author: CASANUEVA, Chief Judge. ALTENBERND, Judge,

text:
    Stephen J. GARDNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-6198.
    District Court of Appeal of Florida, Second District.
    March 17, 2010.

      Noel H. Flasterstein of Law Offices of Noel H. Flasterstein, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Chief Judge.

Stephen J. Gardner appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because we reverse for resentencing on his claim that his sentencing violated double jeopardy principles, Mr. Gardner’s other claims are rendered moot.

Mr. Gardner, a minor in 2003 and 2004 at the time of the crimes for which he was charged, was prosecuted as an adult pursuant to section 985.227, Florida Statutes (2003). He alleges that the sentencing court violated the principles of double jeopardy by initially sentencing him to multiple, concurrent eight-year terms of incarceration for various felonies but later — after returning from a lunch break— by resentencing him to concurrent ten-year minimum mandatory sentences on those same charges. Double jeopardy may be raised for the first time in a 3.850 motion even if not raised at trial or on direct appeal. See Plowman v. State, 586 So.2d 454, 455 (Fla. 2d DCA 1991) (“Just as a prisoner does not waive a double jeopardy violation for failing to raise the issue at trial, we hold that a prisoner does not waive a double jeopardy violation for failing to raise the issue on direct appeal from the judgment and sentence.”); see also Fla. R.Crim. P. 3.850(a)(1), (3). Because jeopardy attached at the conclusion of the hearing at which the court originally pronounced the sentences, see Ashley v. State, 850 So.2d 1265,1269 (Fla.2003) (Par-iente, J., concurring), the sentencing court had no authority to call Mr. Gardner back for resentencing. The postconviction court should have granted Mr. Gardner’s motion to vacate his sentences and reimposed the original tei*ms.

The relevant proceedings ended after the trial court sentenced Mr. Gardner to a combination of sentences for his various charges amounting to eight years’ imprisonment followed by two years’ community control and thirteen years’ drug offender probation, ordered restitution be paid, and imposed several other conditions on probation. The trial court found sufficient grounds for a downward departure from the Criminal Punishment Code Sentencing Guidelines after concluding that Mr. Gardner required specialized treatment for a mental disorder unrelated to substance abuse or addiction, that he was amenable to treatment, and that the need for payment of restitution outweighed the need for a lengthy prison sentence. After clarifying the provisions of conditional release and probation, the sentencing court asked, “Is there anything else, State, other than your objection to my departure that I failed to do?” The State responded that it needed to put its objection to the departure on the record, asserting only that “there [were] insufficient grounds to establish specialized treatment and restitution.”

The court noted the objection, clarified the remaining terms of the various sentences, and concluded the proceedings:

THE COURT: Any misdemeanors, time served.
MR. BODIFORD: Of course, that’s it. THE COURT: Thank you.
MR. BODIFORD: Judge, thank you for your indulgence.
THE COURT: Thank you everyone.
MR. ROSARIO: Thank you, Your Hon- or.
THE COURT: Have a good day. All right, let’s take a 10-minute lunch break.
THE COURT: One more thing, Mr. Gardner, I don’t know what excuse it is that you gave me before or someone gave me before for those [tattoo] teardrops, but my recollection of those teardrops is that they are indeed gang-related.
You’re to have no association upon your release from custody with any known gangs or anyone that is known to be affiliated with a gang; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Thank you.

Mr. Gardner was taken from the room, and the court then took the announced lunch break. Notably, there is no discussion in the record up to this point of the possible application of a minimum mandatory sentence.

The same attorneys were before the court again following the lunch break. Returning to Mr. Gardner’s ease, the prosecutor announced that he had forgotten to place on the record his objection to the court’s having sentenced Gardner to a term below the minimum mandatory sentence for his offenses. At defense counsel’s suggestion that the State would have to appeal or file a motion, the court replied, “I won’t be doing that. You have to bring him back in ... I think we have to resentence him.” The court directed counsel to find Mr. Gardner’s family and ordered Mr. Gardner be returned to the courtroom.

The court continued the discussion with counsel and Mr. Gardner’s family before Mr. Gardner returned to the courtroom. Upon Mr. Gardner’s return, the court referred to the proceeding held before the break and the discussion with counsel after lunch, declared that a ten-year minimum mandatory sentence applied to his case, and imposed the longer sentence. At the conclusion of the second hearing, Mr. Gardner’s sentence was increased from eight years’ incarceration on the armed burglary charges to ten-year minimum mandatory sentences; the other terms remained unchanged.

Critical to the court’s belief that resen-tencing was necessary seems to be its conclusion that failure to sentence Mr. Gardner to the ten-year minimum mandatory sentence would result in an automatic reversal on appeal by the State. That conclusion is well-supported. See § 775.087(2)(b), (d), Fla. Stat. (2003) (prohibiting imposition of a lesser sentence than otherwise required by law and clarifying the legislative intent that “the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted”); State v. Calza-da-Padron, 708 So.2d 287, 287 (Fla. 2d DCA1996) (“Section 775.087(2) contains no provision permitting the trial court to exercise its discretion in imposing a ... minimum mandatory prison sentence once a defendant has been convicted of certain enumerated felonies.”).

Nevertheless, the court had no authority to reopen the proceedings once the hearing had concluded and double jeopardy had attached. “Florida law generally accords a level of finality to a sentence once it has been orally pronounced and the defendant has begun to serve the sentence.” Delemos v. State, 969 So.2d 544, 548 (Fla. 2d DCA 2007). While “there appears to be no dispute that a defendant begins serving his sentence at least upon his transfer into the custody of the Department of Corrections,” id. at 548 n. 6, the length of time between the end of one proceeding and the start of another has little effect upon double jeopardy considerations. See Figueroa v. State, 3 So.3d 428, 429 (Fla. 2d DCA 2009) (reversing a minimum mandatory sentence imposed during a proceeding held one day after the initial sentencing); Brown v. State, 965 So.2d 1234, 1238 (Fla. 5th DCA 2007) (reversing a sentencing “correction” made at an undefined point after a hearing had concluded); Obara v. State, 958 So.2d 1019, 1021 (Fla. 5th DCA 2007) (reversing a sentence imposed on a defendant recalled to the courtroom following sentencing but before he was transferred from the court’s custody); Shepard v. State, 940 So.2d 545, 548 (Fla. 5th DCA 2006) (reversing a sentence imposed after the defendant was called back fifty minutes after the proceeding had ended).

Absent a proper appeal, double jeopardy considerations bar increasing even an illegal sentence:

Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003). This is true even if the original sentence was illegal or othenvise erroneous and the correction conforms to applicable law or to the court’s and parties’ intentions at sentencing.

Pate v. State, 908 So.2d 613, 614 (Fla. 2d DCA 2005) (emphasis added). This court has further clarified Pate in holding:

[E]ven if the sentence ... were illegal for failing to include the minimum mandatory term, this court has previously held that double jeopardy bars an increase in a sentence once it is imposed and the defendant begins serving it, at least in the absence of a proper appeal .... Under those circumstances, the State is compelled to object and appeal the sentence or the sentence stands as originally imposed.

Delemos, 969 So.2d at 550 (emphasis added); see also Figueroa, 3 So.3d at 429 (reversing imposition of a twenty-five-year minimum mandatory sentence and directing reimposition of the original twenty-year sentence).

Although it may appear to serve the interests of judicial economy to permit a trial court to fix an apparently erroneous sentence without requiring a motion or proper appeal, there are clear procedures for correcting such errors on appeal if properly preserved. See Delemos, 969 So.2d at 549-50 (cataloging the proper procedures for increasing a sentence even after the conclusion of a sentencing hearing). In this case, however, those procedures were not followed and the constitutional prohibition against increasing Mr. Gardner’s sentence after jeopardy attached was violated.

Accordingly, we are compelled to reverse the denial of Mr. Gardner’s motion for postconviction relief on this ground and remand with directions that the trial court reimpose the original eight-year sentences for those offenses. Mr. Gardner need not be present for resentencing.

Reversed and remanded.

WALLACE, J., Concurs.

ALTENBERND, J., Dissents with opinion.

ALTENBERND, Judge,

Dissenting.

I dissent. I am not certain whether we are holding that Mr. Gardner is entitled to the eight-year term of imprisonment, even though it is illegal, or that he is entitled to receive this sentence subject to the State’s right to have that sentence reversed in a subsequent appeal.

Although I dissent, I recognize the possibility that my disagreement is actually a disagreement with either the holding in Ashley v. State, 850 So.2d 1265 (Fla.2003), or the case law applying it. Ashley holds that “[o]nce a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Id. at 1267. The courts of Florida have interpreted this holding very strictly. Once the sound waves from the judge’s oral pronouncement have reached the court reporter’s ears or the microphone of the digital recording device, we seem to think that the defendant has begun to serve the sentence. At a minimum, once the defendant’s sentencing hearing has concluded, we rule that he is serving the sentence even when the oral pronouncement has not been rendered by a written sentence. I am not convinced that a defendant who sits in the courthouse during the lunchtime between an initial illegal sentencing and a resentencing has begun to serve the illegal sentence for purposes of a constitutional double jeopardy analysis.

Mr. Gardner went to a sentencing hearing having agreed to a maximum prison sentence of ten years’ imprisonment. As explained by the majority opinion, the trial court initially imposed a sentence that did not include the mandatory term, and after a short lunch break, the trial court corrected this error. Mr. Gardner filed a motion for rehearing, but when he received no relief, he did not appeal. Instead, almost two years later, Mr. Gardner filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Legally, the trial court was required to sentence the defendant pursuant to the express terms of the statute to the ten-year minimum term. The original sentence, which included a downward departure rather than the minimum mandatory term, was an erroneous sentence. See State v. Calzada-Padrón, 708 So.2d 287 (Fla. 2d DCA 1996); see also Beard v. State, 819 So.2d 987 (Fla. 2d DCA 2002) (affirming imposition of the minimum mandatory portion of a life sentence, as automatic, upon resentencing after remand of direct appeal); Van Burén v. State, 500 So.2d 732 (Fla. 2d DCA 1987) (holding that efforts to correct unlawfully lenient sentences are not per se violative of double jeopardy proscriptions and that double jeopardy arises only when efforts are undertaken to increase a sentence that was legal when originally imposed). Both the First and Fifth Districts have held that resentencing to impose minimum mandatory terms is required where the original sentences fail to include the nondiscretion-ary terms. See State v. Vanderhoff, 14 So.3d 1185 (Fla. 5th DCA 2009); State v. Couch, 896 So.2d 799 (Fla. 1st DCA 2005). Thus, unless the State has forever waived the right to obtain the mandated sentence by failing to note this error before the hearing concluded, the original sentence was subject to reversal on appeal by the State and may also be subject to reversal when imposed on remand from this appeal.

In Deísmos v. State, 969 So.2d 544 (Fla. 2d DCA 2007), I suggested that the Florida law on the issue of when a sentence becomes final for purposes of double jeopardy may be overly restrictive and that the U.S. Constitution may permit a longer window of time in which courts could correct errors made during oral pronouncement. I continue to believe that our case law does not reflect the extent to which simple human error is inevitable in oral pronouncements and that the constitutional doctrine of double jeopardy was never intended to make sentencing a game in which mental errors by judges and attorneys are irreparable even when the error is discovered minutes later. See United States v. DiFrancesco, 449 U.S. 117, 135, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (quoting Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 91 L.Ed. 818 (1947), for the principle that “[t]he Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner”).

In other jurisdictions, the defendant’s being taken into custody by the Department of Corrections or, at a minimum, the transfer of custody from the judiciary to the executive, is the point at which the defendant begins to serve the sentence, and the trial court loses its authority to resentence. See People v. Mendoza, 171 Cal.App.4th 1142, 90 Cal.Rptr.3d 315, 320-21 (2009) (holding that upon receipt of the judgment by the sheriff, the execution of the judgment is in progress); State v. Carr, 167 Ohio App.3d 223, 854 N.E.2d 571, 573 (2006) (holding that the execution of a sentence begins when the defendant is delivered to the institution where the sentence is to be served); State v. Jacobs, 200 OrApp. 665, 117 P.3d 290, 296 (2005) (holding a prison sentence is not executed until the defendant is delivered to the custody of the Department of Corrections); Maher v. State, 991 P.2d 1248, 1249 (Wyo. 1999) (holding that the relevant inquiry in deciding whether a defendant has begun serving a sentence is whether the defendant has been delivered to executive custody for that purpose); Francis v. United States, 715 A.2d 894, 898 n. 12 (D.C.1998) (“[T]he Double Jeopardy Clause is inapplicable absent a transfer of a convicted individual from the judiciary, which pronounced sentence, to the executive, which administers it.”).

So long as a trial judge is not exercising his or her discretion to increase the severity of the overall sentence that the trial judge intended to impose at the oral pronouncement, I believe we could and should have a procedural mechanism by which trial judges are allowed to correct misstatements and confusions in sentences and to impose mandated sentencing conditions that were overlooked at oral pronouncement. When a judge inadvertently imposes a fifteen-year sentence on a third-degree felony and a five-year sentence on a second-degree felony, for example, I do not understand why constitutional double jeopardy should bar the judge from imposing the intended fifteen-year sentence for the second-degree felony even a few days after the mistake in the oral pronouncement.

A defendant has a right to a legal sentence. This defendant is about to receive the benefit of an illegal sentence, in all likelihood because a judge and several lawyers were anxious to go to lunch. Somehow, Florida’s technical approach to double jeopardy allows inadvertent mistakes to give defendants the right not to legal sentences, but to sentences that are often more like half jeopardy.

      . See § 921.0026(2)(d), Fla. Stat. (2003). We note that the eight-year sentence is consistent with what Mr. Gardner apparently believed to be successful, restitution-focused plea negotiations with the State and court at the change-of-plea hearing despite the ultimately open nature of his plea.

      . In its answer brief, the State accepts Mr. Gardner's statement of the case and statement of facts. While the State suggests that the objection to the downward departure and sentencing below the minimum mandatory occurred only moments after the start of the morning sentencing hearing, both Mr. Gardner's statement of the case and facts and the record reflect that this discussion occurred shortly after the court returned from lunch.

      . There may have been ineffective assistance of counsel in this case because it does not appear that Mr. Gardner understood that the trial court had no discretion and was compelled to impose a ten-year sentence.


source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    Daniel MARTZ, Appellant, v. VOLUSIA COUNTY FIRE SERVICES/County of Volusia Risk Management, Appellees.
    No. 1D09-4258.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    Steven P. Pyle, Winter Park, and Bill McCabe, Longwood, for Appellants.
    Nancye R. Jones, Assistant County Attorney for Volusia County, DeLand, for Appellees.
   MARSTILLER, J.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) denying compensability of his heart condition and hypertension. Specifically, Claimant asserts the JCC erred by: 1) finding Claimant failed to satisfy the disability requirement of section 112.18(1), Florida Statutes (2008), with respect to his heart disease; 2) finding Claimant was not entitled to compensation for treatment of his hypertension under the “hindrance-to-recovery doctrine;” and 3) denying his claim for attorney’s fees and costs. We affirm as to the second issue without further comment. However, for the reasons explained below, we reverse as to the first and third issues.

Factual Background

On May 14, 2008, Claimant, a firefighter, responded to a call, and afterwards experienced elevated blood pressure and an irregular heart rate. Claimant was taken to the hospital and admitted. While hospitalized, he underwent diagnostic tests which revealed he has atrial fibrillation (AF), which is considered heart disease, and also that he has essential hypertension. Claimant was kept in the hospital for approximately one and one-half days and treated with medication until his heart rate was controlled. Upon release from the hospital, Claimant was not assigned any work restrictions.

Claimant underwent independent medical examinations with his expert, Dr. Mathias, as well as with Dr. Kakkar, an expert retained by the Employer/Carrier (E/C). Both doctors are cardiologists. At hearing, Dr. Mathias testified it was reasonable for Claimant to be hospitalized and kept out of work for a period after being diagnosed with AF and Dr. Kakkar testified Claimant was disabled while hospitalized as a result of his AF.

Section 112.18(1), Florida Statutes, affords certain categories of public employees totally or partially disabled by tuberculosis, heart disease, or hypertension a rebuttable presumption that the condition was suffered in the line of duty. The JCC found the facts above insufficient to establish that Claimant was totally or partially disabled by AF. Specifically, the JCC concluded that Claimant “was not ‘actually incapacitated’ from performing his work activities as a result of his atrial fibrillation condition.” Relying on this court’s opinion in Bivens v. City of Lakeland, 993 So.2d 1100 (Fla. 1st DCA 2008), the JCC reasoned that Claimant’s hospitalization for evaluation, diagnosis, and treatment for AF did not equate to total or partial disability, as required by section 112.18(1). After denying compensability of Claimant’s heart condition and hypertension, the JCC denied Claimant’s request for attorney’s fees and costs.

Analysis

The JCC’s determination that Claimant failed to establish disability involved an interpretation of law. As such, we review the determination de novo. See Mylock v. Champion Int’l, 906 So.2d 363, 365 (Fla. 1st DCA 2005) (“To the extent the [JCC’s] order ... involved an interpretation of law, our standard is that of de novo.”).

At the outset, we note that at the time the final order on appeal was rendered, the JCC did not have the benefit of our opinion in Carney v. Sarasota County Sheriff’s Office, 26 So.3d 683 (Fla. 1st DCA 2009), in which we found the claimant had established disability under facts remarkably similar to those in the instant case. In Carney, the claimant, a law enforcement officer, was hospitalized due to an irregular heart rate, diagnosed with AF, and remained in the hospital for a little more than one day, during which time he was treated with medication to regulate his heartbeat. Id. The claimant was released from the hospital and allowed to return to work with no restrictions. Id. There was medical testimony that the claimant was unable to perform his job duties as a result of his AF and while in the hospital undergoing treatment to bring his heart rate within acceptable limits. Id.

In Bivens, we had held the claimant failed to establish disability under section 112.18(1) where, although he had missed several days’ work for a doctor’s appointment, heart catheterization, and stress test, his heart condition did not prevent him from working. 993 So.2d at 1103. We reasoned that “[the claimant] missed work only so his condition could be diagnosed, not because it was a debilitating physical ailment” and that “[i]f testing or treatment, standing alone, equaled ‘disability,’ everyone would be disabled upon their first visit to a doctor’s office.” Id.

In Camey, as in the instant case, the JCC had relied upon Bivens in denying compensability for the claimant’s heart condition. However, we distinguished the facts in Bivens, stating:

[Claimant here was not hospitalized merely for diagnostic purposes. Rather, he was summoned from work by his treating cardiologist and admitted to the hospital because his heart was beating at a hazardous rate and required treatment to bring his heartbeat to a safe level. Thus, this was not “testing or treatment standing alone.” That he was able to return to work without restrictions a few days after being released from the hospital does not defeat claimant’s contention that he satisfied the disability requirement because, as noted, disability for purposes of the presumption may be temporary and partial.

Carney, 26 So.3d at 684-85. We find our reasoning and holding in Carney dictate a similar conclusion in this case. Here, Claimant suffered an irregular heartbeat after returning from a firefighting call. He required hospitalization and treatment due to his AF condition, and medical testimony established he was disabled from performing his firefighting duties while hospitalized due to his condition. Consequently, Claimant was temporarily disabled as a result of his AF and has satisfied the disability requirement of section 112.18(1), Florida Statutes.

Conclusion

As stated previously, we affirm the JCC’s denial of compensation for treatment of Claimant’s hypertension under the “hindrance-to-recovery doctrine.” However, based upon our holding in Carney, we reverse the JCC’s finding that Claimant failed to satisfy the disability requirement of section 112.18(1), Florida Statutes. In addition, we reverse the JCC’s denial of attorney’s fees and costs pursuant to section 440.34(3), Florida Statutes, because Claimant has prevailed on the issue of compensability of his AF condition.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF and LEWIS, JJ., concur.


author: PER CURIAM.

text:
    Richard DOSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-4428.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant; Richard Doss, pro se, Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals a judgment and sentence entered after he admitted violating his probation. We affirm the appellant’s judgment without further comment. However, we reverse and remand for the trial court to address one of the issues raised in appellant’s rule 3.800(b) motion filed on July 17, 2007. In that motion, the appellant asserts an entitlement to an additional 45 days of credit. The trial court did not address that claim and the records are insufficient to determine whether the appellant is entitled to the credit he seeks. Thus, we remand for the trial court to attach portions of the record conclusively refuting appellant’s claim or for an eviden-tiary hearing on the matter. See Fla. R.Crim. P. 3.800(b)(1) (evidentiary hearings are permissible as part of 3.800(b) proceedings); cf. Kablitz v. State, 979 So.2d 969 (Fla. 4th DCA 2008) (holding that trial court should resolve jail credit claim raised in 3.800(b) motion on remand); Ocasio v. State, 962 So.2d 1025 (Fla. 3d DCA 2007) (holding that when a defendant makes a claim that he has been improperly denied credit for time served, the trial court must “review the appropriate records and make a determination whether the defendant has received proper credit”).

AFFIRMED in part, REVERSED and REMANDED in part for further proceedings.

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


text:
    Joshua Leon BUTLER, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D09-4121.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    Joshua Leon Butler, pro se, Appellant.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Joshua Leon Butler appeals an order of the circuit court dismissing his mandamus claim. In the circuit court, Butler sought and was granted leave to amend his petition. The circuit court’s subsequent dismissal order reflects its belief that Butler failed to file an amended petition within the time allotted, but it appears that the circuit court’s conclusion in this regard was a product of oversight or mistake. In fact, the record discloses that Butler did timely file an amended petition. Accordingly, the order dismissing his claim below is reversed, and the matter is remanded for further proceedings.

BENTON, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Nathaniel C. McCLAIN, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D09-5086.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    Nathaniel C. McClain, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The Circuit Court for Madison County is directed to order a response to the petition for writ of habeas corpus in its case number 09-284-CA if appropriate, and rale on the pending petition within 60 days of issuance of mandate in this cause.

PETITION GRANTED.

DAVIS, BENTON, and MARSTILLER, JJ., concur.


text:
    Shirley ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5558.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    Shirley Robinson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Inasmuch as counsel was ineffective in allowing petitioner’s direct appeal to be dismissed for failure to ensure preparation of the record and filing of an initial brief, the petition is granted. Case number 1D07-2545 is hereby reinstated.

The trial court is directed to appoint counsel to represent petitioner in that appeal if she qualifies for such an appointment. The record on appeal shall be filed in case number 1D07-2545 within 50 days of issuance of mandate in this case. The initial brief in that case shall be filed within 30 days of filing of the record.

PETITION GRANTED.

DAVIS, BENTON, and MARSTILLER, JJ., concur.


text:
    Tony C. JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0459.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    Tony C. Jackson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Now pending before this court is petitioner’s appeal from his judgment and sentence in case number 1D09-0313. He petitions this court for a writ of mandamus to compel the Circuit Court for Taylor County to rule on his filings, including a notice of voluntary dismissal of the aforementioned appeal and a motion to correct illegal sentence. We deny the petition because the pending direct appeal divests the circuit court of jurisdiction to consider the rule 3.800(a) motion. Bizzell v. State, 912 So.2d 386 (Fla. 2d DCA 2005). The notice of voluntary dismissal did not change this result because it was filed in the wrong forum, the circuit court, and did not result in closure of case number 1D09-0313.

Petitioner having failed to demonstrate any ministerial duty which the circuit court has failed to perform, the petition for writ of mandamus is denied. This disposition is without prejudice to petitioner’s right to properly voluntarily dismiss case number 1D09-0313 and thereafter request the circuit court to rule on his 3.800 motion.

PETITION DENIED.

DAVIS, BENTON, and MARSTILLER, JJ., concur.


author: WARNER, J.

text:
    Cephus WADE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3768.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

When appellant Cephus Wade appeared for trial on various criminal charges, he sought to discharge his lawyer and represent himself. After appropriate inquiries by the court, including the court’s admonition that it would not grant a continuance if Wade decided to represent himself, appellant discharged the lawyer and then asked for a continuance to prepare for trial. The court denied the request, and appellant represented himself through the trial, which concluded in a jury finding appellant guilty of the charged crimes.

He now appeals, claiming that the court erred in denying his motion for continuance. We affirm.

Appellant was charged by information with trafficking in oxycodone, possession of alprazolam (Xanax), and three counts of obtaining a controlled substance by fraud. The charges against appellant arose out of events that unfolded on August 3, 2007, in which appellant purchased controlled substances at a Broward County pharmacy.

The evidence at trial showed that appellant, who suffered from lower back pain related to chronic disk problems, was a patient of Dr. Bernard, a physician at a pain management clinic in Hallandale, Florida. Dr. Bernard treated appellant’s chronic back pain with a combination of Oxycontin, Roxicodone, and Xanax. Appellant would receive a prescription for each of these medications once a month.

For each visit, the office staff would prepare pre-written unsigned prescriptions and place them in the patient’s file for the doctor to sign and give to the patient. On appellant’s visit in August, the doctor noticed that the pre-written scripts were not in the file. The doctor then hand wrote appellant’s prescriptions, under the assumption that her staff did not have the opportunity to prepare appellant’s prescriptions in advance. Later that day, appellant brought prescriptions to a pharmacy. The pharmacist reviewed the prescriptions and noticed that the signature on the prescriptions did not look like Dr. Bernard’s signature, with which he was familiar. After faxing copies of the prescriptions to Dr. Bernard, who confirmed that the signatures were not hers, the pharmacist called the police who came and waited outside the pharmacy for appellant. When appellant left, the officers apprehended him, seizing the drugs he had purchased. Located in the car which appellant had taken to the pharmacy, the police found the three valid hand-written prescriptions which Dr. Bernard had signed.

At the police station and after appropriate Miranda warnings, appellant confessed. He admitted that he received three valid prescriptions from Dr. Bernard that day, but attempted to get three “bad” prescriptions filled. Appellant explained that he had an arrangement with an individual who would pay for the prescriptions. Appellant stood to gain approximately $1,000 from this transaction.

The state charged the appellant, and the public defender’s office was appointed to represent him. The court granted the defense three continuances prior to specially setting the trial approximately thirteen months after the information was filed.

On the date of the trial, defense counsel announced that he was ready to proceed, but appellant claimed that he was not ready and was dissatisfied with his attorney. The trial judge then began conducting a Nelson inquiry, explaining that if he found that appellant’s attorney was rendering ineffective assistance, the court would replace appellant’s lawyer and appoint the regional conflict counsel on the case. He further advised appellant that if he did not find that appointed counsel was rendering ineffective assistance, he would not replace appointed counsel. The judge explained that appellant would then decide whether to discharge defense counsel, but that if appellant were to discharge defense counsel at that point, the court would then perform a Faretta inquiry to “make sure this is a knowing and intelligent waiver of your counsel and you’d be representing yourself.”

After a thorough examination of defense counsel and his preparation of the case, the court found that counsel had performed effectively. If appellant chose to discharge his attorney, the court would not appoint another attorney, and appellant would have to represent himself. The court then recessed for lunch.

Upon reconvening, and after the state made one last plea offer to the appellant, the court advised appellant that should he discharge his attorney and represent himself he would still have to start trial that day. The court then began a Faret-ta inquiry during which the court again asked the appellant whether he understood that he would not get a continuance if he discharged his attorney. While the defendant protested that he would need a continuance, he told the court that he understood that the court would not grant one if he decided to discharge his attorney and represent himself. After the court found him competent to represent himself, appellant discharged his attorney, although he accepted, and the court appointed, his former attorney as standby counsel.

As soon as he discharged his counsel, appellant asked for a continuance. He claimed that he needed time to take further depositions of witnesses and to subpoena one for trial. The trial court thoroughly reviewed which witnesses appellant sought to depose or call to trial and a proffer by the appellant of their testimony. Defense counsel had already deposed some of the witnesses and had determined that the testimony of others would not be helpful. The court concluded that the witnesses’ testimony desired by appellant would not have been substantially favorable, and that appellant had not shown that the witness he wanted to subpoena was available and willing to testify. Finding no prejudice, the court again denied the continuance. Appellant proceeded to trial, continuing to claim prejudice in the denial of his motion for continuance. He was convicted by the juiy as charged and sentenced to mandatory sentences for drug trafficking.

On appeal, he again claims that the court erred in denying the motion for continuance, claiming it violated due process. The granting or denial of a motion for continuance is within the trial court’s discretion. See Bouie v. State, 559 So.2d 1113, 1114 (Fla.1990). The denial of a motion for continuance should not be reversed on appeal “unless there has been a palpable abuse of this judicial discretion.” Magill v. State, 386 So.2d 1188, 1189 (Fla. 1980).

In D.N. v. State, 855 So.2d 258 (Fla. 4th DCA 2003), this court adopted from McKay v. State, 504 So.2d 1280, 1282 (Fla. 1st DCA 1986), the following seven factors to consider in determining whether the denial of a motion for continuance was error due to lack of adequate time to prepare a defense when a defendant seeks to change counsel prior to trial: (1) the time actually available for preparation; (2) the likelihood of prejudice from the denial; (3) the defendant’s role in shortening preparation time; (4) the complexity of the case; (5) the availability of discovery; (6) the adequacy of counsel actually provided; and (7) the skill and experience of chosen counsel and his pre-retention experience with the defendant or the alleged crime. Id. at 260. The McKay court explained:

While criminal defendants have the right to a reasonable opportunity to select and be represented by chosen counsel, and the right to a preparation period sufficient to assure at least a minimal quality of counsel, Birt v. Montgomery, 725 F.2d 587 (11th Cir.1984) cert. den., 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161, citing Gandy v. Alabama, 569 F.2d 1318,1323 (5th Cir.1978), the right is not absolute but at some point must bend before countervailing interests involving effective administration of the courts. Thus, when a defendant asks for a continuance on the eve of trial in order to allow time for recently retained counsel to prepare, the court must balance that request against many other factors, such as those outlined in U.S. v. Uptain, 531 F.2d 1281 (5th Cir.1976). Birt at 593.

504 So.2d at 1282 (emphasis added). Although McKay involved a change of counsel, we have applied a similar analysis to deny a last minute continuance to a defendant who chose to represent himself. See Langon v. State, 791 So.2d 1105,1113 (Fla. 4th DCA 1999).

We conclude that no “palpable abuse of judicial discretion” has been shown. The defense had already moved for three continuances to prepare for trial. Defense counsel told the court that he met with appellant at the jail and discussed his case nearly twice a month from the time counsel was appointed. Counsel sought one continuance specifically to pursue medical evidence requested by appellant. At no time prior to trial was the court or the state alerted that appellant desired to discharge his counsel. Appellant first addressed the issue on the day of trial.

Considering the factors in D.N., appellant did not have time to prepare for trial himself, because he sought to discharge counsel on the day of trial. He could have requested such relief earlier. Thus, he was the sole cause of the lack of time he had to prepare himself for trial. The court, in an extremely thorough review of defense counsel’s preparations, found that counsel had conducted extensive discovery. Appellant would not be prejudiced because the necessary discovery had already been conducted. The witness that appellant still wanted to call would not have provided exculpatory information. Furthermore, this was not a complicated case, as the appellant had confessed to the crimes.

We distinguish Sessions v. State, 965 So.2d 194 (Fla. 4th DCA 2007), where we reversed the denial of a continuance to a pro se defendant charged with murder. There, although multiple continuances had been sought, our court could not determine whether any were at the behest of the defense. The defendant had made several motions to discharge counsel prior to trial, alerting the court to his unhappiness with his counsel. Three days prior to trial, the court conducted a Nelson inquiry and determined that counsel was not ineffective. While the court permitted the defendant to discharge his attorney, the court cautioned him that it would not grant a continuance of the trial. Nevertheless, the defendant requested a continuance on the day of trial, claiming that he had not had time to receive medical documents as well as discovery. The court denied the continuance after defense counsel informed the court that he had given the defendant all of the discovery that had occurred. Our court held that it was a denial of due process under those circumstances to expect a pro se litigant to be prepared for trial in three days. However, the defendant apparently had not obtained copies of his medical records to present a defense to the murder charge based upon his claim that he was in a “diabetic rage” at the time of the incident.

In this case, the defense had already received numerous continuances, and, unlike Sessions, appellant never sought to discharge his counsel until the morning of trial. Further, he did not have a defense to the charge that he needed to explore. He desired to call the office clerk who had prepared the prescriptions, claiming that she may have forged the doctor’s name on the prescriptions. However, that allegation would not exculpate appellant’s conduct in knowingly passing the forged prescriptions to the pharmacy. He had also confessed that he knew the prescriptions he gave to the pharmacist were “bad” and that he would sell the pills to another person. Therefore, he had no real defense to the charges.

The trial court very carefully and conscientiously reviewed all of the issues raised before denying the motion for continuance. The inability to have more time to prepare for trial can be placed solely on appellant and his dilatory tactics in this case.

Affirmed.

POLEN and STEVENSON, JJ., concur.

      . Nelson v. Stale, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


text:
    Jesus J. FERNANDEZ, Appellant, v. HABER & GANGUZZA, LLP, Appellee.
    No. 3D08-3195.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Gonzalo R. Dorta, Miami, for appellant.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Kristen A. Tajak, for appellee.
    Before RAMIREZ, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Jesus J. Fernandez appeals the trial court’s final summary judgment granted in favor of appellee, Haber & Ganguzza, LLP. Although we do not agree with the actions taken by the Ganguzza law firm, we affirm because as a matter of law, the law firm is entitled to litigation immunity as to Fernandez’s tortious interference claim arising from the filing of the lis pendens in conjunction -with pending litigation relating to the subject unit.

Fernandez is the father-in-law of Richard Meruelo, who is a real estate developer and hotel operator. The Miami Beach Club Motel is a 104-condominium complex on Miami Beach located at 19051 Collins Avenue. Its neighbor is Seashore Condominium located at 18975 Collins Avenue. In the fall of 2005, Meruelo decided to purchase all of the units at both Miami Beach Club and Seashore Condominiums, as he planned to convert them into hotel units.

Joseph H. Ganguzza of the law firm of Haber & Ganguzza, LLP, was retained by the condominium association of both these condominiums to provide general services. The members of the Board of Directors of the Seashore Club Condominium Association decided after Meruelo purchased several units to stop him from purchasing any more units. The Board of the Seashore Club Condominium Association was aware that an out of state developer was also interested in acquiring all of the units at the Seashore but only if the Directors were able to get all of the unit owners to sell to him. To obstruct Meruelo’s efforts, the President of the Seashore Condominium Association sent a circular to all Seashore Club owners alerting them to stop any sales, contracts or listing of their units. Similarly, the Directors of the Miami Beach Club Condominium Association did not want Meruelo to acquire control of the Association by owning a majority of the units in the complex. To fight Merue-lo’s efforts, Seashore Club and Miami Beach Club united with Ganguzza and his law firm represented both associations.

On January 19, 2007, Fernandez entered into a contract to purchase a condominium unit at Miami Beach Club from Mireya Rodriguez. Before the transaction was set to close, an officer of the Miami Beach Club Association was alerted that Fernandez was a relative of Meruelo. Fernandez had entered into a contract to purchase a unit at the Seashore Club, but when the Board learned that Fernandez was Merue-lo’s father-in-law, the Association did not approve the sale. Ganguzza, along with officers of the Seashore Condominium Association, interviewed Fernandez in the presence of a court reporter after the Seashore Association suspected that Fernandez was related to Meruelo. His family relationship with Meruelo was the sole reason that the Seashore Club Board declined to approve Fernandez.

Pursuant to Article XIII of the Declaration of Condominium, the Miami Beach Condominium Association had ten days to approve or disapprove the sale to Fernandez. If the Association declined the sale to Fernandez, it had ten days to provide Rodriguez with an approved purchaser who would accept the terms of the sale identical to those terms set forth in the original offer by Fernandez. The Miami Beach Condominium Association did not approve the sale to Fernandez, but it never presented Rodriguez with a replacement buyer within ten days who was willing to purchase the unit on the identical terms found in the Fernandez contract.

Ganguzza’s firm then recorded a lis pen-dens against Rodriguez’s unit and sued Rodriguez and joined Fernandez in the lawsuit to enjoin the sale. Miami Beach Club’s complaint sought injunctive relief to enjoin the sale and force Rodriguez to honor the Declaration. Fernandez was not a party to this restriction because he was not a unit owner. Fernandez answered the suit and countersued Miami Beach Club for tortious interference and to have the trial court interpret Article XIII because Miami Beach Club had sued Fernandez under that provision.

Fernandez also sued Ganguzza’s firm for tortious interference. The firm defended on the doctrine that the actions taken by the firm were privileged because the firm was only acting at the client’s request. The firm also argued that the dispute was governed by operation of the Association’s powers under Article XIII and consequently, Fernandez could not sue the firm for tortious interference.

Ganguzza admitted that the lis pendens was filed to prevent the transfer of the subject unit. Ganguzza moved for summary judgment, claiming that the firm had a justifiable privilege to act as it did, as a matter of law.

The trial court concluded that because the lis pendens was part of a lawsuit, there was qualified immunity where no malice shown on the firm’s part. The trial court entered summary judgment for the firm finding that it was acting on the client’s instruction and no malice was shown. This appeal followed.

On appeal, Fernandez contends that the trial court improperly determined that absolute immunity applied and that there was sufficient record evidence of malice to overcome summary dismissal, though malice is not an element of proof to assert tortious interference. Although we believe that Ganguzza and his firm abused the legal process, we do not agree with Fernandez’s position.

The standard of review when a final summary judgment is granted is de novo. Citizens Property Ins. Corp. v. Mallett, 7 So.3d 552, 556 (Fla. 1st DCA 2009). Where the material facts are not in dispute and a party is entitled to judgment as a matter of law, it is the court’s duty to enter summary judgment. Castellano v. Raynor, 725 So.2d 1197, 1199 (Fla. 2d DCA 1999).

To maintain a claim for tortious interference, a plaintiff must show: (1) the existence of a business relationship or contract to which a plaintiff is a party; (2) the defendant’s knowledge of the contract; (3) the defendant’s intentional procurement of the contractual breach; (4) the absence of justification or privilege; and (5) the plaintiff suffered damages from the breach. Marquez v. PanAmerican Bank, 943 So.2d 284, 286 (Fla. 3d DCA 2006).

In the case before us, the trial court correctly granted summary judgment in favor of Ganguzza regarding the tortious interference claim because the undisputed evidence in the record shows the existence of litigation privilege. The actions that Ganguzza’s law firm took, which included preparing and filing the Notice of Lis Pendens, were privileged because they occurred during the course of a judicial proceeding.

In Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla.2007), the Florida Supreme Court held that absolute immunity applies to any act occurring during the course of a judicial proceeding, whether the underlying claim constitutes a common law tort or a statutory violation, including tortious interference with a business relationship, so long as the act has some relation to the proceeding. See also Boca Investors Group, Inc. v. Potash, 835 So.2d 273 (Fla. 3d DCA 2002). In the case before us, it is undisputed that the lis pendens filed by Ganguzza’s firm was filed during the course of the judicial proceeding brought by the Association against Fernandez. There was undisputed evidence in the record that the law firm was directed by the Association to prevent the sale, thus the firm was privileged in placing the lis pen-dens in connection with the action for in-junctive relief. Any proceeding based on statements made in connection with a judicial proceeding are not actionable. See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 607-08 (Fla.1994). See also Ross v. Blank, 958 So.2d 437, 441 (Fla. 4th DCA 2007).

Accordingly, the filing of the lis pendens together with the action for injunctive relief was privileged and cannot be the basis of Fernandez’s action for tortious interference. The trial court was correct in granting summary judgment in favor of Ganguz-za’s firm. Although we think that the behavior of the Ganguzza law firm may have been highly unethical, we must affirm.

Affirmed.


author: RAMIREZ, C.J.

text:
    Brett Randall CORDELL, Appellant, v. Beatriz E. CORDELL, a/k/a Beatriz Pelaez, Appellee.
    No. 3D09-1646.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Lori Barkus, Weston, for appellant.
    Christine Ritter, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

Brett Randall Cordell appeals an order denying exceptions to the report of the general magistrate in which the court affirmed the retroactive modification of child support in the underlying dissolution of marriage action. We reverse the judgment because there is no legal basis for an award retroactive to the date of the final judgment, rather than the date of the child support modification petition.

Factual Background

The parties married in Georgia on May 27, 1988, separated on August 13, 1990, and had one child born on September 18, 1990. The child is now an adult. On November 18, 1994, the wife, Beatriz E. Cordell, filed a Petition for Dissolution in Miami-Dade County alleging that the father’s, Brett Randall Cordell’s, residential whereabouts were unknown, but that he was employed at Ross Department Store in Portland, Oregon. The father filed a response on December 12, 1994. Despite that, the trial court entered a default against the father and set the matter on the uncontested divorce calendar. In its final judgment dated February 17, 1995, the trial court awarded the wife the sole parental responsibility and primary residential custody of the child and reserved on the issue of visitation until the father presented a proper request for such visitation. The court also ordered child support in the amount of $75 per month, stating that this was “the minimum amount of support based upon the probable earnings level of the Respondent; the amount will be subject to retroactive modification if it is found to be incorrect, as computed under the child support guidelines, at such time as the actual earnings of Respondent are established.”

In July, 1997, the mother filed a motion to allow the child to travel to Colombia without the father’s authorization, along with the father’s written notarized consent. These proceedings made no mention of child support or arrearages.

In 2004, the mother sought public assistance, prompting the Department of Revenue to institute child support proceedings on her behalf. These proceedings were dismissed due to the mother’s failure to cooperate with the Department of Revenue.

In December, 2006, the mother commenced proceedings to enforce collection of child support and modify the obligation retroactively based on the father having graduated as an electrical engineer. She alleged that the father was in arrears in the amount of $10,575. The court referred the matter to a general magistrate.

In his answer and counter petition, the father alleged that he paid child support of $75 until the mother moved without notifying him of her new address or new phone number; that he sent checks and letters to the mother which were returned; and that at no time during the previous eleven years did the mother attempt to contact him, despite that fact that during all that time, he had only resided at two separate addresses. The father also asserted the defenses of waiver and laches.

After conducting evidentiary hearings, the general magistrate issued her recommendations, denying the defenses of waiver and laches, and finding the father in contempt, and concluding that the father’s failure to pay was willful because he had a $19,000 savings account. The magistrate recommended a sentence of ninety days in jail, with a purge amount of $8,800, which represented $75 per month from March, 1995 to August, 2007, less a $2,375 credit to the father for payments he had previously made. The magistrate also concluded that the father owed $110,506.44 in child support, retroactive to the date of the Final Judgment, February 17,1995.

The magistrate then found that the mother was entitled to a retroactive modification of child support. The magistrate held that the father’s earnings were established for the first time during the proceedings to modify child support and determined the child support amount pursuant to the guidelines for the years 1995 through 2007 using the gross income of the parties during that time period.

The father filed exceptions, arguing that the mother had failed to take any action whatsoever to bring child modification pri- or to December of 2006, the time during which she filed her petition to modify child support. He alleged that the mother could have sought modification at any time prior to 2007, including the child support proceeding instituted by the Office of Child Support Enforcement, or on the prior occasions when the mother had sought other relief from the court. He argued that the mother admitted that, in July of 1997, she filed a Motion for Clarification of Final Judgment, to which the father filed his response; that she had contacted the father in 1997 and that she did not seek to modify child support at that time.

After a hearing on the father’s exceptions, the trial court entered its order in which it denied the father’s exceptions. That order forms the basis of this appeal.

Analysis

The standard of review that governs the issues in this appeal is one of abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Alois v. Alois, 937 So.2d 171 (Fla. 4th DCA 2006). The trial court concluded had it had the authority to modify child support retroactive to the date of the final judgment, i.e., February 17, 1995. Evidently, this was based on the language of the final judgment that $75 per month child support would be subject to retroactive modification if the court found the amount to be incorrect. The mother has not cited to any cases which allow such a reservation in what was ostensibly a final judgment, but assuming that the trial court has authority basically to retain jurisdiction to modify its award retroactively should the amount be “found to be incorrect,” it was incumbent upon the mother to seek such a modification within a reasonable period of time. We hold that waiting over eleven years to prove that the amount was incorrect is an unreasonable period of time.

Normally, a modification of child support is only retroactive to the date of filing of a petition seeking such relief. See Bardol v. Martin, 763 So.2d 1119 (Fla. 4th DCA 1999) (“Regarding dissolution, courts generally have only awarded retroactive child support back to the date the petition for support or modification of existing support was filed.”); Waite v. Kennedy, 724 So.2d 572 (Fla. 3d DCA 1998) (holding that trial court erred in granting retroactive child support prior to date of filing of counter-petition seeking that relief); Gherardi v. Gherardi, 712 So.2d 1236, 1237 (Fla. 4th DCA 1998) (holding that an award for child support can be made retroactive only to the date of the filing of the petition for modification); Garrett v. Garrett, 707 So.2d 382, 383 (Fla. 5th DCA 1998) (holding that a party is entitled to a retroactive child support increase only to the date a petition for modification is filed); Wertheim v. Wertheim, 667 So.2d 331, 332 (Fla. 1st DCA 1995) (holding that retroactive modification is only proper to date of the petition for modification, and not to any time prior to that date); Anderson v. Anderson, 609 So.2d 87, 88 (Fla. 1st DCA 1992) (holding that it was error to award child support retroactive to a date prior to a request for modification of an order which previously addressed child support); Berger v. Berger, 559 So.2d 737, 738 (Fla. 5th DCA 1990) (remanding for trial court to adjust child support to reflect that it is retroactive to the date of filing the petition for modification). See also Owens v. Eshelman, 712 So.2d 472, 473 (Fla. 1st DCA 1998) (holding that court could not enter child support award where it was not requested in petition for custody); Torres v. Torres, 739 So.2d 599, 600 (Fla. 2d DCA 1997) (“It is settled that a trial court cannot modify a child support obligation absent a pleading or motion requesting such modification.”).

We were recently confronted with a similar issue in Beroes v. Florida Department of Revenue, 958 So.2d 489 (Fla. 3d DCA 2007), where the trial court entered its final judgment of dissolution of marriage in 2000. Id. at 491. The judgment included a provision in which the court retained jurisdiction over the parties and the subject matter. Id. The judgment also included two other provisions which the court subsequently struck in which the eourt had reserved jurisdiction over the issue of child support, custody, and visitation. Id. Two years later, the Department of Revenue filed a Supplemental Petition for Modification of Final Judgment on the mother’s behalf. Id. We concluded that the trial court had jurisdiction to award child support but held that it was improper to award retroactive child support modification which preceded the date of the filing of a petition for modification. Id. 493-94.

Here, the mother filed a Motion to Clarify Final Judgment of Dissolution of Marriage on July 8, 1997, seeking authorization for the child to travel to Colombia without the father’s authorization. The mother obtained the father’s written consent, which she filed with the motion, along with a “Custodial and Parental Rights Agreement.” Nowhere in those proceedings did the mother assert that the child support previously awarded was “incorrect.” Additionally, she aborted the efforts made on her behalf by the Department of Revenue to enforce even the amount ordered in the final judgment. More than eleven years lapsed between the date on which the court entered its final judgment and the filing of the mother’s motion for contempt during which the mother did nothing to collect any child support, let alone seek a modification. Thus, assuming the trial court could properly reserve jurisdiction in the final judgment to modify support retroactively, the mother waived her right to seek such a retroactive modification by waiting over eleven years.

Conclusion

We vacate the retroactive child support award of $110,506.44, and remand the cause for recalculation of the arrearage child support amount retroactive only to the date of the mother’s petition for modification. We note that the parties raised various arguments in this appeal independent of the retroactive child support issue, but we decline to address these. Therefore, we otherwise affirm the other conclusions contained in the final Report and Recommendations of the General Magistrate, and Order Denying Exceptions.

Reversed in part, affirmed in part and remanded.


author: DAMOORGIAN, J.

text:
    M.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-806.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

M.D. timely appeals his adjudication of delinquency and sentence for possession of marijuana (less than twenty grams), arguing that the State did not produce sufficient evidence that he had dominion and control over the marijuana found in proximity to him at the time of his arrest. We agree and reverse.

M.D. was charged by juvenile petition with possession of marijuana (less than twenty grams) and loitering and prowling. At trial, the State presented the following evidence. On the night of M.D.’s arrest, the police responded to a report of possible loitering at a vacant residence. Upon arriving at the scene, one of the officers observed that the door to a small utility room at the back of the residence was open. About two or three feet from the door, the officer smelled marijuana, at which point he looked inside the utility room and observed four individuals, including M.D. Although none of the individuals were observed smoking marijuana, the room, as well as M.D., smelled like marijuana.

Two of the individuals (not M.D.) dropped bags containing a leafy green substance, which the officer suspected to be marijuana. Additional bags of marijuana were recovered from the room and from one of the other individuals. No marijuana was found in M.D.’s actual possession. The officer also found loose tobacco in the corner of the utility room. He testified that, from his experience, he believed that the tobacco had been removed from a cigar so that the tobacco leaves could be used to wrap marijuana. No cigarettes or packages of loose tobacco were found in the room. All of the individuals had lighters.

After M.D. was read his Miranda rights, he told one of the officers that he was “there to smoke.” The officer testified that “smoking” is a street term for smoking marijuana. The other officer asked M.D. if he had broken into the house, to which M.D. replied, “we just used the shed to smoke.”

After the State rested its case, M.D. moved for a judgment of dismissal on both counts. The trial court granted the motion on the loitering and prowling charge, denied it on the possession of marijuana charge, and ultimately found M.D. guilty of the possession charge.

On appeal, M.D. argues that the State’s case was entirely circumstantial and that its evidence did not rebut his theory that he was smoking tobacco, not marijuana. He pointed out that one of the officers found loose tobacco on the ground, and that his statement that he “was there to smoke” did not necessarily indicate that he was there to smoke marijuana.

We begin by noting that, because M.D. was not in actual possession of any of the marijuana, the State must prove that he had constructive possession of the marijuana. See J.G. v. State, 881 So.2d 25, 26 (Fla. 4th DCA 2004). “In order to establish constructive possession, the State must prove that the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over the same.” Martoral v. State, 946 So.2d 1240, 1242 (Fla. 4th DCA 2007). When the premises on which the drugs are found is not in the defendant’s exclusive possession, the defendant’s mere proximity to the drugs is not enough to prove that he constructively possessed them. Id. at 1242-43; Earle v. State, 745 So.2d 1087, 1089 (Fla. 4th DCA 1999). The State must present independent proof of the defendant’s knowledge and ability to control the drugs. Martoral, 946 So.2d at 1242-43. This proof may consist of “actual knowledge of the [drug’s] presence, evidence of incriminating statements or actions, or other circumstances from which a jury might lawfully infer the defendant’s actual knowledge of the presence of the [drugs].” Earle, 745 So.2d at 1089 (emphasis added).

“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989). The evidence must be viewed in the light most favorable to the State. Id. at 189. A trial court’s ruling on a motion for judgment of dismissal is de novo. See Tillman v. State, 21 So.3d 163, 165 (Fla. 4th DCA 2009) (noting that “rulings on motions for judgment of acquittal are reviewed de novo”); J.P. v. State, 855 So.2d 1262, 1264 n. 1 (Fla. 4th DCA 2003) (stating that the standard of review for a judgment of dismissal is the same as that for a judgment of acquittal).

The question here is whether M.D.’s statements, in combination with the other evidence in the case, conclusively refute his theory that he was smoking tobacco, not marijuana. The State’s case depends on M.D.’s statement that he was “there to smoke.” In the absence of this statement, the State’s circumstantial evidence would be insufficient to prove that M.D. constructively possessed the marijuana. See, e.g., J.S.M. v. State, 944 So.2d 1143 (Fla. 2d DCA 2006) (evidence insufficient where the defendant was found with three other people in a hotel room redolent of burnt marijuana and three bags of marijuana were found in plain view); J.J.N. v. State, 877 So.2d 806 (Fla. 5th DCA 2004) (evidence insufficient where an officer found a baggie of marijuana on the ground near the defendant’s foot); J.A.C. v. State, 816 So.2d 1228 (Fla. 5th DCA 2002) (evidence insufficient where the defendant was a passenger in a car that smelled like marijuana, marijuana residue was found in the car, and a small marijuana cigar was found in an ashtray on the passenger’s door); K.L. v. State, 787 So.2d 236 (Fla. 2d DCA 2001) (evidence insufficient where the State proved that the defendant was in the vicinity of the marijuana, an officer smelled a strong odor of burnt marijuana, marijuana was found on another individual and in a nearby vehicle, and the defendant admitted that he had “chipped in” to purchase the marijuana).

In Dubose v. State, 560 So.2d 323 (Fla. 1st DCA 1990), the First District upheld the defendant’s convictions for possession of cocaine and marijuana. At the time of his arrest, the defendant was in another person’s apartment, standing within arm’s reach of crack cocaine and marijuana. Id. at 324. After being advised that he was under arrest for possession of cocaine and marijuana, the defendant stated that the drugs were not his, “but that he had just gone to the apartment to smoke.” Id. Later, the defendant stated that a woman had invited him to the apartment to smoke crack and that he would not pass up such an opportunity. Id. at 324-25. At trial, the defendant testified that his purpose in going to the apartment might have been to smoke drugs, but he denied that he had gone for that reason. Id. at 325. The First District held that the defendant’s proximity to the drugs and his incriminating statements were sufficient to prove constructive possession. Id.

Dubose is distinguishable from this case because the defendant in Dubose admitted that he had been invited to the apartment to smoke crack and that he might have seized that opportunity. In this case, M.D. was unclear about what he had smoked in the utility room, he never made any statement about marijuana, and one of the officers found tobacco in the room. Thus, his theory that he was smoking tobacco, not marijuana, was reasonable.

The State tried to rebut M.D.’s theory of innocence by arguing that neither officer found tobacco cigarettes (burnt or otherwise) in the room, and that the room smelled strongly of marijuana. However, the State fails to point out that there was no evidence of any type of cigarette or smoking device in the room even though it was clear that something had been smoked in the room. The fact that tobacco cigarettes were not found does not carry much significance. Moreover, the smell of marijuana does not foreclose the possibility that M.D. was smoking tobacco while the other individuals were smoking marijuana, and that the smell of the marijuana masked the tobacco odor. Finally, the officer’s theory that a tobacco cigarette was hollowed out to make room for marijuana is not inconsistent with M.D.’s theory that he was only smoking tobacco.

Because the State’s circumstantial evidence was not inconsistent with M.D.’s reasonable hypothesis of innocence, the trial court erred in denying the motion for judgment of dismissal on the charge of possession of marijuana.

Reversed.

FARMER and HAZOURI, JJ., concur.

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


author: ROTHENBERG, J.

text:
    The STATE of Florida, Appellant, v. Manuel RUIZ, Appellee.
    No. 3D09-780.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.

      Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellant.
    Mauricio L. Aldazabal, for appellee.
    Before COPE and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The State appeals the trial court’s order vacating Manuel Ruiz’s (“the defendant”) convictions for burglary of an unoccupied structure, second degree grand theft, and trespass, which were as a result of the defendant’s plea of nolo contendere to these charges on December 14, 1995. The basis for the trial court’s ruling was the failure of the trial court to warn the defendant that his plea could subject him to deportation. Because the record reflects that the defendant was not warned of the possible deportation consequences of his plea, and we conclude that the defendant’s motion to vacate his plea was timely under State v. Green, 944 So.2d 208 (Fla.2006), we affirm.

The defendant entered his plea to the charges on December 14, 1995. On February 18, 2004, the defendant filed a motion to set aside his plea and vacate his convictions. Along with his motion, the defendant submitted a sworn affidavit averring that he wished to vacate his plea because he had been put on notice by consulting with an immigration lawyer regarding the potential immigration consequences of his plea. On April 22, 2004, the defendant’s motion was denied because he was not yet under a threat of deportation. Thus, under Peart v. State, 756 So.2d 42 (Fla.2000), he was not entitled to relief. The trial court, however, denied the motion without prejudice and the defendant was specifically put on notice of the Peart decision and the time limitations under Peart.

On April 15, 2006, the defendant received a Notice of Decision from the United States Citizenship and Immigration Services, informing him that “any alien convicted of ... a crime of moral turpitude ... is inadmissible”; he had been convicted for a crime of moral turpitude; and he was, therefore, inadmissible to the United States. The notice additionally informed the defendant that his application was denied; there was no appeal or other form of relief available to him; any advanced parole or work authorization document issued to him was terminated as of the date of the notice; and that if he was no longer in a valid status, he must depart the United States. Because the defendant was in the United States on “humanitarian parole,” his parole was terminated as of April 15, 2006, and he was required to leave the United States.

Because the defendant unambiguously was put on notice “of the threat of deportation” on April 15, 2006, under Peart, he had two years to file a motion to vacate his plea.

Since the day the defendant gains (or should gain) knowledge of the threat of deportation is the first day the defendant can actually articulate a prima facie case, it stands to reason that the day the defendant learns of the threat should likewise start the running of the two-year limitation period.

Peart, 756 So.2d at 46. See also Alfaro v. State, 828 So.2d 1056, 1057 (Fla. 3d DCA 2002) (holding that a Notice to Appear issued by the United States Immigration and Naturalization Service, stating that the defendant was “subject to removal” was facially sufficient to invoke postconviction jurisdiction under Peart).

Despite the notice ordering the defendant to leave the United States on April 15, 2006, and his awareness of the Peart decision, the defendant did not file his renewed motion to vacate his plea until October 24, 2008, which is clearly outside the two-year time limitation provided in Peart. Although the defendant concedes that his motion is untimely under Peart, he argues that it is timely under Green. We agree.

In Green, the Florida Supreme Court receded from Peart, returned to the limitations criteria of Florida Rule of Criminal Procedure 3.850, and narrowed the time period for filing such a claim to two years from the date the judgment and sentence became final. Id. at 218. Because the court recognized that it was changing the criteria and the time period to file such a claim, it provided that “defendants whose cases are already final will have two years from the date of this opinion in which to file a motion comporting with the standards adopted today.” Id. at 219. Because the time limitation under Peart had not expired when the Green decision was issued, we conclude that the Green decision and the two-year time period provided in Green applies to this case.

We find the instant case distinguishable from this Court’s decisions in State v. Freijo, 987 So.2d 190, 195 (Fla. 3d DCA 2008) (holding that the Green decision did not serve to revive a claim that was time-barred under the more liberal time standard contained in Peart and Markland v. State, 971 So.2d 832, 834 (Fla. 3d DCA 2007)), and the Fourth District’s decision in Pena v. State, 980 So.2d 542, 545-46 (Fla. 4th DCA 2008) (holding that because the defendant “was aware of the immigration consequences of his plea as early as October 1998 and no later than July 2000, when he was placed in the Krome Detention Center .... [his] limitations period expired, at the latest, in July 2002,” and his motion was not revived by Green).

The defendant was put on notice that his parole was being terminated and that he was required to leave the United States on April 15, 2006. Green was decided on October 26, 2006. The defendant filed his second motion to vacate his plea on October 24, 2008. Although the defendant’s motion would have been untimely under PeaH, it was timely under Green. Because the defendant’s claim was not time-barred under PeaH when Green was decided, the Green opinion did not revive a time-barred claim, and was therefore correctly relied on by the trial court in determining the timeliness of the defendant’s motion. Because the record supports the defendant’s claim on the merits and his motion was timely filed, we affirm the decision below.

Affirmed.


text:
    Jimmy MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-382.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Jimmy Martinez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

Defendant, Jimmy Martinez, appeals an “Order Denying Defendant’s Pro Se Motion for Post Conviction Relief’ entered January 7, 2010. Although the order correctly identifies the defendant and Circuit Court case number in the caption, the text of the order identifies the defendant by the name “Vincent Ham” at the only two places in the body of the order using the defendant’s name. Nor is there any indication that the defendant was known by that name as an alias.

Accordingly, the order below is reversed and remanded so that a corrected order can be entered and served upon the defendant.


text:
    Manuel WALTERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1518.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, Tampa, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Manuel Walters appeals his conviction for second-degree murder, asserting fundamental error in the standard manslaughter by act instruction given to the jury. See Fla. Std. Jury Instr. (Crim.) 7.7. We affirm the conviction. See Valdes-Pino v. State, 23 So.3d 871, 872 (Fla. 3d DCA 2009). However, to preserve the defendant’s rights, we certify direct conflict with Montgomery v. State, — So.3d —, 2009 WL 350624 (Fla. 1st DCA 2009), which currently is pending review before the Florida Supreme Court. State v. Montgomery, 11 So.3d 943 (Fla.2009).

Conviction affirmed, conflict certified.

      . The defendant's remaining two points of appeal are without merit. See Irving v. State, 627 So.2d 92, 94 (Fla. 3d DCA 1993) ("A trial court has wide discretion concerning the admissibility of evidence, and a ruling on admissibility will not be disturbed unless there has been an abuse of discretion.”).


text:
    Anthony DURM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-3159.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Melbourne v. State, 679 So.2d 759 (Fla.1996).


text:
    C.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1638.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    C.D., a juvenile, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and SALTER, JJ.
   PER CURIAM.

This is an appeal of an adjudication of delinquency. C.D.’s counsel points out that the probation order fails to specify the time period during which C.D. will be on probation. We remand for entry of that information on the probation order. The adjudication and probation order are otherwise affirmed.

Affirmed; remanded for specification of probation period.


text:
    Carlos RIVERO, Appellant, v. Raida RIVERO, Appellee.
    No. 3D09-1706.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Steven N. Abramowitz, for appellant.
    Sandra H. Mejia and Mario R. Delgado, for appellee.
    Before SUAREZ, CORTINAS, and SALTER, JJ.
   PER CURIAM.

Affirmed. Wade v. Hirschman, 903 So.2d 928 (Fla.2005).


text:
    Jason F. HYDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-808.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Jason Hyde appeals the revocation of his probation and sentence. Appointed appellate counsel has moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Hyde admitted to violating the terms and conditions of his probation. The record, however, does not reflect a written order revoking probation. We affirm the revocation and sentence, but remand for entry of a written order revoking probation and specifying the conditions that Hyde violated. See Smith v. State, 6 So.3d 116 (Fla. 4th DCA 2009).

Affirmed and Remanded.

HAZOURI, MAY and DAMOORGIAN, JJ., concur.


author: SALTER, J.

text:
    M.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1483.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.

      Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   SALTER, J.

M.B., a juvenile, appeals an order imposing restitution following a withheld adjudication for delinquency. We reverse in part because some of the items in the restitution order were not properly included.

The victim testified that the lock was broken and she had already bought a repair kit when the crime was committed. The broken lock cannot then be causally connected or significantly related to the defendant’s offense. § 985.437(2), Fla. Stat. (2009) (authorizing court to order juvenile to pay restitution for “damage or loss caused by the child’s offense.”); Schuette v. State, 822 So.2d 1275 (Fla.2002). Also, as the state properly concedes, there is no evidence that the juvenile stole the missing real estate sign. The juvenile was apprehended inside the house and the sign was not mentioned on the arrest form, or the petition for delinquency.

We therefore reverse the portion of the restitution order imposing $1,548.16 in restitution and remand for the trial court to deduct from that award the $50.00 for the lock repair and the $148.16 for the signs. The new restitution order shall be in the amount of $1,350.00.

Affirmed in part and reversed in part.


text:
    Masoud EBRAHIMI, etc., et al., Appellant, v. Mehdi AJABSHIR, etc., Appellee.
    No. 3D09-1172.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.
    Ginsberg & Schwartz and Todd R. Schwartz, Miami, for appellant.
    Reiner & Reiner and Samuel B. Reiner, Miami, for appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Ginsberg v. Keehn, 550 So.2d 1145, 1147 (Fla. 3d DCA 1989); Padow v. Knollwood Club Ass’n, Inc., 839 So.2d 744 (Fla. 4th DCA 2003); § 617.2103(b), Fla. Stat. (2008).


text:
    Derrick Steven SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-616.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

The defendant appeals his conviction for possession of ammunition by a convicted felon. He argues his defense counsel rendered ineffective assistance of counsel in failing to request a jury instruction on “momentary possession.” We affirm the conviction, but without prejudice to allow him to raise the issue in a motion under Florida Rule Appellate Procedure 3.850.

Affirmed.

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


author: MAY, J.

text:
    Nicholas EKONOMOU, Appellant, v. GLENN WRIGHT CONSTRUCTION & DEVELOPMENT, INC., Appellee.
    No. 4D09-438.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Rehearing Denied April 16, 2010.
    Manuel J. Mari of Manuel J. Mari, P.A., Miami, for appellant.
    Perry M. Adah- and Lilliana M. Farinas-Sabogal of Becker & Poliakoff, P.A., Coral Gables, for appellee.
   MAY, J.

The plaintiff appeals the dismissal with prejudice of his second amended complaint for breach of contract. He argues the trial court erred in dismissing the second amended complaint with prejudice and without leave to amend. We disagree and affirm.

In the second amended complaint, the plaintiff alleged that he had entered into an oral agreement with the defendant developer. The agreement called for the plaintiff to execute contracts for the purchase of real properties from the developer so that the developer could obtain construction loans for those properties. The plaintiff would tender a deposit to the developer, but that deposit would be returned with interest upon the actual sale of the properties to another buyer. The plaintiff would not be required to close on the properties.

The developer moved to dismiss the second amended complaint because it alleged an illegal purpose. The trial court agreed and dismissed the complaint with prejudice. The plaintiff now appeals.

We have de novo review of dismissal orders. Kreizinger v. Schlesinger, 925 So.2d 431, 432 (Fla. 4th DCA 2006).

We have reviewed the second amended complaint and are in accord with the trial court. “The courts of this state should be loathe [sic] to lend their support to or give approval to any obligation which has an unlawful transaction as its genesis.” Frye v. Taylor, 263 So.2d 835, 840 (Fla. 4th DCA 1972). The second amended complaint here described a scheme to defraud lenders by providing fake contracts for the sale of property to influence lenders to loan money to the developer. Neither the trial court nor we will condone such fraud.

Affirmed.

HAZOURI and DAMOORGIAN, JJ., concur.


author: CIKLIN, J.

text:
    STATE of Florida, Appellant, v. Tyler GOOD, Appellee.
    No. 4D09-227.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    No brief filed on behalf of appellee.
   CIKLIN, J.

The State appeals the trial court’s order withholding adjudication following the defendant’s no contest plea to two third degree felonies (possession of oxycodone and possession of alprazolam) and one misdemeanor (possession of cannabis). Both before the trial judge and now on appeal, the State argues that the trial court erred in withholding adjudication on the two third degree drug felony charges as being in violation of section 775.08435(l)(c), Florida Statutes (2008). Because the State is simply not honing in on the wording of the applicable statute, we must disagree and affirm.

At the plea hearing, the State recommended that the defendant be adjudicated and objected to a withhold pursuant to section 775.08435(l)(c), because, the State urged, the defendant had “several prior felony convictions.”

But this is not what section 775.08435(l)(c) provides. Section 775.08435(l)(e) prohibits a court from withholding adjudication of guilt upon a defendant for “[a] third degree felony offense if the defendant has a prior withholding of adjudication for a felony offense that did not arise from the same transaction as the current felony offense.”

The State did not argue or present any evidence that the defendant had prior withholds of adjudication. The statute plainly reads that a court may not withhold adjudication of guilty upon a defendant for a third degree felony offense if the defendant has a “prior withholding of adjudication for a felony offense.” A similar situation occurred in State v. Barfield, 995 So.2d 1138 (Fla. 5th DCA 2008). In Barfield, the State appealed the trial court’s decision to withhold adjudication for three third degree felony charges, arguing that the trial court could not withhold adjudication when the defendant had adjudication withheld on a prior felony charge in Texas. Id. at 1138-39. In affirming, the Fifth District found:

[T]he State still has the burden of proving that a defendant was previously charged with a felony for which adjudication was withheld. In this case, the trial court withheld adjudication for the Florida felony charges because “[tjhere’s no indication in writing whether or not it’s a felony or a misdemean- or” — the State failed to produce evidence of a prior felony withholding.

Id. at 1139. (alteration in original). Simply put, the State failed to provide sufficient evidence for section 775.08435(l)(c) to be applied.

Affirmed.

GROSS, C.J., and MAY, J., concur.


text:
    Devin BLOUNT, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4620.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, 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.
   DAMOORGIAN, J.

Devin Blount (“defendant”) appeals his conviction for third-degree grand theft and battery. We affirm defendant’s battery conviction, but reverse his grand theft conviction and remand for the trial court to adjudicate him guilty of the Iesser-included offense of petit theft and resentence him accordingly.

On January 25, 2008, defendant was arrested at a retail store for the theft of a 15-inch LCD TV, a DVD player, and three pairs of Dickie pants. At trial, the store’s loss-prevention officer, who detained defendant with another employee, testified that the TV’s price was about “$200, $300” and the DVD player’s price was about “$80.” The loss-prevention officer did not testify as to the price of the three pairs of pants; however, he stated that the TV, DVD player, and pants were undamaged after the incident. The investigating police officer subsequently testified, based off his probable cause affidavit, that the total of the TV, DVD player, and pants was $479.96. After the State rested, defendant moved for judgment of acquittal, contending that the State failed to present sufficient evidence regarding the value of the TV, DVD player, and pants. The trial court denied defendant’s motion, finding that the State made a prima facie showing on the elements of grand theft. On appeal, defendant asserts that the trial court erred in denying his motion for judgment of acquittal because the State failed to present sufficient evidence that the TV, DVD player, and pants were valued at $300 or more.

A trial court’s denial of a motion for judgment of acquittal is subject to de novo review. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence.” Id. To establish grand theft, the State must prove beyond a reasonable doubt that the value of stolen property is “$300 or more, but less than $5,000.” See § 812.014(2)(c)l., Fla. Stat. (2008). Evidence is generally insufficient to prove the value of stolen property is $300 or more, where the property’s value is estimated. See Gilbert v. State, 817 So.2d 980, 982-83 (Fla. 4th DCA 2002).

In this case, the loss-prevention officer testified that the TV and DVD player’s prices were about “$200, $300” and “$80,” respectively, and did not provide a price for the three pairs of pants. The loss-prevention officer’s estimates are insufficient evidence to prove the value of the TV and DVD player. See id. The investigating police officer’s testimony that the TV, DVD player, and pants totaled $479.96 is also insufficient evidence of value, even when viewed in conjunction with the loss-prevention officer’s testimony. The police officer did not provide any basis for the $479.96 total, such as the specific values of the TV, DVD player, and pants, or how or when the total was calculated, or who calculated it. See Evans v. State, 452 So.2d 1040, 1041 (Fla. 2d DCA 1984) (holding that the State failed to prove value for grand theft, where there was no evidence of the specific values and price tags for the stolen retail property in the defendant’s possession).

Accordingly, we affirm defendant’s battery conviction. However, because the State failed to prove beyond a reasonable doubt that the TV, DVD player, and pants were worth $300 or more, we reverse defendant’s conviction for grand theft and remand for the trial court to adjudicate defendant guilty of the lesser-included offense of petit theft and resentence him accordingly.

Affirmed in part, Reversed in part, and Remanded.

FARMER and HAZOURI, JJ., concur.


text:
    Bobby James BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2141.
    District Court of Appeal of Florida, First District.
    March 17, 2010.
    Nancy A. Daniels, Public Defender and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his conviction and sentence for grand theft after allegedly stealing a television set. On appeal he argues that the trial court erred in denying his motion for judgment of acquittal on the basis that the State offered insufficient proof of the value of the television. The State concedes that insufficient proof was offered below. As such, the motion for judgment of acquittal should have been granted and Appellant’s conviction should be reduced from grand theft to petit theft. The case is remanded for resentencing. We find no merit in Appellant’s other claim.

REVERSED and REMANDED.

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


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    Rafael CARBONELL, Petitioner, v. DEPARTMENT OF REVENUE on behalf of Deydry CAPELLA, Respondent.
    No. 5D10-160.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2010.
    Rafael Carbonell, Orlando, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Rafael Carbonell seeks habeas corpus relief after he was found in civil contempt for failure to pay court-ordered child support and sentenced to 179 days in the Orange County Jail. We grant the petition and vacate the contempt order.

In his petition, Carbonell argues that he lacks the present ability to purge himself of the contempt. Further, he contends that the trial court failed to make the appropriate findings that he has the present ability to pay the purge amount set at $7,034.48, which is the full amount of his child support arrears. No response was filed with this Court to refute Carbonell’s assertions.

In this case, the order of contempt generally sets forth that Carbonell’s failure to pay the court-ordered child support was willful and that he has the present ability to pay the full arrear amount. However, the order, which appears to be a form order, fails to provide any factual support for these findings. In addition to making the general findings of willfulness and present ability to pay, the trial court is required to set forth a “recital of the facts on which these findings are based.” Fla. R. Fam. Law P. 12.615(d)(1). It is further compulsory, where a purge amount is set, to memorialize in a “separate affirmative finding that the contemnor has the present ability to comply with the purge” and to present the factual basis to support that finding. Fla. R. Fam. Law P. 12.615(e). The order in this case does not satisfy these mandates. Therefore, we grant the petition for writ of habeas corpus, ordering that Carbonell be immediately released.

PETITION GRANTED.

ORFINGER, EVANDER and JACOBUS, JJ. concur.