author: WALLACE, Judge.

text:
    L.D.K., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-454.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2009.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

L.D.K. appeals the order of adjudication of delinquency and resulting dispositions for felony fleeing or attempting to elude and resisting an officer without violence. L.D.K.’s appellate counsel filed an Anders brief suggesting the possibility of error in the denial of L.D.K’s motion for judgment of dismissal. Appellate counsel also suggests the possibility of disposition error. We have carefully reviewed the record and find no error concerning the first issue or the disposition ordered for the count of felony fleeing or attempting to elude. However, we do detect error in the disposition ordered for the count of resisting an officer without violence. Because this error has not been preserved, we affirm without prejudice to L.D.K’s right to file an appropriate motion for collateral relief.

On January 3, 2008, L.D.K. was adjudicated delinquent of the third-degree felony of fleeing or attempting to elude, a violation of section 316.1935, Florida Statutes (2007), and the first-degree misdemeanor of resisting an officer without violence, a violation of section 843.02, Florida Statutes (2007). On both counts, the circuit court ordered a disposition of juvenile probation for a period not to exceed five years or until L.D.K.’s nineteenth birthday, whichever came first.

The disposition of juvenile probation until L.D.K.’s birthday on May 29, 2009, for the first-degree misdemeanor constitutes disposition error. The juvenile probation period “may not exceed the term for which sentence could be imposed if the child were committed for the offense.” § 985.435(5), Fla. Stat. (2007). A juvenile’s period of commitment “may not exceed the maximum term of imprisonment that an adult may serve for the same offense.” § 985.455(3). Resisting an officer without violence is a first-degree misdemeanor punishable by a term of imprisonment not exceeding one year. §§ 775.082(4)(a), Fla. Stat. (2007), 843.02. Because the circuit court placed L.D.K. on probation for a term greater than one year rather than the statutory maximum, the circuit court may have ordered an illegal disposition. See S.S. v. State, 765 So.2d 949, 950 (Fla. 5th DCA 2000).

However, we may not address this disposition error on direct appeal because L.D.K. did not preserve this issue for appellate review by objecting during the disposition hearing or by filing a motion in accordance with Florida Rule of Juvenile Procedure 8.135(b). See A.F.E. v. State, 853 So.2d 1091, 1093 (Fla. 1st DCA 2003). Accordingly, we affirm L.D.K.’s judgments and sentences without prejudice to any right he may have to file an appropriate motion for collateral relief addressing the unauthorized sentence for the count of resisting an officer without violence.

Affirmed.

NORTHCUTT, C.J., and STRINGER, J., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


source: Caselaw Access Project

author: DAVIS, Judge. VILLANTI, Judge,

license: Public Domain

text:
    POLK COUNTY BUILDERS ASSOCIATION, INC., on behalf of its members and all Homebuilders and Homeowners of Polk County, Hickman Homes, Inc., Tyler Homes of Polk County, Inc., and Florida Homebuilders Association, Inc., Appellants, v. POLK COUNTY, Florida, Appellee.
    No. 2D08-1998.
    District Court of Appeal of Florida, Second District.
    Feb. 27, 2009.
    Amy Brigham Boulris and John W. Little, III, of Brigham Moore, LLP, West Palm Beach, for Appellants.
    Gregory T. Stewart, Harry F. Chiles, and Carly J. Schrader of Nabors, Giblin & Nickerson, P.A., Tallahassee, and Michael S. Craig, Polk County Attorney, and Linda L. McKinley, Deputy County Attorney, Bartow, for Appellee.
   DAVIS, Judge.

Appellants, Polk County Builders Association, Inc.; Hickman Homes, Inc.; Tyler Homes of Polk County, Inc.; and Florida Homebuilders Association, Inc., challenge the constitutionality of Polk County Ordinance 05-48 by arguing that article IX, section 1(a) of the Florida Constitution expressly preempts Polk County from participating in funding the voter-approved ballot initiative to reduce class size. After a review of the language of article IX, section 1(a), we find that it fails to meet the test for express preemption. “Express preemption requires a specific legislative statement; it cannot be implied or inferred.” Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So.2d 637, 644 (Fla. 2d DCA 2007) (citing City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla.2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011, 1018 (Fla. 2d DCA 2005)).

Accordingly, we affirm the trial court’s order granting Polk County’s motion for summary judgment and the subsequent final judgment entered in favor of Polk County.

Affirmed.

KELLY, J., Concurs.

VILLANTI, J., Concurs with opinion.

VILLANTI, Judge,

Concurring.

I fully concur in the majority opinion. I only write to add that, in my view, even if the Appellants had not specifically waived any argument regarding implied or conflict preemption, the undisputed facts would also support an affirmance on those grounds. First, there is nothing in the Class Size Amendment or elsewhere in Florida law that demonstrates a pervasive legislative scheme and a strong public policy reason for precluding local government action — the necessary prerequisites for implied preemption. Browning, 968 So.2d at 645. Unlike the field of vote verification at issue in Browning, an area traditionally regulated only by the State, the field of educational funding is traditionally provided for by local governments, as individual counties have varying needs. Certainly, there is no public policy rationale that requires funding consistency from one county to another so as to potentially preclude a local government’s ability to meet its own educational needs.

Second, the local funding ordinance does not conflict with the Class Size Amendment but rather complements- it. See id. at 649 (“The test for conflict is whether ‘in order to comply with one provision, a violation of the other is required.’ ” (quoting Phantom, 894 So.2d at 1020)). Although Polk County must meet the Amendment’s class size mandate, it is also free to exceed this expectation. Had we agreed with the Appellants, then the Amendment would serve to hamper Polk County’s ability to definitively meet or exceed this goal by providing supplementary funding. Cf. id. at 653 (“Local legislation that ‘supplements a statute’s restriction of rights may coexist with that statute, whereas an ordinance which countermands rights provided by statute must fail.’ ” (quoting City of Miami Beach v. Rocio Corp., 404 So.2d 1066, 1070 (Fla. 3d DCA 1981) (citations omitted))).

In fact, as history in this instance clearly confirms, Polk County Commissioners indubitably exercised their broad home rule powers wisely. But for the Commissioners’ head start solution, and in view of current endemic budgetary shortfalls, compliance with the Amendment’s 2010 deadline might otherwise become problematic. See, e.g., St. Johns County v. Ne. Fla. Builders Ass’n, 583 So.2d 635, 642 (Fla.1991) (holding that section 125.01(1), Florida Statutes (1989), is to be liberally construed in order to secure for counties the broad exercise of their home rule powers).


author: PER CURIAM.

text:
    Paul PERSAUD, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLE, Respondent.
    No. 2D08-5389.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.

      Eilam Isaac, Tampa, for Petitioner.
    Robin Loathe, General Counsel, Tallahassee, and Tamaris E. Reynolds, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Lake Worth, for Respondent.
   PER CURIAM.

Petition granted; circuit court order quashed. See Yankey v. Dep’t of Highway Safety & Motor Vehicles, 6 So.3d 633 (Fla. 2d DCA 2009).

CASANUEVA, C.J., and NORTHCUTT, J, and GALLEN, THOMAS M., Associate Senior Judge, Concur.


author: LaROSE, Judge.

text:
    Michael Andrew CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2256.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.
    Rehearing Denied Aug. 21, 2009.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Michael Andrew Carter appeals his conviction and sentence for robbery with a weapon. We affirm. Mr. Carter correctly notes, however, that the written judgment mistakenly reflects a conviction for robbery with a firearm or deadly weapon instead of robbery with a weapon. See § 812.13(2)(a), (b), Fla. Stat. (2006). As the State concedes, remand is necessary to correct this scrivener’s error. See Flesner v. State, 890 So.2d 331, 332 (Fla. 2d DCA 2004).

Affirmed, but remanded for correction of scrivener’s error.

KHOUZAM and CRENSHAW, JJ., Concur.


text:
    Marvin Eugene DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3302.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.
    James Marion Moorman, Public Defender, and Richard Sanders, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Mr. Dixon may have to file a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

CASANUEYA, C.J., and NORTHCUTT, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


author: CRENSHAW, Judge.

text:
    Jack MORTON, Alexander J. Debay, and Tea Lake Investments, LLC, Appellants, v. ATTORNEYS’ TITLE INSURANCE FUND, INC., and Alan D. Boyd and Korene R. Boyd, husband and wife, Appellees.
    No. 2D08-1313.
    District Court of Appeal of Florida, Second District.
    July 10, 2009.

      Robert L. Donald of Law Offices of Sherman & Donald, Fort Myers, for Appellants.
    David L. Boyette and Bo K. Kim of Ruden, McClosky, Smith, Schuster & Russell, P.A., Sarasota, for Appellee Attorneys’ Title Insurance Fund, Inc.
    Jaime Austrich and Duane A. Daiker of Shumaker, Loop & Kendrick, LLP, Tampa, for Appellees Alan D. Boyd and Ko-rene R. Boyd.
   CRENSHAW, Judge.

Jack Morton, Alexander J. Debay, and Tea Lake Investments, LLC (the Buyers) appeal the trial court’s final summary judgment in favor of Attorneys’ Title Insurance Fund (the Fund) and the Boyds (the Sellers). Because the Fund failed to discover an easement of record and the Sellers conveyed less than what was bargained for in the sales contract, we reverse.

In 2005, the Buyers purchased a 1.12-acre parcel of land from the Sellers and obtained a title insurance policy from the Fund which included coverage for loss or damage incurred by “any defect in or lien or encumbrance on the title.” The sales contract provided that the Sellers would convey marketable title by statutory warranty deed.

Schedule A of the title insurance policy listed the names of the insured Buyers, described the Buyers’ fee simple interest in the land, and incorporated by reference a description of the land. The policy’s Schedule B provided the following exceptions from coverage:

This policy does not insure against loss or damage by reason of the following exceptions:
1. Taxes for the year of the effective date of this policy and taxes or special assessments which are not shown as existing liens by the public records.
2. Rights or claims of parties in possession not shown by the public records.
3. Encroachments, overlaps, boundary line disputes, and any other matters which would be disclosed by an accurate survey and inspection of the premises.
4. Easements or claims of easements not shown by the public records.
5. Any lien, or right to a lien, for services, labor, or material heretofore or hereafter furnished, imposed by law and not shown by the public records.
6. Any adverse ownership claim by the state of Florida by right of sovereignty to any portion of the lands insured hereunder, including submerged, filled and artificially exposed lands, and lands accreted to such lands.
7. The lien of all taxes for the year 2005 and thereafter, which are not yet due and payable.
8. Riparian and littoral rights are not insured.
9. This land lies within Water Management District, and may be subject to assessments, if any, and any rules and regulations which said District may be allowed to establish.
10. Exceptions number 2. and 5. contained herein are hereby deleted.

(Emphasis added.)

The Buyers failed to obtain a survey of the property before closing and later discovered that Highlands County held a maintenance easement encumbering the parcel. The easement was created to maintain a creek that ran along the southern boundary of the property, and prevented the Buyers from building a residential structure on the land. The Buyers subsequently filed suit, arguing the Fund was liable under the title insurance policy and the Sellers breached the sales contract by failing to deliver clear title. The record reflects an accurate survey would have revealed the easement. The court entered summary judgment for the Fund and the Sellers, finding that the accurate survey exception, listed as the third exception in Schedule B to the title insurance policy, barred the Fund’s liability, and that the sales contract merged into the Sellers’ warranty deed, which made an exception for recorded easements. This appeal followed.

We conclude that the trial court improperly entered summary judgment for the Fund and the Sellers. This court reviews a final summary judgment de novo. JP Morgan Chase v. New Millennial, LC, 6 So.3d 681, 684 (Fla. 2d DCA 2009). “Summary judgment should be granted only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, and (2) the moving party is entitled to a judgment as a matter of law.” Id. Here, the Buyers argue the trial court erred in granting summary judgment for the Fund because the accurate survey exception does not apply where the easement was of public record. We agree and find that McDaniel v. Lawyers’ Title Guaranty Fund,, 327 So.2d 852 (Fla. 2d DCA 1976), controls.

In McDaniel, the buyers were issued a title insurance policy containing coverage exceptions similar to those found here. Specifically, Schedule B of the title insurance policy in McDaniel provided the following:

This opinion and guarantee, in addition to any exceptions in the description in Schedule A-3 hereof, is subject to:
1. All taxes for the year of the effective date of this opinion [a]nd guarantee, unless noted here that such taxes have been paid.
2. Rights of persons in possession, other than the Owner.
3. Facts that an accurate survey or personal inspection of the property disclosed or would have disclosed.
4. Unrecorded labor, mechanic, or ma-terialman liens.
5. Zoning and/or other restrictions and prohibitions imposed by governmental authority.
6. Easements and other encumbrances appearing in the plat or drawings referred to under Schedule A-3. Other restrictions, easements and reverter rights, as follows: (If none, so state; if any, copy or make accurate reference thereto.) NONE

Id. at 854 (emphasis added). Just as the Buyers here failed to obtain a property survey in connection with their purchase, the McDaniel buyers also failed to do so and subsequently discovered a maintenance easement which was of public record. This court reversed summary judgment for the insurer and held that a title insurer cannot hide behind its policy’s accurate survey exception to avoid liability when a title defect is of record:

In the face of this positive but inaccurate assurance, we are unwilling to hold as a matter of law that [the buyers] bore the risk of this error simply because they chose not to obtain a survey. In light of the purpose to be served by the exception relating to the requirement for a survey, we construe it as applicable only to those defects in the title which are not ascertainable from the public records or so obvious that a reasonable person upon inspection of the premises should perceive the encumbrance.

Id. at 855.

In reaching the above conclusion in McDaniel, this court considered the purpose of title insurance: “The man on the street buys a title insurance policy to insure against defects in the record title.” Id. (emphasis added); see Lawyers Title Ins. Corp. v. D.S.C. of Newark Enters., Inc. 544 So.2d 1070, 1072 (Fla. 4th DCA 1989) (stating that title insurance was developed and is a successful business because examination of record title is “both an esoteric and a painstaking process” requiring considerable expertise); Krause v. Title & Trust Co. of Fla., 390 So.2d 805, 806 (Fla. 5th DCA 1980) (defining title insurance as a guaranty that a search in the chain of title is accurate and expresses the quality of the title reflected in the record). Because the policy functions as a guaranty, the buyer who purchases title insurance reasonably expects to be protected against title defects which appear of record. McDaniel, 327 So.2d at 856.

This court also noted in McDaniel that coverage exceptions in title insurance policies serve as the only “feasible method” to protect the insurers from circumstances that affect title but are not reflected by an examination of the public records. Id. at 855; see, e.g., Louisville Title Ins. Co. v. Guerard, 409 So.2d 514 (Fla. 5th DCA 1982) (finding the insurer had no duty to indemnify the buyer because unrecorded easements were not within the title insurance policy’s coverage); Krause, 390 So.2d at 806 (acknowledging that title insurance policies do not presume to insure against infirmities not of record).

Florida law requires a title insurer to competently search the record title before issuing a policy. See § 627.784, Fla. Stat. (2005) (“A title insurance policy or guarantee of title may not be issued without regard to the possible existence of adverse matters or defects of title”). Here, as in McDaniel, the Fund “totally overlooked the recorded easement.” McDaniel, 327 So.2d at 855. Because the Buyers were entitled to rely on the policy’s guarantee that there were no recorded easements on the property, we find that placing the burden of loss on the Buyers is error. See also Amidano v. Donnelly, 260 N.J.Super. 148, 615 A.2d 654 (1992) (finding that the insurer bears the risk of loss where an easement is of record).

The maintenance easement here was not “so obvious that a reasonable person upon inspection of the premises should perceive the encumbrance.” McDaniel, 327 So.2d at 855. In McDaniel, the easement was held by a power company to maintain a power line on the property. Even though the buyers saw the power line when they purchased the land, this court held “since the power line traversed the edge of the property, it does not follow that a reasonable person must be held to the constructive knowledge that the easement was inside the boundary line.” Id. at 856. Here, the property contained no significant feature to put the Buyers on notice of the county’s easement to maintain the adjacent creek. The Buyers’ knowledge of the creek’s existence is not sufficient to preclude the Fund’s liability where the Fund failed to discover the easement on record.

We also find that summary judgment for the Sellers was improper, and we reject the Sellers’ argument that the sales contract merged into the Sellers’ warranty deed, which made an exception for recorded easements. Here, the sales contract provided that the Sellers would convey marketable title by statutory warranty deed. The deed here stated “that said land is free of all encumbrances, except taxes accruing subsequent to December 31, 2004.” However, six lines above this language, a clause in the deed stated the conveyance was “[sjubject to taxes for 2005 and subsequent years; covenants, conditions, restrictions, easements, reservations and limitations of record, if any.” (Emphasis added.) Therefore, we find inherent conflict within the deed, which converted the bargained-for statutory warranty deed described in the sales contract into a nullity. Here, the Sellers cannot hide behind the merger doctrine to avoid liability for breach of the sales contract.

For the reasons stated above, summary judgment for the Fund and the Sellers was improper where the Fund failed to discover an easement of record and the Sellers conveyed less than what was bargained for in the sales contract. Accordingly, we reverse the trial court’s final summary judgment in favor of the Fund and the Sellers.

Reversed.

VILLANTI, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . Interestingly, the attorney who wrote the title insurance policy here previously represented the Sellers when they originally purchased the property in 2000. A survey taken incident to the 2000 transaction revealed the county’s maintenance easement.

      . This court also determined the insurance policy in McDaniel was ambiguous and noted that any ambiguity in the policy must be strictly construed against the insurer. McDaniel, 327 So.2d at 854-55. Here, we decline to address the ambiguity issue since it does not affect the outcome of our decision.

      . Under the merger doctrine, " '[i]t is a general rule that preliminary agreements and understandings relative to the sale of property usually merge in the deed executed pursuant thereto.' " Engle Homes, Inc. v. Jones, 870 So.2d 908, 910 (Fla. 4th DCA 2004) (quoting Milu, Inc. v. Duke, 204 So.2d 31, 33 (Fla. 3d DCA 1967)). The purpose of the merger doctrine is not applicable under the circumstances here because the deed language conflicts with the bargained-for sales contract.


author: ALTENBERND, Judge.

text:
    Daniel CALLAGHAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-270.
    District Court of Appeal of Florida, Second District.
    July 15, 2009.
    Daniel Callaghan, pro se.
   ALTENBERND, Judge.

Daniel Callaghan appeals an order entered by the trial court in his criminal case to resolve motions filed several years after this court affirmed the judgment and sentence on appeal. Callaghan v. State, 939 So.2d 100 (Fla. 2d DCA 2006) (table decision). We dismiss the appeal because the order is a nonfinal order not entitled to review.

Our record is very sparse. However, it appears that on May 27, 2008, Mr. Callaghan filed a “Motion for Judge to Act as Seventh Juror” and a motion for new trial. On October 27, 2008, the trial judge denied the unusual motion asking him to sit as a seventh juror and dismissed the motion for new trial as untimely but without prejudice to Mr. Callaghan’s right to file a proper postconviction motion within thirty days.

Although it is not in our record, within thirty days, Mr. Callaghan apparently filed an amended motion for new trial. The trial court concluded that its earlier order may have confused Mr. Callaghan, so it once again dismissed the motion without prejudice, giving Mr. Callaghan another thirty days in which to file a proper post-conviction motion. Mr. Callaghan appealed that order of dismissal to this court.

Both of these rulings seem appropriate and reflect a judge attempting to be quite patient with a pro se litigant while complying fully with Spera v. State, 971 So.2d 754 (Fla.2007). Unfortunately, both orders contain language informing the defendant that he “has thirty (30) days from the date of this Order to file an appeal.” That advice was legally incorrect. Lawrence v. State, 987 So.2d 157 (Fla. 2d DCA 2008). Both the earlier order and this order on appeal are nonfinal postconviction orders that cannot be challenged until the trial court enters a final order on postconviction.

Dismissed.

KELLY and LaROSE, JJ„ Concur.


text:
    Randy Eugene TATMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1225.
    District Court of Appeal of Florida, Second District.
    July 24, 2009.
    Rehearing Denied Aug. 31, 2009.

      James Marion Moorman, Public Defender, and James T. Miller, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Randy Eugene Tatman appeals the post-conviction court’s denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. In his postcon-viction motion, Mr. Tatman asserted six grounds for relief. The postconviction court summarily denied some of the grounds raised and denied others after an evidentiary hearing. We affirm without discussion the postconviction court’s denial of all grounds asserted in Mr. Tatman’s motion except for ground 1(b). We also affirm as to this claim, but we write to explain why the circuit court retained jurisdiction over Mr. Tatman and could revoke his community control after his term of community control had expired.

I. FACTS AND PROCEDURAL HISTORY

Mr. Tatman pleaded guilty to two counts of sexual battery on a person older than twelve years of age but less than eighteen years of age by a person in a position of familial authority. The crimes were committed between December 20, 1998, and March 1,1999, and on March 11,1999. On July 20, 2000, the circuit court sentenced Mr. Tatman to two concurrent terms of two years’ community control followed by eight years’ probation.

On May 17, 2002, Michael Cotignola, Mr. Tatman’s probation officer, arrested Mr. Tatman for violating the terms of his community control. On May 20, 2002, Officer Cotignola filed an affidavit of violation of community control. The circuit court docket reflects that Mr. Tatman was brought before the court on June 5, 2002. However, no warrant was signed or issued before Mr. Tatman’s term of community control expired. During a September 4, 2002, hearing, Mr. Tatman admitted that he had violated the conditions of his community control. The circuit court revoked Mr. Tatman’s community control on January 30, 2003, and sentenced him to two concurrent terms of twenty-five years’ imprisonment. This court affirmed the revocation and resulting sentences without opinion. Tatman v. State, 888 So.2d 36 (Fla. 2d DCA 2004) (table decision).

In ground 1(b), Mr. Tatman alleged that the circuit court lacked jurisdiction to revoke his community control because an arrest warrant was never issued. In its written order, the postconviction court found that “[bjecause no warrant was signed as a result of the affidavit, the revocation process was not legally commenced before the period of community control expired.” Nevertheless, the post-conviction court concluded that the circuit court had jurisdiction to revoke Mr. Tat-man’s probation because (1) Mr. Tatman was sentenced to a probationary term that was consecutive to his term of community control and (2) the affidavit of violation of community control alleged several violations of a condition of community control that was also a condition of probation. Based on this reasoning, the postconviction court denied Mr. Tatman’s claim after an evidentiary hearing. Mr. Tatman appeals this order.

II. DISCUSSION

A circuit court lacks jurisdiction to revoke community control after the term of community control expires unless the revocation process is set in motion during the term of community control. State v. Boyd, 717 So.2d 524, 526 (Fla.1998) (citing Carroll v. Cochran, 140 So.2d 300, 301 (Fla.1962)); Ermatinger v. State, 866 So.2d 698, 699 (Fla. 2d DCA 2003); Morgan v. State, 757 So.2d 618, 619-20 (Fla. 2d DCA 2000). The supreme court has explained that “when the affidavit is filed charging violation of the probation, the warrant is issued and the violator taken in custody within the period of probation, every ingredient of jurisdiction is preserved.” State ex rel. Lee v. Coker, 80 So.2d 462, 463 (Fla.1955). Thus the revocation process is generally set in motion upon “the issuance of an arrest warrant based upon an affidavit alleging a violation of probation.” Jones v. State, 964 So.2d 167, 170 (Fla. 5th DCA 2007); see Morgan, 757 So.2d at 619.

For the reasons outlined below, we conclude that the issuance of an arrest warrant was not required in this case. “The historic purpose of an arrest warrant in the criminal law context was to interpose between the government and the citizen a neutral official charged with protecting basic rights.” Hyser v. Reed, 318 F.2d 225, 243 (D.C.Cir.1963) (en banc); see also Maulden v. State, 617 So.2d 298, 300 (Fla.1993) (explaining that the purpose of an arrest warrant is “ ‘to interpose the magistrate’s determination of probable cause between the zealous officer and the citizen’ ” (quoting Payton v. New York, 445 U.S. 573, 602, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980))); Van Daley v. State, 20 Ark.App. 127, 725 S.W.2d 574, 578 (1987) (“The only purpose of an arrest warrant is to have an accused arrested and brought before the justice or other officer issuing the warrant so that he may be dealt with according to law.”).

Under the facts of this case, the purpose underlying the warrant requirement was satisfied and the issuance of an arrest warrant would have been redundant. See Jones, 964 So.2d at 171 (Orfinger, J., concurring). Section 948.06(1), Florida Statutes (1997), states in pertinent part:

Whenever -within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control has violated his or her probation or community control in a material respect, any ... probation supervisor may arrest ... such probationer or offender without warrant wherever found and forthwith return him or her to the court granting such probation or community control.

This language expressly authorized Officer Cotignola to arrest Mr. Tatman without a warrant. See Grubbs v. State, 373 So.2d 905, 908 (Fla.1979) (interpreting § 948.06, Fla. Stat. (1977)). Furthermore, Mr. Tat-man was brought before the court after his warrantless arrest but before his term of community control had expired. An arrest warrant would not have served any purpose because Mr. Tatman was lawfully arrested and brought before the court. Thus the issuance of an arrest warrant here was not necessary to set the revocation process in motion.

The Fifth District’s decision in Jones does not compel a different result. In Jones, the Fifth District interpreted the 2003 version of section 948.06(1). Mr. Jones was arrested for a new law violation before his probationary period expired. 964 So.2d at 168-69. The arrest affidavit indicated that the new law violation constituted a violation of Mr. Jones’ conditions of probation. Id. at 169. No proper affidavit of violation of probation was filed and no arrest warrant was issued before Mr. Jones’ probationary period expired. Id. at 170. On appeal, the State cited Grubbs as support for its argument that the issuance of an arrest warrant was unnecessary because Mr. Jones had been arrested before the probationary period expired and the arresting officer knew about his probationary status. Id. The Fifth District rejected this argument because, unlike the 1977 version of section 948.06 interpreted by the Grubbs court, the 2003 version of that statute expressly required the filing of an affidavit of violation of probation and the issuance of an arrest warrant before the probationary period would be tolled. Id. at 169-70. Because no affidavit of violation of probation was filed or arrest warrant was issued before the probationary term expired, the Fifth District reversed the revocation of Mr. Jones’ probation. Id. at 171.

Jones is distinguishable from this case for two reasons. First, an affidavit of violation of community control was filed before Mr. Tatman’s term of community control expired. Second, like in Grubbs, the version of section 948.06(1) applicable to this case does not include a tolling provision that requires the filing of an affidavit of violation of probation or the issuance of an arrest warrant. Therefore, the issuance of an arrest warrant was unnecessary because Mr. Tatman had been legally arrested and brought before the court prior to the expiration of his term of community control.

III. CONCLUSION

An affidavit of violation of community control was filed charging Mr. Tatman with violations of the terms of his community control. An arrest warrant would have been superfluous because Mr. Tat-man was taken into custody and brought before the court within the period of community control. Thus the revocation process was legally commenced before the period of community control expired, and the circuit court had jurisdiction to revoke Mr. Tatman’s community control. Accordingly, the postconviction court properly denied ground 1(b) of the motion. Thus we affirm the postconviction court’s order in all respects.

Affirmed.

SILBERMAN and VILLANTI, JJ., Concur.

      . This claim is cognizable in a rule 3.850 motion "because the lack of subject matter jurisdiction is fundamental error that can be raised at any time.” Ford v. State, 994 So.2d 1244, 1245 (Fla. 4th DCA 2008).


text:
    Anthony P. LaROSE and The University of Tampa, Inc., Appellants, v. A.K., Appellee.
    No. 2D08-3756.
    District Court of Appeal of Florida, Second District.
    July 24, 2009.
    John W. Campbell, Michael D. Malfita-no, and David P. Steffen of Constangy, Brooks & Smith, LLC, Tampa, for Appellants.
    Joseph R. Bryant of Joseph R. Bryant, P.A., Tampa, for Appellee.
   PER CURIAM.

Anthony P. LaRose and the University of Tampa appeal a nonfinal order granting A.K.’s motion to enforce temporary injunction. We reverse.

The order on appeal arises from the ongoing proceedings described more completely in this court’s opinion for case number 2D08-1996, issued concurrently with this opinion. In that case we affirmed the initial order granting a temporary injunction, holding that substantial competent evidence supported the trial court’s findings and that the relief granted was appropriate in a preliminary injunction. That order prevented the University of Tampa from “using, enforcing, publishing, promulgating, or otherwise employing” its finding that A.K., a student, committed “plagiarism” and required the University of Tampa to temporarily remove evidence of the plagiarism finding and its impact upon A.K.’s grade from her file.

A.K. subsequently filed a motion to enforce that temporary injunction, claiming that the University had not complied with the trial court’s order. The court granted the motion as follows:

ORDERED AND ADJUDGED that Plaintiffs Motion to Enforce Temporary Injunction and for Related Relief is granted to the extent that The University of Tampa is ordered to cause the Plaintiffs academic record to have no reference to the course CRM 321 using the procedure of “dropping” the course, so that her academic record and transcript will be recalculated without reference to those course hours or grade.

“A preliminary injunction is improperly entered when it bypasses the procedures for a permanent injunction and preliminarily grants the same relief that would have been given in a final order of permanent injunction.” Charlotte County v. Vetter, 863 So.2d 465, 469 (Fla. 2d DCA 2004). This order improperly expands upon the initial temporary injunction to provide A.K. with permanent injunctive relief. It requires the University of Tampa not only to remove the charge of plagiarism from her record but expressly requires the University to “drop” the course and recalculate her grade as if she had never taken the course in the first place. There is no further injunctive relief the trial court could grant A.K. in a subsequent permanent injunction. Accordingly, we reverse the order on appeal and remand for proceedings consistent with this opinion.

Reversed and remanded.

CASANUEVA, C.J., and ALTENBERND and DAVIS, JJ., Concur.


text:
    A.K., Petitioner, v. Anthony P. LaROSE and The University of Tampa, Inc., Respondents.
    No. 2D08-5622.
    District Court of Appeal of Florida, Second District.
    July 24, 2009.
    Joseph R. Bryant of Joseph R. Bryant, P.A., Tampa, for Petitioner.
    John W. Campbell, Michael D. Malfita-no, and David P. Steffen of Constangy, Brooks & Smith, LLC, Tampa, for Respondents.
   PER CURIAM.

A.K. seeks certiorari review of the trial court’s order denying her motion for contempt. We dismiss the petition.

The order under review arises from the ongoing proceedings more thoroughly described in this court’s opinions in case numbers 2D08-1996 and 2D08-3756, issued concurrently with this opinion. In brief, A.K. sought and obtained temporary injunctive relief against the University of Tampa in an initial order by Judge Ralph C. Stoddard. We have affirmed that order in case number 2D08-1996. A.K. then sought to enforce the temporary injunctive order, resulting in a second order by Judge Stoddard which we have reversed in case number 2D08-3756.

While those two appeals were pending, A.K. filed a motion for contempt in the circuit court against the University of Tampa for failing to comply with Judge Stoddard’s prior two orders. By that time Judge Martha J. Cook had rotated into the applicable division and had been assigned this case. Judge Cook denied A.K.’s motion for contempt.

Due to our prior reversal of one of the two orders which A.K. sought to enforce by contempt, we conclude that the instant proceeding is moot and that it would be inappropriate to grant certiorari relief. Additionally, we observe that because A.K. may again seek to enforce the remaining order granting temporary injunctive relief on remand, A.K. cannot be found to have sustained the lasting material injury necessary to invoke this court’s certiorari jurisdiction. See DeLoach v. Aird, 989 So.2d 652, 653 (Fla. 2d DCA 2007) (holding that a district court should dismiss a petition for writ of certiorari for lack of jurisdiction if the petitioner is unable to establish she has suffered a material injury that would continue throughout the remainder of trial and could not be corrected on post-judgment appeal). Consequently, we dismiss the petition for writ of certiorari.

Petition dismissed.

CASANUEYA, C.J., and ALTENBERND and DAVIS, JJ., Concur.


author: CASANUEVA, Chief Judge.

text:
    Carl Edward DENNIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3765.
    District Court of Appeal of Florida, Second District.
    July 31, 2009.
    Rehearing Denied Sept. 22, 2009.

      Carl Edward Dennis, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Chief Judge.

Carl Edward Dennis appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds one, two, four, five, and six without comment. However, we approve the State’s concession of error on ground three and reverse for further proceedings.

Procedural History

The State charged Mr. Dennis with four counts of sexual battery. At trial, a jury convicted him on three counts, acquitting him on one. This court per curiam affirmed his judgment and sentences. See Dennis v. State, 681 So.2d 284 (Fla. 2d DCA 1996) (table decision). Mr. Dennis subsequently filed this motion for postcon-viction relief. The postconviction court summarily denied grounds one through five and, following an evidentiary hearing, denied ground six.

In ground three of his postconviction motion, Mr. Dennis claimed that the trial court erred in declaring him a sexual predator. He asserted that the State charged him with committing his offenses over a thirteen-month time period, part of which preceded the effective date of the Florida Sexual Predators Act. The postconviction court summarily denied the claim, ruling that Mr. Dennis should have raised it on direct appeal.

Analysis

The postconviction court erred in denying ground three. Since 2005, this court has held that “a sexual predator designation ... may be challenged like a sentencing issue by postconviction motions pursuant to rules 3.800(a) and 3.850.” King v. State, 911 So.2d 229, 234 (Fla. 2d DCA 2005).

Additionally, Mr. Dennis’s claim has merit. The State’s felony information charged that Mr. Dennis committed his offenses between January 1, 1993, and February 28, 1994, inclusive. Section 775.21, Florida Statutes (2008), otherwise known as the Florida Sexual Predators Act, only authorizes the imposition of the sexual predator designation for offenses committed on or after the Act’s effective date of October 1, 1993. See ch. 93-277, § 1, at 2624, Laws of Fla.; Anderson v. State, 774 So.2d 719, 719 (Fla. 2d DCA 2000); Wade v. State, 728 So.2d 284 (Fla. 2d DCA 1999), receded from on other grounds in King, 911 So.2d at 233. The State charged Mr. Dennis with committing his offenses during a thirteen-month period that includes dates both before and after the Act’s effective date.

There is no evidence in the record before us to establish the dates of Mr. Dennis’s offenses with any greater specificity than the period charged in the information. The two victims were young children when Mr. Dennis committed his crimes and their trial testimony reflects an inability to identify any precise offense dates. Because it is possible Mr. Dennis committed his offenses before the Florida Sexual Predators Act’s effective date, the rule of lenity prevents the trial court from imposing the sexual predator designation upon him for these convictions. See, e.g., Clements v. State, 979 So.2d 256 (Fla. 2d DCA 2007) (holding that when the legislature lengthened a statute of limitations during the defendant’s nine-month charged time period and the evidence did not precisely determine when the offenses were committed during that time period, the more lenient statute of limitations applied).

On remand, the trial court shall strike the sexual predator designation imposed for the convictions in this case from Mr. Dennis’s record.

Affirmed in part; reversed in part; remanded with instructions.

ALTENBERND and KHOUZAM, JJ., Concur.

      . See Ch. 93-277, § 1, Laws of Fla.


text:
    Jean ATIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5924.
    District Court of Appeal of Florida, Second District.
    Aug. 21, 2009.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Jean Atis appeals his judgments and sentences for attempted carjacking and attempted robbery. He maintains that the State improperly questioned him about his prior record during cross-examination. Although the portion of cross-examination dealing with Mr. Atis’ prior record was poorly handled, we conclude that any error was harmless.

On July 5, 2007, shortly after midnight, a deputy sheriff observed two men fighting next to a taxi van that was stopped in the eastbound lanes of Fletcher Avenue. The deputy activated her emergency lights and broke up the fight. The deputy determined that the fight involved the taxi driver and a passenger. Further investigation revealed Mr. Atis lying on the floor of the rear seat of the taxi.

The taxi driver testified that he was hired by the two men in Ybor City. He had never seen the men before that evening. The men explained that they were leaving Ybor City because Mr. Atis had had too much to drink. Mr. Atis got in the back seat of the cab and lay down, and his friend got in the front seat.

During the drive, the passengers changed their instructions and wanted to go to a different location. Mr. Atis then put his hand around the driver’s neck from the back seat and ordered the driver to give him everything he had. The driver did not immediately obey this instruction. Mr. Atis threatened to shoot the driver and produced a handgun.

The driver observed that the gun appeared to be broken. He took the gun away and began to struggle with the men. He claimed that Mr. Atis jumped into the front seat and tried to take control of the taxi. They struggled for a long time. The man who had been in the front seat exited the taxi. When he saw the deputy’s car, he shouted, “police,” and Mr. Atis hid in the back seat of the taxi.

At trial, Mr. Atis chose to testify. He explained that the two men did hire the taxi in Ybor City. He was intoxicated and lay down on the backseat of the taxi to sleep. The next thing he remembered was waking up when the deputy was at the scene. He remembered no fight, knew nothing about the plastic handgun, and only went to the floor of the taxi when the deputy ordered him to get down on the floor and crawl out of the van. Undoubtedly anticipating the State’s cross-examination, Mr. Atis’ attorney asked him if he had ever been convicted of a felony, and he admitted that he had five prior felonies.

During cross-examination, the assistant state attorney returned to the issue of Mr. Atis’ prior record. The transcript reflects the following:

Q. How many times have you been convicted of a felony?
A. Five times.
Q. And how many were for crimes of dishonesty?
[Defense]: Judge, I’m going to object. Can we approach?
The Court: Sure.
(A BENCH CONFERENCE WAS HELD, AS FOLLOWS:)
[State]: That’s proper.
[Defense]: I’m going to object and say I have already asked my client, have you ever been convicted of a felony and how many times. He said five. This is improper for them to go back over it again. [State]: No, it’s—
[Defense]: I reviewed the fact that my client had five felony convictions with him and I reviewed his convictions.
The Court: I know, but it’s a proper question on cross examination. So, if that’s the basis of your objection I’ll overrule it. But, I don’t know about exactly the way you worded it. I think it’s supposed to be felony or misdemean- or crimes involving dishonesty or moral turpitude is the full question you are supposed to ask so—
[State]: I can ask or how many misdemeanors of dishonesty. But he’s going to say none and then we’re going to be back to the same position, since it’s a felony of dishonesty so—
[Defense]: Well, I don’t know what you want us to do.
The Court: Well, the question is supposed to be asked all in one sentence so—
[Defense]: That’s how I would ask it be asked then.
The Court: Yeah.
[State]: Okay.
(THE BENCH CONFERENCE CONCLUDED.)
Q. Mr. Atis, have you ever been convicted of a felony or misdemeanor crime involving dishonesty?
A. I don’t understand your question.
Q. How many — have you ever been convicted of a felony?
A. Yes.
Q. How many times?
A. Five times.
Q. Have you ever been convicted of any crime, including misdemeanor, of dishonesty?
[Defense]: Same objection, Judge.
The Court: Overruled.
Q. You can answer that?
A. Um, I still don’t understand your question.
Q. Were any of these crimes for anything that is dishonest in nature?
A. I don’t understand.
Q. Okay. Have you ever been convicted of a any [sic] type of crime involving dishonesty, whether it’s a worthless check, a theft charge?
[Defense]: Objection, improper.
The Court: Overruled.
Q. Anything involving any type of dishonest character?
A. Yes.
Q. Okay. How many times?
A. Once.

Obviously, this portion of the transcript is not a model of proper cross-examination and the trial court could have addressed the assistant state attorney’s inexperience and confusion more effectively. The assistant state attorney’s reference to a “felony of dishonesty” explains the source of the confusion during this botched cross-examination.

Mr. Atis had a prior record consisting entirely of felonies. He had convictions for carrying a concealed weapon, felon in possession of a firearm, possession of cocaine, robbery, and uttering a forged instrument. It is apparent that the assistant state attorney believed that one of these felonies, presumably uttering a forged instrument, was a “felony of dishonesty” and that the other felonies were not crimes of dishonesty. Thus, she wished to first establish the number of overall felonies for which Mr. Atis had convictions and then establish how many of these felonies were “crimes of dishonesty.” As explained below, the rule of evidence could be interpreted to permit such a line of questioning, but established procedures do not distinguish between felonies that are or are not crimes of dishonesty. The “crimes of dishonesty” category is used to allow cross-examination about the commission of crimes that typically are misdemeanors.

Section 90.610(1), Florida Statutes (2007), provides:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment....

Under Florida law, all crimes “punishable by death or imprisonment in excess of 1 year” are classified as felonies. See § 775.08(1), Fla. Stat. (2007). Although it is plausible that the phrase “or if the crime involved dishonesty or a false statement regardless of the punishment” could be interpreted to include felonies already described in the preceding phrase, it is well established that these two phrases describe two distinct groups of offenses that do not overlap. As Justice Pariente explained when she was a member of the Fourth District, “The effect of the subsection, as amended by the legislature and as adopted by the supreme court, is to allow impeachment for all felonies, but restrict impeachment to only those misdemeanors involving dishonesty or false statement.” Both v. State, 647 So.2d 881, 884 (Fla. 4th DCA 1994). As such, when a witness has been convicted of a felony, the other party may not inquire further into whether the felony involved dishonesty or false statement because doing so “would have the impermissible and unintended effect of elevating certain felonies over others.” Id.

In Florida Evidence, Professor Eh-rhardt suggests the following line of questions to comply with this rule of procedure:

Q. “Have you ever been convicted of a felony?”
A. “Yes.”
Q. “How many times?”
or, counsel may ask, if applicable,
Q. “Have you ever been convicted of a crime involving dishonesty or false statement?”
A. “Yes.”
Q. “How many times?”

Charles W. Ehrhardt, Florida Evidence § 610.6, at 590-91 (2009 ed.).

At least when none of the offenses were committed in another state, the more specific line of questions suggested by Professors Eleazer and Weissenberger may be more precise and prevent some confusion about whether crimes of dishonesty involve felonies or misdemeanors:

Counsel to witness (cross-examination): Have you ever been convicted of a felony?
Witness: Yes.
Counsel: How many times?
Witness: Two.
Counsel: Have you ever been convicted of a misdemeanor involving dishonesty or false statement?
Witness: Yes.
Counsel: How many times?
Witness: One.

William R. Eleazer & Glen Weissenberger, Florida Evidence 200U Courtroom Manual 404 (LexisNexis 2004).

In this case, it is noteworthy that the error could have been better preserved. In front of the jury, Mr. Atis explained three times that he did not understand the question. In the end, when the assistant state attorney asked whether he had ever been convicted of “any type of crime,” the objection was merely that the question was “improper.” It is obvious that the assistant state attorney knew that she had no evidence of a prior misdemeanor that was a crime of dishonesty. If defense counsel or the court had explained the limits of this rule of evidence to the assistant state attorney, she would not have persisted in this questioning. Throughout the questioning, the assistant state attorney clearly believed in good faith that she could ask the defendant about a “felony of dishonesty.”

During closing argument, both defense counsel and the assistant state attorney discussed Mr. Atis’ prior record. Without objection, the assistant state attorney argued: “Mr. Atis got up here, found out [that he’s] been convicted of five felonies including one for dishonesty. That’s something that you all can consider in your deliberations. That’s something that’s important.”

We conclude, however, that the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The clumsy manner in which these questions were asked did not result in any detailed description of his prior offenses. The assistant state attorney’s prompt that the offense could be an offense like a “worthless check or a theft charge” is not a description of his prior record and did not suggest to the jury that he had an exceptionally bad prior record. At worst, it repeated Mr. Atis’ admission that he had committed five felonies on more occasions than necessary. Interestingly, Mr. Atis apparently reached the same conclusion as the assistant state attorney that his felony conviction for uttering a forged instrument was his one felony of dishonesty. Although the assistant state attorney did mention the “felony of dishonesty” in closing argument, there was no confusion that the total number of prior offenses was five and not more. In the overall context of this trial, we conclude that the error is harmless.

Affirmed.

LaROSE and KHOUZAM, JJ„ Concur.

      . The sheriffs department recovered the gun at the scene of this crime. It was a plastic replica of a dock handgun and it was broken into several pieces when recovered.


text:
    In the Interest of A.O., T.O., and J.O., Jr., children. J.O., Sr., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D08-3787.
    District Court of Appeal of Florida, Second District.
    Aug. 26, 2009.
    Linda C. Clark of Linda C. Clark, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kimberly G. Gore, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin of Guardian ad Litem Program, Orlando, for Appellee Guardian ad Litem Program.
   PER CURIAM.

The Department of Children and Family Services has conceded that the dependency order should be reversed because it lacks adequate findings of fact. It has further conceded that the evidence was insufficient to support an adjudication of dependency. We agree. Accordingly, we reverse and remand with directions to return the children to their father.

Reversed and remanded.

FULMER, NORTHCUTT, and SILBERMAN, JJ„ Concur.


author: FULMER, Judge.

text:
    Thomas C. TURNER III, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-316.
    District Court of Appeal of Florida, Second District.
    Aug. 26, 2009.
    Thomas C. Turner, pro se.
   FULMER, Judge.

Thomas Calvin Turner appeals the summary denial of his motion for presentence jail credit in two lower tribunal cases pursuant to Florida Rule of Criminal Procedure 3.800(a). Although Turner was granted relief in circuit court case number 06-13098, a successor judge deciding Turner’s motion for rehearing/motion for clarification erred when she failed to award credit in circuit court case number 06-3981. The impact of that decision is to render the credit ordered by the first judge in case number 06-13098 meaningless, as the sentences are being served concurrently. Accordingly, we affirm the order granting credit in case number 06-13098 but reverse and remand for the award of additional presentence credit in case number 06-3981.

In 2007, Turner appeared for sentencing in both cases. In accordance with a negotiated plea agreement, Judge Wolfe sentenced Turner to concurrent 48-month prison terms in both cases, with credit for time served. Before the actual pronouncement of sentence, Turner’s attorney asked that his client be given credit for time spent while released on GPS monitoring. The parties and judge agreed that Turner had no right to such credit, see Licata v. State, 788 So.2d 1063, 1063-64 (Fla. 4th DCA 2001), but concluded that it could be awarded in the judge’s discretion. Judge Wolfe then pronounced the following: “Give him credit for all time served, noting the Court nor his attorney can tell him how many days that will be. That the Court has no objection to give him credit for the time that he was in County Jail as well as on the GPS monitor.”

Because the court ordered the sentences in each case number to be served concurrently, the jail credit was to be applied to the sentences in both cases. “[WJhen ... a defendant receives pre-sen-tence jail-time credit on a sentence that is to run conc.wrre.ntly with other sentences, those sentences must also reflect the credit for time served.” Daniels v. State, 491 So.2d 543, 545 (Fla.1986); see also Netherly v. State, 873 So.2d 407, 410 (Fla. 2d DCA 2004).

Because the credit was not reflected on the sentencing documents, in January 2008, Turner filed a motion to correct illegal sentence seeking credit for the time spent on GPS monitoring. Unfortunately, the caption of Turner’s motion carried only case number 06-13098, although in the body of the motion he referred to the other case (“violation of probation”). Judge Wolfe reviewed the motion and the transcripts of the sentencing hearing in both cases, as well as the sentencing documents. Because he had awarded the credit at sentencing, Judge Wolfe granted Turner’s motion to correct illegal sentence and directed the clerk of court to prepare an amended sentence reflecting Turner’s entitlement to 338 days of jail credit in case number 06-13098.

Fifteen days after Judge Wolfe entered the order granting relief, Turner filed a motion for rehearing/motion for clarification seeking correction of the jail credit in case number 06-3981 and asserting that even though he had overlooked writing both case numbers on his motion, Judge Wolfe clearly intended to grant credit in both cases. For some reason, this motion was referred to Judge Pomponio, who treated it as a motion for clarification and denied it. Judge Pomponio reasoned that Turner was not entitled to credit either legally or factually. However, it appears that Judge Pomponio incorrectly interpreted a letter from the Sheriffs office referring to “Recision from GPS Program” as indicating the date that Turner was placed on GPS monitoring rather than the date that he was taken off monitoring and sent to jail. Based on the erroneous omission of days spent on GPS monitoring from August 11, 2006, to December 19, 2006, as well as jail time from December 19, 2006, until sentencing on June 5, 2007, the judge decided that Turner had been given all the credit he was due.

In addition to the error in calculation of the credit, we are concerned that Judge Pomponio’s order effectively rescinded jail credit that Judge Wolfe had ordered — both at the original hearing and in the order granting Turner’s motion to correct sentence. Because the sentences were running concurrently, the additional credit was required to be applied in both cases. Furthermore, our court “has repeatedly held that a trial court may not rescind jail credit previously awarded even if the initial award was improper.” Lebron v. State, 870 So.2d 165, 165 (Fla. 2d DCA 2004); see also Wheeler v. State, 880 So.2d 1260, 1261 (Fla. 1st DCA 2004). Contra Gallinat v. State, 941 So.2d 1237 (Fla. 5th DCA 2006) (finding no double jeopardy violation if the trial court simply corrects an award of jail credit that is clearly incorrect based on the face of the record).

Accordingly, we affirm the order granting credit in case number 06-13098 but reverse the order denying clarification and remand for Turner’s sentences in both case numbers 06-13098 and 06-3981 to be amended to reflect Turner’s entitlement to 338 days of jail credit on all counts of both cases.

Reversed and remanded.

VILLANTI and KHOUZAM, JJ., Concur.


author: WHATLEY, Judge.

text:
    Simon CRIBBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4114.
    District Court of Appeal of Florida, Second District.
    Aug. 28, 2009.
   WHATLEY, Judge.

In a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), Simon Cribbs challenged his enhanced sentences as a violent career criminal (VCC). We affirm the dismissal of claim one but hold that Cribbs is entitled to relief on claim two.

Claim one of Cribbs’ motion is identical to a claim raised in a prior rule 3.800(a) motion. He obtained relief on that claim pursuant to Cribbs v. State, 978 So.2d 828 (Fla. 2d DCA 2008). The postconviction court correctly dismissed this portion of Cribbs’ motion as moot.

In claim two, Cribbs challenges the VCC sentence imposed upon his conviction of resisting an officer with violence on the ground that he does not have three prior qualifying convictions as required for VCC sentence enhancement. See § 775.084(1)(d), Fla. Stat. (2002). This claim was previously denied and affirmed on appeal in Cribbs. Although this claim would typically be collaterally estopped, we are nevertheless compelled to correct a manifest injustice, as the State forthrightly concedes. See Cillo v. State, 913 So.2d 1233, 1233 (Fla. 2d DCA 2005).

The record shows that the State offered a prior conviction of battery on a law enforcement officer (BOLEO) and two other prior convictions as predicates for VCC sentencing. However, BOLEO is not a qualifying offense for VCC sentence enhancement. State v. Hearns, 961 So.2d 211, 215 (Fla.2007). The record does not establish the existence of the requisite predicate felonies to qualify Cribbs as a VCC. Accordingly, we reverse the dismissal of this claim. See Molfetto v. State, 874 So.2d 668, 669 (Fla. 2d DCA 2004). We remand for resentencing in which any legal sentence may be imposed. See State v. Collins, 985 So.2d 985 (Fla.2008); Molfetto v. State, 942 So.2d 967 (Fla. 2d DCA 2006).

Affirmed in part, reversed in part, and remanded.

KELLY and CRENSHAW, JJ., Concur.


text:
    Jeffery BRANTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3871.
    District Court of Appeal of Florida, Second District.
    Aug. 28, 2009.
    Jeffery Brantley, pro se.
   PER CURIAM.

We affirm the denial of Jeffery Brant-ley’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) but remand for the postconviction court to consider his sworn motion as filed pursuant to rule 3.850.

Mr. Brantley was convicted of multiple offenses, including count five, unlawful sexual activity with a minor sixteen or seventeen years of age. The written judgment and sentence reflect an adjudication of guilt and a sentence on count five. The transcript of the sentencing hearing does not record an oral adjudication of guilt or pronouncement of sentence on count five; instead, there are repeated references to “Count IV.” Mr. Brantley argues that the trial court’s oral pronouncements, which omit reference to count five, control over the written judgment and sentence on count five, resulting in an illegal sentence that is remediable under rule 3.800(a) pursuant to Williams v. State, 957 So.2d 600, 603 (Fla.2007) (holding that “a motion alleging a discrepancy between ... oral and written sentences should be cognizable in a rule 3.800(a) proceeding”).

The lack of an oral adjudication of guilt does not affect the validity of a written judgment of guilt that is properly rendered. Fla. R.Crim. P. 3.670; Ross v. State, 325 So.2d 430, 430-31 (Fla. 4th DCA 1976); Matera v. State, 218 So.2d 180, 184 (Fla. 3d DCA 1969). Because there is no requirement that a judgment of guilt must be orally pronounced, the transcript in this case does not provide Mr. Brantley with a basis for relief.

It is unnecessary to determine whether Williams applies to the alleged sentencing error in this case involving the absence of an oral pronouncement of sentence, rather than a discrepancy between the terms of the sentence as orally pronounced and the terms as written, as seen in Williams. A careful examination of the record reveals a reasonable basis to question the accuracy of the transcript of the sentencing hearing, thus creating a disputed issue of fact. As such, Mr. Brantley’s claim is not remediable under rule 3.800(a). See Blocker v. State, 968 So.2d 686, 688 (Fla. 2d DCA 2007), review dismissed, 985 So.2d 1089 (2008).

Because the time for Brantley to seek relief under rule 3.850 had not yet run and his motion contained the oath required by that rule, we remand for the postconviction court to consider his motion pursuant to rule 3.850.

Affirmed, but remanded for further proceedings.

CASANUEVA, C.J., and KELLY and LaROSE, JJ., Concur.

      . In the course of Mr. Brantley’s direct appeal, the record was reconstructed using transcripts prepared by Gregory Court Reporting. Transcripts that Quickscribe, Inc., had prepared previously were abandoned. The abandoned transcripts should not be used in any subsequent proceedings.
      We additionally note that in the course of reconstructing the record, a hearing was held to address gaps and other problems with the Gregory Court Reporting transcripts. However, sentencing was not an issue on appeal, and the transcript of sentencing was not addressed or discussed in the process of reconstructing the record.


text:
    Leo SCHOFIELD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1641.
    District Court of Appeal of Florida, Second District.
    Aug. 28, 2009.

      Richard G. Bartmon of Law Offices of Richard G. Bartmon, Boca Raton, for Appellant.
   FULMER, Judge.

Leo Schofield Jr. appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised three grounds: newly discovered evidence (ground one) and loss and destruction of evidence (grounds two and three). We reverse and remand for an evidentiary hearing on all claims. For ground one, the court below erred in its legal conclusions made to justify its summary denial. On remand the court is instructed to carry out the full cumulative analysis of the evidence that is required to properly evaluate the claim. For grounds two and three, the record does not conclusively refute the allegation of bad faith on the part of the State in the loss and destruction of potentially exculpatory physical evidence. On remand the court must conduct an eviden-tiary hearing and make the findings necessary to properly evaluate these claims.

Schofield was convicted of the first-degree murder of his wife Michelle in 1989. Michelle Schofield left work at 8:15 p.m. on February 24, 1987. Her car was found on the side of 1-4 on February 25, 1987. The car was not in running condition as the flywheel had come off and there was only a small amount of water in the radiator. Her body was found on February 27, 1987, in a canal in an area near the intersection of SR33 and 1-4 in Lakeland. She had been stabbed twenty-six times. Fingerprints that did not match the defendant were found in the car. The newly discovered evidence at issue is a Florida Department of Law Enforcement (FDLE) report of December 26, 2004, revealing that the previously unidentified fingerprints were matched to a person named Jeremy Lynn Scott. An investigation into Scott, detailed in the postconviction motion, revealed that he has an extensive history of criminal convictions, he was not in jail at the time of the Schofield murder in 1987, and at that time he frequented the area where Michelle Schofield’s body was found. Since 1989 Scott has been imprisoned for the 1988 first-degree murder and armed robbery of Donald Moorhead in Lakeland.

Ground One: Newly Discovered Evidence

Schofield argued in his postconviction motion that he was entitled to a new trial based on the fingerprint analysis linking Jeremy Lynn Scott to the victim’s car and the subsequent investigation showing Scott’s violent history and his connection to the area where the body was found. In denying the claim, the postconviction court first stated that there were no disputed issues of material fact. The court then concluded that Schofield failed to show due diligence because the defense was aware of the existence of the fingerprints prior to trial — an FDLE report of 1987 noted that the prints recovered from the car did not match Schofield, his father, or Michelle. The postconviction court rejected Scho-field’s argument that the Scott fingerprint identification result is newly discovered evidence. The court concluded that the result was not newly discovered evidence because it was not “in existence” at the time of trial. Alternatively, the court reasoned that if the evidence was in existence, defense counsel failed to exercise due diligence in discovering it. Last, the court concluded that the new evidence would probably not produce an acquittal on retrial.

The supreme court has enunciated the proper standard of review of a summary denial of a rule 3.850 claim, including a claim of newly discovered evidence, as follows:

“To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record.”

McLin v. State, 827 So.2d 948, 954 (Fla.2002) (quoting Foster v. State, 810 So.2d 910, 914 (Fla.2002)). The analysis that governs a newly discovered evidence claim is set forth in Green v. State, 975 So.2d 1090-100 (Fla.2008) (citing Jones v. State, 709 So.2d 512, 521 (Fla.1998) {Jones II)). In Green, the supreme court reviewed a newly discovered evidence claim after an evidentiary hearing.

To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements: First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998) (Jones II). Newly discovered evidence satisfies the second prong of this test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996) (Jones I)). In determining whether the evidence compels a new trial, the trial court must “consider all newly discovered evidence which would be admissible,” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Jones v. State, 591 So.2d 911, 916 (Fla.1991). This determination includes
whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.
Jones II, 709 So.2d at 521 (citations omitted).

Green, 975 So.2d at 1099-100.

On appeal, Schofield first argues that the postconviction court erred in focusing on whether the newly discovered evidence was in existence at the time of trial. Schofield discusses the postconviction court’s rebanee on Kearse v. State, 969 So.2d 976, 987 (Fla.2007), distinguishes Kearse, and argues that the evidence only “must have been unknown” at the time of trial. Schofield contends that the “must have existed” passage in Kearse was incorrect and he notes decisions since Kearse which have not included the requirement that the newly discovered evidence was in existence at the time of trial.

In Kearse, the appellant alleged that newly discovered evidence could impeach the state’s mental health expert and show that the expert gave biased testimony in favor of the state at resentencing. Id. at 987. The new evidence consisted of evidence about the doctor’s conduct as an expert witness for the federal government in New Mexico. Id. In rejecting the claim, the court stated that the evidence must have existed but been unknown, and the court concluded that this impeachment evidence did not meet the test:

Both Dr. Martell’s actions in the federal criminal case and aüegations regarding his conduct postdated Kearse’s sentencing. Thus, the evidence did not exist at the time of the resentencing, and Kearse fails to meet the first prong of the test.

Id. at 987. This situation differs substantially from the fingerprint identification situation in the present case. Here, the fingerprint match was not known at the time of the original trial because the analysis had not been performed, but this evidence does not equate to a future event that had not yet occurred, as in the Kearse case. It cannot be said that the match evidence did not exist at the time of the Schofield trial. In other words, if the fingerprints in the car can now be matched to Scott’s fingerprints, then that was also true at the time of the Schofield trial. We reject the postconviction court’s assertion that Kearse justifies the summary denial of the claim.

Schofield also argues that the postcon-viction court ignored the facts and precedent when it found no due diligence on his part. He asserts that the postconviction court imposed a burden on Schofield and his trial lawyer that is contradicted by law. He also claims he could not have discovered Scott’s identification before the identification was made by FDLE and disclosed to him in December 2004 and March 2005.

The postconviction court’s due dibgence analysis concludes that Schofield’s trial counsel should have requested the Polk County Sheriffs Office to perform a manual check of all prints on file from all felony arrests in Polk County. The postconviction court stated that “counsel’s simple request to have the unknown prints compared to any prints on file with the same, local law enforcement agency that had arrested Mr. Schofield could have revealed a match with Mr. Scott.” In his brief, Scho-field notes that at the time of trial he had no other specific suspect or similar murder case on which to base any request for a manual check of prints. We agree with Schofield that due dibgence cannot demand speculation by trial counsel as a prerequisite to the consideration of newly discovered evidence. See Cherry v. State, 959 So.2d 702, 708 (Fla.2007) (rejecting circuit court’s finding that defense could have discovered evidence earlier by due dibgence). We therefore reject the post-conviction court’s conclusion that Schofield failed to exercise due diligence.

Finally, we conclude that the postconviction court applied the wrong legal standard in determining that the new evidence would probably not produce an acquittal on retrial. Because the postconviction court failed to conduct an evidentiary hearing, it did not thoroughly analyze the newly discovered evidence. Taking all the facts put forth by Schofield in his motion as true leads us to conclude that the newly discovered evidence is of such a nature that it would probably produce an acquittal on retrial. The postconviction court’s attached trial excerpts have not convinced us otherwise.

Schofield argues on appeal that this court should accept all the facts put forth in his motion as true and conduct a de novo cumulative analysis to determine if his evidence meets the standard set out in Jones II, 709 So.2d at 521-26. He cites Haywood v. State, 961 So.2d 995 (Fla. 4th DCA 2007), among other cases, as authority for this court to conduct the cumulative analysis in the first instance. In Haywood, a sexual battery case, the newly discovered evidence was a DNA analysis of the semen found on the victim’s underwear. Haywood sought a new trial based on the fact that the DNA was that of the victim’s boyfriend. The postconviction court did not conduct an evidentiary hearing because the newly discovered facts were undisputed. The appeals court reversed the summary denial of Haywood’s rule 3.850 motion and remanded for a new trial after concluding that the evidence would probably produce an acquittal on retrial.

In the instant case, we decline to conduct the cumulative analysis of the facts de novo. Although the postconviction court accepted all of the alleged new evidence as undisputed, the court did not engage in evaluating the weight of both the newly discovered evidence and the evidence that was introduced at trial. The supreme court has noted that ordinarily an eviden-tiary hearing is required for the court to properly evaluate, in accordance with Jones II, whether newly discovered evidence is of such a nature that it would probably produce an acquittal on retrial. See McLin, 827 So.2d at 956. Because part of the new evidence in this case involves proffered testimony from witnesses as to the background of Scott, on remand the court must conduct an evidentiary hearing and make findings on the weight of the evidence, including “whether the evidence would have been admissible at trial, the purpose for which the evidence would have been admitted, the materiality and relevance of and any inconsistencies in the evidence.” Cherry, 959 So.2d at 705.

Grounds Two and Three: Failure to Preserve Evidence

Grounds two and three of the post-conviction motion allege facts relating to six hairs that were recovered from the victim’s car and on or near her body that the State has since lost or destroyed. It is alleged that six days after the body was found, on March 5, 1987, Detective Weeks, the lead homicide investigator, submitted certain physical evidence to FDLE for testing. The first submission included three hairs plucked from the passenger and cargo compartments of the victim’s car. On March 80, 1987, Detective Weeks submitted additional hairs for testing, including one recovered from the victim’s left foot, and requested that the hairs be tested and compared with head and pubic hair samples of the victim and with any human hair found in the first submission. In November 1987, the FDLE Microanaly-sis Section Supervisor returned the six items submitted, among other exhibits, with a letter stating that examination of the items was “no longer necessary.” Records from the Property and Evidence Unit of the sheriffs office indicate that some exhibits were checked out by a State Attorney investigator on March 3, 1989, and were not returned. The investigator, who died in 1996, habitually failed to return evidence that he logged out. In 1996, the assistant state attorney who prosecuted Schofield authorized the destruction of all property related to the Schofield case except for eight exhibits that he designated as “possibly needed in [the] future for evidence.” Deputy Sirera, who worked in the Property and Evidence unit, testified that the six hairs at issue, if returned from FDLE as “sweepings” or “debris,” were most likely destroyed.

The postconviction court disposed of grounds two and three by adopting the State’s response to the court’s order to show cause. In that response, the State first noted that it “does not contest that the hairs Defendant complains of were destroyed in 1995 on authorization of the lead prosecutor in this case.” The State contended that Schofield’s ability to bring a claim for postconviction evidence testing was procedurally barred in 1995. It contended that Schofield could have moved for the testing in 1989 prior to trial and in 1993 during the postconviction proceedings. It asserted that in 1995 the assistant state attorney and the Polk County Sheriff had no duty to preserve the evidence after Schofield had exhausted his appeals.

In Schofield’s reply to the State’s response, he argued that no procedural default or time bar applies to his constitutional claims. He asserted that the State’s duty to preserve evidence has nothing to do with exhaustion of appellate remedies, but with the State’s knowledge of the value or potential value of the physical evidence both before and at the time the State lost or destroyed the evidence. In arguing that the circumstances here lead to a conclusion of “bad faith,” Schofield contended that the State believed that the untested hairs would have formed a basis for exonerating Schofield well before the time that the assistant state attorney authorized the destruction of the hairs in 1996. He pointed to the fact that the State originally asked for all evidence to be tested by FDLE, but when some testing results were exculpatory, in August and September 1987, the State cancelled the testing of the hairs and other items. FDLE memorialized the cancellation in a November 1987 letter, and after November 1987 the State never reauthorized testing of the hairs even though Detective Weeks acknowledged that the State sought any possible evidence, especially scientific testing, that could link Schofield to the murder. Schofield asserted that the police or prosecutors feared that testing of the hairs would further exonerate or exculpate him. He asserted that the assistant state attorney knew in 1996 what he knew in 1987, that the six hairs existed and remained untested, but he did not exempt the hairs from destruction as “possibly needed in [the] future for evidence.”

On appeal, Schofield argues that because the State’s response did not dispute or challenge the facts contained in his claims two and three, he is entitled to relief on the merits on the record before this court. He reasserts the facts supporting his claim that the State believed that additional forensic testing could be exculpatory.

In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the Court addressed “the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at 57, 109 S.Ct. 333. The Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58, 109 S.Ct. 333.

We conclude that the denial of this claim must be reversed for an evidentiary hearing because the State’s response does not refute Schofield’s allegations about the State’s knowledge of the potential value of the physical evidence. Taken in the light most favorable to Schofield, the circumstances alleged suggest a possibility of bad faith that is not refuted by the record. Schofield should be given the opportunity to prove his allegations of bad faith, and the postconviction court should make findings based on the evidence presented.

In ground three, Schofield asks that his Youngblood claim be evaluated under independent state constitutional grounds. He argues that almost a third of the states have rejected the Youngblood bad faith test, and he cites cases from a number of states that have found that the state’s loss or destruction of critical evidence violates a defendant’s state constitutional rights even without a showing of bad faith. He urges this court to adopt the reasoning of these other states and find that the failure of the State to preserve the six hairs made Schofield’s conviction fundamentally unfair as a matter of due process under the Florida Constitution. We reject these arguments because Schofield has not provided any persuasive basis for us to interpret the Florida constitution as providing a broader due process protection than that recognized in Youngblood. Therefore, we draw no distinction in the analysis governing grounds two and three.

Reversed and remanded for further proceedings.

KELLY and WALLACE, JJ., Concur.

      . Grounds two and three are based on the same facts, but ground two is based on a violation of the United States Constitution and ground three is based on a violation of the Florida Constitution.


author: VILLANTI, Judge.

text:
    Debby J. GIORDANO, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2442.
    District Court of Appeal of Florida, Second District.
    Aug. 28, 2009.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Debby Giordano challenges the denial of her motion to correct sentencing error. We remand for correction of her judgment and sentence.

Pursuant to a negotiated plea, Giordano pleaded no contest to charges of stalking and criminal contempt of court. The trial court orally sentenced her to five years’ probation on the stalking charge, with the first five months of that sentence served in jail. The court adjudicated her guilty on the criminal contempt charge and orally sentenced her to time served on that charge. The trial court entered a single written judgment for both charges. While the written judgment reflected both convictions, it only contained an order of probation for the stalking charge; there was no written order of sentence for the contempt conviction specifying the time-served disposition. The written judgment also classified the criminal contempt conviction as a second-degree misdemeanor.

Giordano filed a motion to correct sentencing error challenging (1) the trial court’s failure to enter a written sentence of time served on the contempt charge and (2) the designation of criminal contempt as a second-degree misdemeanor. The trial court denied the motion, concluding that (1) Giordano was not prejudiced by the court’s failure to enter a written sentence on the contempt charge because the plea hearing transcript reflected her “time served” sentence on that charge and (2) the designation of contempt as a second-degree misdemeanor did not result in “substantial prejudice” to Giordano.

The State concedes that the trial court erred in denying Giordano’s motion as to her first point, and we agree. Accordingly, on remand, the trial court is directed to issue a written sentence reflecting its oral sentence of time served on the criminal contempt count. See Singleton v. State, 561 So.2d 1296, 1298 (Fla. 2d DCA 1990) (remanding matter to trial court with directions to correct written sentence to conform with court’s oral pronouncement).

However, as to Giordano’s second point on appeal, the parties dispute the proper classification of the criminal contempt charge. The State contends that the criminal contempt conviction should be classified as a first-degree misdemeanor, while Giordano argues that contempt is not a misdemeanor at all but, rather, is a common law crime. On this point, Giorda-no is correct. Criminal contempt is neither a felony nor a misdemeanor, but a third category of crimes simply described as “common law crimes.” See Graves v. State, 821 So.2d 459, 460 (Fla. 2d DCA 2002) (“Contempt is a common law crime in Florida,....”); Dep’t of Juvenile Justice v. State, 705 So.2d 1048, 1049 (Fla. 2d DCA 1998) (“Contempt is neither a felony nor a misdemeanor.”); Welch v. Rice, 636 So.2d 172, 173 (Fla. 2d DCA 1994) (noting that contempt is not a misdemeanor offense). Common law crimes, such as criminal contempt, which have not been separately reclassified by statute as either a felony or a misdemeanor retain their status as common law crimes. See § 775.01, Fla. Stat. (2005) (providing that where there is no statute to the contrary in Florida, the common law of England with respect to crimes is in effect). Hence, criminal contempt must still be regarded as a common law crime.

We note that the State’s argument is, at first blush, somewhat appealing because criminal contempt can carry a maximum term of imprisonment of twelve months. Thus, case law regards criminal contempt as the functional equivalent of a misdemeanor for purposes of the right to court-appointed counsel during contempt proceedings. See Moorman v. Bentley, 490 So.2d 186, 187 (Fla. 2d DCA 1986). However, without a separate statute overriding the application of section 775.01, the classification of criminal contempt as a common law crime still applies, despite the punishment being similar to that available for a first-degree misdemeanor. Therefore, all things considered, the judgment in this case should not have characterized Giordano’s conviction of that charge as a misdemeanor. Whether the trial court’s mischaracterization prejudiced Giordano is irrelevant, since the trial court was required to follow the mandates of section 775.01.

To avoid repetition, we observe that the trial court treated Giordano’s failure to appear for case management as indirect criminal contempt. Yet, a defendant’s failure to appear is actually considered direct criminal contempt. Aron v. Huttoe, 258 So.2d 272, 274 (Fla. 3d DCA), adopted, 265 So.2d 699, 700 (Fla.1972); Woods v. State, 600 So.2d 27, 29 (Fla. 4th DCA 1992). A direct criminal contempt conviction typically includes a separate judgment of guilt which complies with the requirements set forth in Florida Rule of Criminal Procedure 3.830, not rule 3.840, which applies to indirect criminal contempt and which was apparently followed by the trial court. We need not discuss any further the confusing sequence of events in this case because Giordano’s appeal was related neither to the procedural manner in which judgment was entered nor to the propriety of the classification of her conviction as indirect contempt.

In this case, the trial court entered a single judgment for both of Giordano’s convictions, presumably because it regarded Giordano’s conduct as indirect criminal contempt and because disposition of this count was pursuant to a plea bargain on both charges. Because the stalking conviction is not being appealed and is effectively affirmed, on remand the trial court should enter an amended judgment and sentence as to the contempt count only reflecting its proper classification as a common law crime and the sentence of time served.

Remanded for proceedings consistent with this opinion.

CASANUEVA, C.J., and ALTENBERND, J., Concur.

      . Apparently, the State chose not to proceed pursuant to section 843.15(1), Florida Statutes (2005), which provides that failure to appear before a court may be prosecuted as a separate crime. Instead, Giordano's failure to appear was handled pursuant to section 843.15(2), which provides that "[njothing in this section shall interfere with or prevent the exercise by any court of its power to punish for contempt" (emphasis added), but not specifying the classification or the penalty.