author: WETHERELL, J.

text:
    Juan RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5618.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2009.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant challenges his conviction and sentence for manslaughter. We address only Appellant’s argument that “intent to kill” is an element of manslaughter by act and that the trial court fundamentally erred in giving the standard jury instruction which did not include this essential element. We affirm Appellant’s other arguments without discussion.

The state charged Appellant with manslaughter by “act, procurement, or culpable negligence.” The trial court instructed the jury on both manslaughter by act and manslaughter by culpable negligence, using the standard jury instruction. See Fla. Std. Jury Instr. (Crim.) 7.7. With respect to manslaughter by act, the trial court instructed the jury that, as one of the elements of the offense, the state needed to prove that Appellant “intentionally caused the death” of the victim. Appellant did not object to this instruction. The jury found Appellant guilty as charged on a general verdict form, and the trial court sentenced Appellant to 30 years in prison as a habitual felony offender.

Because Appellant did not contemporaneously object to the jury instructions, he must show that it was fundamental error for the trial court to instruct the jury as it did. Fundamental error “is the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Dufour v. State, 905 So.2d 42, 74 (Fla.2005). Fundamental error occurs when an omission in a jury instruction is pertinent or material to what the jury must consider in order to convict. See Stewart v. State, 420 So.2d 862, 863 (Fla.1982). The error complained of must prejudice the defendant in order to meet the fundamental error standard. See Reed v. State, 837 So.2d 366, 369 (Fla.2002) (“By its very nature, fundamental error has to be considered harmful. If the error was not harmful, it would not meet our requirement of being fundamental.”).

Appellant argues that the trial court fundamentally erred by not instructing the jury that the state was required to prove an “intent to kill.” However, in Montgomery v. State, - So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla.2009), we held that manslaughter by act “requires only an intentional unlawful act, rather than an intent to kill.” Accord Hall v. State, 951 So.2d 91 (Fla. 2d DCA 2007) (en banc).

In Montgomery, we held that the standard jury instruction for manslaughter by act implied an “intent to kill” element even though the offense only requires an intentional unlawful act. The misleading nature of the instruction was significant in Montgomery because the defendant was charged with first-degree murder, and the jury was instructed on manslaughter by act as a lesser-included offense. We found that it was fundamental error to give the manslaughter standard jury instruction in Montgomery because it left the jury with the erroneous impression that intent to kill was a necessary element of the offense, thereby preventing the jury from returning a verdict for manslaughter by act even though it found that defendant did not intend to kill the victim.

In contrast, in this case, Appellant was charged only with manslaughter and he was found guilty on a general verdict form after the jury was instructed on both manslaughter by act and manslaughter by culpable negligence. Thus, the circumstances of this case are more similar to Hall than Montgomery.

In Hall, the defendant was charged and convicted of manslaughter for punching the victim in the face causing his death. The court affirmed the conviction, finding that the intentional act of punching the victim was sufficient to support a conviction for manslaughter by act, even though the defendant did not intend to kill the victim. See Hall, 951 So.2d at 96 (“[W]e hold that a conviction for manslaughter by act does not require intent to kill but only an intentional act that causes the death of the victim.”). This is the same conclusion we reached in Montgomery, albeit through different reasoning.

In this case, the jury found Appellant guilty of manslaughter even with the additional, unnecessary element of “intent to kill” that we said in Montgomery is implicit in the standard jury instruction. Thus, Appellant was not prejudiced by the standard jury instruction in this case. Moreover, we conclude that the evidence was sufficient to support a conviction for manslaughter by act under our interpretation of the offense in Montgomery because the evidence is undisputed that Appellant intentionally punched the victim in the face, and the state presented sufficient evidence to the jury from which it could find that the punch caused the victim’s death.

We recognize that since Montgomery we have reversed and remanded a number of cases on fundamental error grounds where the trial court gave the standard jury instruction for manslaughter by act. However, in those cases, manslaughter by act was a lesser-ineluded offense, not the main charge as it is in this case. See Thomas v. State, 22 So.3d 626 (Fla. 1st DCA 2009); Gough v. State, — So.3d -, 2009 WL 3164113 (Fla. 1st DCA 2009); Hardee v. State, - So.3d -, 2009 WL 3047359 (Fla. 1st DCA 2009); White v. State, 16 So.3d 1004 (Fla. 1st DCA 2009); Ward v. State, 12 So.3d 920 (Fla. 1st DCA 2009); Bass v. State, 11 So.3d 1003 (Fla. 1st DCA 2009); Stinson v. State, — So.3d -, 2009 WL 633133 (Fla. 1st DCA 2009).

In sum, because Appellant failed to demonstrate any prejudice resulting from the use of the standard jury instruction, its use in this case does not rise to the level of fundamental error. Accordingly, we affirm Appellant’s conviction and sentence.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Roger Allen ROZZELLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3866.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2009.

      Roger Allen Rozzelle, pro se, Appellant.
    Bill McCollum, Attorney General and Joshua R. Heller, Assistant Attorney General, Tallahassee.
   WETHERELL, J.

Appellant appeals the trial court’s denial of his successive rule 3.850 motion. We affirm.

After a jury trial, Appellant was convicted of second-degree murder and sentenced to life in prison. The judgment and sentence were affirmed on appeal, see Rozzelle v. State, 773 So.2d 543 (Fla. 1st DCA 2000) (table), and Appellant’s conviction became final on January 3, 2001, when the mandate issued.

Appellant filed several prior post-conviction motions, which were denied by the trial court and affirmed on appeal. See Rozzelle v. McDonough, 961 So.2d 940 (Fla. 1st DCA 2007) (table); Rozzelle v. State, 906 So.2d 1064 (Fla. 1st DCA 2005) (table); Rozelle v. State, 852 So.2d 239 (Fla. 1st DCA 2003) (table). Appellant argued in his current motion that he is entitled to a new trial because the trial court fundamentally erred when it gave the standard jury instruction for manslaughter by act as a lesser included offense of second-degree murder.

We held in Montgomery v. State, — So.3d -, -, 2009 WL 350624 (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla.2009), that the standard jury instruction for manslaughter by act improperly implies an “intent to kill” element, and that giving the instruction for manslaughter as a lesser-included offense of second-degree murder constitutes fundamental error because “the jury was prevented from returning a verdict for manslaughter, even though, through its verdict of second-degree murder, it found that Appellant did not intend to kill the victim.” However, Appellant is not entitled to post-conviction relief based upon Montgomery because our holding in that case does not apply retroactively to cases, such as Appellant’s, that were final before the decision was issued. See Reed v. State, 837 So.2d 366, 370 (Fla.2002) (refusing to retroactively apply decision finding standard jury instruction to be fundamentally erroneous); Smith v. State, 598 So.2d 1063, 1066 n. 5 (Fla.1992). Accordingly, we affirm the trial court’s denial of Appellant’s rule 3.850 motion.

AFFIRMED.

KAHN and LEWIS, JJ., concur.


author: PER CURIAM. CASANUEVA, Chief Judge,

text:
    Frederick A. SMITH, Appellant, v. AMS STAFF LEASING and Aspen Administrators, Appellees.
    No. 2D08-2206.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2009.
    Rehearing Denied March 17, 2010.

      Alex Lancaster of Lancaster & Eure, P.A., Sarasota, for Appellant.
    D. Robert Swanson of William E. Gregory, P.A., Longwood, for Appellees.
   PER CURIAM.

Affirmed.

KELLY and VILLANTI, JJ., Concur.

CASANUEVA, C.J., Concurs specially.

CASANUEVA, Chief Judge,

Specially concurring.

Frederick Smith appeals the order denying his petition for rule nisi, seeking to enforce a workers’ compensation order. Within the petition Mr. Smith also sought attorney’s fees. Our review is de novo. Sanders v. City of Orlando, 997 So.2d 1089 (Fla.2008).

Facts

The meager record indicates that on September 5, 2007, the parties entered into a mediation agreement that required AMS Staff Leasing and Aspen Administrators (combined, the Employer) to provide Mr. Smith with certain benefits, including the services of a pain management physician. On October 9, 2007, a Judge of Compensation Claims ordered the parties to comply with the mediation agreement.

Mr. Smith subsequently filed a petition for rule nisi in the circuit court pursuant to section 440.24, Florida Statutes (2007). He sought compliance with the prior compensation order, claiming that the Employer had not yet provided the pain management services. He also sought costs, interest penalties, and attorney’s fees as provided by chapter 440. The circuit court held a hearing on November 9, 2007, and granted the petition. The employer sought rehearing, asserting that through understandable confusion its attorney did not appear on November 9. The circuit court granted the motion for rehearing and scheduled a new rule nisi show cause hearing for April 9, 2008.

On November 30, 2007, the Employer filed a response to Mr. Smith’s petition for rule nisi. The Employer stated that despite its continuing good faith attempts it had not yet been able to locate and procure the required pain management specialist. The Employer claimed that it had kept Mr. Smith informed while it persisted in its attempts to comply with the compensation order. The circuit court held the second hearing on April 9, 2008, and denied the petition without any written factual findings. The circuit court made no specific mention of Mr. Smith’s request for attorney’s fees and costs.

Analysis

Mr. Smith claims the trial court erred in denying his petition for rule nisi and request for attorney's fees and costs because it relied upon the Employer’s justification defense. The record does not contain a copy of the transcript from the April 9, 2008, hearing, and Mr. Smith states that none exists. The only documentation within the record that suggests each party’s posture is their pleadings. Without the transcript, this court cannot determine whether the parties presented evidence at the hearing and what that evidence was. More importantly, this court cannot determine the basis for the circuit court’s order. The record is simply insufficient to support Mr. Smith’s argument.

Moreover, I concur with the majority in affirming the denial of the petition for rule nisi on the merits as well, assuming the parties presented evidence to the circuit court which coincides with their pleadings. Section 440.24(1) states:

In case of default by the employer or carrier in the payment of compensation due under any compensation order of a judge of compensation claims or other failure by the employer or carrier to comply with such order within 10 days after the order becomes final, any circuit court of this state within the jurisdiction of which the employer or carrier resides or transacts business shall, upon application by the department or any beneficiary under such order, have jurisdiction to issue a rule nisi directing such employer or carrier to show cause why a writ of execution, or such other process as may be necessary to enforce the terms of such order, shall not be issued, and, unless such cause is shown, the court shall have jurisdiction to issue a writ of execution or such other process or final order as may be necessary to enforce the terms of such order of the judge of compensation claims.

In its brief, the Employer claimed to have started providing pain management services to Mr. Smith on December 10, 2007. This is long after the compensation court rendered its order but months before the circuit court held the second hearing on Mr. Smith’s petition. Because the Employer was in compliance by the date of the hearing, there was no need for “a writ of execution or such other process or final order” because none was “necessary to enforce the terms of such order of the judge of compensation claims.” Id. Consequently, the circuit court correctly declined to enter an enforcement order if such were the facts before it.

However, I do not think this resolution answers Mr. Smith’s request for attorney’s fees and costs. Under section 440.34(3) and (3)(d), costs and attorney’s fees shall be taxed and awarded to the claimant if he “successfully prevails in proceedings filed under [section] 440.24.” The plain language of this statute suggests that Mr. Smith, who did not technically “prevail” because he did not successfully obtain relief from the circuit court, would not be entitled to such awards.

Such reasoning could permit an employer in similar circumstances to willfully ignore a compensation claim order until the claimant brought a petition for rule nisi in the circuit court or immediately prior to the hearing on the petition. Once that employer complied the petition would be moot, and the employer would arguably escape responsibility for costs and fees.

This scenario would be contrary to the legislative intent manifested in the statutory framework of workers’ compensation. Section 440.015 states: “It is the intent of the Legislature that the Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.” An employer would suffer no negative consequences for delaying compliance with a compensation order until the last possible moment, even though the claimant’s petition for rule nisi — and the associated costs and fees he incurred — may have been the direct cause of the employer’s compliance.

Generally, these circumstances should require an evidentiary hearing on costs and fees to establish whether the responding party sought to and complied with the compensation order. It may well be that, despite ongoing efforts, a physician was impossible to retain. Good-faith efforts should preclude an award of fees and costs. Conversely, where no efforts were undertaken, it is my view that an award of costs and attorney’s fees would be appropriate. Each case would require the circuit court to conduct a fact-intensive analysis and make specific findings of fact to support its order and facilitate appellate review. However, because the record in this case does not indicate what occurred — or did not occur- — in the proceedings below, I concur.


author: PER CURIAM.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. TOTAL HEALTH CARE OF FLORIDA, INC., etc., Appellee.
    No. 3D07-1079.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 2009.
    Rehearing and Rehearing En Banc Denied Jan. 20, 2010.
    Michael J. Neimand, Miami, for appellant.
    Panter, Panter & Sampedro and Christian Garrazana, Miami, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

United Automobile Insurance Company (“United”) appeals the trial court’s entry of final summary judgment in favor of Total Health Care of Florida, Inc. (“Total Health”). In granting final summary judgment, the trial court certified the following question as one of great public importance:

WHETHER THE CANCELLATION OF A NO FAULT INSURANCE POLICY CAN BE EFFECTIVE AB INI-TIO IN LIGHT OF THE MANDATORY REQUIREMENTS IMPOSED BY THE FLORIDA NO FAULT LAW, §§ 627.730-7405, FLORIDA STATUTES (2007)?

We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A). Based on the authority of United Automobile Insurance Company v. Salgado, 22 So.3d 594 (Fla. 3d DCA 2009), we answer the question in the affirmative, reverse the trial court’s order granting final summary judgment, and remand for further proceedings consistent with that opinion.


text:
    Michael FRANCIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-292.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.

      Carlos J. Martinez, Public Defender, and Leslie Scalley, Special Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and LAGOA, and SALTER, JJ.
   PER CURIAM.

Michael Francis appeals his second degree murder conviction. Because we conclude that the State of Florida presented sufficient competent, substantial evidence to support the conviction, we affirm, but certify a question of great public importance at the conclusion of this opinion.

On November 4, 2006, Larrie Abernathy and his former girlfriend, Latressa Height, got into an argument in the parking lot of a bar. After the fight, Latressa made a phone call, and shortly after, a car arrived and a group of men exited the car. The defendant was the driver of the car. Some of the men in the group carried guns with them, including the passenger-seat occupant who was carrying an AK-47 rifle. After the men circled him, the man with the AK-47 shot and killed the unarmed Abernathy. The men immediately got back into their car, and Francis drove them away from the scene.

The State charged Francis with first degree murder, kidnapping with a weapon, and possession of a firearm by a convicted felon. At trial, State’s witness Jennifer Severance, an eyewitness to the shooting, testified as to the events of that evening and identified Francis in court as the driver of the car. Severance had also identified Francis in a photo line up to the police during the investigation. During Severence’s testimony, the State impeached her when she began to deviate from her prior statements to the police detective. Another witness testified as to the fight between Latressa and Abernathy, the shooting, and the men driving away after the shooting.

After a trial, the jury deliberated and found Francis guilty of second degree murder. The trial court subsequently sentenced Francis to life in prison.

Francis appeals his conviction, arguing that the State did not present sufficient evidence to support a conviction or establish the requisite mens rea of second degree murder. We find that the State presented competent, substantial evidence to support the conviction for second degree murder. The State presented evidence that Francis drove the shooter to the scene and drove him away. The shooter was also carrying an AK-47 in the passenger seat. We conclude that it is reasonable that a jury could conclude based on these facts that the requisite depraved mind mental state required for second degree murder was present. See Williams v. State, 967 So.2d 735, 755 (Fla.2007); Troy v. State, 948 So.2d 635, 646 (Fla.2007).

With respect to the Montgomery v. State, - So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), review granted, 11 So.3d 943, 11 So.3d 943 (Fla.2009) issue, we decline to address the issue of whether the State is required to prove that the defendant intended to kill the victim in order to establish the crime of manslaughter by act. We agree with the State that the reference to an intent to kill in the manslaughter instruction was irrelevant under the facts of this case. However, we note that the Montgomery case is currently pending review before the Florida Supreme Court. State v. Montgomery, 11 So.3d 943 (Fla.2009). Because the issue presented to us is recurrent, we believe it should be authoritatively resolved, as there is a split of authority among Florida district courts as to whether manslaughter by act, under section 782.07, Florida Statutes, has intent to kill as an element. Accordingly, we certify the following question to the Florida Supreme Court as one of great public importance:

IS THE STATE REQUIRED TO PROVE THAT THE DEFENDANT INTENDED TO KILL THE VICTIM IN ORDER TO ESTABLISH THE CRIME OF MANSLAUGHTER BY ACT?

AFFIRMED; QUESTION CERTIFIED.


text:
    Jimmy L. TOLIVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5656.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2010.
    Rehearing Denied March 22, 2010.
    Jimmy L. Toliver, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

KAHN, BENTON, and ROBERTS, JJ, concur.


text:
    Michael CAMPBELL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    Nos. 1D08-0601, 1D08-0870.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.
    Rehearing Denied March 10, 2010.

      Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Office of the Attorney General, Tallahassee; William N. Meggs, State Attorney, Office of the State Attorney, Tallahassee, for State of Florida.
    Nancy A. Daniels, Public Defender, Kathleen Stover, Assistant Public Defender, and Joel T. Remland, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Michael Campbell.
   PER CURIAM.

The defendant, Michael Campbell, appeals from his conviction of burglary of a dwelling with a person assaulted and simple battery. The State has cross-appealed, arguing that the trial court incorrectly concluded that the Prison Releasee Reof-fender (PRR) Act did not require that the defendant receive a life sentence for the burglary conviction. We find no merit in the defendant’s jury instruction issue raised on direct appeal, but we reverse and remand on the PRR issue raised on cross-appeal.

Campbell was charged with two counts of sexual battery with a deadly weapon on a person twelve years of age or older, in violation of sections 784.03(2), 775.087, 794.011(3) and (4)(b), and 794.0115(2)(a), Florida Statutes; one count of burglary of a dwelling with a person assaulted, in violation of sections 784.03(2) and 810.02(2)(a) and (b), Florida Statutes; and one count of aggravated battery with a deadly weapon causing great bodily harm, in violation of sections 784.03(2), 784.045(l)(a)l and 2, and 775.087, Florida Statutes.

The State alleged that the defendant accosted the victim as she was exiting her apartment, pushed her inside, and attacked and sexually assaulted her. The burglary count alleged in pertinent part that the defendant “did unlawfully enter or remain in [the victim’s dwelling] with intent to commit the offense of sexual assault, assault, and/or battery or some offense therein, and in the course of committing the offense: did make an assault or battery upon a person, [the victim], and/or became armed within the structure with a dangerous weapon.” The jury found the defendant guilty as charged of burglary of a dwelling with person assaulted. It acquitted him on the two counts of sexual battery but found him guilty of the lesser included offense of battery.

At the sentencing hearing, the defendant argued that he was subject only to a fifteen-year sentence under the PRR Act, based on the Fourth District’s opinion in Tumblin v. State, 965 So.2d 354 (Fla. 4th DCA 2007). He argued that, although burglary of a dwelling qualifies for PRR sentencing, the enhancement based on assault or battery does not qualify under Tumblin and State v. Hearns, 961 So.2d 211 (Fla.2007). Therefore, he contended, the only PRR sentence that could be imposed was fifteen years for burglary of a dwelling, but not for burglary of a dwelling with an assault or battery.

The State countered that the PRR statute specifically includes burglary of a dwelling as a qualifying offense, and burglary of a dwelling with a person assaulted is a type of burglary of a dwelling. Therefore, the State maintained, the defendant should be subject to a life PRR sentence.

The trial court agreed with the defendant that burglary of a dwelling with a person assaulted was not a qualifying offense under the PRR statute, because it was not specifically listed in the statute. It further found that, under the reasoning expressed in Hearns, the offense did not meet the definition of a forcible felony under the catch-all provision of the statute. Therefore, the court concluded that it was required to sentence the defendant as a PRR to only fifteen years on the burglary charge. On the felony battery count, the trial court imposed a concurrent five-year sentence.

The PRR statute in effect at the time of the defendant’s offense, section 775.082, Florida Statutes (2005), provides in pertinent part:

(9)(a)l. “Prison releasee reoffender” means any defendant who commits, or attempts to commit:
o. Any felony that involves the use or threat of physical force or violence against an individual;
p. Armed burglary;
q. Burglary of a dwelling or burglary of an unoccupied structure;
within 3 years after being released from a state correctional facility ... following incarceration for an offense for which the sentence is punishable by more than 1 year in this state.

§ 775.082(9)(a)(l)(o )-(q), Fla. Stat. (2005) (emphasis added).

Subsection 775.082(9)(a)(l)(o), which provides that forcible felonies qualify as PRR offenses, is sometimes referred to as the “catch-all provision.” As explained below, although there has been some focus in the case law on the fact that burglary of a dwelling with an assault or battery is not a forcible felony under this provision, there is actually no need to resort to the catchall provision in determining whether this crime is a qualifying PRR offense.

The first rule of statutory construction is to consider the plain meaning of statute. See Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006). If the statute is clear and unambiguous, “courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Borden at 595 (quoting Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005)).

As set forth above, the PRR statute expressly lists burglary of a dwelling as a qualifying offense for PRR sentencing. See § 775.082(9)(a)(l)(q), Fla. Stat. (2006). It further provides that the sentencing court must look to the degree of the qualifying offense to determine the length of PRR sentence. See § 775.082(9)(a)(3), Fla. Stat. (2006). For a first-degree felony punishable by life, such as burglary of a dwelling with an assault, the PRR statute provides that the defendant must be sentenced to a term of life imprisonment. See §§ 775.082(9)(b) and 810.02(2)(a), Fla. Stat.

The burglary statute provides,

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:
(a) Makes an assault or battery upon any person ...

§ 810.02(2)(a), Fla. Stat.

Reading subsections (9)(a)(l)(q) and (9)(a)(3) of the PRR statute together with subsection (2)(a) of the burglary statute, and giving them their plain meaning, reveals that burglary of a dwelling with an assault or battery is punishable by a life sentence under the PRR statute.

This conclusion is supported not only by the plain language of the applicable statutes, but also by the basic principle that a court should not interpret a statute in such a way is to yield an illogical result. The defendant does not deny that the PRR statute specifically lists burglary of a dwelling as a qualifying offense for enhancing a sentence. Nonetheless, he urges this Court to construe it in a way that excludes the greater offense of burglary of a dwelling with an assault or battery. The latter is a more serious crime than the former. It would be illogical to construe the PRR statute in a way that allows an enhanced sentence for simple burglary of a dwelling, but not for a greater degree of that same crime.

Burglary of a dwelling is an enumerated offense. Burglary of a dwelling with an assault or battery is simply a greater degree of burglary. The legislature acknowledged in subsection 775.082(9)(a)(3) that varying degrees of qualifying offenses may exist and, accordingly, it provided for varying sentences in that subsection. Burglary of a dwelling with an assault or battery falls squarely within this statutory scheme. As the Fifth District observed in Souza v. State, 889 So.2d 952, 956 (Fla. 5th DCA 2004),

... [A] number of the crimes listed in the PRR Act as qualifying offenses are described in their broadest sense. Murder, for example, is listed as one of the qualifying offenses. There are, of course, several degrees of murder and a number of different methods of committing that crime set forth in the statutes, yet the PRR Act does not differentiate, for example between second and third degree murder. See § 782.04, Florida Statutes (2003). It simply says, murder. That the description of murder is generic does not prevent a defendant from being sentenced as a prison releasee reoffender for having committed that offense. See e.g., Miller v. State, 772 So.2d 611 (Fla. 1st DCA 2000).

Souza, 889 So.2d at 956.

Applying this logic, the Souza court held that DUI manslaughter is a qualifying PRR offense, because it is a varying degree of the enumerated offense of manslaughter. The same analysis applies here. Burglary of a dwelling is one of the qualifying offenses, described in its broadest sense in the statute. Thus burglary of a dwelling with an assault or battery is simply a more serious version of the enumerated offense.

The defendant relies on Tumblin and Gorham v. State, 988 So.2d 152 (Fla. 4th DCA 2008). As in the present case, Tum-blin was convicted of burglary of a dwelling with an assault or battery. Tumblin argued in a 3.800(a) motion that his PRR sentence was illegal, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and State v. Overfelt, 457 So.2d 1385 (Fla.1984), because the facts required to suppoi*t the enhanced sentence were not submitted to the jury. The jury did not make a specific finding that the dwelling was occupied.

The Tumblin court pointed out that the defendant’s crime in that case was committed before the PRR statute was amended in response to State v. Huggins, 802 So.2d 276 (Fla.2001) to include burglary of an unoccupied dwelling. See Tumblin,, 965 So.2d at 355. The trial court there concluded that there was no need for the jury to find that the place burglarized AA'as an occupied dwelling, because the catch-all provision of the PRR statute for forcible felonies applied. The Fourth District therefore analyzed whether the offense qualified as a forcible felony under the catch-all provision. It looked to the Hearns case to hold that it was eiTor for Tumblin to be sentenced as a PRR, where the jury failed to make a finding that the dwelling was occupied. It observed that only burglary of a dwelling was a qualifying PRR offense.

Tumblin is inapposite here, because the presence of burglary of a dwelling as an enumerated qualifying offense makes it unnecessary to engage in an analysis of whether burglary of a dwelling with an assault is a forcible felony under the catchall provision. While the crime may not be a forcible felony, it is a greater degree of a specifically listed qualifying offense. Therefore, it is itself a qualifying offense under the PRR statute.

Gorham v. Slate is likewise inapposite. Gorham was convicted of burglary of a conveyance with assault or battery. The Gorham court held that it was error to sentence the defendant as a PRR for that crime, because burglary of a conveyance was not an enumerated offense, and burglary of a conveyance with an assault or battery could not qualify under the catchall provision, under the supreme court’s ruling in Hearns. The Fourth District noted in Gorham that the PRR statute explicitly named only burglary of a dwelling, burglary of an occupied structure, and armed burglary as qualifying offenses, but not burglary of a conveyance. Because the legislature excluded this specific offense, the court concluded that it did not intend to include it, under the tenet of statutory construction, expressio unius est exclusio alterius. See Gorham, 988 So.2d at 154. As Avith Tumblin, the analysis and offense at issue in Gorham make it inappo-site hei'e.

Gorham and a number of other cases refer to the analysis in State v. Hearns. The supreme court in Hearns held that assault and battery do not qualify as forcible felonies under the catch-all provision of the PRR statute. However, to determine whether burglary of a dwelling with an assault or battery qualifies as a PRR offense, there is no need to resort to the catch-all forcible felony provision, or to look to the Hearns analysis, because burglary of a dwelling is an expressly enumerated offense in subsection (9)(a)(l)(q) of the statute.

We acknowledge that the defendant’s argument is supported by the language of the opinion in Williams v. State, 2 So.3d 984 (Fla. 2d DCA 2008). There the court stated that the defendant could not receive a life sentence under the PRR statute for burglary of a dwelling with a person assaulted, because the crime did not fall within the catch-all provision for forcible felonies. However, it is important to note that the court in Williams did not reverse the defendant’s conviction, because the alleged sentencing error was not preserved. Instead, the court affirmed without prejudice to the defendant’s right to file an appropriate postconviction motion. See Williams, 2 So.3d at 984. If the court had decided the issue on the merits it might have considered the fact that burglary of a dwelling is an enumerated offense. For all these reasons, we conclude that the trial court erred in sentencing the defendant to only 15 years for burglary of a dwelling with an assault. Therefore, we reverse and remand for resentencing as to this issue. On remand, the trial court is instructed to sentence the defendant as a prison releasee reoffender to a sentence of life imprisonment on the burglary count. We find no merit to the issue the defendant raises on direct appeal and therefore we affirm as to that issue.

Affirmed in part and reversed in part.

VAN NORTWICK, PADOVANO, and ROWE, JJ., concur.

      . We disagree with the statement in Williams regarding the applicability of the PRR statute, but it is not appropriate to certify conflict with the Second District Court of Appeal, beciiuse there is no conflict in the decisions.


text:
    Lonnie David SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0997.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2010.
    Rehearing Denied March 22, 2010.
    Lonnie David Smith, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of December 18, 2009, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on February 26, 2009, appealing the order denying the appellants motion for postcon-viction relief rendered on December 15, 2008, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order and the untimely motion for rehearing did not delay rendition, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). Thus, this appeal is hereby dismissed.

DISMISSED.

KAHN, BENTON, and ROBERTS, JJ., concur.


text:
    Douglas E. FOWLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4501.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2010.
    Rehearing Denied March 12, 2010.
    Douglas E. Fowler, Jr., South Bay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 838 So.2d 504 (Fla.2003).

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


author: LaROSE, Judge.

text:
    Mitchell JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-583.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 2010.
    Rehearing Denied March 17, 2010.

      Mitchell Jackson, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Mitchell Jackson appeals the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The trial court erroneously imposed a 100-year sentence for kidnapping. Consequently, we reverse for resentencing on this claim. In all other respects, we affirm.

The jury convicted Mr. Jackson of one count of aggravated assault with a deadly weapon (firearm), one count of kidnapping with a firearm, and four counts of sexual battery with a firearm. See §§ 784.021, 787.01(l)(a)(3), 794.011(3), Fla. Stat. (1987). The trial court sentenced him to 100 years for the kidnapping as a first-degree felony; a consecutive life sentence for one sexual battery; forty-year sentences for the other three sexual batteries, concurrent with the first sexual battery sentence; and five years for the third-degree felony aggravated assault, concurrent with the sexual battery sentences.

Kidnapping is a first-degree felony. § 787.01(2). Mr. Jackson’s use of a firearm resulted in a reclassification to a life felony. See § 775.087(l)(a), Fla. Stat. (1987). The maximum sentence for a life felony is life or a term of years not to exceed forty. § 775.082(3)(a). Thus, the 100-year sentence is illegal. See Shaw v. State, 780 So.2d 188, 191 (Fla. 2d DCA 2001) (holding that an illegal sentence is one that exceeds the statutory maximum for a particular offense regardless of the guidelines). The State properly concedes error. We accordingly reverse and remand for resentencing on the kidnapping conviction.

We also address Mr. Jackson’s claim that the trial court erroneously imposed an upward departure sentence without written reasons. See Fla. R;Crim. P. 3.701(d)(ll) (providing any sentence outside permitted guidelines range must be accompanied by written statement of departure reasons). This claim is not cognizable under rule 3.800(a). See Wright v. State, 911 So.2d 81, 83 (Fla.2005); Maddox v. State, 760 So.2d 89 (Fla.2000); Davis v. State, 661 So.2d 1193, 1196 (Fla.1995), receded from on other grounds hy Mack v. State, 823 So.2d 746, 748-49 (Fla.2002); Shaw, 780 So.2d at 191. We affirm on this point.

We affirm, without further discussion, the postconviction court’s rulings on the other claims raised by Mr. Jackson.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KELLY, JJ., Concur.


text:
    Daniel James GULLIVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0077.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2010.
    Rehearing Denied March 17, 2010.
    Daniel James Gulliver, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(A).

LEWIS, THOMAS, and WETHERELL, JJ., concur.


author: FULMER, CAROLYN K, Senior Judge.

text:
    William B. STANWIX-HAY, Jr., Appellant, v. LANCE AVIATION, INC., a Florida corporation, Appellee.
    No. 2D08-1933.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2010.
    Rehearing Denied March 25, 2010.
    Bryan S. Gowdy of Mills & Creed, P.A., Jacksonville (withdrew after briefing), for Appellant.
    William B. Stanwix-Hay, Jr., pro se.
    No appearance for Appellee.
   FULMER, CAROLYN K, Senior Judge.

In this appeal, the Appellant challenges the trial court’s denial of his “Emergency Motion for Stay of Sheriffs Sale and Order Declaring Property Exempt from Levy and Execution.” Although we do not agree with all of the trial court’s rulings in its written order, we nevertheless affirm because the Appellant failed to present sufficient evidence to support his claim for a homestead exemption greater than one-half acre.

Affirmed.

KELLY and LaROSE, JJ., Concur.


text:
    Anthony SUDOL, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1295.
    District Court of Appeal of Florida, Fifth District.
    Feb. 12, 2010.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Anthony Sudol, Bristol, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Although the appellant, Anthony Sudol, fashions this appeal as an appeal from a judgment and sentence imposed by the trial court, it appears that Mr. Sudol is actually attempting to appeal an order under Florida Rule of Criminal Procedure 3.800(c) granting a motion for reduction and modification of a sentence. As such an order is not appealable, we dismiss this appeal. See Jackson v. State, 936 So.2d 775 (Fla. 5th DCA 2006); Hunker v. State, 397 So.2d 934 (Fla. 5th DCA 1981). Moreover, if this had been an appeal from a judgment and sentence, we would have affirmed inasmuch as the sentence issued conforms to the plea bargain and is legal.

DISMISSED.

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


author: HAWKES, C.J. BENTON, J.,

text:
    Athena F. GRAINGER, as personal representative of the Estate of Samuel Gus Felos, Appellant, v. Howard B. WALD, Jr., Appellee.
    No. 1D09-0765.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2010.
    Rehearing Denied March 22, 2010.

      Rhonda B. Boggess of Taylor, Day, Cur-rie, Boyd & Johnson, Jacksonville, for Appellant.
    S. Perry Penland, Jr. of S. Perry Pen-land, Jr. P.A., Jacksonville, for Appellee.
   HAWKES, C.J.

Appellant serves as the personal representative of the estate of Samuel Gus Fe-tos. As personal representative, she challenges the denial of her petition to strike a claim filed against the estate by Wald as untimely under section 733.702(1), Florida Statutes (2009). The probate court denied the petition, finding the time constraints of section 733.702(1) inapplicable because the notice to creditors was improperly served on Wald. We find this reasoning without statutory support and, therefore, reverse.

Wald was involved in an automobile/motorcycle accident with the decedent and brought a personal injury lawsuit to recover damages. Wald eventually prevailed in his lawsuit, but the judgment was not rendered until after the decedent’s death. Some time after obtaining the judgment, Wald filed a claim against the probate estate.

In response, the personal representative filed a petition to dismiss the claim. The personal representative argued Wald’s claim was untimely as it was not filed within the statute of limitations established in section 733.702(1). This provision states all claims against a decedent’s estate arising before the decedent’s death must be filed either within three months of publication of the notice to creditors or 30 days after personal service of the notice upon the creditor. The personal representative argued she had served notice on Wald’s attorney as required by Florida Probate Rule 5.041(b) (2009) on May 23, 2007, thus triggering the time constraints of section 733.702(1). Therefore, under the statute, Wald had until June 22, 2007, to file any claim he might have. Since Wald’s claim was not filed until July 2, 2007, the personal representative argued it was untimely and forever barred.

The probate court rejected this argument. It found service of the notice was ineffective because it was served upon Wald’s “personal injury” attorney, rather than upon his “probate” attorney. The court went on to reason that because service of the notice was ineffective, Wald’s claim was not governed by the 30-day time constraint of section 733.702(1). Since the claim was not constrained by the 30-day claim period, the court denied the personal representative’s petition to strike the claim as untimely. This appeal followed.

There are two reasons why the probate court erred in finding the time constraints of section 733.702(1) inapplicable.

First, the Florida Probate Rules do not make any distinction based on the scope of an attorney’s representation of a client. A personal representative would have no way of knowing such information. These descriptive labels, such as “probate” attorney or “personal injury” attorney do not appear in the Rule 5.041(b), which governs the service of pleadings and papers in probate actions. Instead, the Rule simply requires that if a creditor is represented by an attorney, service must be on the attorney and not on the creditor. The language of Rule 5.041(b) states that “when service is required or permitted to be made on an interested person represented by an attorney, service shall be made on the attorney unless service on the interested person is ordered by the court.” (emphasis added).

Given the foregoing, it seems bizarre to declare service invalid simply because the attorney who was served later claims he is not the “probate” attorney but the “personal injury” attorney. This not only adds terms and conditions not found in the Rule, but also puts the Rule at odds with section 733.702(4). If this interpretation of the Rule were correct, a personal representative wishing to impose or rely on the statutory 30-day claim period would be frustrated if one of the estate’s creditors were represented by an attorney. This is so because, at any time, the creditor would have the option of retaining additional counsel and labeling that attorney as the “probate attorney,” thereby rendering the estate’s service void and avoiding the 30-day claim period. The personal representative would have no way of knowing whether service was obtained because he would not know if additional counsel, appropriately labeled, would be later retained. To have certainty, the personal representative would have no alternative but to ignore the mandates of the Rule and serve the creditor directly to achieve the benefits of the statute.

This case serves as an illustration. At the time that notice was served, Wald had representation. Wald’s attorney had handled his entire “personal injury” claim and was familiar with every aspect of the claim. No other attorney was involved on Wald’s behalf. The notice was served on the attorney and contained the warning that that any probate claim was to be filed within 30 days or be forever barred. Wald argues his tardiness should be overlooked because he had not labeled the attorney as his “probate attorney.” Semantics should not be allowed to render Rules meaningless and statutes uncertain. The time constraints contained in section 733.702(1) are important and should not be skirted by legal gamesmanship. See Mack v. Perri, 24 So.3d 697 (Fla. 1st DCA 2009).

Second, regardless of whether the attorney served was labeled the “probate” or the “personal injui*y” attorney, the record reflects that Wald had actual notice and that he received notice in time to file the claim. Wald received all process that was due. The record contains Wald’s original statement of claim against the estate. Although the claim was not filed until July 2, 2007, Wald signed the claim on June 16, 2007 — at least six days before the time for filing claims was to expire. “[D]ue process requires the personal representative to give notice by any means that is certain to ensure actual notice of the running of the non-claim period.” Estate of Ortolano, 766 So.2d 330, 332 (Fla. 4th DCA 2000) (emphasis added). Considering the date of Wald’s signature, he had actual notice and sufficient time to file a claim within the 30-day statute of limitations. Therefore, any failure was not in the service of the notice, but in the untimely filing of the claim. Since there was no excuse for Wald’s failure to file the claim in a timely manner, it should have been declared time barred under section 733.702(1).

The probate court erred in denying Grainger’s petition for an order striking the probate claim as untimely. This matter is REVERSED and REMANDED for proceedings consistent with this opinion.

THOMAS, J., concurs; BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

I respectfully dissent. Florida Rule of Appellate Procedure 9.110, which governs “Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases,” applies to “proceedings” that “seek review of orders entered in probate and guardianship matters that finally determine a nght or obligation of an interested person as defined in the Florida Probate Code.” Fla. R.App. P. 9.110(a)(2) (emphasis supplied). Denial of the petition Athena F. Grainger filed, as personal representative of the estate of Samuel Gus Felos, to strike Howard B. Wald’s claim against the estate (as untimely) is not an appealable order. Because the order under review does not “finally determine a right or obligation,” Fla. R.App. P. 9.110(a)(2), the appeal should be dismissed.

In a separate lawsuit brought against Mr. Felos while he was still alive, Mr. Wald sought to recover for injuries he suffered in an automobile accident. After Mr. Felos died, his estate was substituted as a party defendant in Mr. Wald’s personal injury case. The personal injury case resulted in an adverse judgment lor more than one million dollars, and the estate appealed the judgment to this court, which reversed and remanded for a new trial. The supreme court has since granted review of our decision in the personal injury case. See Grainger v. Wald, 982 So.2d 42 (Fla. 1st DCA 2008), rev. granted, 11 So.3d 943 (Fla.2009). Whether the estate will ultimately be indebted to Mr. Wald is now for our supreme court to say, and remains to be finally determined.

The order on appeal in the present case finally determines no right or obligation of the estate as judgment debtor or of Ms. Grainger as personal representative. Mr. Wald’s statement of claim, which the order under review declined to strike, is expressly predicated, not on the previously unad-judicated cause of action for injuries sustained in the automobile accident, but on a “jury verdict and Final Judgment” in the personal injury case, which had been entered against the estate before the filing deadline asserted in the probate case ran.

We have jurisdiction to review orders denying petitions to strike claims only where they finally determine a right or obligation of an interested person. See Strulowitz v. Cadle Co., II, 839 So.2d 876 (Fla. 4th DCA 2003) (reviewing probate order denying petition to strike claim); Lewsadder v. Estate of Lewsadder, 757 So.2d 1221 (Fla. 4th DCA 2000) (same); Estate of Shearer ex rel. Shearer v. Agency for Health Care Admin., 737 So.2d 1229 (Fla. 5th DCA 1999) (same). We reversed an order granting a creditor an extension of time to file a claim against the estate in In re Estate of Elliott, 798 So.2d 13, 17 (Fla. 1st DCA 2001), reasoning that the personal representative was an interested person under Florida Rule of Appellate Procedure 9.110(a)(2), and that the extension order finally determined a right of the personal representative, because its effect was to deprive her of the ability to preclude litigation of the claim. Id. at 14-15. As in Elliott, the personal representative here is an interested person under Rule 9.110(a)(2), and the order under review in the present case, like the order reviewed in Elliott, purported to determine whether the personal representative could foreclose a claim as untimely for failure to file within the 30-day period for filing claims. See § 733.702(1), Fla. Stat. (2006). See also Smoak v. Graham, 167 So.2d 559, 561 (Fla.1964).

In the present case, however, the judgment entered against the estate after Mr. Felos died cannot be deemed a “claim or demand against the decedent’s estate that arose before the death of the decedent.” § 733.702(1), Florida Statutes (2006). The posthumous judgment against the estate, entered before the putative deadline for statements of claim passed, is the only basis stated for Mr. Wald’s claim. Upon his death, Mr. Felos’s estate had been substituted as a party in the personal injury case Mr. Wald brought against him. Mr. Wald is a judgment creditor of the estate, not of the decedent.

The personal representative was without power to insulate the estate from a judgment against it by deeming untimely underlying claims after they had merged into the judgment. Denial of the petition to strike a claim predicated on the judgment does not alter the estate’s legal position.

The appeal should be dismissed.

      . Section 733.702(1) includes all claims within its scope, "even if the claims are unma-lured, contingent or unliquidated.”

      . Filing a probate claim is a relatively simple act and requires nothing more than submitting a written statement of the case. If for some reason Wald's attorney was unable to file die claim, he certainly could have referred Wald to another attorney or advised Wald about the need to timely file a claim. Wald's attorney failed to accomplish this simple task.

       We said that if the personal representative were not able to appeal the order at that time, she would never be able to do so. In re Estate of Elliott, 798 So.2d 13, 15 (Fla. 1st DCA 2001). The Elliott opinion cited Smoak v. Graham, 167 So.2d 559, 561 (Fla.1964), where our supreme court found an order denying a petition for payment of a claim final and appealable, holding that “the judicial labor of the probate court is complete ... at the point when recourse to suit in another court or defense of such independent action is required as a condition to any further consideration of the claim in probate.”


text:
    Antonio WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0301.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2010.
    Antonio Ward, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Bryant PAYNE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0320.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2010.
    Bryant Payne, 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., ROBERTS and CLARK, JJ., concur.


text:
    Mario D. BALDWIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6415.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2010.
    Mario D. Baldwin, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Hastings v. Krischer, 840 So.2d 267 (Fla. 4th DCA 2003).

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


text:
    Earl J. SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1247.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.
    Rehearing Denied March 22, 2010.
    Nancy A. Daniels, Public Defender, and Gail Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from an order entered after a jury trial committing appellant as a sexually violent predator under section 394.917, Florida Statutes (2008). On appeal, appellant argues that no competent substantial evidence supports a conclusion that he was “likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” § 394.912(10)(B), Fla. Stat. (2008). We affirm.

After an appropriate finding of probable cause, this case proceeded to a jury trial for civil commitment under the directives of section 394.9155, Florida Statutes (2008). Notwithstanding that such a proceeding is civil in nature, Westerheide v. State, 831 So.2d 93 (Fla.2002), and governed by the Florida Rules of Civil Procedure, see section 394.9155(1), Florida Statutes (2008), counsel for Mr. Shaw, at the conclusion of the State’s case, purported to “raise a JOA [Judgment of Acquittal] motion.” The motion for judgment of acquittal is, of course, appropriate in a criminal case under Florida Rule of Criminal Procedure 3.380(a), but a motion for directed verdict applies in a civil proceeding under Florida Rule of Civil Procedure 1.480. Even assuming that use of the nomenclature JOA would not be a procedural bar, we note that, far from actually making such a motion, defense counsel proceeded to state “the State has covered all the basic elements.... ” Such a motion preserved nothing. See Roeling v. State, 880 So.2d 1234 (Fla. 1st DCA 2004). Even were we to reach the merits, “the evidence was more than sufficient to permit the jury to find as it did.” Id. at 1236.

Accordingly, the order of commitment is AFFIRMED.

KAHN, BENTON, and ROBERTS, JJ., concur.


text:
    Henry E. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4031.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2010.

      Henry E. Jackson, pro se, Appellant.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm grounds one and two of the appellant’s motion without further discussion. However, we hold that the appellant’s claim that he was incompetent to enter a plea and that counsel was ineffective for failing to investigate the appellant’s competency or request a competency determination is facially sufficient. Specifically, the appellant alleges that he was incompetent and did not understand the consequences of his plea, that he had a history of mental illness, had not taken his schizophrenia medication, was suffering from delusions and hearing voices at the time of the plea and that he informed counsel of his condition. Cf. Schultheis v. State, 12 So.3d 811, 812 (Fla. 1st DCA 2009) (“A narrow argument that counsel was ineffective for failing to raise the competency issue, however, is cognizable in the postconviction posture”); Coker v. State, 978 So.2d 809 (Fla. 1st DCA 2008) (recognizing the failure to raise a defendant’s alleged incompetency as a ground for asserting ineffective assistance of counsel); Luckey v. State, 979 So.2d 353, 354 (Fla. 5th DCA 2008) (holding that claim that counsel was ineffective for allowing defendant to proceed while incompetent was facially insufficient where defendant did not allege “he actually was incompetent to proceed to trial or insane at the time of his offense”). The plea colloquy attached by the trial court does not refute the appellant’s claim as the appellant’s mental competency was never addressed. We reverse and remand for the trial court to hold an evidentiary hearing on this claim.

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

DAVIS and BENTON, JJ., and BERGER, WENDY, Associate Judge, concur.

      . The appellant raised this issue in grounds three through five, which this Court treats as one ground for relief.


text:
    James C. FREAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0013.
    Disti’ict Court of Appeal of Florida, First District.
    Feb. 18, 2010.
    James C. Frear, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.140(b)(3).

KAHN, PADOVANO, and WETHERELL, JJ., concur.


author: SILBERMAN, Judge.

text:
    John CHRISTIANSEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-48.
    District Court of Appeal of Florida, Second District.
    Feb. 26, 2010.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.

      . Judge Crenshaw has been substituted for Judge Stringer, who was on the original Christiansen panel.

   ON REMAND FROM THE SUPREME COURT OF FLORIDA

SILBERMAN, Judge.

In Christiansen v. State, 26 So.3d 1287 (Fla.2009), the Supreme Court of Florida quashed this court’s decision in Christiansen v. State, 993 So.2d 173 (Fla. 2d DCA 2008), and directed this court on remand to reconsider the matter in light of the supreme court’s decision in Sheppard v. State, 17 So.3d 275 (Fla.2009). This court had relied upon its opinion in Sheppard v. State, 988 So.2d 74 (Fla. 2d DCA 2008), quashed, 17 So.3d 275 (Fla.2009), when it affirmed Christiansen’s judgment and sentence, reversed the denial of his pro se motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.170(i), and remanded for the trial court to strike the pro se motion as a nullity.

Christiansen asserted in his pro se motion that counsel coerced him into entering his plea, and he included factual allegations in support of his motion. Pursuant to the supreme court’s opinion in Sheppard, it is not appropriate to strike the motion as a nullity. See Sheppard, 17 So.3d at 286 (determining that a pro se motion to withdraw plea should not be stricken as a nullity when the defendant alleges that counsel coerced the defendant into entering the plea). In this situation, the supreme court explained that rather than striking the pro se motion,

the trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

Id. at 287 (footnote omitted).

Therefore, we affirm the judgment and sentence, but we reverse the denial of the motion to withdraw plea and remand for the trial court to follow the procedures in the supreme court’s Sheppard opinion.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, C.J, and CRENSHAW, JJ., Concur.


text:
    STATE of Florida, Appellant, v. Gregory SPILLER, Appellee.
    No. 4D08-4071.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Nelson v. State, 16 So.3d 286 (Fla. 4th DCA 2009).

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


author: WELLS, Judge.

text:
    Eugene LARK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1347.
    District Court of Appeal of Florida, Third District.
    March 3, 2010.
    Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and SALTER, JJ.
   WELLS, Judge.

Eugene Lark appeals his convictions and sentences for one count of strong armed robbery, one count of fleeing a law enforcement officer at high speed, and two counts of resisting an officer without violence, claiming that: (1) the lower court committed reversible error by failing to conduct a Nelson inquiry; (2) the evidence did not establish that the defendant was a principal to robbery; and (3) an erroneous jury instruction allowed the jury to find the defendant guilty twice for the same offense of resisting an officer without violence. We reject Lark’s first two claims without discussion finding that they are without merit. For the reasons that follow, we strike one of the defendant’s convictions for resisting an officer without violence because of an erroneous jury instruction.

The information charged Lark with, in relevant part, one count of resisting Officer Gonzalo Garcia of the Miami Springs Police Department without violence (count 4), and one count of resisting Officers Edwin Diaz and/or Patrick Calvo of the Miami-Dade County Police Department without violence (count 7). The evidence at trial was that, following a robbery, Lark di*ove a vehicle in a high speed chase with two police cars, one driven by Officer Garcia, the other driven by Officers Diaz and Calvo. Officers Garcia and Calvo testified at trial, Officer Diaz did not.

The record reflects that the jury instruction on count 4 for resisting a law enforcement officer without violence correctly identified Officer Garcia as the officer involved in that count. However, the instruction relating to count 7 mistakenly identified Officer Garcia rather than Officer Diaz as one of the officers involved in that charge, asking whether “Lark resisted, obstructed or opposed Gonzalo Garcia and/or Patrick Calvo” without violence. Although this error was brought to the trial court’s attention, and the court agreed to rectify it, the instruction went to the jury with the erroneous substitution of Officer Garcia for Officer Diaz. The jury returned a general verdict finding Lark guilty on both count 4 and 7.

We agree with Lark that the erroneous jury instruction combined with the general verdict effectively permitted the jury to twice find Lark guilty for the same offense of resisting Officer Garcia without violence. See Gaskin v. State, 869 So.2d 646, 647 (Fla. 3d DCA 2004) (finding reversible error where the improper jury instruction provided a legally insufficient basis for a conviction and where the general verdict of guilty as to the charged crime made it impossible to determine that the verdict was not based on the improper portion of the jury instruction). We therefore reverse as to count 7 and, at the State’s suggestion, strike Lark’s conviction and sentence on that count. The remainder of Lark’s convictions and sentences are affirmed.

Affirmed in part, reversed in part.

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


text:
    STATE of Florida, Appellant, v. Robert LACERRA, Appellee.
    No. 4D09-1964.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
    Andrea Shelowitz of Andrea Shelowitz, P.A., of counsel for Shelowitz & Coffey, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See State v. Dixon, 976 So.2d 1206 (Fla. 4th DCA 2008).

FARMER, HAZOURI and DAMOORGIAN, JJ., concur.


author: CIKLIN, J.

text:
    STATE of Florida, Appellant, v. D.C., a Child, Appellee.
    No. 4D08-3877.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
    Joseph A. Bosco of Joseph A. Bosco, P.A., Fort Lauderdale, for appellee.
   CIKLIN, J.

In this juvenile delinquency matter, D.C. was charged by petition for delinquency with possession of a firearm on school property pursuant to section 790.115(2), Florida Statutes (2007). During the adjudicatory hearing, the trial judge found the proof insufficient to support that charge but found it sufficient to support guilt of the uncharged crime of carrying a concealed firearm pursuant to section 790.01(2). The court mistakenly believed the crime of carrying a concealed firearm was a lesser included offense of the original charge. See James v. State, 16. So.3d 322, 326 (Fla. 4th DCA 2009) (“[T]he definition of ‘possession’ is different from and broader than the definition of ‘carrying.’ ”); § 790.115(2)(a), Fla. Stat. (“A person shall not possess any firearm.”); § 790.01(2), Fla. Stat. (“A person who carries a concealed firearm ... commits a felony.”).

The adjudication of delinquency for a crime not charged constitutes fundamental error. See S.J. v. State, 831 So.2d 1288 (Fla. 5th DCA 2002).

Because the trial court found that the allegations in the petition were not sustained and because the trial judge found D.C. guilty of a lesser included offense that was, in fact, not a lesser included offense of the original charge, the law of this case requires that the matter be dismissed. See Fla. R. Juv. P. 8.110(f).

Reversed and remanded for further proceedings consistent with this opinion.

MAY and DAMOORGIAN, JJ., concur.

      . In announcing his decision, the trial judge staled: "I’m making a finding that ... [the State] did prove beyond and to the exclusion of every reasonable doubt ... the lesser included offense of carrying a concealed firearm, 790.01.”

      . Although neither party raised this issue either in the trial court or on appeal, an appellate court may address sua sponte an error which is apparent on the face of the record. See Goss v. State, 398 So.2d 998 (Fla. 5th DCA 1981).


text:
    Kevin John LA PAGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1208.
    District Court of Appeal of Florida, First District.
    March 3, 2010.

      Nancy A. Daniels, Public Defender and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant seeks review of the trial court’s denial of his motion to withdraw his plea filed pursuant to Florida Rule of Criminal Procedure 3.170(7). We reverse.

In November 2000, Appellant was sentenced to three years in prison followed by 15 years of probation. In February 2007, Appellant was charged with violating probation by changing his residence without the permission of his probation officer. In January 2009, Appellant entered a plea of no contest to the violation and was sentenced to 177.75 months in prison.

At the probation violation hearing, Appellant offered the following testimony regarding the circumstances of the alleged violation: He explained that his wife was on active duty in the Navy and that they were often transferred. Upon the first transfer, he notified his probation officer, who approved the move. He provided the officer with his new address and she responded that someone would contact him. A few months after the move, a probation officer contacted him. When a second move was imminent, Appellant notified his probation officer again and provided his new address. The officer noted the address, approved the move, and placed a note in Appellant’s folder. After the move, no one contacted him.

Appellant timely filed a motion to withdraw his plea after sentencing. He claimed that his trial counsel misadvised him about the sentence that he could receive for the probation violation and also misadvised him regarding potential defenses to the charge. The trial court denied the motion after a hearing, finding that Appellant’s claims were “refuted in the record.”

In Sheppard v. State, 17 So.3d 275 (Fla.2009), the Florida Supreme Court outlined the procedure that trial courts should follow when a defendant files a motion to withdraw a plea based on allegations giving rise to an adversarial relationship with counsel such as counsel’s misadvice, misrepresentation, or coercion that led to the entry of the plea. “[T]he trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant’s allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.” Id. at 287.

Here, the trial court held the initial hearing contemplated by Sheppard, at which the testimony of Appellant and his trial counsel demonstrated that an adversarial relationship existed. Thus, pursuant to Sheppard, the trial court was required to appoint conflict-free counsel to represent Appellant on his motion to withdraw his plea unless the court determined that Appellant’s claims were conclusively refuted by the record. Id,.; see also Carter v. State, 22 So.3d 793, 794 (Fla. 1st DCA 2009); Smith v. State, 21 So.3d 72 (Fla. 1st DCA 2009).

We agree that the record conclusively refutes Appellant’s claim that he was misadvised regarding his potential sentence. The record includes the plea colloquy from the probation violation hearing where the trial court clearly informed Appellant of the potential sentence that he was facing, both in terms of months and years.

The trial court erred, however, in determining that the record conclusively refutes Appellant’s claim that his counsel misadvised him about possible defenses to the alleged violation. The state argues that the record refutes this claim because Appellant’s trial counsel testified that she told Appellant generally what the state needed to prove in order to support a finding that he violated his probation. This testimony was at the hearing on the motion to withdraw where Appellant was essentially unrepresented by counsel; there is nothing in the record of the probation violation hearing to refute Appellant’s claim that he was misadvised by counsel on this issue. Appellant’s acknowledgment in the plea colloquy that he “had a chance to talk to [his] attorney regarding the allegations of the violation of probation and defenses” does not conclusively refute Appellant’s claim that tidal counsel misadvised him that his explanation of alleged violation was not a defense to the charge.

Accordingly, pursuant to Sheppard, we reverse and remand for an evidentiary hearing on Appellant’s motion to withdraw his plea where Appellant is represented by conflict-free counsel.

REVERSED and REMANDED for further proceedings.

LEWIS and THOMAS, JJ., concur.


author: THOMAS, J.

text:
    Timothy SKARKA, Petitioner, v. LENNAR HOMES, INC./ Broadspire, Respondents.
    No. 1D09-4032.
    District Court of Appeal of Florida, First District.
    March 3, 2010.

      Jason L. Fox of The Law Offices of Carlson & Meissner, Clearwater, for Petitioner.
    Marissa M. Hoffman of Conroy, Sim-berg, Ganon, Krevans, Abel, Lurvey, Morrow & Sehefer, P.A., West Palm Beach, for Respondents.
   THOMAS, J.

Petitioner seeks certiorari review of an order denying a motion to disqualify the presiding Judge of Compensation Claims (JCC). We treat the petition as seeking a writ of prohibition. See Fla. R.App. P. 9.040(c). Because the motion was not “sworn to by the party by signing the motion under oath or by a separate affidavit,” the JCC properly denied it. See Fla. Admin. Code R. 60Q-6.126; Fla. R. Jud. Admin 2.330(c)(3); Wal-Mart Stores, Inc. v. Carter, 768 So.2d 21, 22 (Fla. 1st DCA 2000). Accordingly, we deny the petition for writ of prohibition.

Upon the untimely filing of a reply brief, this court issued an order to show cause as to why it should not, sua sponte, impose attorney’s fees against Petitioner and Petitioner’s attorney pursuant to section 57.105(l)(b), Florida Statutes (2008), because it appeared that the petition and briefs reflected a lack of knowledge of the rules of appellate procedure and case law, and failed to provide relevant information for this court’s review of the petition. The show cause order listed seven separate issues raised by Petitioner’s pleadings for which this court sought explanation as to why fees should not be imposed pursuant to section 57.105.

In his response, Petitioner’s attorney failed to directly address any of the issues raised. Most significantly, there was no explanation as to why Petitioner never requested under oath that the JCC be disqualified, nor how Petitioner was prejudiced by his attorney not being permitted to participate in a telephone conference when it had been rescheduled so that he could participate. There was also no explanation for Petitioner seeking relief in the form of a blanket disqualification of the JCC in that the Florida Supreme Court has made clear that such requests will not be granted. See Livingston v. State, 441 So.2d 1083, 1085 (Fla.1983) (reiterating that “a lawyer’s request for a general disqualification of a judge will not be granted”). Further, Petitioner’s attorney advises that the case below has now been settled in its entirety, yet he continues to require this court to address his petition.

Because Petitioner’s attorney’s reply to this court’s show cause order was wholly unresponsive, attorney’s fees pursuant to section 57.105, Florida Statutes (2008), are hereby imposed against Petitioner’s attorney and Petitioner. Although we would prefer to exclude Petitioner from this sanction, section 57.105 does not authorize this court to fashion such a remedy. This cause is remanded to the JCC to determine a reasonable fee and whether Petitioner should be accorded an opportunity to obtain conflict-free counsel.

PETITION DENIED; REMANDED with instructions consistent with this opinion.

BENTON and CLARK, JJ., concur.


text:
    Robert B. RADFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5399.
    District Court of Appeal of Florida, First District.
    March 5, 2010.
    Robert B. Radford, pro se, Petitioner.
    Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Munn v. Fla. Parole Commn., 807 So.2d 733 (Fla. 1st DCA 2002).

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


text:
    John WALKER, Petitioner, v. Al LAMBERTI, as Sheriff of Broward County, Florida, and the State of Florida, Respondents.
    No. 4D10-400.
    District Court of Appeal of Florida, Fourth District.
    March 8, 2010.

      Thomas A. Morse, Fort Lauderdale, for petitioner.
    No response required for respondents.

      . Amended to reflect proper parties to this petition.

   PER CURIAM.

John Walker petitions for a writ of habe-as corpus seeking discharge from a 30-day jail-based drug treatment program which the judge ordered Walker to complete as a sanction for failing a drug test administered as part of the Broward County drug court felony pretrial intervention program (PTI). We deny the petition because the legislature has expressly authorized the type of sanction imposed in this case and because Walker executed a deferred prosecution agreement (DPA) that specifically advised him that pretrial detention in a treatment program could be imposed if he violated the terms of the program.

In July 2009, Walker was arrested and charged with possession of cocaine. He entered into a DPA and the PTI program. See § 948.08(6)(a), Fla. Stat. (2009); see also § 397.334, Fla. Stat. (2009).

PTI programs are entered into as a contract between the court and the participant, similar to a plea agreement. State v. Dempsey, 916 So.2d 856, 859 (Fla. 2d DCA 2005). In the PTI program, the defendant agrees to abide by the terms and conditions of the DPA. Upon successful completion of the program, the court dismisses the charges. See § 948.08(6)(c), Fla. Stat. (2009). A felony PTI program must be at least one year in duration. § 948.08(6)(a), Fla. Stat. (2009).

Walker signed and initialed a DPA, which advised him the PTI program would last at least 12 months and up to 18 months with the possibility that the judge could extend the program for an additional 6 months to allow Walker time to successfully complete the program. The agreement advised Walker of the requirements of the program, including random drug testing, and that he could be placed in a jail-based drug treatment program administered by the Broward Sheriffs Office (BSO) if he violated its terms.

At a status hearing, after having been in the program for several months, Walker advised the judge that he wanted to “opt out” of the program. The judge refused to allow Walker to “opt out” unless he took a drug test. Walker took the drug test and failed. The judge then ordered Walker taken into custody pending placement in BSO’s drug treatment program.

Walker petitions this court for a writ of habeas corpus. He argues that participation in the PTI program is strictly voluntary, and he can opt out of the program at any time and require the charges to revert to normal channels of prosecution. See Mullin v. Jenne, 890 So.2d 543 (Fla. 4th DCA 2005); Diaz v. State, 884 So.2d 299 (Fla. 2d DCA 2004).

In Mullin, this court found that language in the administrative order creating the Broward County PTI program made participation strictly voluntary. The administrative order creating the PTI program provided: “Participation is strictly on a voluntary basis.” Mullin, 890 So.2d at 546 (quoting Administrative Order III— 99-3-E, Seventeenth Judicial Circuit) (emphasis in original). In footnote 3 of Mul-lin, we noted: “Had the administrative order indicated only ‘entry’ into the program was ‘voluntary,’ a different result may have occurred.” Id. at 546 n. 3.

Subsequent to our decision, the administrative order was amended. The current order tracks the language of section 397.334(3)(a) and now provides: “Entry into the felony drug court is voluntary ...” Administrative Order 2010-14-CRIM(l)(b), Seventeenth Judicial Circuit (emphasis added). It no longer provides that “participation” is voluntary.

In Mullin, we expressly held that incarceration in jail was a permissible sanction for violating the terms of a pretrial intervention drug court program: “The fact that the defendant remains in pre-trial status should not prevent the trial court from using the jail-based sanctions that the defendant would otherwise be subjected to if on probation.” Id. at 546. We disagreed with the Second District Court of Appeal’s decision in Diaz, which held that, under the existing statute, incarceration was not a permissible sanction. Mullin, 890 So.2d at 546.

When Diaz was decided, the statute did not expressly permit jail-based sanctions for violations of the PTI program. 884 So.2d at 299. In 2006, after Diaz and Mullin, the legislature responded, amending the statute to expressly provide that incarceration or placement in jail-based drug programs may be imposed as a sanction. Ch. 2006-97, § 8, Laws of Fla.; § 948.08(6)(b), Fla. Stat. (2006). The amended statute provides:

While enrolled in a pretrial intervention program authorized by this subsection, the participant is subject to a coordinated strategy developed by a drug court team under s. 397.334(4). The coordinated strategy may include a protocol of sanctions that may be imposed upon the participant for noncompliance with program rules. The protocol of sanctions may include, but is not limited to, placement in a substance abuse treatment program offered by a licensed service provider as defined in s. 397.311 or in a jail-based treatment program or serving a period of incarceration within the time limits established for contempt of court. The coordinated strategy must be provided in writing to the participant before the participant agrees to enter into a pretrial treatment-based drug court program or other pretrial intervention program.

§ 948.08(6)(b), Fla. Stat. (2009) (emphasis added); see also § 397.334(5), Fla. Stat. (2009).

Because the potential sanctions are serious, and the agreement waives important rights — such as the right to speedy trial and pretrial release, the requirements and potential sanctions for violations of PTI should be set forth clearly, provided to, and agreed to by the defendant in writing. Indeed, the statute requires as much. See § 948.08(6)(b), Fla. Stat. (2009).

We reject Walker’s contention that participation in the PTI program is strictly voluntary and that he is permitted to “opt out” of the program at any time. Walker agreed to be subject to the terms and conditions of the drug court program for a minimum of 12 months and up to 18 months or until terminated from the program by the court. Nothing in the DPA indicates that continued participation was voluntary or that Walker could “opt out” at any time. The DPA advised Walker that “entry” into the program is voluntary. Walker was not misled into believing that participation was also voluntary, or that he could “opt out” at any time.

In fact, paragraph 9 of the DPA provides:

9. By entering into this agreement, I agree to be bound by its terms and conditions until its termination by one or more of the following circumstances:
a. Successful completion of the PTI program within no more than eighteen (18) months from the date I commence court approved treatment.
b. Failure to successfully complete the program within eighteen (18) months from the date I commence court approved treatment.
c. Failure to comply with the terms and conditions of the agreement.
d.The commission of a new felony offense ... or second domestic violence misdemeanor or any other violent misdemeanor. The commission of the new offense shall be proved by the state by a preponderance of the evidence. Hearsay evidence may be admitted and the burden of proof may be met through introduction of hearsay evidence exclusively.
f. [sic] A determination by the Court that I am unsuitable for treatment.

The DPA, signed by Walker, put him on notice that once enrolled in the program, he was bound for its entire term and could be subjected to sanctions such as pretrial detention in a jail-based drug treatment program. Paragraph 8(e) of the DPA specifically provides:

I understand that my pretrial release was conditioned on my participation in Drug Court and my compliance with my treatment plan. I further understand that non-compliance with my treatment program may result in being taken into custody to complete a BSO In-Custody Treatment Program to continue my recovery process. Other sanctions the court may impose include more intensive treatment, electronic monitoring (house arrest), weekends in-custody, long or short term residential treatment in the community. I further understand that the Court will review my custody and treatment status on a regular basis.

Paragraph 7 specifically provides that “[b]efore entering this agreement, I was instructed on my obligations under PTI as delineated in paragraph 8, attended an orientation of the BSO Drug Court Treatment Program, and have been advised of my treatment obligations by my attorney.”

Like a plea, the decision to enter into a binding PTI agreement such as this, which can result in pretrial detention or involuntary treatment, must be knowingly and voluntarily made. As long as the defendant enters into the PTI program with “eyes wide open” and aware of the requirements and potential sanctions, then the court has the authority to impose those sanctions under the terms of the agreement. Once terminated, however, the PTI participant maintains the right to contest the charges at trial or enter a change of plea upon termination of the program.

The petition is DENIED.

STEVENSON, HAZOURI and DAMOORGIAN, JJ., concur.

      . The statute authorizes incarceration in jail "within the time limit limits established for contempt of court.” A judge-made finding of direct contempt of court can be punished by up to six months in jail. Aaron v. State, 284 So.2d 673 (Fla.973).


text:
    Anthony L. BARRETO, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1866.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2010.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Anthony L. Barreto, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See § 924.06(3), Fla. Stat. (2008); see also Robinson v. State, 373 So.2d 898 (Fla.1979); Fla. R.App. P. 9.140(4)(b).

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


text:
    Jose S. CRUZ, a/k/a Benjamin Merlos Duarte, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-666.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2010.
    James S. Purdy, Public Defender, and Peter A. Ames, Sr., Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Green, 944 So.2d 208, 218 (Fla.2006).

PALMER, TORPY and COHEN, JJ., concur.


text:
    Ira Lee DENSON, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-4135.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Ira Lee Denson, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, Florida Department of Corrections, and Beverly Brewster, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is granted and the trial court is directed to render an order on petitioner’s petition for writ of habeas corpus, or schedule a hearing on the merits of the petition, within 30 days of this opinion becoming final. See Browning v. State, 814 So.2d 1220 (Fla. 1st DCA 2002).

PETITION GRANTED.

KAHN, BENTON, and ROBERTS, JJ., concur.


text:
    Samuel COX, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0524.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Samuel Cox, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as premature. See Johnson v. State, 871 So.2d 294 (Fla. 1st DCA 2004).

KAHN, PADOVANO, and WETHERELL, JJ., concur.


text:
    Ted A. POLLARD, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5900.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Ted A. Pollard, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the judgment and sentence rendered on April 16, 2009, in Duval County Circuit Court case number 16-2008-CF-004731-BXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel at public expense, the trial court shall appoint counsel to represent him on appeal.

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.