text:
    DAYTONA BEACH KENNEL CLUB, INC., Appellant, v. DEPARTMENT OF BUSINESS, etc., et al., Appellees.
    No. 5D08-4246.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2010.

      Mark A. Emanuele, of Panza, Maurer & Maynard, P.A., Ft. Lauderdale, for Appellant.
    Garnett W. Chisenhall, Tallahassee, for Appellee, Department of Business & Professional Regulation, Division of Pari-Mu-tuel Wagering.
    Cynthia S. Tunnicliff, of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, and David S. Romanik, of David S. Romanik, P.A., Oxford, for Appel-lee, Debary Real Estate Holdings, LLC.
   PER CURIAM.

Appellant, Daytona Beach Kennel Club, Inc. [“DB Kennel Club”], challenges a final order of the Department of Business and Professional Regulation, Division of PariMutuel Wagering [“the Division”], dismissing with prejudice its petition for formal administrative hearing based on a determination that DB Kennel Club lacked standing. DB Kennel Club’s petition sought to challenge the issuance of a permit to De-bary Real Estate Holdings, Inc. [“De-Bary”] to conduct quarter-horse races in southwest Volusia County.

On appeal, DB Kennel Club asserts that it has standing because it is substantially affected by the issuance of the permit to DeBary. DB Kennel Club further contends the Division lacked the authority to dismiss its petition without conducting a hearing. On the issue of standing, we conclude the Division properly applied Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), and correctly concluded that DB Kennel Club lacked standing to challenge the issuance of a pari-mutuel wagering permit to DeBary. See Gadsden Jai Alai, Inc. v. State of Florida, Dep’t of Bus. & Prof. Reg., Div. of Pari-Mutuel Wagering, 26 So.3d 68 (Fla. 1st DCA 2010). We further find no error in the failure to refer the petition to the Division of Administrative Hearings to conduct a hearing. The issue of standing is normally a question of law, as it was in this case. Dismissal is appropriate where undisputed facts demonstrate that a party lacks standing. See Fla. Society of Ophthalmology v. State Bd. of Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988); Peace River/Manasota Reg’l Water Supply Auth. v. IMC Phosphates Co., 18 So.3d 1079, 1082-83 (Fla. 2d DCA 2009).

AFFIRMED.

GRIFFIN, PALMER and JACOBUS, JJ., concur.


source: Caselaw Access Project

author: COHEN, J.

license: Public Domain

text:
    D.M.H., Appellant, v. Joyce PIETILLA, Administrator, Halifax Medical Center, Appellee.
    No. 5D09-351.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2010.

      James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Harold C. Hubka of Cobb & Cole, Day-tona Beach, for Appellee.
   COHEN, J.

D.M.H. appeals the denial of her petition for -writ of habeas corpus. The issue D.M.H. raises is whether her confinement is unlawful because the hearing on her Baker Act petition, which sought involuntary inpatient placement, was not held within five calendar days. We affirm.

When a petition for involuntary placement is filed under the Baker Act, either involuntary outpatient or involuntary inpatient placement may be sought. §§ 394.4655(6)(a)l„ 394.467(6)(a)l., Fla. Stat. (2008). If involuntary outpatient placement is sought, the trial court must hold a hearing “within 5 working days.” § 394.4655(6)(a)l. If involuntary inpatient placement is sought, the trial court must hold a hearing “within 5 days.” § 394.467(6)(a)l. D.M.H. seizes on the difference in language to argue that because section 394.4655(6)(a)l. uses “working” days, the omission of that word in section 394.467(6)(a)l. reflects a legislative intent that the hearing for involuntary inpatient placement be held in five calendar days.

We recognize the Legislature’s use of different terms in different parts of the same statute is “ ‘strong evidence that different meanings were intended.’ ” Maddox v. State, 923 So.2d 442, 446 (Fla.2006) (quoting State v. Mark Marks, P.A., 698 So.2d 533, 541 (Fla.1997)). However, this principle is not dispositive in this case because of Florida Rules of Civil Procedure 1.010 and 1.090.

The rules of civil procedure apply to “all actions of a civil nature and all special statutory proceedings,” subject to certain exceptions not applicable to this case. Fla. R. Civ. P. 1.010. Rule 1.090 governs the computation of time periods under the rules of civil procedure, a court order, or “any applicable statute.” Fla. R. Civ. P. 1.090(a). When a statute prescribes action be taken within a certain time period, “[r]ule 1.090 governs the computation of time absent specific computation provisions to the contrary.” Canonico v. Callaway, 26 So.3d 53, 54 (Fla. 2d DCA 2010). In relevant part, rule 1.090(a) provides that Saturdays, Sundays, and legal holidays are excluded when the prescribed time period is seven days or less. Because section 394.467 does not specifically indicate how the five-day time period is to be calculated, rule 1.090 governs. See Fla. R. Civ. P. 1.010; Canonico, 26 So.3d at 54.

Based on the foregoing, we reject D.M.H.’s argument that her hearing on involuntary inpatient placement had to be held within five calendar days of the petition being filed. Accordingly, we affirm the trial court’s denial of her petition for writ of habeas corpus.

AFFIRMED.

SAWAYA and EVANDER, JJ., concur.

      . § 394.451, Fla. Stat. (2008).

      . We further note that even if we agreed with D.M.H.’s reading of the statute, the remedy would not be dismissal of the petition. Rather, D.M.H. would be entitled to release pending a hearing.


author: ROWE, J.

text:
    David Raycourt ECHEVERRIA, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5563.
    District Court of Appeal of Florida, First District.
    April 26, 2010.

      Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   ROWE, J.

David Raycourt Echeverría appeals the denial of his pro se motion to withdraw a negotiated plea which alleged that his plea was not voluntary because trial counsel was ineffective in advising him whether to go to trial or whether to accept a sentence over the original cap of six years in prison. Without a hearing, the trial court entered an order striking the motion as a nullity because Mr. Echeverría was still represented by counsel at the time the motion was filed. We find that our analysis in this case is controlled by Sheppard v. State, 17 So.3d 275, 287 (Fla.2009). We affirm the trial court’s denial of the motion to withdraw the plea because Mr. Echever-ria’s general claims of ineffectiveness of his counsel do not sufficiently allege an adversarial relationship requiring a Sheppard hearing. We also find that any error in the trial court’s failure to hold a hearing was harmless because the allegations are conclusively refuted by the record.

In Sheppard v. State, 17 So.3d 275, 287 (Fla.2009), the supreme court outlined the procedure which trial courts should follow when a defendant who is represented by counsel files a pro se rule 3.170(Z) motion to withdraw a plea based on allegations that give rise to an adversarial relationship with counsel. Before Sheppard, the court had established a bright-line rule against hybrid representation, holding that a pro se motion filed by a represented party is a nullity. Logan v. State, 846 So.2d 472, 475 (Fla.2003). In Sheppard, the court receded from this rule and held that where a pro se rule 3.170(£) motion of a represented criminal defendant sufficiently alleges circumstances which could give rise to an adversarial relationship between the defendant and counsel, a trial court should no longer strike the motion as a nullity. Id. at 287.

The court in Sheppard identifies three examples of allegations which could give rise to an adversarial relationship: 1) counsel misadvised the defendant; 2) counsel misrepresented the terms of the plea; or 3) counsel coerced the defendant into accepting the plea. Id. at 286. The court held that if the motion presents such allegations, the trial court should then hold a limited hearing to determine whether it appears that an adversarial relationship has actually arisen and whether the petitioner’s allegations are refuted by the record. Id. at 287.

In this case, Mr. Echeverría alleged that his plea was not knowingly and voluntarily entered because his trial counsel was ineffective in advising him whether to go to trial and whether to accept a sentence over the original cap of six years in prison. We hold that Mr. Echeverria’s broad, general allegations of ineffectiveness of his counsel do not indicate misad-vice, coercion, or misrepresentation that would require a hearing under Sheppard.

We also find that a harmless error analysis is appropriate here in light of the instruction in Sheppard that “conflict-free counsel is not necessary when the motion’s allegations are conclusively refuted by the record.” Smith v. State, 21 So.3d 72, 76 (Fla. 1st DCA 2009). In Smith, we applied Sheppard under facts similar to those in the instant case, where the trial court struck a represented defendant’s pro se motion as a nullity. There, we conducted a de novo review to determine whether the trial court’s decision to strike the appellant’s motion would be affirmable even if reached for the wrong reason. We found that even where allegations “are sufficient to invoke the requirement to hold a limited hearing under Sheppard” a harmless error analysis would be appropriate. Id. at 76; see also Johnson v. State, 22 So.3d 840, 844 (Fla. 1st DCA 2009) (holding that a trial court’s failure to hold a Sheppard hearing may be considered harmless if the allegations in the rule 3.170(Z) motion are conclusively refuted by the record).

Here, the transcript of the plea colloquy demonstrates that Mr. Echeverría actively participated throughout the proceedings. The court asked all the relevant questions, explaining each question and giving Mr. Echeverría ample opportunity to respond. Twice Mr. Echeverría responded to the court that he had an adequate chance to go over the plea document with his attorney. Mr. Echeverría verbally affirmed throughout the colloquy that he understood the terms of the plea agreement including his sentence and his waiver of his right to a jury trial, that the agreement stated the terms that had been discussed, and that he understood his rights under the agreement and what rights he was waiving under the agreement. Because the record conclusively refutes Mr. Echeverria’s allegations that his counsel was ineffective in advising him whether to go to trial and whether to accept his sentence, we find any error by the trial court in failing to hold a Sheppard hearing was harmless.

AFFIRMED.

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

      . The supreme court in Sheppard further held that the trial court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant at an evidentiary hearing if it appears to the court that an adversarial relationship has actually arisen and the allegations are not refuted by the record, id. at 287.

      . In Smith, this court found that the initial matter of whether allegations give rise to an adversarial relationship (as well as the later inquiry as to whether the record conclusively refutes the motion’s allegations) "are both matters that may be decided on the basis of written materials alone,” giving us de novo review of those inquiries. Id. at 74-75 (citing Henyard v. State, 992 So.2d 120, 132 (Fla.2008)).


author: PER CURIAM.

text:
    Michael A. ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4234.
    District Court of Appeal of Florida, First District.
    April 26, 2010.
    Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General; and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Michael A. Rogers (appellant) appeals his conviction of one count of capital sexual battery on D.B., a child under 12 years of age, by a defendant age 18 or older, in violation of section 794.011(2)(a), Florida Statutes (2004). Appellant also challenges the trial court’s orders designating him a “sexual predator” and imposing restitution. Because the record demonstrates neither a misapplication of the law nor an abuse of discretion by the trial court in ruling on evidentiary matters, we affirm the conviction without further discussion. We also affirm the order designating appellant a sexual predator. We reverse the restitution order on jurisdictional grounds and remand that issue.

After adjudicating appellant guilty on August 14, 2008, the trial court sentenced appellant to life in prison without eligibility for parole. At the State’s request, the court orally designated appellant a “sexual predator” under section 775.21, Florida Statutes (2008), without a contemporaneous objection. Upon the State’s further request, the court orally ordered restitution, reserving jurisdiction to determine the appropriate payees and amounts once the State presented specific evidence. Appellant appealed on August 27, 2008. On September 3, 2008, the trial court entered written orders finding appellant’s conviction was for a qualifying offense, designating appellant a sexual predator, and imposing $468.00 in restitution. On May 19, 2009, appellant filed a rule 3.800(b)(2), Florida Rules of Criminal Procedure, motion to strike the sexual predator classification order and restitution order on the ground his filing the notice of appeal divested the trial court of jurisdiction over these matters before the issuance of the written orders. The court denied the motion.

We review de novo the issue of law whether the trial court had jurisdiction, after appellant filed his notice of appeal, to issue written orders memorializing its pri- or oral pronouncements on appellant’s designation as a sexual predator and restitution. See Lande v. Lande, 2 So.3d 378, 380 (Fla. 4th DCA 2008). On the matter of “sexual predator” classification, appellant does not contend he is ineligible. Indeed, his conviction of a capital felony under chapter 794, Florida Statutes (2004), mandated his designation as a sexual predator. See § 775.21(4)(a)l., Fla. Stat. He bases his challenge solely on the jurisdictional argument and on Schardt v. State, 10 So.3d 139 (Fla. 2d DCA 2009), a materially distinguishable case in which the State conceded error in the initial designation of Schardt as a sexual predator. “The designation of a person as a sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.” § 775.21(3)(d), Fla. Stat.; Kelly v. State, 795 So.2d 135, 138 (Fla. 5th DCA 2001). The circuit court has concurrent jurisdiction with the district court of appeal to decide a “collateral, ministerial and procedural matter” under rule 9.600(a), Florida Rules of Appellate Procedure. We conclude the trial court correctly denied appellant’s challenge to the mandatory sexual predator classification under rule 9.600(a) and Breitberg v. State, 14 So.3d 1253 (Fla. 4th DCA 2009).

The trial court did not have the benefit of the Breitberg decision, which was issued a month after the denial of appellant’s motion to strike the designation. Even so, the trial court’s ruling is consistent with the analysis of this issue in Breitberg. As in appellant’s case, Breit-berg made no claim he did not meet the statutory criteria for designation as a sexual predator. See id. at 1254. Instead, Breitberg sought to void his sexual predator designation because the trial court entered the order after he filed a notice of appeal from his qualifying judgment and sentence. After determining Breitberg’s record did not facially establish that his case fell within the narrow rule in Saintelien v. State, 990 So.2d 494, 495 (Fla.2008), allowing a rule 3.800(a) movant to challenge his sexual predator classification, the Fourth District Court directly addressed the jurisdictional challenge and concluded the filing of the notice of appeal did not divest the trial court of jurisdiction to designate Breitberg a sexual predator. See Breitberg, 14 So.3d at 1254-55. In Kimmel v. State, 629 So.2d 1110, 1111 (Fla. 1st DCA 1994) (order on appellee’s motion to dismiss), we acknowledged “[t]he general rule is that an appeal of an order divests the trial court of jurisdiction except for those matters which do not interfere with the power of the appellate court to determine the issues which are on appeal.” Citing Kimmel, the court in Breitberg determined that because sexual predator classification is not “a sentence or punish-raent” under the “sexual predator” statute and Saintelien, the designation order would not interfere with the appellate court’s power to dispose of issues relating to the judgment and sentence. Thus, the filing of Breitberg’s, and likewise appellant’s, notice of appeal did not divest the trial court of jurisdiction to issue a designation order. See 14 So.3d at 1254-55. Appellant can show no error in the denial of this part of his rule 3.800(b)(2) motion.

In challenging the trial court’s jurisdiction to enter the written restitution order after the filing of the notice of appeal, appellant properly relies on the similar facts in Pearson v. State, 686 So.2d 721 (Fla. 2d DCA 1997). There, the court held Pearson’s notice of appeal, after the trial court reserved jurisdiction on the amount of restitution, divested the trial court of jurisdiction to enter a restitution order. Pearson observed that on remand, the trial court could conduct another hearing and re-impose restitution. See id. at 721-22; see also Horan v. State, 990 So.2d 1264 (Fla. 1st DCA 2008) (stating the filing of the notice of appeal divested the trial court of jurisdiction to enter an order determining restitution, reversing the restitution order, and remanding with an acknowledgment the trial court could hold another restitution hearing). The State’s answer brief neither cites Pearson or Horan nor attempts to distinguish their consistent holdings. We reverse the restitution order on jurisdictional grounds, recognizing that upon remand returning jurisdiction to the lower tribunal, the court may revisit the subject of restitution and (if necessary to resolve any factual disputes involving the amount) hold a restitution hearing.

We AFFIRM the judgment and sentence and the order designating appellant a sexual predator; we REVERSE the restitution order and REMAND the matter to the trial court.

KAHN, DAVIS, and THOMAS, JJ., concur.


text:
    Antonio SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5316.
    District Court of Appeal of Florida, First District.
    April 26, 2010.
    Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In State v. Montgomery, — So.3d -, -, 2010 WL 1372701 (Fla.2010), in which the defendant was convicted of second-degree murder, the Florida Supreme Court held it was fundamental error to give the standard jury instruction for manslaughter by act as a lesser-included offense of second-degree murder because the manslaughter instruction improperly required the state to prove the defendant intentionally caused the death of the victim while the instruction for second-degree murder did not. Because this case is indistinguishable from Montgomery, we REVERSE and REMAND.

WOLF, LEWIS, and MARSTILLER, JJ., concur.


text:
    Eddie Lee RILES, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2304.
    District Court of Appeal of Florida, First District.
    April 26, 2010.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Eddie Lee Riles, challenges his convictions for robbery and battery on a person 65 years of age or older on several grounds. Because we agree that the trial court abused its discretion in denying Appellant’s request for a special jury instruction, we reverse Appellant’s robbery conviction. We affirm all other issues without further discussion.

Prior to the trial, Appellant filed “Defendant’s Request for Jury Instruction on ‘Afterthought.’ ” The requested instruction read:

One of the elements of the offense of robbery which must be proved beyond and to the exclusion of a reasonable doubt is that the accused used force in the taking of the property of another. If the evidence shows that any force used by the defendant was done with the primary motive of committing some other offense and that the motive for the use of force was for a reason not associated with the taking of property, then the offense of robbery has not been proved and you must find the defendant not guilty of that charge.

During the charge conference, Appellant renewed his request for the afterthought instruction, which was denied.

Appellant correctly argues that the standard jury instruction for robbery does not sufficiently explain the afterthought defense. Davis v. State, 922 So.2d 438, 444 (Fla. 5th DCA 2006). Moreover, Appellant testified to a version of events, which, if believed by a jury, would have amounted to a theft. Because there was some evidence in the record to support his defense, Appellant was entitled to the requested instruction. Id. The denial of the requested instruction did not have any effect on Appellant’s battery conviction. Therefore, Appellant’s conviction for battery on a person 65 years of age or older is AFFIRMED, Appellant’s conviction for robbery is REVERSED, and this case is REMANDED for a new trial.

DAVIS, CLARK, and WETHERELL, JJ., concur.


text:
    LYKES PASCO PACKING COMPANY, erroneously designated as Lykes Brothers, Inc., and Carrier, Travelers Indemnity Company, erroneously designated as Travelers Insurance Company, Appellants, v. Joseph L. CHESSHER, Appellee.
    No. 1D09-5678.
    District Court of Appeal of Florida, First District.
    April 26, 2010.
    Dinah Stein, Steven H. Preston, and Michael S. Hirschkowitz of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appellants.
    Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland, and Susan W. Fox of Fox & Loquasto, P.A., Tampa for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier (E/C) raises three points alleging error. We affirm the first two points without further comment; however, we reverse the third point, concerning the JCC’s failure to identify the specific type of attendant care services to be performed in the awarded eight hours of attendant care.

Competent, substantial evidence supports the JCC’s finding that Claimant is entitled to non-professional attendant care services. From the JCC’s order, however, it cannot be determined how many of the awarded hours of care are devoted to com-pensable tasks and how many, if any, are devoted to non-compensable household duties. Because much of the evidence received at the final hearing related to Claimant’s need for assistance with non-compensable household tasks, such as cleaning, laundry, and yard work, we reverse and remand the JCC’s order for a determination of the types of compensable attendant care services awarded. See Southwood Timber Co. v. Hicks, 959 So.2d 318 (Fla. 1st DCA 2007) (holding that the JCC erred by “failing to set forth the specific type and amount of attendant care services that should be performed in the future”); Rockette v. Space Gateway Support, 877 So.2d 852 (Fla. 1st DCA 2004) (remanding for the JCC to make findings of fact as to number of hours reasonably expended by claimant’s wife for care that went beyond ordinary household duties). In particular, on remand, the JCC should identify the precise services awarded in accordance with the principles announced by this court in Montgomery Ward v. Lovell, 652 So.2d 509 (Fla. 1st DCA 1995). In all other respects, the JCC’s order is affirmed.

AFFIRMED in part and REVERSED in part and REMANDED.

DAVIS, CLARK, and WETHERELL, JJ., concur.


text:
    Matthew G. DAWSON, Appellant, v. Jane M. DAWSON, Appellee.
    No. 1D09-3709.
    District Court of Appeal of Florida, First District.
    April 26, 2010.

      Matthew G. Dawson, pro se.
    Gregory D. Smith, Gregory D. Smith, P.A., Pensacola, for Appellee.
   PER CURIAM.

Matthew G. Dawson appeals an order holding him in contempt for disobeying the Final Judgment of Dissolution awarding the marital home to Jane M. Dawson as part of the equitable distribution scheme. The trial court found Mr. Dawson “knowingly and willfully in contempt of’ the Final Judgment for failing to execute a quit claim deed releasing his interest in the marital home. The court appointed a special master to execute the deed and ordered Mr. Dawson to pay his former wife’s attorney’s fees and costs incurred in the enforcement action. We reverse the order because the Final Judgment effectively conveyed Mr. Dawson’s interest in the marital home to his former wife and did not direct him to execute a quit claim deed. See § 61.075(4), Fla. Stat. (2008); Fla. R. Civ. P. 1.570(d). See also Gilman v. Altman, 300 So.2d 703, 706 (Fla. 3d DCA 1974) (reversing contempt order where judgment ordering specific performance of contract to sell real property did not direct the execution of a quit claim deed).

REVERSED.

WOLF, LEWIS, and MARSTILLER, JJ., concur.

      . We note that under Rule 1.570(c), a court may enforce a judgment requiring performance of a specific act by either specifying the time within which the act must be performed, holding the noncompliant party in contempt, or appointing someone to perform the act. Thus, a court may not both hold a party in contempt and obtain performance of the act by other means. See Gilman at 706:


text:
    Earl FRAMES, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D09-3609, 5D09-3723.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2010.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See § 924.051(4), Fla. Stat. (2009).

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


text:
    Lisa CATES, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-100.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2010.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Lisa Cates, Sorrento, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Public Defender, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Tibbs v. State, 397 So.2d 1120 (Fla.1981).

MONACO, C.J., LAWSON and EVANDER, JJ., concur.


author: CIKLIN, J. GROSS, C.J.,

text:
    John Kevin HOLT, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4227.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2010.
    Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

John Kevin Holt appeals his convictions and sentences for capital sexual battery (count I), lewd, lascivious or indecent act (count II), lewd or lascivious molestation on a person under twelve by a person over eighteen (count III), and lewd or lascivious molestation on a person twelve to sixteen by a person over eighteen (count IV). After a jury found him guilty of all charges, the trial court imposed life imprisonment on counts I and III and fifteen years on counts II and IV, all to run consecutive. We affirm Holt’s convictions on the four counts but vacate his sentences and remand for resentencing before a different judge.

In this case, Holt has repeatedly denied committing the crimes charged and has persisted in maintaining his innocence. As such, the established law compels us to conclude that it was improper for the trial court to consider Holt’s protestations of innocence and failure to show remorse in determining what sentence to impose.

A trial court generally has discretion to impose any sentence within the minimum and maximum allowed by law. Nusspickel v. State, 966 So.2d 441, 444 (Fla. 2d DCA 2007); see also § 921.002(l)(f), (g), Fla. Stat. (2008). This discretion is limited, however, by constitutional principles of due process and the right not to incriminate oneself. See Holton v. State, 573 So.2d 284, 292 (Fla.1990); Donaldson v. State, 16 So.3d 314, 314 (Fla. 4th DCA 2009); Johnson v. State, 948 So.2d 1014, 1017 (Fla. 3d DCA 2007); Gilchrist v. State, 938 So.2d 654, 657-58 (Fla. 4th DCA 2006); Soto v. State, 874 So.2d 1215, 1217 (Fla. 3d DCA 2004); Aliyev v. State, 835 So.2d 1232, 1234 (Fla. 4th DCA 2003); Lyons v. State, 730 So.2d 833, 834 (Fla. 4th DCA 1999); A.S. v. State, 667 So.2d 994, 996 (Fla. 3d DCA 1996); Exposito v. State, Dep’t of Bus. Regulation, 508 So.2d 451, 452 (Fla. 3d DCA 1987); Hubler v. State, 458 So.2d 350, 353 (Fla. 1st DCA 1984); Harden v. State, 428 So.2d 316, 317 (Fla. 4th DCA 1983).

Even in the face of overwhelming evidence, a person in Holt’s position is constitutionally entitled to plead not guilty, demand a trial, and despite a unanimous jury verdict, continue to decline to incriminate himself. See Holton, 573 So.2d at 292.

Convictions affirmed; sentences vacated and remanded for resentencing before a different judge.

MAY, J., concurs.

GROSS, G.J., concurs specially with opinion.

GROSS, C.J.,

concurring specially.

I acknowledge the line of cases cited by the majority opinion. It is the law. The effect of this law is to require judges to be careful what they say in sentencing.

Whether a criminal defendant is remorseful for what he or she has done has long been a proper factor for a judge to consider in imposing sentence. As we wrote in St. Val v. State, 958 So.2d 1146, 1146-47 (Fla. 4th DCA 2007),

[i]f a defendant is remorseful, it means that he is sorry he committed the crime for which he is to be sentenced. One who so regrets his acts may not commit such acts in the future. This is the type of factor that judges have historically taken into consideration in imposing sentence.

Given the state of the case law, careful judges will not discuss a defendant’s lack of remorse during a sentencing hearing.


author: LEVINE, J.

text:
    Taylor PETERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3299.
    District Court of Appeal of Florida, Fourth District.
    April 28, 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.
   LEVINE, J.

The issue we consider is whether the trial court should have given a special jury instruction regarding “mere presence” at a crime scene or whether the standard jury instruction regarding principal or independent acts was sufficient. We find the standard jury instruction given in this case was sufficient and affirm the conviction for first degree murder.

In May 2003, appellant went to a lounge in Miramar with three other individuals: Jason, Claud, and “Jaja.” When the four men left the lounge hours later, an incident took place in the lounge parking lot. Appellant was struggling with a man, and Claud walked over to them with a gun. Appellant released the man, who got into a car and started to drive in reverse. Claud asked the man where he was going and then fired four to six shots at the driver. Appellant asked Claud, “What the hell are you doing?”

Jaja also had a gun and held a second individual in a chokehold with appellant’s help. Jaja then shot the other man when he tried to break free. Claud walked over, shot this second individual again, and took a gold necklace from around the victim’s neck. Claud was identified as using an AK-47, and at no time was appellant seen holding or using a firearm of any type. Claud then threatened to shoot Jason when Jason could not find the keys to the vehicle. Appellant found the keys and drove Claud, Jaja, and Jason away from the lounge. Later, appellant told Claud to “handle the situation” if Jason got “any funny ideas.” Jason subsequently avoided appellant, Jaja, and Claud, and eventually Jason moved to the Tampa area about four to five months after the shooting.

As a result of the shooting, victim Am-rall Johnson was in a coma for three to five months, and victim Lloyd Bartley died as a result of being shot in the chest. After a jury trial, appellant was convicted of first degree murder of Bartley and acquitted of attempted felony murder of Johnson. Appellant was sentenced to life in prison, and this appeal ensues.

At the charge conference during the jury trial, appellant moved for a special jury instruction that stated that the “mere presence of Taylor Peters at the scene of the crimes and knowledge that those crimes were being committed is not sufficient ... to establish that Taylor Peters aided and abetted the criminal offenses charged.” The trial court declined to give the special instructions requested by appellant and instead read Florida Standard Jury Instruction (Criminal) 3.5(a):

If the defendant helped another person or persons commit or attempt to commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did if:
1. the defendant had a conscious intent that the criminal act be done and
2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit the crime.
To be a principal the defendant does not have to be present when the crime is committed or attempted.

Standard jury instructions are “presumed correct and are preferred over special instructions.” Brown v. State, 11 So.3d 428, 432 (Fla. 2d DCA 2009) (quoting Stephens v. State, 787 So.2d 747, 755 (Fla.2001)). Using “standard jury instructions does not relieve the trial court of its obligation to determine whether the standard instructions accurately and adequately state the law.” Id. If the trial court determines that the instruction is “erroneous or inadequate,” the court may then modify the standard jury instruction as the “trial judge shall determine to be necessary to instruct the jury accurately and sufficiently.” Fla. R.Crim. P. 3.985.

We review the refusal of the trial court to give the defendant’s special instruction under the abuse of discretion standard. “When a trial court denies a defendant’s request for a special instruction, the defendant has the burden of showing on appeal that the trial court abused its discretion in giving the standard instruction.” Brickley v. State, 12 So.3d 311, 313 (Fla. 4th DCA 2009).

A trial court’s failure to give a requested jury instruction is error if the following three elements are satisfied: “(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.”

Id. (quoting Stephens, 787 So.2d at 756).

The parties contest whether the standard jury instruction on “principals” adequately explained the law and appellant’s theory of defense. Appellant claims that the standard jury instruction did not adequately explain that “mere presence” at a crime is insufficient to prove criminal complicity.

This court has previously stated when “faced with a defense request to give a ‘mere presence’ instruction ... that the matter was “well covered’ by the instruction on principals.” Parker v. State, 795 So.2d 1096, 1100 (Fla. 4th DCA 2001) (quoting Wolack v. State, 464 So.2d 587, 588 (Fla. 4th DCA 1985)). In McGuire v. State, 639 So.2d 1043, 1047 (Fla. 5th DCA 1994), the defendant requested a special instruction in a first degree murder trial that stated that mere presence at the scene of a crime does not mean that an “accused knew a crime was going to be committed.” The court found that the standard jury instruction was not error, and in fact, “[i]t is preferable that the standard jury instruction be given if it explains the law.” Id. Thus, the refusal to give proposed instructions is not error “when the proposed instructions add nothing to the standard instructions.” Williams v. State, 492 So.2d 1888, 1389 (Fla. 1st DCA1986).

For all the foregoing reasons, we affirm the conviction and sentence.

Affirmed.

TAYLOR and GERBER, JJ., concur.


author: CIKLIN, J.

text:
    Cory BILOKI and Curtis Biloki, individually and d/b/a Card Brokers, and Brotts, Inc., a Minnesota corporation, Appellants, v. MAJESTIC GREETING CARD CO., INC., a Florida corporation, Appellee.
    No. 4D09-3810.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2010.

      Stacey D. Mullins of Lavalle, Brown, Ronan & Mullins, P.A., Boca Raton, for appellants.
    Ryan E. Willits of Willits & Associates, P.A., Boca Raton, for appellee.
   CIKLIN, J.

We reverse the circuit court’s order denying defendants’, Cory Biloki, Curtis Biloki, and Brotts, Inc., motion to dismiss for lack of personal jurisdiction. We hold that Majestic Greeting Card Co., Inc. has not established personal jurisdiction under Florida’s long arm statute or otherwise shown that the defendants had sufficient minimum contacts such that Majestic could maintain its Florida lawsuit against the defendants.

Majestic, the plaintiff below, is a Florida corporation engaged in the business of creating, manufacturing, selling, and distributing greeting cards and related products. The Bilokis are North Dakota residents who, through their Minnesota corporate entity, Brotts, distributed greeting cards and related products to customers in the five Midwestern states.

The parties first met during a Las Vegas trade show in 2007. Following the trade show, the parties engaged in discussions surrounding Majestic’s desired acquisition of Brotts’ Midwestern inventory and accounts. In February of 2008, the Bilokis traveled to Majestic’s facility in Florida and spent three days there to conclude the sale. During that three day period, the Bilokis signed a purchase agreement, wherein they sold the business assets of Brotts to Majestic, and entered into employment agreements with Majestic, all to be effective March 1, 2008. Subsequently, the relationship deteriorated and Majestic filed a complaint, alleging breach of the purchase and employment agreements based primarily on Majestic’s contention that the Bilokis were competing with Majestic in the Midwest under a new name.

In its amended verified complaint in which it sought injunctive relief and money damages, Majestic alleged numerous factors in support of personal jurisdiction in Florida, summarized as follows:

1. Employment agreements
a) The Bilokis signed employment agreements in Florida and became Majestic employees conducting business in the Midwest.
b) Non-compete clauses prevented the Bilokis from engaging in outside business.
c) Other clauses prevented the disclosure and use of confidential and proprietary information.
d) A forum selection clause designated Palm Beach County as “the proper jurisdiction and venue for any controversy or claim ...”
2. Purchase agreement
a) The Bilokis signed the purchase agreement in Florida.
b) The Bilokis agreed to and delivered “plan-o-grams” to Majestic in Florida.
3. The Bilokis traveled to Majestic’s production and shipping facility in Florida for the purpose of conducting the sale of their business, executing the purchase agreement and employment agreements, and to learn Majestic’s policies and procedures. The Bilokis spent three days at this facility.
4. The Bilokis submitted customer orders from the Midwest to be filled at Majestic’s warehouse facility in Florida.
a) Customer payments were delivered from the customer to Majestic in Florida or to the Bilokis, who would then remit the payments to Majestic in Florida.
5. The Bilokis breached their contract with Majestic by competing with them in the Midwest under the name of “Card Brokers,” violating the non-competition provision of the employment agreement, and using confidential and proprietary information gained from Majestic in violation of the non-disclosure clause.

The Bilokis and Brotts filed a motion to dismiss Majestic’s amended verified complaint for lack of personal jurisdiction. The motion was supported by affidavits from both Cory and Curtis Biloki, summarized as follows:

1. The Bilokis have never lived, worked, or conducted business in Florida. Apart from a single trip to tour Majestic’s facility, learn Majestic’s order fulfillment procedures, and execute a one page purchase agreement, neither has ever traveled to Florida.
2. The Bilokis maintained their own office in North Dakota and received no training, direction, business, technical, or other support from Majestic.
8. The only daily contact the Bilokis had with Majestic was faxing orders to Majestic from the Biloki’s Midwestern customers.
4. Neither of the Bilokis believe they signed the employment agreements dated March 1, 2008. The only document they admit to signing was the purchase agreement on February 18, 2008.
5. Neither of the Bilokis have been paid by Majestic for the work they have done.

After a hearing, the trial court found that Majestic met its burden to establish personal jurisdiction over the three defendants in Florida and denied the defendants’ motion to dismiss. This appeal follows.

Two-Pronged Analysis to Determine If Personal Jurisdiction Exists Over Nonresidents

There is a two-step inquiry for determining whether a Florida court has personal jurisdiction over a nonresident. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). First, it must be determined whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long arm statute, section 48.198. Id. If so, then secondly, it must be determined whether there are sufficient “minimum contacts” to satisfy due process requirements under Federal constitutional law. Id. “Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.” Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002). At the trial level

The initial burden falls on the plaintiff to plead the basis for service under the long-arm statute. The plaintiff may satisfy this initial burden either by alleging the language of the statute without pleading supporting facts, or by alleging specific facts that indicate that the defendant’s actions fit within one of the sections of Florida’s long arm statute, section 48.193.
Additionally, “a defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position.” If a defendant submits such an affidavit, then the burden shifts back to plaintiff to submit affidavits establishing the basis for jurisdiction.

Becker v. Hooshmand, 841 So.2d 561, 562 (Fla. 4th DCA 2003) (citations omitted).

Step 1: Florida’s Long Arm Statute

Majestic asserted jurisdiction on two long arm statutory grounds: section 48.193(l)(g) and section 48.193(2), Florida Statutes, (2009).

Section 48.193(l)(g), Fla. Stat., provides:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

Section 48.193(2), Fla. Stat., provides:

(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

14.8.193(1) (g) — Breach of Contract

Section 48.193(l)(g), Fla. Stat., provides for jurisdiction if a contract is breached by the failure to perform what is required by the contract in Florida. Majestic relies upon the forum selection clause and the breach of the non-compete clauses in the employment agreements in its attempt to establish jurisdiction under section 48.193(l)(g).

Florida courts have found that “a forum selection clause, designating Florida as the forum, cannot operate as the sole basis for Florida to exercise personal jurisdiction over an objecting non-resident defendant.” McRae v. J.D./M.D., Inc., 511 So.2d 540, 542, (Fla.1987). The “availability of subsection (l)(g) to obtain jurisdiction requires that there be a breach of an act required to be performed in this state.” Hamilton v. Alexander Proudfoot Co. World Headquarters, 576 So.2d 1339, 1340 (Fla. 4th DCA 1991).

Majestic’s amended verified complaint alleged only that the Bilokis breached the non-compete portion of their employment agreements by soliciting customers outside of Florida. Majestic did not allege nor did it establish record evidence that the Bilok-is were to perform or failed to perform any acts in Florida, thereby constituting a breach of any of the agreements entered into between the parties. See KVAR Energy Sav., Inc. v. Tri-State Energy Solutions, LLP, No. 6:08-cv-85-Orl-19KRS, 2009 WL 103645, *13 (M.D.Fla. Jan. 15, 2009) (Delaware company signed contract in Florida to sell plaintiffs products in Delaware. Complaint filed for breach of non-competition provision where defendant Delaware company sold products under its own name in Delaware. Reviewing court found the argument foreclosed “by the statutory language [in section 48.193(l)(g) ] explicitly requiring contractual performance in Florida.”).

Subsection (l)(g) has no application in this matter.

4-8.193 (2) — General Jurisdiction/Substantial Activity

Section 48.193(2), Fla. Stat., is the general jurisdiction statute in Florida. That statute provides that a nonresident defendant who is “engaged in substantial and not isolated activity within this state ... is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.” This standard has been interpreted by Florida courts to require a “showing of ‘continuous and systematic general business contacts’ with the forum state.” Carib-USA Ship Lines Bahamas Ltd. v. Dorsett, 935 So.2d 1272, 1275 (Fla. 4th DCA 2006) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Florida courts have “found continuous and systematic general business contacts,” Helicopteros, 466 U.S. at 416, 104 S.Ct. 1868, “where a nonresident defendant’s activities are extensive and pervasive, in that a significant portion of the defendant’s business operations or revenue derived from established commercial relationships in the state. Such contacts have also been found where the defendant continuously solicits and procures substantial sales in Florida.” Trs. of Columbia Univ. v. Ocean World, S.A., 12 So.3d 788, 793 (Fla. 4th DCA 2009). “General jurisdiction requires far more wide-ranging contacts with the forum state than specific jurisdiction, and it is thus more difficult to establish.” Canale v. Rubin, 20 So.3d 463, 466 (Fla. 2d DCA 2009). “One reason for requiring a more rigorous showing to establish general jurisdiction is because jurisdiction under section 48.193(2) does not require that a lawsuit’s cause of action arise from activity within Florida, or that there be any connection between the claim and the defendant’s Florida activities.” Trs. of Columbia, 12 So.3d at 792.

Majestic maintains that the Bilokis engaged in a general course of business activity in Florida for pecuniary gain, pursuant to their several written contracts with Majestic, that was continuous and ongoing from December 2007 to June 2009. In support of that notion, Majestic asserts that there was daily contact with Majestic’s Florida warehouse through the transmission of orders from the Biloki’s Midwest customers. In fact, sales were completed through shipments from Majestic’s Florida warehouse and payments for the goods shipped were received by Majestic in Florida. While all of these facts may be true, they are simply insufficient to establish “substantial activity” within the State of Florida such that the Bilokis and Brotts purposefully or knowingly could reasonably anticipate being haled into a Florida court.

In determining general jurisdiction, “it must be the acts of the ... [party objecting to jurisdiction] described in the long-arm statute that confer the jurisdiction.” Vaughn v. AAA Employment, Inc., 511 So.2d 1045, 1046 (Fla. 2d DCA 1987). There needs to be more than a contractual relationship for general jurisdiction to apply between an out-of-state employee and Florida employer. See Mold,-Ex, Inc. v. Mich. Tech. Reps., Inc., No. 304CV307MCRMD, 2005 WL 2416824, *5 (N.D.Fla. Sept. 30, 2005) (“MTR’s only contact with the State of Florida was its long-term contractual relationship (entered into out of state) with a Florida plaintiff which required it to find buyers for the plaintiff in markets other than Florida and to service those out of state relationships from Michigan. These contacts are far too attenuated to support a finding of continuous and systematic contacts with the State of Florida under § 48.193(2).”); Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 720 (Fla. 4th DCA 1998) (general personal jurisdiction found over a defendant who had a three-year distribution relationship with a Florida Corporation, consistently ordered one or two cases of product per month, and became a distributor for another company located in Florida).

Here, the Bilokis’ contact with Florida was limited to the submission of greeting card orders to Majestic’s Florida warehouse for shipment to Midwestern customers. The only time the Bilokis had been to Florida was for three days to tour Majestic’s facility, learn order fulfillment procedures, and execute documents related to the sale.

These facts do not provide evidence of “substantial” activity within Florida to satisfy jurisdiction pursuant to subsection (2).

Step 2: Sufficient Minimum Contacts

Under the due process clause, individuals may be haled into a jurisdiction in which they have “purposefully avail[ed]” themselves. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). This means that the defendant has deliberately engaged “in significant activities within a state or has created ‘continuing obligations’ between himself and residents of the forum.” Id. at 475-76 (citations omitted). The test for “minimum contacts” thus hinges on whether “defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

In order for a nonresident defendant to anticipate being haled into a Florida court, it is essential that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within Florida, thus invoking the benefits and protections of its laws. Burger King Corp., 471 U.S. at 474-75, 105 S.Ct. 2174.

Like the analysis required in connection with section 48.193(2), there simply was not enough participation within or with Florida by the appellants to constitute sufficient minimum contacts for jurisdiction. See SDM Corp. v. Kevco Fin. Corp., 540 So.2d 931, 932 (Fla. 2d DCA 1989) (“An out-of-state party’s contract with a Florida resident alone ... is insufficient to establish minimum contacts.”).

Conclusion

We reverse and remand with instructions to enter an order granting the motion to dismiss Majestic’s complaint.

Reversed and, remanded with instructions.

GROSS, C.J., and FARMER, J., concur.

      . A "plan-o-gram” is a graphic representation of a retail greeting card sales rack and the cards and categories displayed for sale therein.


text:
    Kenneth George LESANE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-512.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2010.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

We affirm appellant’s judgment and sentence for dealing in stolen property, but we direct the trial court to enter an order vacating appellant’s judgment of conviction and sentence for grand theft. See § 812.025, Fla. Stat.; Hall v. State, 826 So.2d 268 (Fla.2002); Pomaski v. State, 989 So.2d 721 (Fla. 4th DCA 2008).

Affirmed in part, reversed in part, and remanded.

TAYLOR, GERBER and LEVINE, JJ„ concur.


text:
    Danielle HOULE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3175.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2010.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s permanent revocation of appellant’s driving privileges. Appellant was convicted of one count of driving under the influence of drugs or alcohol and causing serious bodily injury under section 316.193(3)(c)2., Florida Statutes (2008). Pursuant to section 322.28(4)(a), the trial court shall revoke the driving privileges of a person convicted under section 316.193(3)(c)2. “for a minimum period of 3 years.” This section permits the trial court to revoke a defendant’s driving privileges permanently. Stoletz v. State, 875 So.2d 572 (Fla.2004). The trial court, however, revoked appellant’s driving privileges pursuant to section 316.655(2), not section 322.28(4)(a). Section 316.655(2) may not be used to revoke driving privileges for a DUI conviction. Stoletz, 875 So.2d at 575-76. Nevertheless, while the trial court cited the incorrect statute, the trial court’s order revoking appellant’s driving privileges was a sound exercise of its discretion under section 322.28(4)(a), and we affirm.

By contrast, we reverse the trial court’s imposition of a lien for public defender fees. The trial court was obligated to assess appellant at least $100 in fees and costs because she was convicted of a felony. § 938.29(l)(a), Fla. Stat. A trial court may assess more than $100 in fees, but the court must make factual findings of “higher fees or costs incurred.” Id. Here, the trial court assessed $500 in fees and costs against appellant without considering any evidence to establish a reasonable hourly rate or the amount of time spent by the public defender on the case. The trial court also failed to inform appellant of her right to contest this assessment. We find the $500 assessment to be arbitrary, and we strike the assessment of public defender fees without prejudice and remand for an evidentiary hearing. See R.R. v. State, 956 So.2d 557, 558 (Fla. 5th DCA 2007). On remand, the trial court must advise appellant of her right to contest any lien imposed for public defender fees. Fla. R.Crim. P. 3.720(d)(1); Hayes v. State, 25 So.3d 683, 684-85 (Fla. 2d DCA 2010).

We also reverse the trial court’s imposition of two optional $500 fines under section 775.0835 for causing injury to another. Section 775.0835(1) requires the court to find “that the defendant has the present ability to pay the fine.” The trial court made no such finding, so the imposition of these fines was error. Meekins v. State, 492 So.2d 484 (Fla. 4th DCA 1986). Therefore, we strike these fines without prejudice and remand for an evidentiary hearing.

Finally, we are compelled to reverse the $135 “DUI assessment.” The court does not cite any statutory basis for this fee. “Absent statutory authority, courts do not have the power to assess costs against a defendant upon conviction.” Lee v. State, 785 So.2d 603, 605 (Fla. 4th DCA 2001). The State concedes error on this point. Accordingly, we strike the $135 DUI assessment without prejudice and remand to permit the trial court to reimpose this fee with a proper statutory basis.

We affirm the trial court’s assessment of the costs of prosecution and investigation under section 938.27(1).

Affirmed in part; reversed in part; remanded.

TAYLOR, GERBER and LEVINE, JJ., concur.


author: ORFINGER, J.

text:
    Dawn ORTOLANO, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D09-1173.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2010.

      Dawn Ortolano, Oviedo, pro se.
    Louis A. Gutierrez, Tallahassee, for Ap-pellee.
   ORFINGER, J.

Dawn Ortolano appeals a final order of the Unemployment Appeals Commission (“UAC”), affirming the decision of an unemployment compensation appeals referee dismissing her administrative appeal as untimely. For the reasons explained below, we reverse and remand for a hearing to determine whether the lateness of Orto-lano’s filing is attributable to the UAC.

Ortolano filed for unemployment compensation benefits on April 27, 2008, after her employment with Dillard Department Stores, Inc. (“Dillard’s”) ended. On May 13, 2008, claims adjudicator S.L. Block issued two notices of determination, one awarded unemployment benefits to Ortola-no, while the other denied benefits. Apparently, both parties received only the notice awarding benefits to Ortolano because Dillard’s filed an appeal of the award. The Agency for Workforce Innovation (“the Agency”) filed Dillard’s appeal in the case in which Dillard’s had prevailed, not the one where Ortolano’s claim had been denied. As a result, the Agency, concluding that Dillard’s had not been adversely affected by its perceived denial of benefits, and apparently unaware that it had issued another order awarding benefits to Ortolano upon which both Dillard’s and Ortolano were relying, dismissed Dillard’s appeal.

Understandably confused by these bureaucratic machinations, Ortolano filed her own appeal and the Agency set the matter for hearing before an appeals referee. After making a cursory review of the events, the referee concluded that Ortolano’s appeal was untimely and dismissed it. Orto-lano then sought review before the UAC, which affirmed the earlier order denying benefits, seemingly also unaware of the existence of the order awarding benefits. Ortolano now seeks review in this Court.

Although there is neither a statutory nor a “good cause” exception to the time limits for appeals to the UAC, there is an exception, based on due process and fairness concerns, when the delay in filing the notice of appeal “was occasioned by the actions of the Commission.” Pollett v. Fla. Unemployment Appeals Comm’n, 928 So.2d 469, 470 (Fla. 1st DCA 2006) (quoting Thurman v. Fla. Unemployment Appeals Comm’n, 881 So.2d 89, 91 (Fla. 1st DCA 2004)). Were we the prophesied King of Asia, we might sever this bureaucratic Gordian knot because as it now stands, there apparently exists one order awarding Ortolano benefits and one denying benefits. However, because we are unable to do so, we conclude that Ortolano is entitled to a hearing to determine whether the mixed signals that she received from the Agency and the UAC had a bearing on the timeliness of her appeal. The UAC must also sort out the conflict between the two orders. See Applegate v. Nat’l Health Care Affiliates, Inc., 667 So.2d 332 (Fla. 1st DCA 1995).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

MONACO, C.J., and JACOBUS, J., concur.

      . The confusion may have arisen because the Agency for Workforce Innovation, the body charged with processing unemployment compensation claims, set up two files on Ortola-no's claim.

      . "According to legend, the Gordian knot was an immense and intractable knot affixed to an ox-cart outside the palace of the Phrygian kings in Gordium. Tradition held that whoever could unravel the knot would become 'king of Asia.' In 333 BC, Alexander of Mace-dón and his army wintered in Gordium (in modem Turkey, south of Ankara). The Macedonian king examined the knot and, unable to untie it by hand, severed it with his sword. Proceeding to conquer much of the known Asian world thereafter, he earned the name Alexander the Great. Our aspirations are more mundane.” Lonaconing Trap Club, Inc. v. Md. Dep't of Env't, 410 Md. 326, 978 A.2d 702, 716 n. 21 (2009).


text:
    CYPRESS FOUNTAIN BEACH, INC. and Sal Iodice, Petitioners, v. Luis A. CHACON, Respondent.
    No. 5D09-4209.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2010.
    Richard L. Wilson, Orlando, for Petitioners.
    Patricia K. Herman of Law office of Patricia K. Herman, P.A., Apopka, for Respondent.
   PER CURIAM.

We deny the petition for writ of certio-rari, concluding that the trial court’s denial of petitioners’ discovery request did not constitute a material departure from the essential requirements of law that could not be remedied on plenary appeal. Palmer v. WDI Sys., Inc., 588 So.2d 1087 (Fla. 5th DCA 1991). Our denial is without prejudice to petitioners’ right to examine Ms. Herman, under oath, at a hearing on their motion to vacate partial final judgment and/or at a hearing on attorney’s fees. Furthermore, our denial is without prejudice to petitioners’ right to serve a subpoena duces tecum on Ms. Herman requiring her to produce relevant, non-privileged documents at the above-referenced hearings.

Petition for Writ of Certiorari DENIED.

PALMER, EVANDER and JACOBUS, JJ., concur.


text:
    Dayne R. BOOTHE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-4527.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2010.
    Dayne R. Boothe, Madison, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

In April 2007, petitioner Dayne Boothe was found guilty of attempted second-degree murder. The jury made express findings that Boothe discharged a firearm and that his victim suffered great bodily harm. Boothe is seeking belated appeals from two separate orders of the trial court. After due consideration, we grant one of Boothe’s requests for belated appeal and affirm his sentence.

First, we deny Boothe’s January 6, 2010, “Petition for Belated Appeal,” which seeks review of the trial court’s order denying his August 3, 2009, motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Boothe is not entitled to a belated appeal because he failed to demonstrate that his failure to file a timely appeal was due to state action. See Izquierdo v. State, 935 So.2d 1243, 1245 (Fla. 5th DCA 2006).

Second, we treat Boothe’s December 17, 2009, “Motion for Postconviction Relief or Writ of Habeas Corpus 3.850(h),” as a petition for belated appeal because he seeks belated review of the trial court’s order of resentencing. We also note that rule 3.850(h) is not an appropriate avenue for seeking a belated appeal. Fla. R.App. P. 9.141(c). Having so ruled, we affirm the order of resentencing on the merits. It is by no means certain that Boothe was entitled to have his original sentence reduced at all, see sections 775.087(2)(a)3., (2)(b), Florida Statutes, and he clearly is not entitled to any further reduction. See Booth v. State, 18 So.3d 1142 (Fla. 5th DCA 2009); Mendenhall v. State, 999 So.2d 665 (Fla. 5th DCA 2008), rev. granted, 26 So.3d 582 (Fla.2009).

Accordingly, we deny the January 6, 2010, petition for belated appeal; grant the December 17, 2009, petition for belated appeal; and affirm the trial court’s resen-tencing order on the merits.

ORIGINAL PETITION DENIED; PETITION AS TO RESENTENCING GRANTED; SENTENCE AFFIRMED.

GRIFFIN, TORPY, and COHEN, JJ., concur.


text:
    JUSTICE ADMINISTRATIVE COMMISSION, Petitioner, v. Michele A. BIECKER, Esquire, Respondent.
    No. 5D10-138.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2010.
    Christian D. Lake, Tallahassee, for Petitioner.
    Michele A. Biecker, Orlando, pro se.
   PER CURIAM.

The Justice Administrative Commission (JAC) seeks certiorari review of an order requiring it to pay the attorney’s fees of a mother’s court-appointed private counsel in a termination of parental rights proceeding. After the mother failed to appear at the advisory hearing following proper notice, she was deemed to have consented to the termination of her parental rights. As a result, she was not entitled to publicly-funded counsel. Justice Admin. Comm’n v. Gayden, 28 So.3d 162 (Fla. 5th DCA 2010); Justice Admin. Comm’n v. Harp, 24 So.3d 779 (Fla. 5th DCA 2009); Justice Admin. Comm’n v. Berry, 5 So.3d 696 (Fla. 3d DCA 2009). Thus, the order requiring the JAC to pay attorney Michele Biecker was erroneous. The JAC’s petition is granted and the order requiring it to pay attorney’s fees to Ms. Biecker is quashed.

CERTIORARI GRANTED; ORDER QUASHED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.


text:
    Diana HICKEY, Petitioner, v. John R. BURLINSON, Respondent.
    No. 5D09-4522.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2010.

      Richard L. Wilson, Orlando, for Petitioner.
    George B. Wallace, Sanford, for Respondent.
   PER CURIAM.

Diana Hickey petitions for writ of certio-rari following the trial court’s denial of her motion to temporarily halt visitation between her two children and their father, John Burlinson. Hickey alleged that Bur-linson was abusing alcohol during his visitation and, as a result, endangering the children’s safety. Hickey requested an abatement of visitation pending a determination of the extent of Burlinson’s alcohol consumption and the danger posed to the children. Along with the motion, she requested, pursuant to Florida Family Law Rule of Procedure 12.407, leave for the minor children to attend and testify at the hearing. The trial court granted the motion and instructed Hickey’s counsel to arrange a date and time for the children to testify.

Hickey and the children travelled to Florida from Massachusetts for the hearing and appeared with counsel and a court reporter. Hickey objected when the trial court requested the children’s presence in chambers for their testimony, but would not allow the court reporter to be present. The trial court then asked Hickey to withdraw her rule 12.407 motion. Hickey declined, stating that without the children’s testimony there was no evidence of the alleged alcohol abuse and she could not meet her burden to provide record evidence in support of the motion. The trial court refused to conduct the interview with the court reporter present and denied the motion to abate visitation for lack of evidence.

Hickey argues that the trial court denied her due process by not allowing her to present evidence supporting her claim. She also contends that “being heard” means more than the opportunity for her counsel to explain a position to the trial court. Lastly, she submits that an in camera evidentiary inquiry outside the presence of the court reporter precludes judicial review, and also denies her due process.

We initially consider the issue of jurisdiction. Hickey alleges this court has jurisdiction pursuant to Article V, section 4(b)(3), of the Florida Constitution, and Florida Rule of Appellate Procedure 9.030(b)(3), which confer original jurisdiction upon district courts of appeal to issue writs of common law certiorari. We disagree because the order on appeal should be considered an appealable, non-final order.

Under rule 9.130(a)(3)(C)(iii), ap-pealable non-final orders are limited to those that determine “the right to immediate monetary relief or child custody in family law matters.” (Emphasis added.) A “child custody proceeding” is defined as one in which legal custody, physical custody, residential care, or visitation with respect to a child is at issue. See § 61.503(4), Fla. Stat. (2009). Thus, we conclude an order regarding visitation is an appealable, non-final order. Our conclusion reflects the majority view. See Lawrence v. Peyton, 9 So.3d 670, 670 (Fla. 3d DCA 2009) (stating, “[W]e are comfortable that non-final orders determining visitation in family law cases are reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii).... ”); Cuartas v. Cuartas, 951 So.2d 980, 981, n. 1 (Fla. 3d DCA 2007) (accepting jurisdiction pursuant to rule 9.130(a)(3)(C)(iii) of an order denying former husband’s motion for contempt and for immediate change of primary residence); Drago v. Drago, 895 So.2d 529, 529 (Fla. 4th DCA 2005) (re-designating a petition for writ of certiorari concerning an order modifying visitation rights and awarding attorney’s fees as a non-final appeal under rule 9.130(a)(3)(C)(iii)); Doyle v. Owens, 881 So.2d 717, 718 (Fla. 1st DCA 2004) (stating that an order granting unsupervised visitation to a father was reviewable under rule 9.130(a) (3)(C)(iii)); McGlamry v. McGlamry, 608 So.2d 553, 554 (Fla. 4th DCA 1992) (applying rule 9.130(a)(3)(C)(iii) to temporary order terminating visitation); but see In re Temporary Custody of L.M., 788 So.2d 1114, 1117-18 (Fla. 2d DCA 2001) (treating appeal of non-final visitation order as a petition for writ of certiorari rather than an appeal pursuant to 9.130(a)(3)(C)(iii), but noting, “it is arguable that either approach would provide us with appellate jurisdiction.”).

Reaching the merits, Hickey was entitled to have the children’s testimony transcribed. This is because due process requires the party seeking to modify visitation demonstrate that there has been a material change in circumstances and that modification is required to protect the child’s best interest. See Nowak v. Nowak, 546 So.2d 123 (Fla. 1st DCA 1989). The only avenue for Hickey’s proof in this case is through the children’s testimony.

In Nowak, the trial court terminated the father’s visitation after receiving testimony from the parties, the child’s psychological therapist and speaking to the child in private without the parties or counsel present. The record suggested that the trial court relied primarily on its unreported in camera interview with the child, rather than record evidence, in terminating visitation. Distinguishing Walker-Seaman v. Garwood, 456 So.2d 1331 (Fla. 5th DCA 1984), the court concluded this was error because the parties did not stipulate to the interview and objected to the absence of counsel or a court reporter and to the trial court’s refusal to provide a recap of the interview. In Nowak, 546 So.2d at 124, the court cited Florida Rule of Juvenile Procedure 8.620 which provides: “The court shall assure that in camera proceedings with a child outside the presence of other parties are recorded unless otherwise stipulated by the parties.”

The court in Hathcock v. Hathcock, 680 So.2d 564, 565 (Fla. 1st DCA 1996), relied on Nowak when it held that a request that a court reporter transcribe a child’s in camera testimony “must be honored.” (Emphasis added.) See also Shaw v. Shaw, 455 So.2d 1156 (Fla. 5th DCA 1984) (reversing the trial court’s order summarily setting aside a previous order awarding the father custody after holding a private, unreported conference with the children and denying the father the opportunity to present any further evidence); Branch v. Branch, 631 So.2d 386 (Fla. 4th DCA 1994) (rejecting the argument that holding an unreported in camera interview of the parties’ seventeen-year-old child in custody proceedings was error because the parties agreed to an in camera interview and there was no objection to the lack of a transcript).

Burlinson relies on Walker-Seaman, 456 So.2d at 1331, in which the mother appealed from an order modifying custody of the parties’ three minor children. By stipulation, the trial judge conducted an in camera interview of the children without the parties, counsel, or the court reporter. This court affirmed the trial court’s decision stating:

We can appreciate the reasons why the parties may elect to follow this procedure. Tactically it may be very effective because a parent is giving a child the opportunity to speak with candor and in confidence; however, the candid admissions of an articulate child can be especially damaging if adverse to the hopes of one parent.
We are always reluctant to interfere with the broad discretion of a trial court in child custody matters, Kershner v. Crocker, 400 So.2d 126 (Fla. 5th DCA 1981), but in instances such as this where some of the most compelling testimony is received, by stipulation of the parties, behind closed doors, we are, for almost all purposes, prevented from concluding that the trial court had no basis for its decision. The absence of this crucial part of the trial, coupled with the presumption of correctness of rulings of the trial court, dictate an affirmance. See Wright v. Wright, 431 So.2d 177 (Fla. 5th DCA 1983).

Walker-Seaman is distinguishable because, like Branch, the parties stipulated to the interview without a court reporter. Moreover, the holding in Walker-Seaman supports Hickey’s argument that without a record, the appellate court is foreclosed from reviewing the trial court’s determination.

We also reject Burlinson’s argument that Hickey conceded to the interview being conducted without a court reporter because her motion did not specifically request the children’s testimony be transcribed if taken in camera. Neither the family law rules, nor the rules of civil procedure require a party to request the testimony be transcribed in a motion to allow children to testily. Hickey preserved her right by objecting immediately when the trial court attempted to interview the children without the court reporter and by refusing to accede to the trial court’s demand that she withdraw her motion.

We do not question the motives of the trial court. Judges in domestic cases often struggle mightily to foreclose parents from placing children in the midst of marital strife. The children of divorcing or divorced parents experience enough psychological trauma without the parents exacerbating the situation. Trial courts are given great leeway to minimize the involvement of children in these circumstances. The children in this case were older and this, no doubt, factored into the trial court’s decision to allow their attendance and testimony. Having granted the motion to allow the testimony of the children, the trial court erred in not allowing the recording of the children’s in camera testimony.

Accordingly, we remand this case for an evidentiary hearing where, absent agreement to the contrary, the children’s testimony shall be taken in the presence of a court reporter.

REVERSED and REMANDED.

GRIFFIN, EVANDER and COHEN, JJ., concur.

      . Petitioner erroneously cited Article V, section 4(b)(1), of the Florida Constitution as conferring original jurisdiction on the district courts of appeal to issue writs of certiorari.

      . The court’s citation was incorrect. The correct rule was Florida Rule of Juvenile Procedure 8.610(b), which has since been renumbered to 8.625.


text:
    CITICAPITAL COMMERCIAL CORPORATION, Appellant, v. Richard SCHLESINGER and Ceebraid-Signal Florida Management Ltd., Appellees.
    No. 4D09-298.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2010.
    Mark W. Rickard of Jacobson, Sobo & Moselle, Plantation, for appellant.
    Jonathan C. Chañe of Greenberg Trau-rig, P.A., West Palm Beach, for appellees.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

GROSS, C.J., POLEN and LEVINE, JJ., concur.


author: MAY, J.

text:
    JEWELRY REPAIR ENTERPRISES, INC., Appellant, v. Dilshad AJANI and Noordin Ajani, Appellees.
    No. 4D09-3132.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2010.

      Bruce A. Katzen of Kluger, Kaplan, Sil-verman, Katzen & Levine, P.L., Miami, for appellant.
    Jackson 0. Brownlee of Beusse, Wolter, Sanks, Mora & Maire, P.A., Orlando, for appellees.
   MAY, J.

The franchisor, Jewelry Repair Enterprises, Inc., directly appeals a non-final order determining that the franchisees, Dilshad Ajani and Noordin Ajani, are entitled to arbitration. The franchisor argues that the trial court erred in ordering arbitration because the arbitration provision in the contract did not apply to the non-compete provision of the agreement, which is the issue in dispute. We agree and reverse.

The franchisor and franchisees executed a franchise agreement. Pursuant to the agreement, the franchisees agreed “not [to] be actively engaged in any jewelry sales or jewelry repair business other than the Franchised Business without the written consent of the Franchisor.” The agreement further provided that any breach shall constitute a default if the breach continues after ten days notification by the franchisor. In the event of a default by the franchisees, the franchisor may terminate the agreement upon written notice.

Paragraph 13.1 provided that if the franchisor terminates the agreement and the termination is disputed by the franchisees, “the parties shall submit said dispute for binding arbitration.... ” However, the agreement excepts from the arbitration provision “claims related to noncompetition covenants [or] .... the obligations of the Franchisee upon termination or expiration of this Franchise Agreement.” (emphasis added).

The franchisor learned that the franchisees were operating two jewelry repair enterprises that were in direct competition with its franchise. The franchisor sent a letter notifying the franchisees that their conduct constituted a breach of the agreement. The franchisees responded by letter, stating that they resigned as managers of the competing businesses. The letter further stated that the franchisees divested their interests in the competing businesses. Nevertheless, the franchisor alleged the competing stores were still under the franchisees’ control.

The franchisor sent a second letter to the franchisees, stating that they remained in default and the stores must be closed. Thereafter, the franchisor sent a notice of termination to the franchisees. The notice included the franchisees’ post-term obligations, including the obligation to vacate the premises within ten days and discontinue use of the franchisor’s marks. The franchisor claims that the franchisees failed to comply with the post-term obligations.

The franchisor fried a complaint for breach of contract, seeking declaratory and injunctive relief. The franchisees moved to dismiss, invoking the right to arbitrate under the agreement. The franchisees did not quote the entire arbitration provision, they referred only to the provision stating: “If this Franchise Agreement shall be terminated by Franchisor and Franchisee shall dispute Franchisor’s right of termination, the parties shall submit said dispute for binding arbitration....”

After a hearing on the motion to dismiss, the trial court stayed the action pending arbitration. The franchisor fried a petition for writ of certiorari. We treated the petition as a notice of non-final appeal, pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

“A trial court’s order compelling arbitration based on its construction of an arbitration provision is reviewed de novo.” Sitarik v. JFK Med. Ctr. Ltd. P’ships, 7 So.3d 576, 577-78 (Fla. 4th DCA 2009).

“Arbitration clauses are construed according to basic contract interpretation principles.” BallenIsles Country Club, Inc. v. Dexter Realty, 24 So.3d 649, 652 (Fla. 4th DCA 2009). “The plain language of the agreement containing the arbitration clause is the best evidence of the parties’ intent.” Id.

Here, the plain and ordinary meaning of the arbitration provision excepts claims relating to the noncompetition covenants. It specifically provides the obligation to arbitrate is not binding upon “claims related to noncompetition covenants .... ” The franchisor’s complaint alleges that the notice of termination was sent to the franchisees because of the failure to cure breaches relating to operating competing businesses. The plain language reflects that the parties did not intend for this dispute to be arbitrated. See Citigroup, Inc. v. Amodio, 894 So.2d 296, 299 (Fla. 4th DCA 2005).

For this reason, the trial court erred in staying the action and ordering arbitration. We reverse and remand the case for further proceedings consistent with this opinion.

Reversed and Remanded.

GROSS, C.J., and CIKLIN, J., concur.


author: NORTHCUTT, Judge.

text:
    Willie James JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3059.
    District Court of Appeal of Florida, Second District.
    May 7, 2010.

      Peter Lombardo, Sarasota, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

A jury convicted Willie Jackson of aggravated battery with a deadly weapon and aggravated assault with a firearm. Of the several issues Jackson raises on appeal, we find merit in his assertion that the circuit court erred in its handling of his request to dismiss his appointed counsel. Accordingly, we reverse. ■

About six months before trial, Jackson filed a written motion to dismiss his court-appointed attorney. The motion apparently was a preprinted form with blank lines on which details such as Jackson’s name, case number, and his attorney’s name were handwritten. In the first three paragraphs, the form motion alleged that defense counsel failed to supply Jackson with pretrial materials such as discovery, that counsel had made statements “deterring this cause to be tried by a jury,” and that “[t]he defendant feels that he/she will not be rendered adequate assistance of counsel.” In the next six paragraphs, the motion recited legal argument on the right to effective assistance of counsel and the importance of pretrial investigation. In a final “wherefore” paragraph, Jackson asked for an order dismissing his attorney and stated that he “would be better served if another legal counsel be appointed to this cause.”

The circuit court summarily denied the motion without holding a hearing. In its order, the court observed that Jackson’s defense attorney had been on the case for only about a month. The order also stated that Jackson’s “boilerplate” motion failed to “clearly indicate why he should be entitled to replacement counsel” and lacked any allegation that his appointed counsel was not properly representing him.

The court’s observations notwithstanding, it erred by denying the motion without at least making a preliminary inquiry into Jackson’s request to discharge his appointed counsel. In Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988), the Florida Supreme Court adopted a procedure, based on Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), for inquiring into a criminal defendant’s complaints about appointed counsel. When faced with a motion to dismiss appointed counsel, the court has a duty to ascertain from the defendant whether the request is unequivocal and to explore the reasons behind the request; this is a preliminary Nelson inquiry. Maxwell v. State, 892 So.2d 1100, 1102 (Fla. 2d DCA 2004). In Maxwell, we observed that “[depending on the answer to the preliminary Nelson inquiry, a complex, multi-faceted combined Nelson and Faretta hearing could ensue, or the inquiry could end there.” Id. (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which established the standard for self-representation by a criminal defendant). A court’s failure to make this preliminary inquiry is a structural defect in the trial requiring reversal as “per se error.” Id. at 1103; see also Milkey v. State, 16 So.3d 172, 174 (Fla. 2d DCA 2009); accord Nesmith v. State, 6 So.3d 93, 94 (Fla. 1st DCA 2009).

In some cases, a preliminary Nelson inquiry might disclose that the defendant is merely complaining about his counsel’s performance without requesting counsel’s dismissal. See, e.g., Lowe v. State, 650 So.2d 969, 975 (Fla.1994) (making no mention of request to discharge attorney during defendant’s expressions of dissatisfaction with appointed counsel); cf. Davis v. State, 70S So.2d 1055, 1058-59 (Fla.1997) (concluding Nelson was inapplicable because defendant never made unequivocal request to discharge appointed counsel). In other cases, such as this one, the defendant may be asking for counsel’s dismissal.

When a defendant requests that the trial court discharge his court-appointed attorney for ineffective assistance, the court is obligated to determine whether adequate grounds exist for the attorney’s discharge. See Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988) (holding that a motion to discharge counsel for incompetence requires that the trial court inquire into the actual effectiveness of counsel); Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). If the court finds that the defendant does not have a legitimate complaint, then the court is required to ad,vise the defendant that if his request to discharge is granted, the court is not required to appoint substitute counsel and, that the defendant would be exercising his right to represent him,self.

Trease v. State, 768 So.2d 1050, 1053 (Fla.2000) (emphasis added).

Here, Jackson’s motion unequivocally expressed his desire to discharge his appointed counsel. Even if we could assume both that the circuit court properly relied solely on the written motion as its source of information regarding Jackson’s complaints and that it properly found the complaints insufficient to require the appointment of substitute counsel, the court was obliged to inquire whether Jackson wished to persist in discharging his attorney, thereby waiving his right to court-appointed counsel and exercising his right of self-representation. See Montgomery v. State, 1 So.3d 1228, 1230 (Fla. 2d DCA 2009); see also Hardwick, 521 So.2d at 1074 (noting that attempts to dismiss court-appointed counsel are presumed to be an exercise of defendant’s right to self-representation).

The State relies on Kott v. State, 518 So.2d 957 (Fla. 1st DCA 1988), and argues that we should apply an abuse of discretion standard. But in Kott the court actually inquired of the defendant regarding his request. 518 So.2d at 958. Although it was not an extensive inquiry, the defendant was given an opportunity to argue his motion to discharge counsel. Id. Because there was a preliminary Nelson inquiry in Kott, that case is distinguishable. Likewise, the State’s reliance on Moultrie v. State, 679 So.2d 25 (Fla. 4th DCA 1996), is misplaced. Moultrie involved a similar form motion to dismiss court-appointed counsel. But again, in that case the court held a hearing on the motion even if its inquiry was “less than thorough.” Id. at 26. Here, the circuit court denied the motion without making any inquiry at all.

The State also contends that any error was harmless because the evidence of Jackson’s guilt was overwhelming. But while the failure to conduct an adequate Nelson inquiry is subject to an abuse of discretion standard and, presumably, a harmless error analysis, the failure to conduct any inquiry is per se error. See Maxwell, 892 So.2d at 1102-03. Compare Kott, 518 So.2d at 958 (finding harmless error in court’s “failure to conduct a more extensive inquiry regarding the merits of the motion to discharge”), with Nesmith, 6 So.3d at 94 (holding that court’s “failure to conduct a preliminary inquiry into the defendant’s reason for seeking to discharge court-appointed counsel is not harmless error; rather, it is ‘a structural defect in the trial requiring reversal as per se error’ ”) (quoting Maxwell, 892 So.2d at 1102-03)).

In the absence of any inquiry into the legitimacy of Jackson’s complaints about his attorney or, at the very least, into Jackson’s desire to proceed pro se if he persisted in his request to discharge counsel, we must reverse.

Reversed and remanded for a new trial.

CASANUEVA, C.J., and WALLACE, J., Concur.


text:
    S.M., the Maternal Grandmother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D10-838.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.
    Matthew J. Xoinis of Matthew J. Xoinis, P.A., North Palm Beach, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee Department of Children and Families.
    Hillary Kambour, Orlando, for appellee Guardian ad Litem Program.
    James Walsh, West Palm Beach, for ap-pellee Foster Children’s Project.
    Karen Martin, West Palm Beach, for the Mother.
   On Motion to Dismiss

PER CURIAM.

This court hereby holds that the maternal grandmother in the present case is not a party, and thus, has no standing to bring the instant appeal. §§ 39.01(51), 39.501(1), 39.815(1), Fla. Stat. (2009). E.g., In re K.M., 978 So.2d 211 (Fla. 2d DCA 2008). The grandmother’s reliance on In re M.V.B., 19 So.3d 381 (Fla. 2d DCA 2009), is misplaced. Accordingly, the appeal is dismissed.

POLEN, DAMOORGIAN and GERBER, JJ., concur.


author: ALTE NBERND, Judge.

text:
    Robert CROXALL, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and U-Haul Co. of Florida, Appellees.
    No. 2D10-2109.
    District Court of Appeal of Florida, Second District.
    May 19, 2010.
    Jesse L. Skipper of Jesse L. Skipper, P.A., St. Petersburg, for Appellant.
    No appearance for Appellees.
   ORDER DENYING MOTION FOR REHEARING AND CLARIFICATION; ORDER GRANTING MOTION TO CERTIFY CONFLICT.

ALTE NBERND, Judge.

Robert Croxall resides in St. Peters-burg, Florida. He wishes to appeal a final order of the Unemployment Appeals Commission upholding a referee’s decision that he is not entitled to unemployment compensation benefits in connection with his prior employment with U-Haul Co. of Florida. He timely filed his notice of appeal in this court.

In Lynch v. Unemployment Appeals Commission, 988 So.2d 25, 26 (Fla. 2d DCA 2008), this court held that we do not have authority to review such orders because the referees are deciding these cases at locations outside the geographical boundaries of the Second District. We concluded that the legislature, which has constitutional authority to regulate our jurisdiction in administrative appeals, had statutorily deprived this court of venue, or perhaps jurisdiction, over such appeals. Id. at 27.

Since this court issued Lynch, we have routinely transferred such appeals to the First District, using a letter of transfer in accordance with the requirements of Florida Rule of Appellate Procedure 9.040(b)(1). See also art. V, § 2(a), Fla. Const. In these cases, we transfer the notice of appeal to the First District without opening a formal appellate proceeding in this court. On April 28, 2010, this court transferred Mr. Croxall’s notice of appeal to the First District.

Mr. Croxall has filed a timely motion and an amended motion seeking clarification of our decision to transfer this case. In his motion he also requests that this court certify conflict with the Fifth District’s decision in Presnell v. Unemployment Appeals Commission, 1 So.3d 1113 (Fla. 5th DCA 2009). He recognizes our controlling decision, but seeks an order that he can challenge by mandamus in the supreme court or as an order expressly and directly conflicting with a decision of another district. We conclude that he is entitled to such an order.

Accordingly, in order to dispose of this motion, we have formally opened this appellate proceeding to consider whether to accept review of his appeal. We deny Mr. Croxall’s motion for rehearing and clarification and confirm our decision to transfer this appeal to the First District. We decline to withdraw our letter of transfer. We also certify that our decision to transfer in this case expressly and directly conflicts with the Fifth District’s decision in Presnell. Because the proceeding has been transferred to the First District, we now dismiss this appellate proceeding as duplicative of the proceeding pending in the First District.

Dismissed; conflict certified.

CASANUEVA, C.J., and SILBERMAN, J., Concur.


text:
    Joseph CARMONA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4750.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his conviction and sentence imposed for a violation of probation on Count IV of the underlying Information. He argues the trial court lacked jurisdiction to revoke probation and sentence him on Count IV because he received a one-year sentence with credit for 729 days time served, which he had completed prior to the violation. The State agrees and so do we. See Wilson v. State, 895 So.2d 527 (Fla. 4th DCA 2005) (reversing because the court lacked jurisdiction to impose a sentence for a violation of probation where defendant was not placed on probation at the original sentencing and his sentence had already been completed).

We therefore reverse his conviction and sentence for a violation of probation on Count IV only, and remand the case to the trial court to vacate the order revoking probation, and the corresponding judgment and sentence on that count.

Reversed and Remanded.

WARNER, TAYLOR and MAY, JJ„ concur.


text:
    CREATIVE BUILDERS CORP.; and By the Sea, LLC., Appellants, v. Larry F. WITTE, Appellee.
    No. 4D08-4205.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.
    Arthur J. Morburger, Miami, and Jerry P. Kahn, Miami Beach, for appellants.
    Nancy C. Ciampa and Charles M. Rosenberg of Carlton Fields, P.A., Miami, for appellee.
   PER CURIAM.

The final judgment is affirmed in all respects except for the provision requiring an accounting, which we strike as now moot.

FARMER, HAZOURI and DAMOORGIAN, JJ., concur.


author: DAMOORGIAN, J.

text:
    E.I. DU PONT DE NEMOURS AND COMPANY, Appellant, v. AQUAMAR, S.A., Molinos Del Ecuador S.A., and Desarrollo Industrial Bioacuatico S.A., Appellees.
    No. 4D09-5166.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2010.

      Rodolfo Sorondo, Jr., and Christopher N. Bellows of Holland & Knight LLP, Miami, for appellant.
    Joel S. Perwin of Joel S. Perwin, P.A., Miami, and Walter G. Campbell, Robert J. McKee, Ivan F. Cabrera and Kelley B. Stewart of Krupnick, Campbell, et al., Fort Lauderdale, for appellees.
   DAMOORGIAN, J.

On September 3, 2009, the Sun Sentinel published an article, submitted by the President of the Florida Justice Reform Institute, criticizing the trial court’s decision ordering a trial on damages only, following the striking of defendant E.I. DuPont de Nemours and Company’s pleadings and the entry of a default against DuPont on the issues of causation and liability. On December 14, 2009, pri- or to the trial on damages, Aquamar, S.A., Molinos del Ecuador S.A., and Desarrollo Industrial Bioacuatico S.A., the plaintiffs, filed a “Motion for Sanctions and Request for Court Order Enjoining DuPont from Any Further Attempt to Influence Potential Jurors,” attributing the Sun Sentinel article to DuPont and its attorneys. Two days later, the parties attended a previously scheduled non-evidentiary hearing regarding a variety of discovery issues. Though the plaintiffs’ motion for an injunction was not noticed for that day, the trial court, sua sponte, entered a temporary injunction “directed to all parties and their counsel, and those that are working in concert with their respective agents and employees either directly or indirectly with the parties and/or their counsel, consistent with 4.3-6 of the Rules Regulating the Florida Bar, not to participate, encourage, assist, or abet in the dissemination of any out-of-court publicity in this matter.” DuPont appealed this order.

“In Florida, the limitations imposed by the court on communications between the media and lawyers and/or litigants must be for good cause to assure fair trials.” Rodriguez ex rel. Posso-Rodriguez v. Feinstein, 734 So.2d 1162, 1164 (Fla. 3d DCA 1999). Thus, a gag order should be supported by evidence and findings that any extrajudicial statements made by counsel or the parties pose a substantial or imminent threat to a fair trial. Id.; see also News-Press Publ’g Co. v. Hayes, 493 So.2d 1, 2 (Fla. 2d DCA 1986) (quashing order restricting extrajudicial statements because it. was entered sua sponte without a proper evidentiary hearing). As in Rodriguez, the order on review was not supported by any showing that it was necessary to preclude a substantial likelihood of material prejudice to the trial of the case. Furthermore, there was no evidence presented and there were no findings made that any out-of-court publicity posed a substantial and imminent threat to the fairness of the trial proceedings. Finally, the injunction was entered without proper notice, and is unrestricted in scope and time limit. See Rodriguez, 734 So.2d at 1165.

Appellants argue, and we agree, that for all of these reasons, the injunction is a departure from the essential requirements of the law. We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

CIKLIN, J., and COX, JACK S., Associate Judge, concur.

      . This case is the product of an epic stream of litigation between these parties, which this court has discussed on several previous occasions. See Molinos Del S.A. v. E.I. DuPont de Nemours & Co., 947 So.2d 521 (Fla. 4th DCA 2006); E.I. Du Pont de Nemours & Co. v. Aquamar S.A., 881 So.2d 1 (Fla. 4th DCA 2004); E.I. Du Pont De Nemours & Co. v. Desarrollo Indus. Bioacuatico S.A., 857 So.2d 925 (Fla. 4th DCA 2003).