Writ of Certiorari DENIED.

GRIFFIN and SAWAYA, JJ., concur.

      . Appellate counsel was not petitioner’s counsel below.

      . A USB flash drive is a memory data storage device.

      .We commend the trial judge on her decision to have another judge preside over a hearing that would result in the disclosure of an extensive amount of privileged attorney/client communications and attorney work product. We also commend Judge Sprinkel for his thorough and detailed order.

      . Only a portion of the transcript of the evi-dentiary hearing was made part of the record. Accordingly, we assume the lower court's factual findings were supported by substantial competent evidence. Hirsch v. Hirsch, 642 So.2d 20 (Fla. 5th DCA 1994) (failure to provide appellate court with either transcript or proper substitute for transcript is generally fatal because, in absence of transcript, appellate court is unable to evaluate allegations that error exists in trial court’s findings but instead must presume such findings are correct); All American Soup v. Colonial Promenade, 652 So.2d 911 (Fla. 5th DCA 1995) (appellant was not able to establish reversible error where he failed to bring complete transcript of non-jury trial proceedings to court for review).

      . The attorney may also be required to advise his client to consult a criminal defense attorney.


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant, v. Omar ROBINSON, Appellee.
    No. 5D09-734.
    District Court of Appeal of Florida, Fifth District.
    Jan. 29, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellee.
   GRIFFIN, J.

The State of Florida appeals an order granting Omar Robinson’s [“Robinson”] motion to suppress. Because we conclude that the police had probable cause to arrest Robinson, we reverse.

Deputy Patrick Flanagan, with the Seminole County Sheriffs Office, testified at the hearing on the motion to suppress that he and then deputy-in-training Jeffrey Johnson, initiated a traffic stop on a vehicle whose tag did not match the vehicle. Robinson was a passenger in that vehicle. After stopping the vehicle, Deputy Flanagan learned that the driver did not have a valid driver’s license. When the driver admitted that he was aware his driver’s license was suspended, the driver was arrested.

At that point, Deputy Flanagan requested that the other two passengers in the vehicle, including Robinson, exit the vehicle in order to allow for a search of the vehicle incident to the driver’s arrest. Deputy Flanagan stated that he had the two passengers sit outside on the curb while he conducted the search. He immediately observed, in plain view, a plastic bag on the rear floorboard on the passenger side, which appeared to be crack cocaine. This was where Robinson had been sitting before being asked to exit the vehicle. After finding the crack cocaine, Deputy Flanagan secured the two passengers in the vehicle and advised Robinson of his Miranda warnings. Robinson then admitted that the drugs belonged to him and also informed Deputy Flanagan that he had drugs in his right shoe.

Former Deputy Johnson confirmed that they initiated the stop of the vehicle after they ran the tag and it came back belonging to another vehicle. He additionally confirmed that the driver was arrested because his license had been suspended. They then removed the two remaining occupants from the vehicle and performed a search. Robinson and the other occupant were placed in handcuffs, for officer safety. Although he was not positive, he believed that the two occupants were placed in handcuffs at the same time the driver was arrested or shortly thereafter. He confirmed that Robinson was placed under arrest after the deputies found the cocaine.

The trial court granted Robinson’s motion to suppress, making the following findings of fact and conclusions of law:

The Defendant is charged with possession of cocaine. He was the rear right seat passenger in a car stopped for driving with an improper tag. The driver was arrested for driving while his license was suspended or revoked. The arresting deputy then requested that the Defendant and the other passenger exit the vehicle so that it could be searched incident to the driver’s arrest. On the right rear floorboard, the deputy discovered a baggie of crack cocaine in the area the Defendant had been seated. The Defendant and the other passenger were secured in handcuffs for further investigation. Post-Miranda, the Defendant admitted that the cocaine belonged to him. According to Deputy Flanagan, the Defendant was only then arrested. Subsequent to his arrest, the Defendant admitted additional contraband was in his shoe.
The Defendant claims that he was arrested without probable cause. Based upon the testimony, he is correct. The traffic stop, arrest of the driver, and search of the vehicle were all valid. However, upon discovery of the cocaine in the vehicle, the Defendant was placed in handcuffs. There is no dispute that Deputy Flanagan could have detained [him] to conduct a criminal investigation based upon Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, there was no basis for Deputy Flanagan to handcuff the Defendant in order to proceed with his investigation. There was no testimony that Deputy Flanagan had probable cause to believe that the Defendant was armed, nor was a pat down search conducted to dispel such a belief. There was also no indication that the Defendant appeared as if he was about to flee. As such, the use of handcuffs turned the Terry stop into an arrest. See Reynolds v. State, 592 So.2d 1082 (Fla.1992); Baggett v. State, 849 So.2d 1154 (Fla. 2d DCA 2003). The Defendant’s mere proximity to the drugs did not give probable cause for this arrest. See Zandate v. State, 779 So.2d 476 (Fla. 2d DCA 2000); Rennard v. State, 675 So.2d 1006 (Fla. 2d DCA 1996). Therefore, the arrest was unlawful. The unlawful arrest tainted all statements made subsequently while the Defendant was in custody. Therefore, these statements and all contraband seized from the person of the defendant as a result of the unlawful arrest should be suppressed.

This is a constructive possession case in which drugs were found during a search incident to a lawful arrest. Once the deputy found the drugs, he had probable cause to believe that a crime had been committed. The question here is whether he had probable cause to believe Robinson committed that crime.

Below, the trial court found that Robinson was placed in handcuffs after the deputies found the drugs in the back of the car. However, the court concluded that Robinson’s mere proximity to the drugs did not give probable cause for his arrest. In reaching its decision, the trial court relied on Zandate v. State, 779 So.2d 476 (Fla. 2d DCA 2000) and Rennard v. State, 675 So.2d 1006 (Fla. 2d DCA 1996). The State contends those cases are not controlling.

In Zandate, the defendant, a passenger in a car, was arrested after drugs were seized during a traffic stop. There, the driver of the car consented to a search of his vehicle. The deputy found a residual amount of marijuana in the closed ashtray. The driver indicated that it was not his and consented to a pat-down search. Not finding any drugs on the driver, the deputy then searched the defendant and found a small baggie of marijuana and cocaine in his pants pocket. The defendant successfully argued that the deputy did not have probable cause to search his pockets or to arrest him because there was no evidence that the defendant knew of the presence of the substance in the closed ashtray. The Second District in Rennard similarly concluded that, although the initial stop and detention of the vehicle were valid, there was no probable cause to arrest the passenger after drugs were found in the car because the deputies did not have reason to believe that the passenger knew of the presence of contraband under the driver’s seat and not visible to a person in the passenger’s location.

This case is more similar to the First District Court’s decision in R.D.D. v. State, 15 So.3d 857, 857 (Fla. 1st DCA 2009). There, law enforcement officers stopped a vehicle and found drugs in a clear plastic bag in plain view on the left side of the rear seat. R.D.D. was in the right hand rear seat. The court found that the evidence of exclusive possession of the area of the car where the drugs were in plain view is sufficient to prove constructive possession. Id

In Jiles v. State, 984 So.2d 622 (Fla. 2d DCA 2008), police found drugs located in the opening of the driver’s side door. Jiles was the driver but he had a passenger. The Jiles court said that mere proximity to drugs is not enough to infer constructive possession but the proximate location coupled with plain view of the drugs is sufficient to meet the elements of a constructive possession offense. Id. at 623.

In the present case, the drugs were in plain view on the floorboard of the right rear passenger seat where Robinson was seated. The drugs were at Robinson’s feet and were within his reach before he stepped out of the vehicle. This evidence is sufficient to establish probable cause to believe that Robinson was in possession of the drugs and to arrest him for it. As a result, the trial court erred in granting the motion to suppress based on lack of probable cause.

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.

      . The tag belonged to a red Ford, but was attached to a green Pontiac.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . See also Maryland v. Pringle, 540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003).


author: MONACO, C.J.

text:
    The JOSEPH L. RILEY ANESTHESIA ASSOCIATES, etc., Appellant, v. Amanda STEIN and Florida Health Care Plan, Inc., Appellee.
    No. 5D08-2162.
    District Court of Appeal of Florida, Fifth District.
    Jan. 29, 2010.

      Jamie Billotte Moses, of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, and C. Anthony Scho-der, Jr., of Smith, Schoder & Bledsoe, L.L.P., Daytona Beach, for Appellant.
    Karina P. Gonzalez, of Law Offices of Steven M. Ziegler, P.A., Hollywood, for Appellee.
    C. Anthony Schoder, Jr., of Smith, Scho-der & Bledsoe, L.L.P., Daytona Beach, for Appellee, Amanda Stein.
   MONACO, C.J.

One of the appellees, Florida Health Care Plan (“Florida Health Care”), a health maintenance organization, pre-au-thorized surgical procedures for each of its subscribers, the remaining appellees, through Florida Hospital Fish Memorial in Orange City (“Florida Hospital”). The appellant, Joseph L. Riley Anesthesia Associates, P.A., d/b/a JLR Medical Group (“JLR”), provided anesthesia services to the subscribers/patients in conjunction with their surgical procedures. JLR, however, did not have a contractual agreement with Florida Health Care regarding the amounts to be paid for the medical services it provided to subscribers of Florida Health Care. The issue presented to us for determination is whether a hospital-based, but non-contracted, provider of health care services to the subscribers of a health maintenance organization plan may balance bill the subscribers for the unpaid portion of its statements for medical services that have not been paid by the health maintenance organization. We agree with the trial court that in light of section 641.3154, Florida Statutes (2007), the provider may not balance bill the subscriber, and affirm.

The plaintiffs/appellees are a group of 52 medical patients who are subscribers to Florida Health Care. All 52 had surgical procedures at Florida Hospital. The hospital and all of the surgeons involved had contractual arrangements with Florida Health Care regarding insurance payment for their services. Moreover, the contract between Florida Health Care and Florida Hospital provided that the hospital was empowered to direct hospital-based physicians to provide medical services that were pre-authorized by Florida Health Care.

JLR had an exclusive contract with Florida Hospital to provide anesthesia services for surgeries performed there, but had virtually no contact with any of the subscribers prior to the surgeries. What complicated the relationship between the parties further was that although JLR provided anesthesia services to each of the subscribers, it had not contracted with Florida Health Care regarding reimbursement for services.

After each surgery JLR submitted a statement for its medical services to Florida Health Care, but in each instance Florida Health Care paid a reduced amount in full payment of the bill. JLR received and retained each payment, but denied that the payments fully satisfied its statements, and then sent bills to the subscribers for the balance not paid by Florida Health Care. JLR refers to this as “balance billing.”

The patients brought suit seeking a declaratory judgment that JLR’s balance billing violated section 641.3154, Florida Statutes (2007), and that balance billing violated Florida’s Unfair Trade and Deceptive Practices Act under Chapter 501, Florida Statutes. The trial court bifurcated the proceedings and set the declaratory judgment action for trial. At the conclusion of the trial the court held that although JLR did not have a contract with Florida Health Care, it did have a contract with Florida Hospital and with the various surgeons who provided health care services to the 52 subscriber/patients. The final judgment noted that each pre-sched-uled surgery performed at Florida Hospital went through an authorization process during which Florida Health Care would decide if each subscriber/patient was eligible, and whether the requested surgery was a covered benefit. Once approved, an authorization number was issued for use by all involved providers in order for them to submit bills to Florida Health Care for payment. The trial court noted that JLR billed Florida Health Care using the assigned authorization number for each subscriber, and that because Florida Hospital had a contract with Florida Health Care, it was empowered to authorize or direct the provision of JLR’s anesthesia services to Florida Health Care members pursuant to section 641.3156(1).

When the trial court reviewed section 641.3156(1), it found that under that statute a health maintenance organization was liable for services to a subscriber/patient by a provider, regardless of whether a contract existed between the health maintenance organization and the provider. It concluded further that in those circumstances the health maintenance organization would be liable for payment to the provider, but a subscriber/patient would not. Thus, JLR was prohibited from balance billing the appellees.

A trial court’s rulings on its interpretation of statutes and contracts are, of course, reviewed de novo. See Health Options, Inc. v. Palmetto Pathology Servs., P.A., 983 So.2d 608 (Fla. 3d DCA), review denied, 994 So.2d 1104 (Fla.2008); Lukacs v. Luton, 982 So.2d 1217 (Fla. 1st DCA 2008); see also Jones v. Utica Mut. Ins. Co., 463 So.2d 1153, 1157 (Fla.1985); Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006), review denied, 954 So.2d 28 (Fla.2007). We agree with the trial court that pursuant to Florida’s “Health Maintenance Organization Act,” section 641.17-3923, Florida Statutes (2007), a health maintenance organization is liable for services rendered to a subscriber/patient by a provider, regardless of whether a contract exists between the HMO and the provider. The statute is quite specific in providing that a health maintenance organization is liable for payment of fees to the provider, and that a subscriber is not liable for payment of fees to the provider. See § 641.3154, Fla. Stat.

More specifically, section 641.3154(4) reads as follows:

A provider or any representative of a provider, regardless of whether the provider is under contract with the health maintenance organization, may not collect or attempt to collect money from, maintain any action of law against, or report to a credit agency a subscriber of an organization for payment of services for which the organization is liable, if the provider in good faith knows or should know that the organization is liable. This prohibition applies during the pendency of any claim made by the provider to the organization for payment of the services and any legal proceedings or dispute resolution process to determine whether the organization is liable for the services if the provider is informed that such proceedings are taking place. It is presumed that a provider does not know and should not know that an organization is liable unless:
(a) the provider is informed by the organization that it accepts liability;
(b) a court of competent jurisdiction determines that the organization is hable;
(c) the office or agency makes a final determination that the organization is required to pay for such services subsequent to a recommendation made by the Subscriber Assistance Panel pursuant to s. 408.7056; or
(d) the agency issues a final order that the organization is required to pay for such services subsequent to a recommendation made by a resolution organization pursuant to s. 408.7057. (Emphasis supplied).

The highlighted first sentence of this subparagraph seems to us to be disposi-tive. The Legislature specifically informs us through this statute that a provider, even one not under contract to the health maintenance organization, may not balance bill a subscriber to the health maintenance organization. As counsel for Florida Health Care agreed during the oral arguments associated with this case, while JLR retains all of its common law remedies against Florida Health Care, it may not collect or attempt collection against the patient if the provider knows that the health maintenance organization is liable.

In the present case there is little doubt that JLR knew that Florida Health Care was liable. Florida Hospital and the surgeons were pre-authorized by Florida Health Care for each surgery; Florida Health Care issued an authorization number; JLR submitted its bill for each patient/subscriber to Florida Health Care using the appropriate authorization number; Florida Health Care paid some part of the bill directly to JLR; and JLR retained the payments. Thus, JLR was forbidden by section 641.3154(4) to balance bill the patient/subscribers.

JLR argues, however, that the second sentence of section 641.3154(4) modifies the first, so that the prohibition against balance billing only applies “during the pendency of any claim made by the provider to the organization for payment of the services and any legal proceedings or dispute resolution process” resulting from the claim. We read the paragraph differently. The second sentence, we believe, simply assures that the provider will not balance bill during the time when there may be attempts to resolve the issue of whether a health maintenance organization is liable. The second sentence is not a limitation on the first. Rather, it is a stand-still provision. It holds everyone in place while any dispute over liability is pending.

Our reading of the statute is bolstered by a number of factors. First, we see no ambiguity in the statute. JLR’s reading of it is strained, at best. Had the Legislature intended it “only” to apply during the pendency of legal or dispute resolution proceedings, it would surely have begun this critical sentence by saying, “This prohibition only applies during the pendency of any claim.... ” Accordingly the plain reading of the statute convinces us of this interpretation.

Second, we have previously held with respect to section 641.315, a precursor to section 641,3154, that the statute

provides that only the HMO is liable for services rendered, not the subscriber or insured. The providers are prohibited from collecting funds from a subscriber for services provided and covered by the HMO.

The Fla. Physicians Union, Inc. v. United Healthcare of Fla., Inc., 837 So.2d 1133, 1135 (Fla. 5th DCA 2003); see also Shands Teaching Hosp. & Clinics, Inc. v. Humana Med. Plan, Inc., 727 So.2d 341, 346 (Fla. 1st DCA 1999). In the same case we also commented that section 641.315, Florida Statutes (1997), was designed to protect and safeguard subscribers, and that while providers are viewed as essential to the overall plan of prepaid medical service, “they are not focused on as parties needing protection.” Fla. Physicians Union, Inc., 837 So.2d at 1135. Nothing has been brought to our attention that would suggest that the Legislature intended to modify our statutory reading of the earlier statute by its amendment.

Third, our sister court in the Third District has arrived at the same conclusion in a somewhat similar case where the type of services, rather than the reasonableness of the amount of payment, was in dispute. There, a pathology group associated with a hospital brought a claim against the health maintenance organization for declaratory and other relief in an effort to recover additional payments for the disputed services. The court noted during the course of its opinion that:

As a “non-participating provider” of these services, [pathology group] was nonetheless prohibited (by section 641.3154(4), Florida Statutes (2007)) from directly billing [health maintenance organization] members if [pathology group] knew or should have known that [the organization] was liable for payment. As to the disputed services, therefore, [pathology group] was not being paid by the hospitals, could not collect from [health maintenance organization] members, and was not being reimbursed by [health maintenance organization].

See Health Options, Inc. v. Palmetto Pathology Servs., P.A., 983 So.2d 608, 612 (Fla. 3d DCA), review denied, 994 So.2d 1104 (Fla.2008).

JLR contends, however, that because it did not specifically seek or obtain Florida Health Care’s authorization prior to performing its medical services, its rights are governed not by section 641.3154(4), but by section 641.3156(1). That statute provides:

(1) A health maintenance organization must pay any hospital-service or referral-service claim for treatment for an eligible subscriber which was authorized by a provider empowered by contract with the health maintenance organization to authorize or direct the patient’s utilization of health care services and which was also authorized in accordance with the health maintenance organization’s current and communicated procedures, unless the provider provided information to the health maintenance organization with the willful intention to misinform the health maintenance organization.

JLR argues that it was either Florida Hospital or the surgeon of each sub-seriber/patient that was empowered by virtue of its contract with Florida Health Care to render services. Thus, according to JLR, because it did not follow the authorization procedures articulated by Florida Health Care, JLR was not in a contract position with the health maintenance organization, and section 641.3156 required Florida Health Care to pay whatever bill JLR sent them without diminishment. It would follow using this logic that if Florida Health Care did not pay the full amount of the bill, JLR could balance bill the remaining unpaid amount. The expansiveness of this argument is breathtaking, and we, of course, reject it.

As the Health Options court properly observed, and as the trial court here concluded, hospital-based providers like JLR are deemed authorized by virtue of their exclusive contract to provide anesthesia services at Florida Hospital, and thus fall within the hospital’s authorization for services. There is no question but that anesthesia services were medically necessary for the surgeries, as they were requested by the surgeons, and the contract between Florida Health Care and Florida Hospital recognized this relationship. The authorizations issued to Florida Hospital for services to the Florida Health Care subscribers extended to the services rendered by JLR.

We conclude, accordingly, that any dispute over payment amounts for bills rendered by JLR for the services it rendered to the subscribers of Florida Health Care must remain a dispute between JLR and Florida Health Care. JLR is statutorily prohibited from balance billing the appel-lee/subscribers. While JLR makes other arguments in support of its position, we find none to be meritorious. We, therefore, affirm the final judgment rendered by the trial court.

AFFIRMED.

TORPY, J., and LAMBERT, B., Associate Judge, concur.

      . The trial court consolidated the 52 cases brought by the subscriber appellees.

      . This subsection would not, of course, prohibit collection by the provider of co-payments, co-insurance or deductible amounts due the provider. See § 641.3155(8), Fla. Stat.


author: COHEN, J.

text:
    Lora Louise FOSTER, Appellant, v. ESTATE OF Edward GOMES, Appellee.
    No. 5D09-1076.
    District Court of Appeal of Florida, Fifth District.
    Jan. 29, 2010.

      Arthur I. Jacobs and Richard J. Scholz of Jacobs & Associates, P.A., Fernandina Beach, for Appellant.
    Steven L. Zakrocki of Upchurch, Bailey and Upchurch, P.A., St. Augustine, for Ap-pellee.
   COHEN, J.

Prior to their marriage, Lora Foster and Edward Gomes entered into an antenuptial agreement in which Ms. Foster waived all right to Mr. Gomes’s property, including her right to an elective share. Although not required by Florida law, Mr. Gomes disclosed the bulk of his assets when they entered the agreement, omitting one asset valued at approximately $10,000.

Subsequent to Mr. Gomes’s death in 2006, his will was admitted into probate. The will left all property not specifically devised to Ms. Foster to his lineal descendants. Ms. Foster filed a notice of her election to take her elective share pursuant to section 732.201, et seq., Florida Statutes (2006). The personal representative moved to strike the petition for elective share, citing section 732.702(1), Florida Statutes (2006), and the antenup-tial agreement. The trial court found the antenuptial agreement valid and enforceable, ruling that Ms. Foster waived her right to an elective share of the estate and that Mr. Gomes’s failure to disclose a minor asset did not affect the enforceability of the agreement. This appeal followed.

Florida law does not require pri- or disclosure of assets for an antenuptial agreement. § 732.702(2). Recognizing this, Appellant argues that a disclosure, once made, albeit voluntarily, if inaccurate or fraudulent, invalidates the antenuptial agreement, citing Stregack v. Moldofsky, 474 So.2d 206 (Fla.1985) (Ehrlich, J., dissenting). Unfortunately for Appellant, that dissenting opinion has not garnered a consensus either within the Florida Legislature or Florida courts. We prefer, instead, to rely upon the binding majority opinion which stated, “[njondisclosure, whether fraudulent or not, is precisely what the legislature intended to eliminate from consideration on the validity of ante-nuptial agreements.” Stregack, 474 So.2d at 207. In so holding, the law continues to accommodate the desires of older Florida residents to marry again without risking an unwanted disposition of a lifetime’s assets due to a partial disclosure. See id.

AFFIRMED.

SAWAYA and LAWSON, JJ., concur.


text:
    Rafael SANTOS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-3917.
    District Court of Appeal of Florida, Fifth District.
    Jan. 29, 2010.
    Rafael Santos, Century, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied. Petitioner has not alleged sufficient facts to show that his appeal rights were frustrated by state action, ineffective assistance of counsel, or extraordinary circumstances.

PETITION DENIED.

GRIFFIN, EVANDER and JACOBUS, JJ., concur.


author: VTLLANTI, Judge.

text:
    BEACH TERRACE ASSOCIATION, INC., a Florida corporation, Appellant/Cross-Appellee, v. WANDA DiPAOLA STEPHEN RINKO GENERAL PARTNERSHIP, Appellee/Cross-Appellant.
    Nos. 2D08-3339, 2D09-290.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2010.

      Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for Appellant/Cross-Appellee.
    Mark A. Hanson of The Law Offices of Lobeck <& Hanson, P.A., Sarasota, for Ap-pellee/Cross-Appellant.
   VTLLANTI, Judge.

Beach Terrace Association, Inc. (the Association), appeals the circuit court’s ruling that it was not entitled to an award of attorney’s fees pursuant to sections 718.303 and 718.1255(4)(i), Florida Statutes (2007). On cross-appeal, Wanda DiPaola Stephen Rinko General Partnership (DiPaola) challenges the trial court’s computation of prejudgment interest on the attorney’s fee award. On the Association’s direct appeal, we affirm without comment. On the cross-appeal, we reverse and remand for recomputation of prejudgment interest on DiPaola’s attorney’s fee award.

We only need recite those facts relevant to the issue of the prejudgment interest award. DiPaola, a condominium owner, originally filed a petition for nonbinding arbitration pursuant to section 718.1255(4), Florida Statutes (2003). In essence, the petition challenged the manner in which the Association had undertaken certain alterations or changes to the condominium’s lobby area, as well as certain amendments to the Declaration of Condominium. After the arbitrator ruled in favor of the Association, DiPaola brought an action against the Association in circuit court for trial de novo on the same issues, pursuant to section 718.1255(4)(k). In its ruling, the circuit court reached a result that differed from the arbitrator’s ruling.

Thereafter, DiPaola filed a motion to tax costs and attorney’s fees. On May 22, 2008, the circuit court determined that DiPaola was entitled to attorney’s fees pursuant to section 718.1255(4)(i), after concluding that DiPaola had obtained a judgment in the circuit court that was “more favorable” than the arbitrator’s decision. This order also reserved jurisdiction to determine the amount of the attorney’s fee award. The hearing on the amount of the fee award was held on September 19, 2008, but the court did not enter an order determining the amount of fees until December 23, 2008. The court’s December 23 order awarded prejudgment interest from May 22, 2008, through September 19, 2008, the date of the hearing to determine the amount of the fee award. Hence, the trial court did not include prejudgment interest from September 19, 2008, to December 23, 2008. This was error because it created a gap in the prejudgment interest award, thereby not making DiPaola “whole.”

An award of prejudgment interest is intended to make the prevailing party “whole from the date of the loss once a finder of fact has determined the amount of damages[.]” Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985); see also Mathers v. Brown, 21 So.3d 834, 834 (Fla. 4th DCA 2009) (noting that prejudgment interest is intended to compensate the successful claimant for the loss of the use of the money between the date when he is entitled to the money and the date of the judgment); Casey v. Cohan, 740 So.2d 59, 63 (Fla. 4th DCA 1999) (holding that prejudgment interest is assessed “until the date the amount of the fee was fixed”). Here, we see no reason why this general principle should not apply to make DiPaola whole, and the circuit court gave no reason for its deviation from this principle. Therefore, the trial court should have included prejudgment interest from May 22, 2008, through December 23, 2008, the date of the judgment setting the amount of attorney’s fees. Accordingly, we remand for reeomputation of prejudgment interest.

Affirmed in part, reversed in part with directions.

SILBERMAN, J„ and FULMER, CAROLYN K, Senior Judge, Concur.


text:
    Julia ANTONIETTI, Doc # R48079, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4681.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2010.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to any right Ms. Antonietti may have to file an appropriate postconviction motion.

NORTHCUTT, KELLY, and KHOUZAM, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Jason P. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-765.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2010.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Jason Taylor challenges a restitution order following his guilty plea to burglary of a conveyance and grand theft. He contends that the circuit court abused its discretion by basing the restitution order on the replacement values of the stolen items rather than their fair market values. We disagree and conclude that the court’s election to employ replacement values was well within its discretion. See C.M.S. v. State, 997 So.2d 520, 521 (Fla. 2d DCA 2008).

Taylor also argues, correctly, that the restitution amount was based on faulty math. The victim testified to the following amounts: $106.49 for a radar detector, which included tax; $170.00 for a GPS; $129.99 for a camera; and $9.99 for the camera case. When added together, the total is $416.47. Taylor was ordered to pay $555.15 in restitution. That sum was not supported by the evidence. Accordingly, we reverse the restitution order and remand for the court to award restitution in the amount of $416.47.

Reversed and remanded with directions.

ALTENBERND, J, and CASE, JAMES R., Associate Senior Judge, Concur.


author: DAVIS, Judge.

text:
    Jeffrey Steven BROWDER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1296.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2010.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Jeffrey Steven Browder challenges his judgments and sentences for one count of possession of a concealed weapon by a convicted felon and one count of obstructing or opposing an officer without violence. Browder pleaded guilty to the charges, specifically reserving his right to challenge the denial of his dispositive motion to dismiss the concealed weapon count. We reverse that conviction.

Browder, a convicted felon, was charged with carrying a concealed weapon — a folding knife — in violation of section 790.23(1), Florida Statutes (2008). Brow-der filed a motion to dismiss the charge pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), alleging that the knife he was carrying was a “common pocket knife” and thus legally exempt from the statutory definition of a weapon found in section 790.001(13). Browder’s undisputed assertions below that the blade of his knife was less than four inches long and that at the time of his arrest the knife was closed support his claim that the trial court should have granted his motion to dismiss the concealed weapon charge. See generally L.B. v. State, 700 So.2d 370, 372 (Fla.1997) (“[W]e can infer that the legislature’s intended definition of ‘common pocketknife’ [i]s: ‘A type of knife occurring frequently in the community which has a blade that folds into the handle and that can be carried in one’s pocket.’ ”). “[T]he question at the motion to dismiss stage is not whether the State can obtain a conviction or even if the State can survive a motion for judgment of acquittal. Instead, the question is whether there are disputed facts and whether the undisputed facts establish a prima facie case.” State v. Gay, 960 So.2d 864, 869 (Fla. 2d DCA 2007).

In his motion, Browder cited J.R.P. v. State, 979 So.2d 1178 (Fla. 3d DCA 2008). In that case, the Third District reversed the denial of a motion to dismiss a charge of carrying a concealed weapon, concluding that a knife that is folded closed and has a blade that is less than four inches long is a common pocketknife that does not satisfy the statutory definition of a weapon. At the hearing on Browder’s motion, the State presented no argument to contradict either the facts of the case or law presented by Browder. Additionally, there is nothing in the record to indicate that the State filed any written traverse to the motion or presented any additional facts that would bring the knife outside the definition of a common pocketknife.

Because the State failed to meet its burden to present any disputed or additional facts to weigh in determining whether the knife was a common pocketknife, we conclude that no genuine issue of material fact was before the trial court and that the motion to dismiss should have been granted. See State v. Taylor, 16 So.3d 997, 998 (Fla. 5th DCA 2009) (“[A] motion to dismiss on the ground that there are no material disputed facts and that the undisputed facts fail to establish a prima facie case of guilt must be denied by the trial court if the State files a traverse that ‘with specificity’ denies under oath a material fact alleged in the motion. A general, conclusory[,] or speculative response by the prosecution in its traverse ... is insufficient and constitutes an admission of the facts in question.” (citation omitted)); see also State v. Lewis, 463 So.2d 561, 563 (Fla. 2d DCA 1985) (“In considering a(c)(4) motion the trial judge may not try or determine factual issues ... in determining whether there exists a genuine issue of material fact.”). Accordingly, we reverse only Browder’s conviction for possession of a concealed weapon by a convicted felon and remand for the trial court to enter an order granting Browder’s motion to dismiss and an amended judgment and sentence reflecting the dismissal of that count. We affirm in all other respects.

Affirmed in part; reversed and remanded in part.

MORRIS, J., and FULMER, CAROLYN K., Senior Judge, Concur.

      . At an earlier hearing held before the knife or a photocopy of it were made available to the trial court, the trial judge indicated that if the blade was less than four inches long, he would be inclined to grant the motion to dismiss. In response, the State indicated its intent to investigate and report to the court whether any additional facts or circumstances about this knife would bring it outside the common pocketknife exception to the statutory definition of a weapon. There is no indication in the record that the results of this anticipated investigation were ever brought before the trial court.


author: CORTIÑAS, J.

text:
    Eduardo GALEGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2011.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2010.
    Carlos J. Martinez, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar C. Alvey, Assistant Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and SALTER, JJ.
   CORTIÑAS, J.

Eduardo Galego was a sex offender on probation who was living under the Julia Tuttle Causeway. On the night of January 24, 2008, Galego missed his 10 p.m. curfew by three hours. Galego’s cell phone records show that he had attempted to call his probation officer, Lorenzo Salazar, twice, at 10:00 p.m. and 10:05 p.m., but did not leave a message. At 1:00 a.m., Galego spoke to Salazar and explained that he was ill, had fallen asleep on a bus, and had missed his bus stop. From 2:20 a.m. until 6:25 a.m., Galego was at the Mount Sinai Hospital emergency room being treated for his illness. Galego was found to have violated his probation and sentenced to twenty-five years in prison. We reverse.

The State offered evidence to support Salazar’s theory that Galego had missed curfew willfully because he had spent the afternoon drinking at a party. First, Salazar testified that when he had spoken with Galego that afternoon, he had heard “some music” and “a lot of noise and other people in the background,” which gave him the impression that Galego was at a party. On cross-examination, Salazar admitted that this was “just a guess.” Second, the reason Galego gave for missing his curfew was that he had fallen asleep on a bus. Third, Salazar stated that when Galego had said that he felt “really sick” and wanted to go to the hospital, he “didn’t sound well,” and “his speech was impaired somewhat.” Finally, when Salazar interrogated Galego the next morning, his answers “didn’t make any sense,” and a saliva screen for alcohol tested positive. Based on this evidence and the allegation that Galego had failed to call Salazar until three hours after his curfew, the very able trial judge concluded that Galego’s hospital visit was meant to cover up his drinking.

The court made this ruling despite referring to the testimony of Galego’s expert witness, Dr. Pedro Jose Greer, as “honest and fourth coming [sic].” Dr. Greer, a renowned physician in Miami, cited voluminous medical data completely antipodean to Salazar’s hypothesis that Galego had been drinking. Although Dr. Greer had never met Galego prior to the hearing at which he testified, he had reviewed the lab results from Galego’s emergency room visit the night in question.

Q [D]id you see anything in those medical records that indicated that Mr. Gallego [sic] had anything to drink or was it [sic] drunk that night?
A There was no documentation in the chart or anything of that nature.
Q And based on your experience as a doctor, there probably would be, right?
A One hundred percent. You would always document that....

To the contrary, Dr. Greer testified that results from tests of Galego’s liver showed that his “liver enzymes were completely normal,” whereas in someone who had been drinking, “[y]ou would expect A.S.T. That’s a very sensitive enzyme ... [that] would generally bump up with alcohol.” Dr. Greer noted that Galego’s records showed no documentation of elevated liver enzymes, nor did they show that he smelled like alcohol.

Dr. Greer testified that Galego’s impaired speech and odd behavior could be explained by the fact that he has suffered from diabetes for the past seventeen years: if a diabetic has a cold, a virus, or any other infection, such as the one that prompted Galego’s cousin to give him Robitussin, their blood sugar would become elevated, as was Galego’s, and they would suffer “a change in their mental status, a change in their normal behavior, maybe their speech is slurred, maybe they’re confused, maybe they can’t answer a question or stay concentrated.” This “[a]ltered mental status” would include seizures and not understanding what was going on. Additionally, Dr. Greer said that Galego “was a little mind depleted as you can tell by his B.U.N. or BUN [Blood Urea Nitrogen].” Furthermore, Dr. Greer testified that Galego’s elevated B.U.N. and “mildly elevated lite pace with abnormal hema-lades” showed that “he was a little volume depleted” and had a stomach virus, which explained why he fell asleep on the bus.

Dr. Greer further testified that Galego’s urinalysis “showed some bacteria with low WBCs, [which] could mean he [had] a UTI or a stone” and that diabetics with a urinary tract infection “get a lot of a false positive readings” when their urine is tested for alcohol. He said that the test Salazar used is not a direct test of alcohol, and the correct procedure would have been to use “[a] pure blood alcohol [test]” to confirm it. No blood alcohol test was given to Galego.

In addition to Dr. Greer’s testimony, Galego’s cousin testified that Galego “doesn’t drink” and that she had not known him to drink anywhere. Salazar himself testified that he had never smelled alcohol on Galego’s breath and had always found him to be sober.

It is the State’s burden to prove, by the greater weight of the evidence, that a probation violation is a willful and substantial one. Hines v. State, 789 So.2d 1085, 1086 (Fla. 2d DCA 2001). However, rather than provide substantial and competent evidence to prove its case, here the State relied upon sheer conjecture. See Dean v. State, 948 So.2d 1042, 1045 (Fla. 2d DCA 2007) (holding that where there was no direct evidence regarding probationer’s alcohol consumption, and “the only direct evidence presented was to the exact contrary,” the State failed to prove willful and substantial violation). Based on Dr. Greer’s unrebutted testimony, which showed that Galego missed his curfew because of issues with diabetes and not because he had been drinking, we hold that the State did not, as a matter of law, satisfy its burden to prove the probation violation by a preponderance of the evidence.

This opinion shall take effect immediately, notwithstanding any motions for rehearing.

Reversed and remanded.

      . Although the onsite full panel drug and alcohol tests both were negative.

      . Dr. Greer is a board certified intern, gas-troenterologist, hepatologist, and chief of gas-troenterology at Mercy Hospital, and Assistant Dean of Academic Affairs at the College of Medicine at Florida International University.

      .Tests show that Galego's urine contained glucose levels of 2000 milligrams per decimeter; a normal urine glucose level is zero. His blood contained 310 milligrams of glucose, whereas a normal blood glucose level is between 74 and 106.

      . Q And if somebody's blood sugar is high and they have a fever and they're sick and all these other symptoms, diarrhea and such, can they get sleepy and drowsy and fall asleep?
      A Yes. And that's a consequence of them losing volume.


text:
    Larry Tyrone SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4918.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.
    Larry Tyrone Scott, pro se, Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The posteonviction court’s September 16, 2009, order determined that it was without jurisdiction to rule on the appellant’s amended Rule 3.850 motion because the appellant had filed a notice of appeal of the order which denied some of his claims and allowed him to amend his facially sufficient claims. However, the appellant’s appeal was dismissed by this Court in an order dated September 11, 2009, and jurisdiction had returned to the lower court to rule on the appellant’s motion.

Therefore, we reverse the postconviction court’s order and remand for the court to address the appellant’s amended claims.

REVERSED.

HAWKES, C.J., ROBERTS and CLARK, JJ., concur.


text:
    Lakeisha Shayolanda LEGGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3324.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the appellant’s judgment and sentence, but remand for the trial court to enter a written order specifying the conditions of probation the appellant violated. See Baldwin v. State, 855 So.2d 1180 (Fla. 1st DCA 2003) (remanding for entry of a written order revoking probation that conforms to the oral pronouncement in an Anders appeal); see also Petrie v. State, 980 So.2d 1209 (Fla. 4th DCA 2008) (“In this Anders appeal, we affirm the order revoking appellant’s probation and imposing sentence, but we remand for entry of a written order of revocation of probation specifying the conditions the appellant was found to have violated”). The appellant need not be present. Baldwin, 855 So.2d at 1180.

AFFIRMED in part and REMANDED in part for entry of a conformed order.

ROBERTS and CLARK, JJ., concur.

HAWKES, C.J., concurs in result only.


author: HAWKES, C.J.

text:
    STATE of Florida, Appellant, v. Timothy Charles HUDSON, Appellee.
    No. 1D09-3214.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.

      Bill McCollum, Attorney General, Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellant.
    Jimmy E. Hunt, of Jimmy Hunt, P.L., Lake City, for Appellee.
   HAWKES, C.J.

Defendant was charged with aggravated assault with a deadly weapon and moved to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) (2009). In the motion, defendant claimed he acted out of self defense and emphasized that the victim had recanted earlier statements given to the police. Although the State filed a traverse, the trial court granted the motion to dismiss, finding the material facts were not in dispute and the undisputed facts did not establish a prima facie case of guilt. On appeal, the State challenges the dismissal and claims the traverse created a material issue of fact. We agree and reverse the trial court’s order.

Rule 3.190(c)(4) permits a defendant to move to dismiss a charge when “[t]here are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” To avoid dismissal under Rule 3.190(c)(4), the State must file a traverse denying under oath the material facts alleged in the motion to dismiss. See Fla. R.Crim. P. 3.190(d). In the traverse, the State is not required to pretry its case, only to present sufficient facts which, when viewed in a light most favorable to the State, show that a reasonable jury could find in its favor. See State v. Terma, 997 So.2d 1174, 1177-78 (Fla. 3d DCA 2008) (stating the State is entitled to the most favorable construction of the facts possible); State v. Ortiz, 766 So.2d 1137, 1141-42 (Fla. 3d DCA 2000) (stating that when considering a Rule 3.190(c)(4) motion, “the [Sjtate is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant”).

Here, in defendant’s motion to dismiss pursuant to Rule 3.190(c)(4), he alleged he had not threatened or shot at the victim with a firearm. Defendant claimed any action taken was in self defense to dissuade the victim, who was attempting to engage in a violent confrontation with him. He claimed any statements made by the victim to the contrary were fabrications and attached an affidavit from the victim in which she corroborated his version of events.

However, the State’s traverse denied these allegations and identified a material issue of fact, namely that the victim had earlier stated the defendant had “shot a 9mm handgun at her twice [] and knocked her to the ground and held the gun to her head.” Viewing this allegation in a light most favorable to the State, the traverse created a dispute over material facts and the trial court erred in granting the motion to dismiss. See State v. Fetherolf, 388 So.2d 88, 89 (Fla. 5th DCA 1980) (finding a motion to dismiss should have been denied when the State’s traverse contained prior statements by the victim which contradicted material allegations in the motion, despite the fact that the victim had recanted those prior statements).

We REVERSE the trial court’s order granting the motion to dismiss and REMAND for further proceedings consistent with this opinion.

ROBERTS and CLARK, JJ., concur.