text:
    Henry Lincoln DEWITT, Sr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6110.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2010.

      Henry Lincoln Dewitt, Sr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, etc., Appellant, v. BRADENTON GROUP, INC., et al., Appellees.
    No. 5D08-3302.
    District Court of Appeal of Florida, Fifth District.
    Jan. 8, 2010.
    Bill McCollum, Attorney General, Scott D. Makar, Solicitor General, Louis F. Hu-bener, Chief Deputy Solicitor General, and Courtney Brewer, Deputy Solicitor General, Tallahassee, for Appellant.
    Steven G. Mason of Steven G. Mason, P.A., Orlando, for Appellees Bradenton Group, Inc., Pondella Hall for Hire, Inc., and Eight Hundred, Inc.
    Thomas F. Egan, of Thomas F. Egan, P.A., Orlando, for Appellee Estate of Philip Furtney.
   ON MOTION FOR WRITTEN OPINION

PER CURIAM.

Granting the State of Florida’s motion for written opinion, we withdraw our previous per curiam decision, and affirm with opinion as follows.

The State of Florida, Office of the Attorney General, appeals from a final judgment against it for damages to Appellees flowing from the State’s wrongful temporary injunction obtained in 1995 without a bond, which shuttered Appellees’ bingo hall operations and related businesses throughout Florida. Most of the issues raised by the State have already been decided against it in Bradenton Group, Inc. v. Department of Legal Affairs, 701 So.2d 1170 (Fla. 5th DCA 1997), Department of Legal Affairs v. Bradenton Group, Inc., 727 So.2d 199 (Fla.1998), and Bradenton Group, Inc. v. State, 970 So.2d 403 (Fla. 5th DCA 2007). As such, these issues are established law of the case, and we decline to address them again. Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001).

The only arguable issues remaining in this appeal are the State’s claims of sovereign and prosecutorial immunity. To the extent that these defenses were not waived for failure to raise them in multiple prior appeals, Airac, Inc. v. Ranger Insurance Company, 330 So.2d 467 (Fla.1976), we find that the immunity defenses are not available to the State under Provident Management Corporation v. City of Treasure Island, 796 So.2d 481 (Fla.2001). As explained in Provident:

Sovereign immunity is a ‘shield’ and not a ‘sword that may be used by the state when it invokes a court’s equitable jurisdiction to enjoin a part/ and the injunction later turns out to be erroneous and causes damages to be incurred. Therefore, unless the Legislature has expressly limited the liability of a government entity from the consequences of an improperly entered temporary injunction, courts have the inherent power to either require the posting of a bond or, if the bond requirement is waived, to require the governmental entity to pay damages if the temporary injunction is subsequently reversed.
The conclusion we reach provides the optimal balance between the interests of government entities and the interests of the wrongfully enjoined litigants. A governmental entity seeking injunctive relief has the option not to seek a temporary injunction but to wait and obtain a permanent injunction after a full presentation of evidence and a determination of entitlement to the relief. The government entity has the further choice to attempt to obtain the temporary injunction with a bond so as to cap damages in the event the injunction is wrongfully entered....

Id. at 487 (internal citations omitted).

AFFIRMED.

LAWSON and EVANDER, JJ„ and ZAMBRANO, R., Associate Judge, concur.

      . But see Wallace v. Dean, 3 So.3d 1035, 1045 n. 14 (Fla.2009) (sovereign immunity relates to subject matter jurisdiction).


text:
    LINCOLN ASSOCIATES & CONSTRUCTION, INC., and Guarantee Insurance Company, Petitioners, v. WENTWORTH CONSTRUCTION COMPANY, INC., and Summit Holdings-Claims Center and Jose Armando Mejia, Respondents.
    No. 1D09-2268.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2010.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Keith R. Pallo of Pallo, Marks, Hernandez, Gechijian & DeMay of Palm Beach Gardens, for Petitioners.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Respondents.
   PER CURIAM.

Petitioners, Lincoln Associates and Construction Company, Inc. and Guarantee Insurance Company (Lincoln/Guarantee), challenge the Judge of Compensation Claims’ (JCC’s) denial of their motion to disqualify the law firm representing Went-worth Construction Company and Summit Holdings-Claims Center (Wentworth/Sum-mit). Because Miller, Kagan, Rodriguez & Silver, P.L. (Miller Kagan) undertook concurrent representation of Wentworth/Sum-mit and Guarantee in the same action, the JCC erred in denying the motion to disqualify.

The claimant filed petitions for benefits against both Lincoln/Guarantee and Went-worth/Summit. Lincoln/Guarantee denied responsibility for the accident, alleging Claimant was a borrowed servant of Went-worth. Wentworth/Summit Holdings alleged Claimant was an employee of Lincoln.

Approximately two months before the final hearing, Guarantee retained Miller Kagan’s Special Investigation Unit/Fraud Investigation Unit to participate in an audit of Lincoln to determine whether the claimant was listed in Lincoln’s payroll submissions and to locate the owner of Lincoln. When the attorney representing Lincoln/Guarantee learned of Miller Ka-gan’s representation of Guarantee, he filed a motion to disqualify Miller Kagan as counsel for Wentworth/Summit in this matter. The JCC denied the motion, finding there was no material conflict.

Rule Regulating the Florida Bar 4-1.7 forbids a lawyer from representing two clients in the same matter unless the lawyer reasonably believes the representation will not adversely affect the responsibilities to each client and each client consents in writing or on the record. To disqualify a law firm from concurrently representing a party whose interests are adverse, a client need only show that an attorney/client relationship exists. See Univ. of Miami v. Dansky, 622 So.2d 613, 614 (Fla. 1st DCA 1993). The concurrent representation of two parties in the same action gives “rise to an irrefutable presumption that confidences [are] disclosed during the course of that relationship.” Id. (citing Junger Util. & Paving Co. v. Myers, 578 So.2d 1117, 1119 (Fla. 1st DCA 1989)). Miller Kagan conceded at oral argument that it represented Guarantee and Wentworth/Summit at the same time.

Here, the JCC erred in finding that the conflict had to be material. Rule 4-1.7 leaves no room for a “materiality” analysis. When Miller Kagan failed to prove it had the written consent from each client, and failed to prove that the representation of both clients would not adversely affect the responsibilities to each client, the JCC should have granted the motion to disqualify. As explained by the Fifth District Court of Appeal, rule 4-1.7 is

based on the ethical-concept requirement that a lawyer should act with undivided loyalty for his client and not place himself or herself in a position where a conflicting interest may affect the obligations of an ongoing professional relationship .... Such unseemly conduct, if permitted, would further erode the public’s regard for the legal profession.

Harvey E. Morse, P.A. v. Clark, 890 So.2d 496, 498 (Fla. 5th DCA 2004).

Based on the foregoing, we GRANT the petition for writ of certiorari and QUASH the JCC’s order denying Petitioner’s motion to disqualify. Accordingly, the JCC’s order denying the motion for disqualification is hereby vacated, and the cause is remanded for further proceedings.

KAHN, BENTON, and THOMAS, JJ„ concur.


text:
    James Lee BULLARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1634.
    District Court of Appeal of Florida, Fifth District.
    Jan. 19, 2010.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Blandin v. State, 976 So.2d 1201 (Fla. 2d DCA 2008); State v. Green, 747 So.2d 1007 (Fla. 3d DCA 1999).

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


author: LEVINE, J.

text:
    Lewis BARTON, individually and as President and Director of Native Country Broadcasting, and Productions, Inc., a New Hampshire Corporation, and Native Country Productions, Inc., a New Hampshire Corporation, Appellants, v. OCULINA BANK, Appellee.
    No. 4D07-4404.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 2010.
    H. Michael Muñiz of Steven M. Ziegler, P.A., Hollywood, for appellants.

      Brian J. Street and Martin S. Friedman of Rose Sundstrom & Bentley, LLP, Long-wood, for appellee.
   LEVINE, J.

This appeal presents the question of whether a summary judgment is precluded where there is a disputed question of material fact on whether the property in question is the appellant’s homestead. Lewis Barton appeals a summary judgment which gave the appellee, Oculina Bank, an equitable mortgage on his residential property.

In 2004, Native Country Broadcasting and Productions, Inc., a company owned by the appellant, assigned what appeared to be a valid mortgage on the property to the appellee in exchange for a loan that was used to finance an ill-fated business venture. When the appellant defaulted on the loan and the appellee attempted to foreclose on the mortgage, it was established that the mortgage had been voided in a prior litigation. The appellant testified in deposition, however, that he had intended the assignment to be valid at the time it was made, and consequently, the trial court imposed an equitable mortgage for the purpose of placing the parties in the positions they would have been in had the mortgage been valid.

Although the appellant did not raise the defense that the property is his homestead before the summary judgment was entered, it may be raised for the first time on appeal. Dyer v. Beverly & Tittle, P.A., 777 So.2d 1055, 1059 (Fla. 4th DCA 2001). The homestead defense derives from Article X, section 4(a) of the Florida Constitution, which provides that the real property that comprises a natural person’s homestead

shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty....

This provision protects homesteads against every type of claim and judgment except those specifically mentioned in the constitution. Havoco of Am,., Ltd. v. Hill, 790 So.2d 1018, 1021 n. 5 (Fla.2001).

Whether a property is a homestead is an issue of fact. Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448, 452 (1943). The appellant has asserted that the property was his homestead in 2004. It is undisputed that he owned and lived in the residence at the time the mortgage was assigned to the appellee in 2004. Later that year, the home on the property was destroyed by a hurricane, and at the time he gave his deposition, the appellant was in the process of getting permits to build a new home on the lot.

As a result, the claim that the property is the appellant’s homestead raises disputed issues of material fact that make summary judgment improper. Fla. R. Civ. P. 1.510(c). We therefore reverse.

Reversed and remanded.

STEVENSON and MAY, JJ., concur.


text:
    Harry HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1303.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 2010.

      Harry Howard, South Bay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


author: GROSS, C.J.

text:
    Darryl JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2497.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 2010.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

We reverse an attempted burglary conviction because the evidence at trial established a completed offense, so the jury should not have been given the charge of attempted burglary as a lesser included offense over the defendant’s objection.

By a two count information, Darryl Jackson was charged with burglary of a structure and possession of burglary tools. At trial, the evidence showed that the police found Jackson inside an uninhabited duplex that had been boarded up and scheduled for demolition. One of the boards had been removed and a window was broken. Copper wire was on the ground around Jackson’s feet. Drywall had been ripped out. Jackson was wearing a tool belt containing pliers, screw drivers, and a hammer. After his arrest, the police read Jackson his Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Jackson waived his rights and told the officers that he had been stripping copper wire, which he did not know was illegal. A representative of the building’s owner testified that Jackson did not have permission to be on the property or to salvage copper wire. The owner contracted for the building’s demolition and included salvage value in the contracts.

At the charge conference, the state requested that the trial court instruct the jury on attempted burglary. Jackson, who represented himself at trial, objected and requested that only trespass be charged as a lesser included offense. He argued that attempting “something” in this case was “just like doing it. There’s no lesser offense in that.” During closing, Jackson argued that he had committed a trespass, but not a burglary. After the trial court instructed the jury on attempted burglary, Jackson again objected to the instruction.

The jury found Jackson guilty of attempted burglary, as a lesser included offense, and possession of burglary tools.

Jackson correctly argues that the trial court erred in charging the jury on attempted burglary when there was no evidence to support the attempt.

In pertinent part, Florida Rule of Criminal Procedure 3.510 provides:

On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
(a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense ....

(Emphasis added). Because of the rule’s express prohibition, the trial court does not have the discretion to instruct on an attempt where the only evidence proves a complete offense. See Wilson v. State, 635 So.2d 16, 17 (Fla.1994).

“Given the rule’s language, the first step in assessing the propriety of the trial court’s giving an attempted burglary instruction is ascertaining whether the evidence presented supported an attempt or, instead, only the commission of a completed crime.” Richardson v. State, 922 So.2d 331, 333 (Fla. 4th DCA 2006). Here, the evidence established that Jackson was caught inside the house. The single contested issue was whether he entered the house with the intent to steal something. If his intent was to steal, then a burglary was committed. If Jackson entered just to look around, as he claimed at trial, then he committed a trespass. There was no evidence that Jackson attempted a burglary but did not complete it.

This case is similar to Pepitone v. State, 846 So.2d 640 (Fla. 2d DCA 2003). There, the evidence was that Pepitone entered an apartment and went through some drawers. Id. at 641. Nothing was taken. Id. Pepitone objected to an attempted burglary instruction on the ground that the evidence established either a burglary or a trespass. Id. The second district held that instructing the jury on attempted burglary was error. Id. It explained that,

[njormally, an attempted burglary involves a person who attempts, but fails, to gain entrance to a dwelling, structure, or conveyance. See, e.g., Smith v. State, 588 So.2d 654 (Fla. 2d DCA 1991); Cameron v. State, 214 So.2d 370 (Fla. 2d DCA 1968); Davis v. State, 730 So.2d 837 (Fla. 4th DCA 1999). It may be that Mr. Pepitone attempted unsuccessfully to steal something from the study, but it is undisputed that he successfully entered the condominium unit. If he did so with an intent to commit an offense, his crime was a completed burglary. See § 810.02, Fla. Stat. (1999). If he did so with no such intent, the crime was trespass. Attempted burglary simply is not a middle ground that exists between these two options in this case.

Pepitone, 846 So.2d at 642-43. This case is distinguishable from Green v. State, 850 So.2d 597 (Fla. 4th DCA 2003), relied upon by the state. In Green, unlike in this case, there was not a “total lack of evidence of the lesser offense.” Id. at 599 (citation omitted).

As did the second district in Pepitone, we reverse the attempted burglary conviction and remand with directions to enter a judgment and sentence for trespass. We find this case to be different than Richardson, involving a similar error on an attempt charge, where we remanded for a new trial. In that case, the entire conviction was reversed because of an improper closing argument by the prosecutor, which necessitated the new trial. Richardson, 922 So.2d at 335-36.

In the other point raised, we find no error under Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), approved in Hardwide v. State, 521 So.2d 1071, 1074-75 (Fla.1988).

We reverse the attempted burglary conviction and remand for the trial court to enter a judgment and sentence for trespass.

WARNER and LEVINE, JJ., concur.


text:
    Valencia SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5028.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 2010.
    Valencia Smith, Riverview, pro se.
    No response filed on behalf of respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the authority of State v. Schlabach, 1 So.3d 1091 (Fla. 4th DCA 2009).

GROSS, C.J. WARNER and HAZOURI, JJ., concur.


author: WETHERELL, J.

text:
    Azeem TEART, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3821.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2010.

      Azeem Teart, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant seeks review of the trial court’s order summarily denying his rule 3.850 motion alleging one claim of ineffective assistance of trial counsel. We reverse and remand for an evidentiary hearing.

Appellant was a front-seat passenger in a vehicle that was stopped for running a red light. Upon making contact with the vehicle, the officer saw Appellant without his seat belt on and asked for his name. When Appellant gave a false name, the officer arrested him for violating section 901.36(1), Florida Statutes (2004). A subsequent search of the vehicle incident to Appellant’s arrest revealed cocaine in the center console and a firearm under Appellant’s seat. The arrest report attached to the trial court’s order shows that Appellant was arrested for these offenses, and for a number of outstanding warrants. However, the narrative in the arrest report does not discuss the warrants or indicate when the warrants were discovered in relation to Appellant’s arrest for giving the officer a false name or the search of the vehicle.

In his motion for postconviction relief, Appellant claimed that his trial counsel was ineffective for failing to file a motion to suppress the cocaine and the firearm because those items were seized incident to an unlawful detention and arrest. The trial court summarily denied the motion, finding that the record refuted his claim because even if the initial detention was illegal, the officer’s discovery of Appellant’s outstanding warrants was an intervening circumstance that purged the taint of the illegality, and, therefore, Appellant could not show that his trial counsel was ineffective for failing to file a meritless motion to suppress.

The limited record before us does not refute Appellant’s claim that his initial detention and arrest for violating section 901.36(1) was illegal because there is no indication that the officer observed him not wearing his seat belt while the vehicle was moving. In Cooks v. State, 901 So.2d 963, 964 (Fla. 2d DCA 2005), the court held that if the officer does not know whether the passenger was wearing a seat belt while the vehicle was moving, the officer lacks reasonable suspicion necessary to detain the passenger, and without such, the contact becomes a consensual encounter and the giving of a false name is not a crime. Similarly, we held in Jackson v. State, 1 So.3d 273 (Fla. 1st DCA 2009), that giving a false name to a law enforcement officer is not a crime under section 901.36(1) unless it occurs during a lawful detention or arrest.

We agree with the trial court that the illegality of the initial detention is not sufficient for a successful motion to suppress because the taint of evidence seized incident to an illegal detention may be purged based upon intervening circumstances such as the discovery of an outstanding warrant after the illegal detention but before the search. See State v. Frierson, 926 So.2d 1139, 1144-45 (Fla.2006). However, the limited record before us does not show that the discovery of Appellant’s outstanding warrants was an “intervening circumstance” because there is no indication when the warrants were discovered in relation to Appellant’s illegal detention and the resulting search of the vehicle in which he was riding. Moreover, it appears that the trial court did not consider the other factors that are to be weighed and balanced in determining whether the taint of an illegal detention has been purged, i.e., the time elapsed between the illegality and the acquisition of the evidence and the purpose and flagrancy of the official misconduct. Id. at 1143.

On appeal, in response to our order to show cause, the state contends that Appellant cannot show that his trial counsel was ineffective because there is no indication in the record that Appellant informed counsel that he was wearing his seat belt while the vehicle was moving and that he removed the seat belt after the vehicle stopped but before the officer approached the vehicle. However, this would be a matter for an evidentiary hearing because the limited record before us does not refute Appellant’s claim that his initial detention was illegal.

In sum, because the record does not refute Appellant’s claim that the evidence seized incident to his illegal detention should have been suppressed, the record likewise does not refute Appellant’s claim that his trial counsel was ineffective for not filing a motion to suppress. Accordingly, we reverse the order on appeal and remand for an evidentiary hearing on Appellant’s motion for postconviction relief. See Fla. R.App. P. 9.141(b)(2)(D).

REVERSED and REMANDED for further proceedings.

KAHN and LEWIS, JJ., concur.


text:
    Brian A. STRAWDER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4101.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2010.
    Brian A. Strawder, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Brian A. Strawder petitions this court for a writ of mandamus, asking that this court direct the Circuit Court for Columbia County to reinstate his motion for postconviction relief and assign another judge to rule on it. He correctly points out that the judge who acted on the motion had been disqualified prior to trial proceedings because the judge, while employed as an Assistant State Attorney, had prosecuted the petitioner in other cases. Having considered the petition and the response of the state, which concedes that the petitioner is entitled to relief under the rationale of Goolsby v. State, 914 So.2d 494 (Fla. 5th DCA 2005), we grant the petition and issue the writ of mandamus. The Circuit Court for Columbia County is directed to reinstate Strawder’s motion for postconviction relief in case number 2002-CF-644-A and a ruling shall be made on that motion by a different circuit court judge.

PETITION GRANTED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Luverne COUNCIL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3471.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2010.
    Luverne Council, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Luverne Council is hereby afforded a belated appeal from judgment and sentence in case number 2008-CF-000428-A ip the Circuit Court for Escambia County. See Kelly v. State, 959 So.2d 1282 (Fla. 1st DCA 2007). Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

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

PETITION GRANTED.

VAN NORTWICK and CLARK, JJ., and BERGER, WENDY, Associate Judge, concur.


author: ALTENBERND, Judge.

text:
    Sidney DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2630.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2010.

      Sidney Davis, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Sidney Davis appeals the denial of his petition for a writ of habeas corpus seeking an immediate release from prison. We reverse and remand with directions for the circuit court of the Sixth Judicial Circuit for Pasco County to transfer the petition to the circuit court of the First Judicial Circuit for Escambia County as a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Although there may be some explanation, on the face of this court’s record it appears that Mr. Davis is serving a life sentence for a second-degree felony and that he has been in prison for this second-degree felony for more than thirty years.

Our record is limited to the exhibits attached to Mr. Davis’s petition for writ of habeas corpus. The documents, however, appear to be accurate copies of the information and the judgment and sentence from his 1976 criminal case, which were filed in the circuit court in Escambia County. The information, dated May 11, 1976, contains three counts. Count I alleges burglary in violation of section 810.02(3), Florida Statutes (1975), which was a second-degree felony in 1976. Count II is sexual battery in violation of section 794.011(3), Florida Statutes (1975), which was a first-degree felony, punishable by life in prison. Count III is petit theft of a pack of cigarettes and an “undetermined amount of pennies.” The judgment and sentence, dated November 19, 1976, state that he has been convicted of “burglary,” “sexual battery,” and “petit theft.” The sentences imposed, respectively, are life, 20 years’ imprisonment, and 60 days in the county jail, all concurrent. The only sentence that has not expired at this time is the life sentence for burglary.

It is apparent from our record that the State could have charged Mr. Davis with burglary with an assault in 1976 under section 810.02(2), which was a first-degree felony punishable by life, or the trial judge could have imposed a life sentence for the sexual battery. It does not appear, however, that either of these options occurred. On the face of our record, Mr. Davis simply appears to have received an illegal sentence for a burglary for which he was charged and convicted under section 810.02(3). See Helmick v. State, 569 So.2d 869 (Fla. 2d DCA 1990) (holding that it is fundamental error to enhance a conviction when the count of the information charging the offense does not allege the enhancement, even though another count of the same information charging a different offense committed in the same criminal episode alleges the enhancement); Colwell v. State, 448 So.2d 540, 541 (Fla. 5th DCA 1984) (holding that “[e]ach count of an information stands on its own, is the only vehicle by which the court obtains its jurisdiction[,] and is a limit upon that jurisdiction”).

Our record contains an order from the circuit court in Escambia County, which would suggest that Mr. Davis has filed one or more motions in an effort to obtain postconviction relief in the court where he was sentenced. The order that we have, dated January 18, 2008, refused to address Mr. Davis’s claim as a motion pursuant to rule 8.800(a) and treated it as an untimely motion pursuant to rule 3.850. The order further indicates that relief, if available, would be by habeas corpus in the county where Mr. Davis is incarcerated.

The order dated January 18, 2008, is confusing to this court because it states:

Defendant is not arguing that a sentence of life cannot be imposed on one convicted of burglary of an occupied dwelling with a weapon, rather he is arguing that he was not convicted of burglary of an occupied dwelling with a weapon. Such challenges would be properly raised in a motion for postconviction relief pursuant to Florida Rule of Criminal Proeedui’e 3.850, not in a Motion to Correct Illegal Sentence.

Perhaps the circuit court in Escambia County has an amended information or another judgment and sentence. The documents filed in this court do not have an information charging burglary with a weapon. We do not have a judgment of conviction for that offense. We have an information charging a second-degree felony, a conviction for that felony, and then, oddly, a life sentence for a second-degree felony.

This court is now reviewing Mr. Davis’s case because Mr. Davis was and currently still is imprisoned in Pasco County, which is within the territorial jurisdiction of this court. Mr. Davis followed the suggestion of the circuit court in Escambia County and filed his challenge to his sentence as a petition for habeas corpus in Pasco County, attaching the documents we have described in this opinion. The circuit court in Pasco County denied his petition with no explanation beyond the word, “denied,” so we do not have the benefit of that court’s analysis. We, of course, understand that the circuit court in Pasco County had limited authority under a petition for habeas corpus and that it could review only to determine “whether the court that entered the order was without jurisdiction to do so or whether the order is void or illegal.” Alachua Reg’l Juvenile Detention Ctr. v. T.O., 684 So.2d 814, 816 (Fla.1996).

It is true that in Cochran v. State, 899 So.2d 490 (Fla. 2d DCA 2005), this court ordered a resentencing in similar circumstances. However, Mr. Cochran had committed his criminal offenses in Sarasota County, which is located within this court’s territorial jurisdiction, allowing this court to determine the level of felony for his conviction and the applicable statutory maximum.

It seems clear in this case that the circuit court in Escambia County had jurisdiction over Mr. Davis’s case in 1976. We are unconvinced that either the circuit court in Pasco County or this court could declare Mr. Davis’s sentence for burglary to be “void.” We do not interpret the word “illegal” in T.O. to give all custodial circuit courts jurisdiction to conduct proceedings to determine whether sentences are “illegal,” given that the sentencing court in each case retains jurisdiction to conduct such a review under rule 3.800(a) “at any time.”

Our recent opinion in Stang v. State, 24 So.3d 566 (Fla. 2d DCA 2009), does not hold otherwise and is distinguishable. In Stang, this court determined that an amended sentence imposed by the circuit court in Palm Beach County, which authorized Stang’s incarceration, was void and that enforcement of the sentence as originally imposed in Palm Beach County entitled Stang to an immediate release from his imprisonment in Polk County. Id. The circumstances justifying the use of a writ of habeas corpus in such a fashion are very limited, and a habeas petition filed in the county of imprisonment is not a substitute for challenging sentences by appropriate postconviction motions filed in the county of sentencing. See Broom v. State, 907 So.2d 1261 (Fla. 3d DCA 2005).

At this point, over thirty years after the imposition of the life sentence, we conclude that Mr. Davis’s claim that the imposed life sentence exceeds the statutory maximum sentence for the second-degree felony must be raised by a Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence filed in the circuit court for Escambia County. Such a motion would not appear to be successive, given that the last order from Escambia County refused to consider his claim under that rule. Obviously, relief may be granted to correct a manifest injustice even if the circuit court has previously denied a claim on its merits. See Eason v. State, 932 So.2d 465 (Fla. 1st DCA 2006).

Accordingly, we reverse the order of the circuit court of the Sixth Judicial Circuit in Pasco County denying Mr. Davis’s petition for a writ of habeas corpus and direct that the petition be transferred to the circuit court of the First Judicial Circuit in Es-cambia County as a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). See Bush v. State, 945 So.2d 1207, 1215 (Fla.2006).

Reversed and remanded with directions.

CASANUEVA, C.J, and VILLANTI, J., Concur.

      . Even though our reversal is not based on the inadequacy of the content of this order denying relief, circuit court orders denying such motions should articulate a factual or legal basis supporting the order to provide the opportunity for meaningful judicial review and perhaps to convince the prisoner that the order is correct and does not need to be appealed. See Walters v. State, 994 So.2d 1230 (Fla. 2d DCA 2008).


author: MORRIS, Judge.

text:
    Alexis DEL VALLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2300.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2010.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Alexis Del Valle appeals his sentences for armed kidnapping, robbery with a deadly weapon, grand theft of a motor vehicle, battery on a victim over 65, possession of cannabis, and possession of drug paraphernalia. We affirm his convictions and sentences but reverse and remand for further proceedings on costs and fees.

Del Valle argues that the trial court erred in imposing $150 in prosecution costs because the costs were not requested or announced at sentencing and no documentation was presented supporting the costs. The State concedes error on this point. Del Valle preserved this sentencing error by filing a motion to correct sentencing error. See Fla. R.Crim. P. 3.800(b)(2). The trial court did not rule on the motion within 60 days; therefore, it is deemed denied. See Fla. R.Crim. P. 3.800(b)(2)(B), (b)(1)(B). Under the version of the cost statute applicable to Del Valle, Del Valle is liable for documented costs of prosecution if the documented costs were requested by the prosecuting agency. See § 938.27(1), Fla. Stat. (2007). The written sentence provides that $150 was assessed for prosecution costs, but the sentencing transcript indicates that the State did not request such costs or produce documentation to support such costs. Therefore, these costs must be stricken. See James v. State, 898 So.2d 1161, 1162 (Fla. 2d DCA 2005); Ortiz v. State, 884 So.2d 77, 78 (Fla. 2d DCA 2004). The trial court may impose the costs on remand if the statutory requirements are met. See Diaz v. State, 901 So.2d 310, 311 (Fla. 2d DCA 2005); Ortiz, 884 So.2d at 78.

Del Valle also argues that the trial court erred in imposing $110 and $40 in public defender fees because the fees were not announced at sentencing and Del Valle was not informed of his right to contest the awards. The State also concedes error on this point. The public defender fees were not announced at sentencing, and Del Valle was not advised of his right to a hearing to contest the amount of the public defender fees. See Fla. R.Crim. P. 3.720(d)(1). Therefore, the public defender fees must be stricken. See Walker v. State, 660 So.2d 361, 361 (Fla. 2d DCA 1995). On remand, the trial court may reimpose the fees only if it provides Del Valle notice of its intent to do so and the opportunity to be heard at a hearing on the matter. See Bruno v. State, 960 So.2d 907, 907 (Fla. 2d DCA 2007).

Affirmed in part, reversed in part, and remanded.

ALTENBERND and SILBERMAN, JJ., Concur.

      . Section 938.27(1) was amended in 2008 to no longer require such costs to be documented. See ch. 2008-111, § 44, at 1198, Laws of Fla.


author: WEBSTER, J.

text:
    KEYSTONE PEER REVIEW ORGANIZATION, INC., Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D09-4350.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2010.
    J. Stephen Menton and John M. Lockwood of Rutledge, Ecenia & Purnell, P.A., Tallahassee, for Appellant.
    Tracy Lee Cooper, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   WEBSTER, J.

Keystone Peer Review Organization, Inc., seeks review of a final order entered by the Secretary of the Agency for Health Care Administration (AHCA) dismissing Keystone’s formal written protest and petition for an administrative hearing pursuant to a motion to dismiss filed by AHCA staff. The sole basis articulated in the order for dismissal was that, “[bjecause [AHCA] was not required to engage in competitive bidding, it was not bound to follow competitive bidding procedures and [Keystone] does not have standing to protest [AHCA’s] decision to enter into a contract with [Louisiana Health Care Review].” We conclude that the record on appeal does not contain competent substantial evidence to support the determination that “[AHCA] was not required to engage in competitive bidding.” Accordingly, we reverse, and remand with directions that AHCA refer Keystone’s petition to the Division of Administrative Hearings for a formal hearing, pursuant to section 120.57, Florida Statutes (2009).

On January 8, 2009, AHCA issued a “Request for Information” inviting vendors potentially interested in contracting with AHCA to provide “prior authorization of inpatient medical and home health services for Medicaid in the state of Florida” to submit information. The Request for Information stated that the information submitted would be used to identify interested vendors, but would “not result in the award of a contract.” The estimated annual funding for the proposed contract was between $11,000,000 and $12,500,000. Keystone and Louisiana Health Care Review were among the nine responding vendors. A “Decision Memorandum” released on June 3, 2009, recommended that AHCA award the contract to Louisiana Health Care and, on June 9, 2009, AHCA posted an “Advertisement” on its web site reflecting its decision to enter into a contract with Louisiana Health Care.

On June 19, 2009, Keystone filed with AHCA its protest and petition challenging the award and requesting an administrative hearing pursuant to section 120.57(1) and (3)(b), Florida Statutes (2008), claiming that the contract was subject to the competitive procurement requirements of chapter 287, Florida Statutes, and that the procurement process used did not comply with those requirements. AHCA’s legal department responded with a motion to dismiss contending that the contract was exempt from the competitive procurement requirements of chapter 287 pursuant to section 287.057(5)(f)6, Florida Statutes, and that, therefore, Keystone lacked standing to protest the process used to award the contract, citing University of South Florida College of Nursing v. State Department of Health, 812 So.2d 572 (Fla. 2d DCA 2002). On August 17, 2009, AHCA’s Secretary entered a final order dismissing the protest and petition, stating that, “[b]ecause [AHCA] was not required to engage in competitive bidding, it was not bound to follow competitive bidding procedures and [Keystone] does not have standing to protest [AHCA’s] decision to enter into a contract with [Louisiana Health Care Review].” Keystone now appeals, arguing, among other things, that we should reverse because a factual dispute exists as to whether the contract is exempt from the competitive bidding process by virtue of section 287.057(5)(f)6, Florida Statutes (2008), and the record contains no competent substantial evidence demonstrating that the contract is exempt pursuant to that provision. We agree.

Section 287.057(5)(f)6 exempts from the competitive bidding process set out in other parts of that section “[h]ealth services involving examination, diagnosis, treatment, prevention, medical consultation, or administration.” In the only reported decision addressing the issue, the Second District Court of Appeal has held that, if a contract is exempt from the competitive bidding process by virtue of section 287.057(5)(f)6, a party that unsuccessfully attempted to secure the contract is not entitled to a formal administrative hearing, even if the contracting agency “elects to employ a competitive mechanism for sorting out its choices.” Univ. of S. Fla. Coll. of Nursing v. State Dep’t of Health, 812 So.2d 572, 574 (Fla. 2d DCA 2002).

AHCA argues that the contract in question “fall[s] squarely within the ... exemption, because [it] involve[s] both health consultation and health services administration.” It invites us to reach that conclusion after reviewing the Request for Information and a plethora of federal and state statutes, rules and documents. We decline AHCA’s invitation to engage in appellate fact-finding. See Siegel v. Career Serv. Comm’n, 413 So.2d 796, 797 (Fla. 1st DCA 1982) (“[fjact-finding is solely within the province of lower tribunals, either administrative or judicial”). Keystone alleged in its protest and petition that the contract did not qualify for exemption, and that AHCA’s insistence that it did was a subterfuge to avoid the competitive bidding requirements of chapter 287, We must accept those allegations as true for purposes of this appeal. See Mid-Chattahoochee River Users v. Fla. Dep’t of Envtl. Prot., 948 So.2d 794, 796 (Fla. 1st DCA 2006) (“[i]n determining whether a party has standing to seek a formal administrative hearing, the allegations contained in the party’s petition must be taken as true”). The allegations are sufficient to demonstrate standing. See Fairbanks, Inc. v. State Dep’t of Transp., 635 So.2d 58, 60-61 (Fla. 1st DCA 1994) (a party claiming that an agency has sought to subvert the purpose of competitive bidding has standing to challenge such action as fraudulent, arbitrary, illegal or dishonest in a section 120.57 proceeding).

We reverse AHCA’s final order dismissing Keystone’s protest and petition for lack of standing, and remand with directions that AHCA refer the protest and petition to the Division of Administrative Hearings for a formal hearing. Should the administrative law judge conclude following an evidentiary hearing that the contract is exempt from the competitive bidding process outlined in chapter 287, Florida Statutes, by virtue of the section 287.057(5)(f)6 exemption, she shall dismiss the protest and petition on the authority of University of South Florida College of Nursing v. State Department of Health, 812 So.2d 572 (Fla. 2d DCA 2002). See Sys. Components Corp. v. Fla. Dep’t of Transp., 14 So.3d 967, 973 n. 4 (Fla.2009) (“[i]n the absence of inter-district conflict or contrary precedent from th[e Supreme] Court, it is absolutely clear that the decision of a district court of appeal is binding precedent throughout Florida ”) (citing Pardo v. State, 596 So.2d 665, 666 (Fla. 1992)); Scottsdale Ins. Co. v. Desalvo, 666 So.2d 944, 946 (Fla. 1st DCA 1995). Should the administrative law judge conclude that the contract is not exempt from the competitive bidding process, she shall resolve the protest and petition on the merits.

REVERSED and REMANDED, with directions.

PADOVANO and THOMAS, JJ., concur.


author: GERBER, J.

text:
    S.W., a juvenile, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D08-4040, 4D08-4047, 4D08-4048.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.
    Rehearing Denied Jan. 27, 2010.
    Lewis K Hanna, of Boca Raton, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

GERBER, J.

We deny S.W.’s motion for rehearing, and substitute the following for our November 18, 2009 opinion to clarify the propriety of the juvenile court’s disposition.

The juvenile court adjudicated S.W. delinquent for her participation in a petit theft. Without further comment, we affirm the court’s denial of S.W.’s motion for judgment of acquittal. We also affirm the court’s departure from the Department of Juvenile Justice’s recommended disposition. We choose to address the departure issue in greater detail.

At the time of the offense, S.W. was seventeen years old. She was on juvenile probation for having committed misdemeanor battery, and on adult probation for having committed criminal mischief. In the past, she also received pretrial diversion for burglary of a dwelling.

Following the theft adjudication, and after accepting S.W.’s no contest plea for violating her probation on the battery and criminal mischief charges, the court held a disposition hearing. The Department’s pre-disposition report contained a comprehensive evaluation indicating that S.W. had psychiatric issues, suicidal ideations, and an extensive substance abuse history. The evaluation recommended that the court place S.W. in a highly-structured residential facility capable of handling her substance abuse issues. Based on the court’s review of the evaluation, the court commented that S.W. appeared to be an “out-of-control drug user who is lucky to be alive.” Nevertheless, the Department opined that S.W. was a low risk for re-offending or flight, and recommended that S.W. continue on probation, with the added special condition of residential drug treatment and aftercare. When the court challenged the Department’s representative as to how the Department could justify its recommendation in light of the evaluation’s recommendation, the representative responded, in pertinent part, “I cannot.”

The court rejected the Department’s recommendation. Instead, the court committed S.W. to a Level 8, high-risk program as to each of the three cases, with each disposition running consecutively to the others. A high-risk program is, in pertinent part:

residential and do[es] not allow youth to have access to the community.... High-risk residential facilities are hardware-secure with perimeter fencing and locking doors.... Youth assessed and classified for this level of placement require close supervision in a structured residential setting. Placement in programs at this level is prompted by a concern for public safety that outweighs placement in programs at lower commitment levels.

§ 985.03(44)(d), Fla. Stat. (2007).

The court explained its reasoning for the high-risk program in great detail:

Number one, she’s been in a diversion program, that did not work. She’s been on juvenile probation, that did not work. She was the subject of a restraining order[,] she violated that, that did not work. She’s now on adult probation and none of these things have worked.
Her mother obviously loves her to death, but her mother has been unable to properly supervise her in the home[,] and that’s based on the record here before me. Probation is not the answer.
Last, but not least, the recommendation of probation is incredibly inconsistent with the well-documented and well-supported recommendations of the Comprehensive Evaluation[,] which states ‘that [S.W.] should be placed in a highly structured residential facility capable of handling her substance abuse issues.
The Comprehensive Evaluation more than adequately supports a highly structured residential facility!,] and because of that recommendation, in part, I have chosen a high risk residential program, it is highly structured, it’s a program from which she cannot simply walk away at all.
The second reason why the Court has chosen a high risk as opposed to a Level 6 program, is because this child’s substance abuse problem is the most extensive one this Court has ever encountered ....
If I counted accurately, her substance abuse problem includes tobacco, alcohol, marijuana, cocaine, heroin, LSD, Extacy [sic], Roxycontin, Oxycontin, and Xanax, not to mention the fact that she overdosed and had to be hospitalized for her abuse of Xanax. The Level 8 commitment level will allow this child the maximum opportunity to once and for all address her substance abuse problem. Had the Court chosen probation[,] jurisdiction would end at 19.
If the Court had chosen a Level 6[,] jurisdiction would end at 19. A high risk residential program jurisdiction would not end until age 21 [,] and the child could continue until age 22 if that is necessary to complete her substance abuse [treatment].
Choosing a high risk residential program[,] the Court has virtually guaranteed that all of the recommendations of the Comprehensive Evaluation this child could benefit from[;] that is the only commitment level that’s available to the Court that would ensure those recommendations the child could benefit from....
Last, but not least, the Level 8 commitment will ensure that the child cannot, cannot leave the program if she chooses to, which the evidence and information contained in the Predisposition Report and the Comprehensive Evaluation seem to indicate [she would]. For those reasons I’ve chosen a high risk residential program.

S.W. filed a motion for rehearing, alleging that the evaluation upon which the court relied for the disposition contained numerous factual mistakes and was incomplete. At the resulting hearing, the court reserved ruling on the motion, but commented, “the decision I made I’m comfortable with because it kept this child alive.... I would never [have] agreed to pi’obation under these types of circumstances on these facts as they were presented to me at that time.” The Department then informed the court that placing S.W. into a Level 8 program would not provide the intensive drug treatment which the court felt S.W. needed. Instead, the Level 8 program would provide only “overlay service” for the substance abuse. According to the Department, a Level 6 program would provide a true substance abuse component. After considering this information, the court responded, “she’s not placed in a Level 8 program for punishment- [S]he’s there for treatment. ... [If] she’s not going to be getting treatment in this programf,] I need to know about that.... It will affect my decision.”

Shortly thereafter, the court entered an order denying the motion for rehearing. The record does not indicate whether the Department ever followed through on the court’s direction to notify the court if S.W. would not be getting appropriate treatment in the Level 8 program.

This appeal followed. S.W. argues the juvenile court erred in departing from the Department’s recommendation to continue probation. According to S.W., competent, substantial evidence did not exist to support a Level 8, high-risk residential commitment. S.W. contends the evidence showed the majority of her drug use was two years earlier and she already began voluntary treatment. S.W. also alleges that, even if the court’s concern for intensive drug treatment was accurate, the evidence showed a Level 8 program would not provide such treatment.

Our review of the juvenile court’s departure from the Department’s recommendation is two-pronged: (1) whether the juvenile court employed the proper legal standard in providing its on-the-record departure reasons; and, if so, (2) whether its stated reasons are supported by a preponderance of the competent, substantial evidence contained within the record. E.A.R. v. State, 4 So.3d 614, 638-39 (Fla.2009). Regarding the proper legal standard, the juvenile court must satisfy the following criteria:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay’ ” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.

Id. at 638.

Here, even though the juvenile court rendered its decision before the supreme court issued E.A.R., the juvenile court satisfied E.A.R.’s criteria.

The juvenile court articulated an understanding of the respective characteristics of the opposing restrictiveness levels including the type of child that each restrictiveness level is designed to serve. The court recognized that a high-risk program was justified for a child who had been in a diversion program, on probation, and under parental supervision, of which none “have worked.” The court also acknowledged that a high-risk program, unlike probation, is a “highly structured residential facility ... from which [a child] cannot simply walk away.” The court also expressed that a high-risk program was justified for a child who, based on her history, would attempt to “leave the program.”

The court also articulated an understanding of the potential “lengths of stay” associated with each level. The court stated, “Had the Court chosen probation!]] jurisdiction would end at 19. If the Court had chosen a Level 6[J jurisdiction would end at 19. A [Level 8] high risk residential program jurisdiction would not end until age 21 [,] and the child could continue until age 22.”

The court further articulated an understanding of the divergent treatment programs and services available to the juvenile at these levels. At the disposition hearing, the court initially appeared to believe a Level 8 program would provide the intensive substance abuse treatment which the court desired. The Department then informed the court at the rehearing that a Level 8 program would provide only overlay services. Having heard that information, the court instructed the Department, “[if] she’s not going to be getting treatment in this program[,] I need to know about that.” The record does not indicate whether the Department ever followed through on the court’s direction to notify the court if S.W. would not be getting appropriate treatment in the Level 8 program.

The court logically and persuasively explained why, in light of these differing characteristics, a high-risk program was better suited to serving S.W.’s rehabilitative needs — in the least restrictive setting — while maintaining the state’s ability to protect the public from further delinquent acts. Although the Level 8 program’s overlay services would not provide the most intensive substance abuse treatment which the court desired, jurisdiction for the Level 8 program would not end until S.W. turned twenty-one, and S.W. could continue the program until age twenty-two if necessary to complete any treatment. On the other hand, jurisdiction for probation or a Level 6 program would end when S.W. turned nineteen, and S.W. already had turned eighteen by the time of the commitment. Thus, the court decided it was in S.W.’s best interests to place the length of treatment over the intensity of treatment. S.W.’s psychiatric and substance abuse history, which the court found credible, served as competent, substantial evidence for that decision.

Even if the court erred in reasoning that a Level 8 program was appropriate to address S.W.’s substance abuse problem, the court described that problem as only the “second reason” why the court chose the Level 8 program. The “number one” reason for the court’s choice was its desire to place S.W. in a “highly structured” program from' which she “cannot leave the program if she chooses to, which the evidence and information ... seem to indicate [she would].” Thus, the trial court found that S.W. was a flight risk, and that “[keeping] this child alive” was of highest priority. The fact that neither diversion, probation, nor parental supervision “have worked” to control S.W.’s self-destructive behavior served as competent, substantial evidence for that decision.

In sum, the court employed the proper legal standard in providing its on-the-record departure reasons. The court’s stated reasons also are supported by a preponderance of the competent, substantial evidence contained within the record. Therefore, the trial court satisfied its duty to determine the most appropriate disposi-tional services in the least restrictive available setting.

Affirmed.

POLEN and STEVENSON, JJ., concur.

      . As the court recognized, each of the three offenses carried a maximum one-year term of imprisonment, meaning that the total amount of time which S.W. could spend in a commitment program could not exceed three years.

      . See footnote 1, supra.


text:
    STATE of Florida, Appellant, v. Janet THOMAS, Appellee.
    No. 4D08-4080.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.
    Bill McCollum, Attorney General, Tallahassee, James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellant.

      Reginald A. Mathis of The Law Office of Reginald A. Mathis, LLC, Fort Lauder-dale, for appellee.
   GROSS, C.J.

We affirm the circuit court’s dismissal of this case on the ground that the statute of limitations had run.

By an information filed on October 1, 2003, appellant was charged with grand theft. According to the probable cause affidavit, the offenses occurred before April 26, 2003. Appellant was not arrested until May, 2008.

Prosecution for grand theft must be commenced “within 5 years after the cause of action accrues.” § 812.035(10), Fla. Stat. (2003). Here, the grand theft “accrued” when every element occurred, no later than April 26, 2003. See § 775.15(4), Fla. Stat. (2003). The statute of limitations began to run on April 27, 2003. See id. Where a defendant is not arrested prior to the filing of the information, a prosecution commences when an information is filed, provided that the “information is executed without unreasonable delay.” § 775.15(5)(b), Fla. Stat. (2003). Thus, a prosecution has not “commenced” under the statute until the state has executed the capias without unreasonable delay. See Soto v. State, 982 So.2d 1290, 1291 (Fla. 4th DCA 2008). “[I]nability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered” in determining what is a reasonable delay. Id.; see § 775.15(5)(b), Fla. Stat. (2003); Williams v. State, 913 So.2d 760, 761 (Fla. 4th DCA 2005).

Here, appellant was arrested over five years after the cause of action accrued. The only testimony at the hearing below was that appellant was continuously available in Florida since 2003. The state offered no testimony to explain this unreasonable delay. See Williams, 913 So.2d at 761-62.

Affirmed.

WARNER and LEVINE, JJ., concur.


author: MAY, J.

text:
    Adam MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1800.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.

      Adam Morris, Sneads, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   MAY, J.

The trial court’s attempt to fashion an appropriate sentence for a substance abusing offender is questioned in this appeal. After entering a plea, the defendant appeals the denial of his Rule 3.800(a) motion, challenging the legality of his sentence to drug offender probation. He argues that the trial court erred in sentencing him to drug offender probation for non-drug charges. Legally, he is correct, which requires us to reverse. However, recent changes in the drug offender probation statute will now eliminate this issue in the future.

The defendant entered a negotiated plea, on charges of grand theft, and burglary of a conveyance. The State agreed to dismiss two other charges. The sentence was left open. At the plea hearing, the court advised the defendant he could receive up to 20 years in prison and/or probation. He was not specifically advised that the court could impose drug offender probation; and the defendant did not expressly agree to drug offender probation or placement in a drug treatment facility.

At the sentencing hearing, the defendant’s mother expressed her concerns about “the terrible nature of [the defendant’s] drug addiction” and how it has affected her and the defendant’s twelve-year-old daughter. The court asked whether the defendant had ever received treatment for his drug addiction and his mother indicated that he had been in and out of programs, but nothing had helped. Defense counsel acknowledged the defendant’s need for residential treatment.

The trial court found that the defendant’s crimes were related to his drug addiction and sentenced him to five years in prison, followed by two years community control and two years drug offender probation. As a condition of drug offender probation, the defendant was to be placed in Avon Park Correctional Institution or other facility that provided a drug treatment program.

The defendant filed neither a direct appeal nor a Rule 3.850 motion. He did file, however, a Rule 3.800(a) motion, arguing that the court illegally imposed drug offender probation for crimes other than those enumerated under the drug offender probation statute. See § 948.034, Florida Statutes (2008). The trial court denied the defendant’s motion based on the State’s response.

The defendant’s extensive record, his mother’s testimony concerning his substance abuse, and his counsel’s recognition of the problem all led the trial court to fashion a sentence to not only rehabilitate the defendant, but enhance public safety by preventing further criminal activity. Yet, the existing statutory scheme did not allow for this sentence. Prior to July, 2009, placement on drug offender probation was restricted to those crimes enumerated in section 948.034. See Beals v. State, 14 So.3d 286, 287 (Fla. 4th DCA 2009). The defendant was not charged with one of the enumerated crimes.

For this reason, we must reverse the denial of the defendant’s Rule 3.800(a) motion and remand the case to the trial court for resentencing. This does not preclude the trial court from fashioning a sentence that will require substance abuse treatment as a special condition to probation since the record reflects the connection between the commission of the crimes and the defendant’s substance use. Id.

Reverse and Remand.

POLEN and GERBER, JJ., concur.

      . Effective July 1, 2009, section 948.20, Fla. Stat., the drug offender probation statute, was amended to be applicable to other nonviolent felonies committed on or after July 1, 2009, where the defendant's scoresheet total sentence points are 52 or fewer.


text:
    STATE of Florida, Appellant, v. V.S., a child, Appellee.
    No. 4D09-2653.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Anthony Calvello, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Georgina Jimenez-Orosa, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The state appeals the trial court’s order suppressing drugs found in V.S.’s purse. The issue the parties address on appeal is whether the father could consent to a search of V.S.’s purse. In State v. S.B., 758 So.2d 1253 (Fla. 4th DCA 2000), we held that a parent had authority to consent to a search of a child’s room by police officers, over the child’s objection, when confronted with information indicating that the child was selling drugs and stolen weapons from the house. The initial factual question in this case, however, is whether the father consented to a search at all, and we must interpret the facts in a light most favorable to the appellee. The trial court did not make a specific finding that the father actually consented to a search. A deputy testified that V.S.’s father gave permission to search her room, yet that same deputy said that the purse was not found in the room but was opened by the father who gave the drugs to the deputy upon their arrival at the house. The trial court found this deputy’s testimony not to be credible. A second deputy did not testify that anyone gave consent to a search but testified that the purse was found in the child’s room in a drawer. The father did not testify. On these widely divergent facts, we cannot conclude that the trial court erred in suppressing the evidence.

Affirmed.

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


author: SCHWARTZ, Senior Judge.

text:
    Troy COVENY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2303.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.
    Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Because the trial court was, to say the least, free to reject the defendant’s dubious explanation for not reporting to the probation office as ordered, Adams v. State, 979 So.2d 921, 928 (Fla.2008) (“The trial court was well within its discretion in rejecting [a defendant’s] excuse as unpersuasive”), the order revoking his probation on the ground that he willfully did not report is affirmed. See State v. Carter, 835 So.2d 259 (Fla.2002). The provision of the order stating that a basis for revocation was violating condition 5 was entered in error and is vacated.

Affirmed as amended.

      . Among other things, the defendant claimed that he was confused that the day on which he was required to report was Friday, rather than Thursday, which it actually was, with the concomitant consequence that he thought that the next day — on which he also did not report — was Saturday, when he thought the office was closed.


author: ROTHENBERG, J.

text:
    Uberlando LEYVA and Alicia Llanes, Appellants, v. Salvador TRUJILLO and Enterprise Leasing Company, Appellees.
    No. 3D08-2090.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.
    Lidsky, Vaccaro, Montes & Martinez and Juan C. Montes and Daniel Martinez, Hialeah, for appellants.
    Cooney, Mattson, Lance, Blackburn, Richards & O’Connor and Warren B. Kwavnick, Ft. Lauderdale, for appellees.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

In this automobile negligence action, the plaintiffs, Uberlando Leyva and Alicia Llanes, appeal the denial of their motion for new trial which asserted that the jury’s verdict of no liability on the part of the defendants, Salvador Trujillo and Enterprise Leasing Company, is against the manifest weight of the evidence. As the evidence adduced at trial was conflicting, we find that the trial court did not abuse its discretion in denying the motion for new trial. See Weatherly v. Louis, — So.3d -(Fla. 3d DCA 2009); Rosario-Paredes v. J.C. Wrecker Sen., 975 So.2d 1205 (Fla. 5th DCA 2008).

The remaining issue raised by the plaintiffs lacks merit. Accordingly, we affirm.

Affirmed.


text:
    John W. MANN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3175.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.
    John W. Mann, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We dismiss this appeal, as orders denying motions to mitigate brought pursuant to Florida Rule of Criminal Procedure 3.800(c) are not appealable. See Jackson v. State, 936 So.2d 775 (Fla. 5th DCA 2006).

Dismissed.


text:
    J.C., the mother, and H.C., the father, Appellants, v. The DEPARTMENT OF CHILDREN & FAMILY SERVICES, et al., Appellees.
    Nos. 3D09-2337, 3D09-2164.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.
    Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel; Crystal McBee, Jupiter; Thomas J. Butler, Miami Beach, for appellants.
    Karla Perkins, Assistant District Legal Counsel for the Department of Children and Families; Robert Latham and Hillary S. Kambour, for the Guardian ad Litem Program.
    Before RAMIREZ, C.J., ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

J.C., the mother of three-year-old G.C. and eighteen-month-old J.C., and H.C., the father of G.C., appeal from final judgments terminating their parental rights to those children. Although there are several other procedural and substantive issues which give us pause as to the legal sufficiency of the proceedings below, we reverse the judgments and remand for further proceedings on the fundamental ground that there was no showing of any statutory basis justifying that drastic remedy as to either child or either parent. With the immaterial distinction that the parents’ alleged inadequacies arose from drug use, rather than, as in this case, mental illness, the facts of the recent case of In re S.F., 22 So.3d 650 (Fla. 2d DCA 2009), are almost identical. Most importantly, as in S.F., there was no showing, as required by the only even arguably applicable provision, section 39.806(l)(c), Florida Statutes (2008), that “ ‘continued interaction with the parent threatens the life, safety, or health of the child, and ... that this threat cannot be remedied by the provision of services.’ ” In re S.F., 22 So.3d at 653 (quoting T.H. v. Dep’t of Children & Family Servs., 979 So.2d 1075, 1082 (Fla. 2d DCA 2008)). See also C.C. v. Dep’t of Children & Family Servs., 812 So.2d 520 (Fla. 1st DCA 2002).

Reversed and remanded.

      . H.C. is not the biological father of J.C. (that person’s identity is unknown), and was not married to the mother.


text:
    M.B., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 3D09-962.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.
    Dana M. Gallup, Hollywood, for appellant.
    John D.C. Newton, II, General Counsel, and Jonathan D. Grabb, Tallahassee, Agency for Persons with Disabilities, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

This is an appeal from a final administrative order in favor of the Florida Agency for Persons with Disabilities, upholding its partial denial and reduction of services which had been provided to M.B. for 2008. The ALJ hearing and its result occurred before our decision in M.B. v. Agency for Persons with Disabilities, 13 So.3d 509 (Fla. 3d DCA 2009), which dealt with the same issues as to 2007. Because we find no distinction between the underlying facts and the applicable law as to the two cases, we adopt the opinion and holding of M.B. I and “reverse the previously-allowed three hours per day of ‘additional in-home supports above the live-in rate’ and remand for an allowance of six additional in-home support hours per day; and ... reverse the disallowance of M.B.’s personal emergency response system and artificial tears.” M.B., 13 So.3d at 515. The order under review is otherwise affirmed.

Affirmed in part, reversed in part.