author: TAYLOR, J.

text:
    Leon WATT, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3597.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

The defendant appeals his criminal conviction and sentence for carrying a concealed firearm. He argues that the trial court erred in admitting into evidence a letter from the Department of Agriculture indicating that he had not been granted a license to carry a concealed firearm. We agree that this was inadmissible hearsay. However, because the absence of a license was not an element of the crime, and the defendant’s defense at trial was not that he had a license for the gun, but, rather, that he never had it in his possession, we find that the error was harmless and affirm.

At trial, Officer Elijah Rodgers of the Lauderhill Police Department testified that he was patrolling in an unmarked vehicle when he saw the defendant with a black shiny metallic object in his hands. When he got closer to the defendant, he recognized the object to be a firearm. The defendant pulled out a bandana from his pocket and wrapped up the firearm. When Officer Rodgers tried to make contact with the defendant, the defendant ran with the bandana, completely covering the firearm inside it. The defendant tossed away the bandana and weapon when the officer came within ten feet of him. Shortly thereafter, the officer recovered the bandana and gun from underneath a stairway of the building where the defendant was arrested. Appellant told the officer that the firearm was not his and that he was holding it for somebody else. At trial, his defense was that he was unarmed and that the gun found by the police was not his.

At trial, the state sought to introduce as a public record a sworn statement from the records custodian of the Florida Department of Agriculture and Consumer Services attesting that the Department had no records of a concealed weapon or firearm license issued for anyone with the defendant’s name and date of birth. The document was on the Department’s letterhead and titled “CUSTODIAN OF RECORDS STATEMENT.” The body of the document stated:

In my capacity as Bureau Chief, Florida Department of Agriculture and Consumer Services, Division of Licensing, I am the official Records Custodian for the Division.
I hereby certify that a diligent search of our records has been performed and the Division of Licensing has no record of a Concealed Weapon or Firearm license issued pursuant to Section 790.06, Florida Statutes, in the name of Leon Watt, Date of Birth: July 8,1977.

The document was signed by Mary Kennedy, Records Custodian, and contained a notarized jurat, indicating that the document was sworn on May 6, 2008.

The defendant objected to admission of the document, arguing that it was inadmissible hearsay and not admissible as a public record. The trial court overruled the objection without comment. No other evidence regarding the license issue was adduced at trial, but the prosecutor did refer to the document in his closing argument. The jury found the defendant guilty of carrying a concealed firearm, as charged. The defendant was sentenced to a year and a day in prison.

A trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. Essex v. State, 917 So.2d 953, 956 (Fla. 4th DCA 2005). However, the trial court’s discretion is limited by the rules of evidence. Id. The issue here is whether the document qualified for admission under the public-record exception to the hearsay rule. Section 90.803(8), Florida Statutes (2008), states that:

Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show them lack of trustworthiness.

As the Florida Supreme Court explained in Yisrael v. State, 993 So.2d 952, 959 (Fla.2008):

“Public record,” as used in section 90.803(8), only encompasses two types of records. The first type includes records setting forth “the activities of the office or agency.” § 90.803(8), Fla. Stat. (2004); [Charles W. Ehrhardt, Florida Evidence ] § 803.8, at 906 [ (2007 ed.) ]. And the second type includes records setting forth “matters observed pursuant to [a] duty imposed by law as to matters which there was a duty to report.” § 90.803(8), Fla. Stat. (2004); Ehrhardt, supra § 803.8, at 906. Moreover, “matters-observed” public records must be based upon a public official’s first-hand observation of an event. See Ehrhardt, supra § 803.8, at 906; Kimbrough v. State, 852 So.2d 335, 335-36 (Fla. 5th DCA 2003).

The Department of Agriculture and Consumer Services is authorized by section 790.06(1), Florida Statutes (2008), “to issue licenses to carry concealed weapons or concealed firearms to persons qualified as provided in this section.” Generally, the Department is required to “implement and administer the provisions” of the statute. See § 790.06(15), Fla. Stat. (2008). As for record-keeping and reporting, the statute specifically provides, as follows:

(7) The Department ... shall maintain an automated listing of licenseholders and pertinent information, and such information shall be available online, upon request, at all times to all law enforcement agencies through the Florida Crime Information Center.

§ 790.06(7), Fla. Stat. (2008).

Yisrael involved both a Department of Corrections (DOC) release date letter, which the court found was not a public record within the meaning of the hearsay exception, and a DOC Crime and Time Report, which the court found was a public record within the rule. 993 So.2d at 958-59. As to the “activities-based” public record category, the Yisrael court found that “drafting a gratuitous hearsay letter for the purpose of litigation is not a regular activity.” Id. at 959. By contrast, it found that “creating and maintaining Crime and Time Reports is the relevant DOC activity.” Id. The letter at issue in the present case is indistinguishable from the date-of-release letter in Yisrael. Presumably, the Department of Agriculture and Consumer Services could have printed out a report from its authorized computer database showing that the defendant did not have a concealed weapons license, which would have been analogous to the Crime and Time Report in Yisrael. However, like DOC’s date-of-release letter in Yisrael, the letter from the Department of Agriculture and Consumer Services does not memorialize its activity.

As for the “matters observed” prong, the Yisrael court explained as follows:

[T]o be admitted under this portion of the exception: (1) the source of the information must have personal knowledge of the information recorded, as the phrase “matters observed” implies, (2) the source must have had a legal duty to both observe and report the information, and (3) the record in question must be one that the public agency or office is required by law to prepare.

993 So.2d at 959 (quoting Ehrhardt, supra § 803.8, at 908) (emphasis in original). In Yisrael, the court found that the DOC had no legal duty “to create a litigation-specific letter for the assistant state attorney. Rather, the DOC had a statutory duty to create and maintain its Crime and Time Reports, which are the actual records the DOC relies upon to keep track of inmates’ crimes, sentences, and release dates.” Id. Similarly, the Department of Agriculture and Consumer Services had no duty to create the subject letter for litigation; its obligation was to create and maintain the computerized records, which were not introduced.

We conclude that the trial court erred in admitting the letter from the Department of Agriculture and Consumer Services under the public-record exception to the hearsay rule. We determine, however, that admission of the letter was harmless error. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

The concealed weapon/firearm statute states, in pertinent part, as follows:

(1) Except as provided in subsection (4), a person who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) This section does not apply to a person licensed to carry a concealed weapon or a concealed firearm pursuant to the provisions of s. 790.06.

§ 790.01, Fla. Stat. (2008).

Under the terms of the concealed weapon/firearm statute, the state does not have the burden of proving the absence of a license as an element of the crime. Rather, proof of a license is pertinent only as an affirmative defense. Generally, for a statutory exception, such as a license, to constitute a defense under Florida law, the exception “must be in a clause subsequent to the enacting clause of a statute.” State v. Robarge, 450 So.2d 855, 856 (Fla.1984). Accord Royal v. State, 784 So.2d 1210 (Fla. 5th DCA 2001). In this case subsections (1)and (2) of the above-quoted statute are plainly the enacting clauses. The license defense is in the subsequent clause, subsection (3). As such, it is an affirmative defense, not an element of the crime.

In this case, the defendant never asserted or presented any evidence that he had a concealed firearm license. His theory of defense was that he did not possess the gun — not that he had a license for it. We thus conclude that the error in admitting the letter from the Department of Agriculture and Consumer Services was harmless.

Affirmed.

STEVENSON and MAY, JJ., concur.

      . We note that Florida Standard Jury Instruction (Criminal) 10.1 also does not recognize the absence of a license as an element of this crime.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    KING 205, LLC and Douglas Ferrell, Appellant, v. DICK PITTMAN ROOF SERVICES, INC., et al., Appellee.
    No. 5D08-3529.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2010.

      D. Brad Hughes of D. Brad Hughes, P.A., St. Johns, for Appellant.
    Sandra J. Mathis and Cristine M. Russell of Rogers Towers, P.A., Jacksonville, for Appellee.
   PALMER, J.

In this lien foreclosure action, King 205, LLC, and Douglas Ferrell appeal the final order entered by the trial court in favor of Dick Pittman Roof Services, Inc. (Pittman). We reverse as to the calculation of interest and as to the imposition of personal liability on Ferrell, but affirm in all other respects.

Pittman sued King 205 and Ferrell alleging claims of breach of an oral contract, unjust enrichment, and foreclosure on a claim of lien. The claims all arose out of Pittman’s replacement of a leaky roof on an office building owned by King 205. After a non-jury trial, the trial court found in favor of Pittman and against King 205 and Ferrell on both the breach of contract and the lien foreclosure counts, further determining that it did not need to reach the claim of unjust enrichment since it had found that an oral contract had existed. This appeal timely followed.

Ferrell contends that the trial court reversibly erred in finding him individually liable on the lien foreclosure count because he does not own the subject property. We agree.

In its complaint, Pittman asserted that the property at issue was “owned by Douglas Ferrell d/b/a Douglas Ferrell Electric, Inc., and King 205, L.L.C.” The copy of the Claim of Lien filed by Pittman described the property as being owned by “Douglas Ferrell DBA 205, LLC.” However, the Notice of Commencement names “King 205 LLC” as the “owner’s name”, and Ginger Ferrell testified that King 205 owns the subject property. This testimony concerning the owner of the property was not disputed at trial. Because the record evidence demonstrates that Ferrell did not personally own the subject property, it was error for the trial court to hold him personally liable on Pittman’s lien foreclosure claim.

Ferrell also argues that the trial court committed reversible error when it entered a judgment against him individually on the breach of contract count since such judgment was inconsistent with its own findings of facts and with the evidence presented at trial. We agree.

The trial court made a specific finding of fact that

an oral contract for the construction of a new roof on Defendant’s premises at 205 West King Street was entered into by Dick Pittman, on behalf of Dick Pittman Roof Services, Inc., and Douglas Ferrell, on behalf of King 205, LLC as owners of the said premises.

However, the court then entered a judgment against both King 205 and Douglas Ferrell individually. Since such final judgment is inconsistent with the trial court’s findings of fact, we reverse and remand with instruction to strike the language holding Ferrell individually liable on the breach of contract count.

Ferrell and King 205 next argue that the trial court reversibly erred when it determined that the terms of the parties’ contract called for a cost plus billing arrangement, claiming that the evidence at trial demonstrated that the parties’ orally agreed that Pittman would repair the roof for a flat fee of $12,000.00 or, if decking needed to be replaced, $15,000.00. In a related claim, Ferrell and King 205 also argue that the trial court reversibly erred in determining that the parties entered into an enforceable oral contract for the roof repair project because there was no evidence that Ferrell accepted Pittman’s offer to make the repairs on a cost plus basis, and, as such, Pittman failed to satisfy its burden to prove that a valid contract existed. We disagree.

“The lower court’s ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence or to constitute an abuse of discretion.” Zupnik Haverland, L.L.C. v. Current Builders of Florida, Inc., 7 So.3d 1132, 1134 (Fla. 4th DCA 2009).

Here, the only evidence which supported Ferrell’s theory as to the terms of the parties’ oral contract was the testimony submitted by Ferrell. The trial court clearly found such testimony not to be credible. Dick Pittman testified that Ferrell had agreed to the cost plus billing arrangement and the trial court found such testimony credible. Because the record contains competent and substantial evidence which supports the trial court’s ruling, we affirm same. See generally Community Design Corp. v. Antonell, 459 So.2d 343, 345 (Fla. 3d DCA 1984)(ex-plaining that when the existence of a contract is clear, the factfinder may properly determine the exact terms of an oral contract which often depend on the credibility of the witnesses).

Ferrell and King 205 next argue that the trial court erred by applying the 2008 interest rate of 11% to the entire prejudgment interest period. In its answer brief, Pittman agrees that the trial court erred in calculating the prejudgment interest award. Both parties agree that the prejudgment interest award should be $7,093.43. Based on the agreement of the parties, this matter is remanded for correction of the prejudgment interest award.

King 205 lastly argues that the trial court reversibly erred in denying its claims for relief as set forth in its counterclaim. Specifically King 205 argues that the weight of the trial evidence established that Pittman, through its failure to coordinate repairs and its failure to notify Ferrell that sagging ceiling tiles needed to be removed, caused damage to the inside of the subject property. We disagree. Independent review of the trial transcript reveals that there is competent and substantial evidence to support this ruling.

AFFIRMED in part, REVERSED in part; and REMANDED.

LAWSON and JACOBUS, JJ., concur.


author: COHEN, J.

text:
    Kevin CARLUCCI and Susan Taylor, Appellants, v. Jerry L. DEMINGS, Sheriff Of Orange County, and Orange County, Appellees.
    No. 5D08-3728.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2010.
    Robert D. Klausner and Stuart A. Kaufman of Klausner & Kaufman, P.A., Plantation, for Appellants.
    Linda Brehmer Lanosa, Assistant County Attorney, and Thomas B. Drage, Jr., County Attorney, of Orange County Attorney’s Office, Orlando, for Appellee, Orange County.
    Wayne L. Helsby of Allen, Norton & Blue, P.A., Winter Park, and Brian Koji of Allen, Norton & Blue, P.A., Tampa, for Appellee, Jerry L. Demings.
   COHEN, J.

Kevin Carlucci and Susan Taylor challenge the trial court’s final summary judgment, ruling that General Order 328.0, as amended by Sheriff Beary, did not create a vested and enforceable contract entitling employees with twenty years of service with the Orange County Sheriffs Office (“OCSO”) to a fully paid lifetime health insurance policy. We affirm.

The OCSO employs general orders to provide employees with information and to establish internal guidelines and procedures. In 1998, Sheriff Beary implemented a policy to defray the cost of health insurance for longer-tenured retirees by amending General Order 328.0 to provide:

Full time Orange County Sheriffs Office employees who retire March 1, 1998 or after and who have 20 years of service with the Orange County Sheriffs Office, and retain their Sheriffs Office health insurance will have the cost of the single high co-pay HMO paid for them by the Sheriff. The retiree may elect one of the other health insurance options and/or cover their dependents by paying the additional cost of that coverage.

General Order 328.0 further provided that the Sheriff “expressly reserves [the] exclusive right to unilaterally amend or cancel Written directives.” Appellants do not challenge the Sheriffs right to unilaterally amend or rescind any general order, including General Order 328.0. Prior to its introduction, the Sheriff met with the Orange County Legislative Delegation in an unsuccessful attempt to obtain legislative enactment of a special bill that would provide the additional health insurance benefit included in General Order 328.0. The Sheriff acknowledged that without legislative implementation, the policy could be changed at the whim of a future sheriff.

During the 2005 budget process, Orange County became aware of the OCSO’s generous health benefit and cautioned that the expense could become a major fiscal issue. The cost, then about $600,000 annually, was projected to potentially exceed $18 million. Consequently, the Sheriff discontinued the health insurance payment, effective October 1, 2005, but thereafter, via a collective bargaining agreement, increased the monthly health insurance subsidy for OCSO retirees to twice that paid a regular state retiree.

In December 2005, Appellants filed a class action lawsuit, seeking to enforce General Order 328.0. After considering argument on cross motions for summary judgment, the trial court rejected Appellants’ claim that they had a contractual right to the payments. It reasoned that policy statements in an employment manual do not give rise to enforceable contract rights unless there is specific language expressing the parties’ explicit, mutual agreement that the manual constitutes a separate employment contract. Further, even assuming that General Order 328.0 should be interpreted as a contract, the trial court concluded that the claim still failed as a matter of law because the general order “was not implemented as a result of any offer or acceptance” and no “mutual assent existed between the Sheriff and the OCSO employees.”

The trial court also rejected the contention that discontinuing the health insurance payment violated Article I, section 10 of the Florida Constitution, which prohibits laws in impairment of contract, because the Sheriff did not pass a law when he amended General Order 328.0 and his unilateral decision was not quasi-legislative action. Finally, the trial court rejected Appellants’ argument that Orange County, by its approval of the health care benefit in its budget for seven years, ratified the provision. This appeal ensued.

The de novo standard of review applies to a trial court’s decision to grant or deny final summary judgment. Demings v. Orange County Citizens Review Bd., 15 So.3d 604, 606 (Fla. 5th DCA 2009). The existence of a contract is an issue of law properly determined by the court. Quaker Oats Co. v. Jewell, 818 So.2d 574, 576-77 (Fla. 5th DCA 2002).

“It is well established Florida law that policy statements contained in employment manuals do not give rise to enforceable contract rights in Florida unless they contain specific language which expresses the parties’ explicit mutual agreement that the manual constitutes a separate employment contract.” Id. This court, quoting Muller v. Stromberg Carlson Corp., 427 So.2d 266, 270 (Fla. 2d DCA 1983), reiterated that there is “no justification to depart from long established principles that an employment contract requires definiteness and certainty in its terms.” Id. This court has previously rejected the theory that a contractual right was acquired when a sheriff unilaterally adopted a disciplinary procedure in a general order that could be modified or completely revoked at will. See Szell v. Lamar, 414 So.2d 276, 278 (Fla. 5th DCA 1982).

In City of Clearwater v. Bekker, 526 So.2d 961, 964 (Fla. 2d DCA 1988), the Second District rejected the argument that the city’s unilateral extension of an additional sick leave benefit to a specified class of employees created a contract right because the city’s fringe benefit programs could be altered by unilateral city action. The court found the city employees’ “mere expectations” were insufficient to create a binding contract requiring the city to provide the sick leave benefit to them on a continuing basis for any period of time. Id. at 965.

We share the trial court’s opinion that the Sheriffs unilateral act of implementing an internal policy that was subject to unilateral amendment or cancellation cannot constitute a contract. See Szell, 414 So.2d at 278; Stough v. Gallagher, 967 F,2d 1523, 1530 (11th Cir.1992) (applying Florida law). “If one party has the unrestricted right to terminate the contract at any time, that party makes no promise at all and there is not sufficient consideration for the promise of the other.” Pick Kwik Food Stores, Inc. v. Tenser, 407 So.2d 216, 218 (Fla. 2d DCA 1981). Hence, without even reaching the contention that the Sheriffs amendment of General Order 328.0 to discontinue the payments constituted legislative action, there simply can be no impairment of contract in violation of Article I, section 10, when the plain terms of General Order 328.0 allowed for unilateral rescission. See, e.g., Busbee v. State, Div. of Retirement, 685 So.2d 914, 916-17 (Fla. 1st DCA 1996) (holding that there was no impairment because forfeiture provision was part of the pension contract).

Appellants’ reliance on the New Mexico Supreme Court’s decision in Beggs v. City of Portales, 146 N.M. 372, 210 P.3d 798 (2009), is unpersuasive because New Mexico, in specific circumstances, recognizes greater contractual rights under a personnel manual than Florida. Controlling Florida law clearly establishes that no contractual rights arise where, as here, there is no specific language in the general order expressing the parties’ explicit and mutual agreement that the order constitutes a separate employment contract. Consequently, we are not persuaded by, nor bound to follow Beggs or the other cases from sister jurisdictions cited by Appellants. See Bystrom, v. Mut. of Omaha Ins., 566 So.2d 351, 352 (Fla. 3d DCA 1990).

Finally, the Orange County Board of County Commissioners did not approve, either formally or informally, the health insurance benefit and, therefore, never ratified it by paying the Sheriffs budget. See Frankenmuth Mut. Ins. Co. v. Magaha, 769 So.2d 1012, 1018-21 (Fla.2000).

Accordingly, we affirm the trial court’s final summary judgment.

AFFIRMED.

GRIFFIN, J., and BERGER, W., Associate Judge, concur.

      . Current Sheriff Demings was substituted for former Sheriff Beary as a party.

      . Kevin Carlucci, an active OCSO deputy sheriff with more than twenty years of service, and Susan Taylor, an OCSO retiree, represent similarly situated OCSO employees.


author: PER CURIAM.

text:
    M.D., Mother of L.E., M.D., and N.H., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D09-4072.
    District Court of Appeal of Florida, Fifth District.
    March 22, 2010.
    Shannon L. Reynolds, Ocala, for Appellant.
    Kelly A. Swartz, of Department of Children and Families, Rockledge, for Appel-lee.
    Wendie Michelle Cooper, of Guardian ad Litem Program, Tavares, for Appellee.
   PER CURIAM.

AFFIRMED. See J.M. v. Dep’t of Children and Families, 8 So.3d 500 (Fla. 5th DCA 2009).

GRIFFIN, SAWAYA and LAWSON, JJ., concur.


text:
    J.J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2806.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2010.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See State v. Nelson, 26 So.3d 570 (Fla.2010).

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


text:
    H.F., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2475.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2010.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See B.C., a Child v. State, 29 So.3d 386 (Fla. 5th DCA 2010).

PALMER, LAWSON and JACOBUS, JJ., concur.


text:
    Luis Gabriel TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-886.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2010.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Luis G. Torres, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Rodriguez v. State, 822 So.2d 569 (Fla. 5th DCA 2002); Lovett v. State, 795 So.2d 1135 (Fla. 5th DCA 2001); see also Landeverde v. State, 769 So.2d 457, 462 & n. 2 (Fla. 4th DCA 2000).

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


author: COPE, J.

text:
    Gerald GREENWALD, Appellant, v. Cheryl Gale RIVKIND-GREENWALD, Appellee.
    No. 3D08-2999.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Paul Morris; Lisa A. Baird, Miami, for appellant.
    Robert J. Moraitis, Fort Lauderdale, for appellee.
    Before COPE, LAGOA and SALTER, JJ.
   COPE, J.

The husband in a dissolution action appeals an assessment of attorney’s fees against him. We agree that the attorney’s fee award cannot stand.

Husband Gerald Greenwald and wife Cheryl Gale Rivkind-Greenwald were married on May 18, 2004. Fourteen months later, the couple separated and sought divorce. The wife claimed entitlement to permanent alimony. According to the wife, the husband induced her to quit her lucrative job. At trial, it was proven by way of email evidence that the wife wanted to quit her job prior to the marriage and the proposition that the husband induced her to quit was false. The judgment stated:

The parties met online through J-Date, a computer dating service, in February, 2004. They were both mature adults who already had grown children. The husband was 63 and the wife was 57. There were no minor children born of this marriage and none are contemplated. The husband had survived cancer multiple times and was receiving disability payments of about $28,000.00 per month; earlier in his life, he had been a practicing dermatologist. The wife was working for Cox Radio, had been employed there for almost 30 years, and received a compensation package of over $100,000.00 per year. They married on May 18, 2004, within three months of their first online introduction.
The relationship seemed unstable from the beginning. The wife did not move into the husband’s home right away, then she did move in, then she moved out, then she moved in again, then she moved out again — several separations interspersed with short interludes together. The parties finally separated over the summer of 2005. At least one prior dissolution of marriage petition was filed and abandoned. If the Court added up all the days and nights these parties were together, it would amount to no more than 14 months. Yet this subsequent litigation has been pending more than twice as long.
ALIMONY
The major issue in dispute in this case is the wife’s claim for alimony. She claims that, even though this was a short term marriage, the husband induced her to quit her lucrative job to become a full-time wife. The husband testified that the wife chose on her own to quit. He also testified that the wife offered to keep “seeing” him after the final separation, but only if he would pay her $2,500.00 per month.
This Court had the opportunity to observe the wife carefully as she testified. The Court simply does not find credible her claim that the husband forced or induced her to quit her job with Cox Radio. The wife was apparently unhappy with her job and had looked for new job opportunities before she even met the husband. The wife also received a substantial severance package when she left Cox Radio; the severance package included a release by the wife of claims against Cox Radio for discrimination. Moreover, the wife’s demeanor at trial, and especially her refusal to make eye contact when discussing her former job, leads this Court to conclude her testimony that the husband forced or induced her to leave her employment at Cox Radio is unworthy of belief.

The trial court entered a final judgment of dissolution of marriage wherein the wife was not awarded alimony. The court reserved jurisdiction to award attorney’s fees and costs to either party.

An attorney’s fee hearing was held where both parties sought attorney’s fees and stipulated as to the financial findings made in the final judgment. The court awarded the wife $65,000 in attorney’s fees. The husband has appealed.

Respectfully, the trial court should have denied the wife’s attorney’s fee claim on authority of Rosen v. Rosen, 696 So.2d 697 (Fla.1997). This was an extremely short term marriage — fourteen months. Permanent alimony is generally inappropriate in a short term marriage. According to one treatise, “to justify an award of permanent alimony to the spouse of a short-term marriage, there must be a genuine inequity arising from an inability by the requesting spouse to be self-supporting. Further, the lack of ability to be self-supporting must have resulted from something that transpired during the marriage, although it need not result from something for which the non-requesting spouse is responsible.” 1 Brenda M. Abrams, Florida Family Law § 31.05[l][b][ii] (2007).

The wife in this case contended that she was entitled to permanent alimony because of her claim (which turned out to be false) that the husband induced her to leave her thirty-year employment with Cox Communications to become a full-time wife. Presumably, her position was that she would be unable to find new employment, let alone comparable employment, or otherwise be self-supporting. In reality, according to the trial court’s findings:

D. The wife is currently working, earning $40,000 per year; she receives a monthly pension for life; she is eligible to draw on her 401 (k) but has not needed to do so to sustain her lifestyle; she has no liabilities and almost all of the parties’ marital assets are in her possession; and she has managed to maintain her level of nonmarital assets at around $750,000, of which at least $200,000 is liquid. The husband has heavily-mortgaged nonmarital assets; he has over $90,000 in debt as a consequence of his inability to reduce his fixed expenses; his disability income decreased upon his 65th birthday from approximately $28,000.00 per month to approximately $13,000.00 per month; he has been unable to decrease fixed expenses in the current housing market.

The record reflects that the husband made a settlement offer to pay $36,000 in alimony to the wife in order to resolve the case. As acknowledged by the wife at oral argument, the case went to trial solely because of the wife’s claim for permanent alimony. Given the short-term nature of the marriage, the almost total lack of any marital assets, and the fact that the parties’ property was almost all premarital in nature, there were few issues in the case, other than discovery and the wife’s claim for alimony. Adding this up, (1) this was a claim for permanent alimony in a short-term marriage, which is almost never successful; (2) the case went to trial solely on the permanent alimony issue; (3) the basis of the claim was false, as outlined above; and (4) the wife turned down a favorable opportunity to settle the case before trial. Attorney’s fees should not have been awarded to the wife. Rosen. We reverse that award.

The husband also requested attorney’s fees. Each side argued that the other side had been guilty of obstructive litigation tactics, and each side argued that, post-divorce, the other side was in a better financial position. We are unable to say that the trial court abused its discretion in denying the husband’s motion.

For the stated reasons, we affirm the denial of attorney’s fees to the husband, reverse the award of attorney’s fees to the wife, and remand for entry of a judgment denying attorney’s fees to the wife.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      Following are examples of exceptions to the general rule that permanent alimony is generally inappropriate in a short term marriage, but those are not applicable here. See Levy v. Levy, 900 So.2d 737, 742 (Fla. 2d DCA 2005) (holding that an award of permanent alimony while generally not available in a short-term marriage, was proper because the wife was unable to be self-supporting by reason of a physical disability); Reeves v. Reeves, 821 So.2d 333, 334-35 (Fla. 5th DCA 2002) (holding that presumption against awarding permanent alimony in a short-term marriage was rebutted by the fact that the wife left her full-time employment and took lower-paying part-time employment to care for the couple’s disabled child; wife will continue to render such care after the divorce); Driscoll v. Driscoll, 547 So.2d 1247 (Fla. 4th DCA 1989)(wife gave up alimony she was receiving from her previous marriage when she married current husband; when new marriage broke up after five years she could only earn the minimum wage; permanent alimony was awarded).


author: RAMIREZ, C.J.

text:
    David KELSEY, Appellant, v. METRO CONSTRUCTION, Appellee.
    No. 3D09-570.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.

      Bradshaw Lotspeich, Miami Beach, for appellant.
    C. Randall Austin, Parkland, for appel-lee.
    Before RAMIREZ, C.J., and GERSTEN and WELLS, JJ.
   RAMIREZ, C.J.

David Kelsey appeals to this Court the trial court’s order denying his award of attorney’s fees, after having heard prior argument on this issue and having found that Kelsey was entitled to attorney’s fees. We reverse because Kelsey was the prevailing party below whose entitlement to attorney’s fees was well established.

Kelsey hired Metro Construction to perform foundation work on his house and a dispute arose. Metro then abandoned its work under the contract. Metro brought a claim for breach of contract and to foreclose a consti’uction lien. Kelsey counterclaimed.

The case proceeded to a four-day non-jury trial. The original trial court found that Metro had abandoned the project and had not performed under the parties’ contract. The trial court entered a Final Judgment for Defendant, in favor of Kelsey. In that Final Judgment, the trial court found that Kelsey had prevailed on his breach of contract claim and that Kelsey was entitled to his attorney’s fees and costs, which were to be argued “in the future,” according to the Final Judgment.

Metro filed a motion for rehearing/new trial. At the hearing on this motion, Metro’s counsel argued that Kelsey was not entitled to attorney’s fees because he had not specifically pled the basis for the fees. The original trial court rejected this argument and denied Metro’s motion.

Metro further sought to amend the Final Judgment for Defendant for “ministerial errors.” Metro stated at paragraph 2 that “nothing otherwise in the Judgment would be affected by this change.”

However, the “Amended Final Judgment for Defendant,” in paragraph 3, entered on October 11, 2001 to correct the “ministerial errors”, omitted paragraph 7 of the original Final Judgment for Defendant, where the trial court found that Kelsey was entitled to attorney’s fees under section 57.105(2), Florida Statutes (2001). The provision that “[a] hearing on attorney’s fees and costs shall be argued [before the lower court] at a time to be set in the future” was not omitted.

On March 12, 2008, the parties’ motions for attorney’s fees were heard by the trial court. On July 8, 2008, the trial court entered its Order on Cross Motions for Attorney’s Fees and Costs and granted Kelsey’s motion for attorney’s fees and denied Metro’s cross motion. Metro moved for relief and reconsideration of the Order awarding Kelsey his attorney’s fees. The trial court denied Metro’s motion.

Metro thereafter appealed the award of attorney’s fees to this Court. See Metro Const., Inc. v. Kelsey, 990 So.2d 1077 (Fla. 3d DCA 2008). This appeal was voluntarily dismissed for lack of jurisdiction on October 3, 2008.

The case thereafter proceeded to a hearing, before the trial court on January 15, 2009, on the determination of the amount of attorney’s fees to be awarded to Kelsey. Metro’s attorney requested a week to prepare a response to the issue of the amount to be awarded. Then, instead of responding to the amount to be awarded, on January 20, 2009, Metro attempted to re-litigate the issue of entitlement. The trial court thereafter entered an Order denying Kelsey’s award of attorney’s fees, stating in its order that “the results obtained do not show a clearly defined prevailing party, that both parties shall be responsible for their own attorney’s fees and costs.” Kelsey now appeals.

We agree with Kelsey that because he prevailed on the significant issue litigated in the trial court (the breach of contract claim) and defeated all the claims brought by Metro, he is entitled to the award of attorney’s fees under the parties’ contract and section 57.105, Florida Statutes (2001). The standard of review for prevailing party attorney’s fees is abuse of discretion. Turovets v. Khromov, 943 So.2d 246 (Fla. 4th DCA 2006). Here, the trial court abused its discretion regarding this issue.

According to Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992), for purposes of attorney’s fees, the prevailing party is the party that prevailed on the significant issues in litigation. In the case before us, the original trial court found that Kelsey prevailed on the breach of contract claim, the significant issue in this case. In addition, Kelsey defeated all counts brought against him by Metro, as noted in both the original trial court’s Final Judgment.

Kelsey is entitled to attorney’s fees under the parties’ contract because there is a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract. Accordingly, Kelsey is entitled to fees under section 57.105, Florida Statutes (2001), which states, in pertinent part:

If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.

Here, the issue that was to be decided was the amount of fees that Kelsey was to be awarded, not his entitlement to attorney’s fees.

In addition, according to section 713.29, Florida Statutes (2001):

In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party’s costs, as allowed in equitable actions.

Kelsey prevailed against Metro on its action brought to enforce a lien. Under section 713.29, he is entitled to recover a reasonable fee for the services of his attorney for trial and appeal, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party’s costs.

In sum, Kelsey’s entitlement to attorney’s fees was properly established by the previous orders entered by the trial court, and it was error subsequently to deny Kelsey’s motion for attorney’s fees and costs. We thus reverse the order on appeal and remand with instructions to determine the appropriate amount of attorney’s fees to be awarded to Kelsey.

Reversed and remanded with instructions.


text:
    Julio DEL RISCO, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, etc., Appellee.
    No. 3D09-688.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Michael H. Merino and Nicole H. Fried, Davie, for appellant.
    Florida Default Law Group and Erin M. Berger, Tampa, for appellee.
    Before GERSTEN, CORTIÑAS and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See § 90.902(8), Fla. Stat. (2009); Leviton v. Philly Steak-Out, Inc., 533 So.2d 905, 906 (Fla. 3d DCA 1988).


text:
    LAUDERDALE MARINE CENTER, LTD., a Florida limited partnership, Appellant, v. MYD MARINE DISTRIBUTORS, INC., a Florida corporation, Appellee.
    Nos. 4D08-3638, 4D09-446.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.
    Rehearing Denied April 20, 2010.
    John H. Pelzer and Robin F. Hazel of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant.
    Joel S. Perwin of Joel S. Perwin, P.A., Miami, and Michael Nachwalter and Ismael Diaz of Kenny Nachwalter, P.A., Miami, for appellee.
   PER CURIAM.

This appeal presents several issues involving breach of a commercial lease. We write to address appellee’s award of prejudgment interest and the attorneys’ fees hearing. As to all other issues, we affirm.

Prejudgment interest may be awarded where the plaintiff suffers an out-of-pocket pecuniary loss and establishes a fixed date of the loss. Glover Distrib. Co. v. F.T.D.K., Inc., 816 So.2d 1207, 1213 (Fla. 5th DCA 2002). Damages are liquidated “when a verdict has the effect of fixing damages as of a prior date.” Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 214 (Fla.1985) (citation omitted). Future damages, such as “anticipated business profits,” are not vested property rights and cannot be liquidated as of a past date certain. Bosem v. Musa Holdings, Inc., 8 So.3d 1185, 1187 (Fla. 4th DCA 2009).

The trial court awarded appellee prejudgment interest of $111,786.79 from December 31, 2003, to the date of the judgment. We cannot determine how the trial court calculated this amount. The trial court’s findings of fact appear to liquidate all damages as of June 30, 2008. Prejudgment interest cannot be awarded on any “anticipated” profits after June 30, 2008, because those losses cannot be fixed with certainty to a particular date.

Accordingly, we reverse the trial court’s award of prejudgment interest to appellee and remand for recalculation consistent with this opinion. We also note that we may not consider appellant’s arguments regarding the attorneys’ fee hearing. This court may review only proceedings occurring prior to the date of appellant’s notice of appeal. Fla. RApp. P. 9.110(h). As the notice of appeal was filed months prior to the hearing on attorneys’ fees, we lack jurisdiction to consider the issue.

Affimed in part; reversed in part; remanded.

TAYLOR, GERBER and LEVINE, JJ„ concur.


author: STEVENSON, J.

text:
    Steven MATA, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4544.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

In this case, the State filed an Affidavit of Violation of Probation, charging that Steven Mata violated his probation as follows: committing the criminal offense of leaving the scene of an accident without giving information (count I); failure to report a crash (count II); reckless driving (count III); failing to have a valid driver’s license (count IV); driving with a suspended license (count V); failure to provide proof of insurance (count VI); and failure to remove an obstructing vehicle (count VII). At the conclusion of the VOP hearing, the trial court dismissed count V, as the State failed to present any evidence that the defendant’s license was suspended, found the defendant guilty of the remaining violations, and revoked Mata’s probation. In this appeal, Mata challenges the sufficiency of the evidence (point I), claims that the trial court abused its discretion by relying upon uncharged misconduct, i.e., the theft of a cell phone, in revoking probation (point II), and asserts the trial court erred by failing to enter a written order of revocation (point III). We affirm the revocation of Mata’s probation, writing only to address the arguments raised in points I and III.

At the VOP hearing, Janet Raether testified that she was driving westbound on 1-595 when she was struck by another vehicle. After the collision, Raether observed a black SUV on the exit ramp and a green Honda, which had apparently gone through the fence and come to rest on State Road 84. According to Raether, both the SUV and the Honda were damaged and in “real bad shape.” Raether spoke to the driver of the SUV, FBI Agent Patrick Brodsky; she did not see or speak with the driver of the Honda.

Paula Strong was driving on State Road 84 that evening and heard squealing tires. She pulled over and saw that a green car had come through the fence from 1-595 and was resting on State Road 84 about 100 feet behind her. The green car had body damage. A man that Strong identified as the defendant knocked on her car window and asked to use her cell phone. Strong gave the man her phone. He took the phone and fled.

FBI Agent Dustin Blount, called to investigate the accident, arrived about twenty to thirty minutes after the crash. Brod-sky reported to him that the Honda had caused the accident, that the driver of the Honda exited the car and fled west on State Road 84 on foot, and that the driver failed to stop despite his calling out “police, stop.” Agent Blount testified that Brodsky “made an identification of the defendant.” The driver of the green Honda was not on the scene and not found that evening. Agent Blount testified, however, that they found a cell phone in the car, that the phone rang on the evening of the accident, that agents answered the phone and that the caller was David Mata, the defendant’s brother. According to Blount, he later spoke with the defendant and the defendant inquired as to whether he could get his phone back. Finally, Agent Blount testified, without any objection, that agents spoke to the green Honda’s registered owner, Melissa Conroy, and that Conroy reported that the defendant’s brother had called and told her the defendant had taken the car and been in an accident.

To sustain a violation of probation, the State must prove, by a preponderance of the evidence, that the defendant willfully and substantially violated the terms of his probation. See, e.g., Limbaugh v. State, 16 So.3d 954, 955 (Fla. 5th DCA 2009). In meeting this burden, the State may rely upon hearsay testimony, but hearsay alone is insufficient to sustain a revocation of probation. See, e.g., Smith-Curles v. State, 24 So.3d 702, 702-03 (Fla. 1st DCA 2009). The non-hearsay evidence, however, need not independently establish the violation. See Russell v. State, 982 So.2d 642, 646 (Fla.), cert. denied, — U.S. -, 129 S.Ct. 272, 172 L.Ed.2d 201 (2008). Rather, the non-hearsay evidence “need only support the hearsay evidence.” Kalmbach v. State, 988 So.2d 1279, 1280 (Fla. 5th DCA 2008).

Each of the six violations Mata was found guilty of required that the State prove he was the driver of the green Honda. Mata insists that the evidence offered by the State was insufficient to establish such fact because (1) Raether, the driver who was struck, did not see the driver of the green Honda; (2) Strong identified the defendant only as the man who knocked on her car window; and (3) while Agent Blount did provide hearsay testimony that Agent Brodsky identified the defendant, he did not expressly testify that Brodsky identified the defendant as the driver of the green Honda. Addressing the latter of these arguments first, when Agent Blount’s testimony concerning Brodsky’s identification of the defendant is considered in context, it is clear that he was stating that Brodsky identified the defendant as the driver of the green Honda. The combination of Strong’s testimony and Agent Blount’s hearsay testimony that the defendant was the driver of the green Honda and fled, on foot, toward State Road 84 is sufficient to establish, by a preponderance of the evidence, that the defendant was, in fact, the driver of the green Honda.

Next, Mata asserts that the evidence was wholly insufficient to establish count III, charging reckless driving, as there was no evidence that he was driving with a willful and wanton disregard for the safety of persons and property; to establish count IV, driving without a valid driver’s license, as there was no evidence that he did not have a valid driver’s license; and to establish count VII, charging the failure to remove an obstructing vehicle, as there was no evidence that the green Honda was obstructing the flow of traffic. Each of Mata’s arguments is well-taken as there was no evidence that he committed these violations.

Despite our conclusion that a finding of guilt as to counts III, IV, and VII cannot be sustained, we nonetheless affirm the trial court’s decision to revoke Mata’s probation and the sentence imposed as it is clear from the record that the trial court would have revoked probation and imposed the same sentence based solely upon the remaining counts, i.e., counts I, II, and VI. See, e.g., Green v. State, 23 So.3d 820, 821 (Fla. 4th DCA 2009); Green v. State, 19 So.3d 449, 450 (Fla. 2d DCA 2009). As asserted by Mata in point III, remand is nonetheless required so that the trial court may enter a written order of revocation specifying the conditions violated. See, e.g., Green, 23 So.3d at 821; Watts v. State, 688 So.2d 1018 (Fla. 4th DCA 1997). The order of revocation entered on remand should specify that the revocation is predicated solely upon the three remaining charges, i.e., counts I, II, and VI.

Affirmed in part; Reversed in part; and Remanded.

WARNER and POLEN, JJ., concur.

      . Apart from claiming that the evidence was insufficient to establish that he was the driver of the green Honda, Mata has not otherwise challenged the sufficiency of the evidence as to counts I, II, and VI.


author: LAGOA, J.

text:
    PALMER TRINITY PRIVATE SCHOOL, INC., Petitioner, v. VILLAGE OF PALMETTO BAY, Florida, et al., Respondents.
    No. 3D09-1587.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.

      Bilzin Sumberg Baena Price & Axelrod and Stanley Price and Eileen Ball Mehta, Miami, for petitioner.
    Figueredo, Boutsis & Montalvo and H. James Montalvo, Miami; W. Tucker Gibbs, Coconut Grove, for respondents.
    Before ROTHENBERG, LAGOA, and SALTER, JJ.
   LAGOA, J.

Palmer Trinity Private School, Inc. (hereinafter “Palmer Trinity”) seeks second tier certiorari review of a circuit court appellate division decision affirming the Village of Palmetto Bay’s (the “Village”) decision to deny Palmer Trinity’s application to rezone its property. Because the appellate division’s decision is a departure from the essential requirements of law resulting in a miscarriage of justice, we grant the petition.

I. FACTUAL AND PROCEDURAL HISTORY

Palmer Trinity owns two adjacent parcels of property within the Village — Parcel A and Parcel B. Palmer Trinity was initially approved in 1961 as the Palmer Preparatory School, and is located on Parcel A. Parcel B, the parcel at issue here, is a 32.5 acre property; there is one home on the property and the remaining ácreage is a mango grove. The northern half of Parcel B is zoned AU (agricultural zoning allowing one home per five acres) and the southern half is zoned EU-2 (estate single family zoning allowing one home per five acres). Palmer Trinity sought to rezone Parcel B from AU and EU-2 to EU-M (estate modified single family zoning allowing one home per 15,000 square feet).

The properties surrounding Parcel B were all originally zoned AU or EU-2, but they have been changed to less restrictive zoning classifications as the agricultural character of the area has changed over the years. Those properties, including Parcel A, are now classified EU-M. The only exceptions are a strip of lots to the east and west of Parcel B, which are zoned EU-1, and the property to the south of Parcel B, which is in the Village of Cutler Bay. All of the properties, including Parcel A and Parcel B, are designated Estate Density Residential in the Village’s comprehensive plan.

In its application to rezone the property, Palmer Trinity also requested a special exception and non-use variances concerning further development of the school on both parcels. At the hearing on the application, the consideration of the rezoning request was expressly bifurcated from the other application requests. Despite this procedure, the Village issued Ordinance 08-06, denying rezoning and stating that “the rezoning, if approved, would allow for the physical expansion of the Palmer Trinity school, ... that the district boundary change, based upon the site specific development permitted by the application of Palmer Trinity, is not consistent with the Village’s Comprehensive Plan and Future Land Use Map,” and that “Palmer Trinity failed to adequately establish through its traffic studies that its site specific application is compatible and within the proper level of service, and failed to establish the proposition that the proposed use would not negatively impact the community.... ” The circuit court appellate division per curiam denied certiorari review of the rezoning ordinance. This appeal ensued.

II. ANALYSIS

On appeal, Palmer Trinity contends that the circuit court appellate division departed from the essential requirements of law in upholding Ordinance 08-06 because the current zoning classification of the surrounding properties renders Parcel B an “island” or “peninsula” resulting in impermissible “reverse spot zoning.” We agree. See Richard Road Estates, LLC v. Miami-Dade County Bd. of County Comm’rs, 2 So.3d 1117, 1118 (Fla. 3d DCA 2009) (county’s refusal to grant a change in zoning resulted in impermissible reverse spot zoning, sufficient to warrant granting second tier certiorari review). See also Debes v. City of Key West, 690 So.2d 700 (Fla. 3d DCA 1997).

“Reverse spot zoning occurs when a zoning ordinance prevents a property owner from utilizing his or her property in a certain way, when virtually all of the adjoining neighbors are not subject to such a restriction, creating in effect, a veritable zoning island or zoning peninsula in a surrounding sea of contrary zoning classification. Reverse spot zoning is invalid, as it is confiscatory.” City of Miami Beach v. Robbins, 702 So.2d 1329, 1330 (Fla. 3d DCA 1997). The record establishes that Palmer Trinity is not afforded the same beneficial use and restrictions for Parcel B that are enjoyed by the owners of the surrounding properties. Compare §§ 33-234 to 236, and 33-279 to 283 with § 33-224 to 225, Miami-Dade County Zoning Code. Because the Village’s refusal to grant the zoning change results in impermissible reverse spot zoning, the circuit court appellate division’s decision affirming the Village’s denial of the zoning request constitutes a departure from the essential requirements of the law resulting in a miscarriage of justice.

Contrary to the Village’s contention, there is no record justification for its refusal to rezone the property to a classification consistent with the properties surrounding Parcel B. As a matter of law, such refusal therefore was “arbitrary, discriminatory [and] unreasonable.” Bd. of County Comm’rs v. Snyder, 627 So.2d 469, 476 (Fla.1993).

In support of its position, the Village relies on findings that “the rezoning, if approved” would permit the physical expansion of the school, that the change based on the “site specific development” is not consistent with the comprehensive plan or future land map, and that Palmer’s traffic studies failed to establish that the “site specific” application is compatible and within the proper level of service and would not negatively impact the community. The Village, however, expressly stated that the school’s expansion request was not at issue at the hearing, and that the Village did not consider the school’s special exception or variance requests. In effect, the Village denied the rezoning request, and implicitly denied the special exception, because it did not wish Palmer Trinity to use the property to expand its school within the parameters of the less restricted EU-M zoning classification.

The Village’s actions were legally impermissible. Palmer Trinity was “entitled to have [its] property zoned based on proper zoning concepts without regard to the one particular use which the owner might then intend to make of the various uses permitted under a zoning classification. A zoning authority’s insistence on considering the owner’s specific use of a parcel of land constitutes not zoning but direct governmental control of the actual use of each parcel of land which is inconsistent with constitutionally guaranteed private property rights.” Porpoise Point P’ship v. St. Johns County, 470 So.2d 850, 851 (Fla. 5th DCA 1985). See also Debes, 690 So.2d at 702. Because the Village relied on Palmer Trinity’s intended use of the property in denying the rezoning request, we further conclude that the circuit court appellate division’s decision upholding Village Ordinance 08-06 constituted a departure from the essential requirements of the law resulting in a miscarriage of justice.

For these reasons, the decision of the appellate division is quashed.

Certiorari granted; decision quashed.

      . EU-1 is estate single family zoning allowing one home per one acre.

      . The Village’s Planning and Zoning Powers Ordinance states that ”[c]hapter 33 of the Miami-Dade Code entitled ‘Zoning’ ... shall be applied within the municipal boundaries of the Village of Palmetto Bay_” See § 31-fid) of the Village of Palmetto Bay Planning and Zoning Powers Ordinance.

      . We note that, in contrast, the Village staff zoning analysis recommendation as to the rezoning request stated:
      The requested district boundary change to EU-M would be in keeping with the basic intent and purpose of the zoning and land use regulations. Approval of this application is in character with the existing use of the property, and is consistent with the Village’s Comprehensive Plan. The properties surrounding the site are currently zoned EU-M, as a result the rezoning of the AU and EU-2 site to EU-M would make the parcels compatible with the neighboring properties.

      . To the contrary, Section 4 of the Ordinance states that "[l]he village council never considered the variance and special exception requests of the applicant as these requests required a separate public hearing and separate ruling, dependent on the village council approving the district boundary change.”


text:
    Ervin JOSEPH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2483.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before GERSTEN, LAGOA and SALTER, JJ.
   PER CURIAM.

Affirmed. See State v. Carter, 835 So.2d 259, 262 (Fla.2002).


text:
    Edward F. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1201.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.
    Edward F. Smith, Wewahitchka, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Edward Smith (Defendant) appeals the summary denial of his rule 3.850 motion for postconviction relief. We affirm.

In 2008, defendant filed a petition for writ of quo warranto in the circuit court, challenging his 1996 conviction and sentence. Specifically, he claimed that the trial court was without jurisdiction to convict him or impose a sentence on him because, he alleged, the assistant state attorney who prosecuted him was not a duly designated assistant state attorney. The trial court treated the petition as a rule 3.850 motion for postconviction relief and ordered a state response. Before the state filed its response, defendant moved to withdraw the motion and another then-pending rule 3.800(a) motion. In its response filed below, the state recommended that the trial court dismiss defendant’s pending motions without prejudice. Nevertheless, the trial court instead denied the rule 3.850 motion.

Although the trial court should have allowed defendant to withdraw his petition, Hampton v. State, 949 So.2d 1197, 1199 (Fla. 4th DCA 2007) (“Unless there is prejudice to the state, a rule 3.850 movant is entitled to withdraw his motion before it is ruled on.”), and the proper disposition on considering the petition should have been to dismiss it, see Johnson v. Office of State Attorney, 987 So.2d 206 (Fla. 5th DCA 2008), in the interest of judicial economy we simply affirm the summary denial. See Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006) (affirming denial of habeas corpus petition for purposes of judicial economy, where proper disposition was dismissal, as petition would be untimely or successive if considered as rule 3.850 motion, and raised a claim that could have been raised at trial or on appeal).

Affirmed.

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

      . Defendant labeled it as a "motion to recind [sic] current motions.”


text:
    R.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1825.
    District Court of Appeal of Florida, Third District.
    March 24, 2010.
    R.W., a juvenile, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTINAS JJ.
   PER CURIAM.

Affirmed. See D.S.H. v. State, 323 So.2d 292 (Fla. 3d DCA 1975).


text:
    STATE of Florida, Appellant, v. Jorge ALONSO, Appellee.
    No. 4D08-5176.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.
   STEVENSON, J.

Jorge Alonso was charged with and entered a nolo contendere plea to robbery with a deadly weapon. Alonso’s lowest permissible sentence was forty-eight months in prison. Pursuant to section 921.0026(2)0), Florida Statutes (2007), which provides “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse,” the trial court imposed a downward departure sentence of two years of community control, followed by three years of probation. We find the trial court’s determination that the offense was unsophisticated is not supported by competent substantial evidence and reverse.

A decision to impose a downward departure is a two-step process. State v. Jerry, 19 So.3d 1167, 1169 (Fla. 1st DCA 2009) (citing State v. Owens, 848 So.2d 1199, 1201 (Fla. 1st DCA 2003)). First, the trial court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support. Id. (citing Banks v. State, 732 So.2d 1065, 1067 (Fla.1999)). If a valid ground exists and it is adequately supported by the record, then the sentencing court proceeds to the second step where it must determine whether it should depart, i.e., whether departure is the best sentencing option for the defendant. Id. (citing Banks, 732 So.2d at 1068).

In the instant case, on appeal, the State contested only whether the trial court could depart, asserting that there was not competent substantial evidence to support a finding of unsophistication. Alonso drove the get-away car after his masked codefendant robbed, at knifepoint, a store manager, leaving work for the night. Two witnesses to the robbery saw the license plate number on the get-away car, so police were able to apprehend Alonso and his codefendant, who both gave detailed confessions. At sentencing, Alonso admitted knowing his codefendant was wearing a mask during the robbery but denied knowing he had a knife. Alonso also admitted driving the get-away car, which contained a pair of walkie-talkies that the men planned to, but never used, in the robbery. He admitted to storing the contraband taken from the victim in a safe at his home upon his eodefendant’s request.

Because Alonso knew that his code-fendant wore a mask and the men possessed and intended to use walkie-talkies, we cannot agree with the trial court that the offense was unsophisticated. See Staffney v. State, 826 So.2d 509, 512 (Fla. 4th DCA 2002) (using the phrase “ ‘artless, simple and not refined’” to define unsophisticated (quoting State v. Merritt, 714 So.2d 1153, 1154 n. 3 (Fla. 5th DCA 1998))). Though we hold that Alonso does not qualify for a departure under subsection (j), the defense supported its motion for a downward departure by contending that Alonso also qualified under sections 921.0026(2)(b) and (e). Because the trial court never specifically made a ruling as to these alternative grounds submitted by the defense, the trial court may consider them in resentencing Alonso.

Reversed and remanded for resentenc-ing.

WARNER and POLEN, JJ., concur.


author: GERBER, J.

text:
    Willie BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4542.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

Willie Boyd (the “defendant”) appeals the circuit court’s revocation of his probation and his resulting twelve-year prison sentence. The defendant argues that the state did not present sufficient evidence that his alleged violations of failing to report to his probation officer and changing his residence without his probation officer’s consent were willful and substantial. Specifically, the defendant contends that his assigned “residence” was beneath a bridge, and he was forced to move when the Department of Transportation posted a “no trespassing” sign at the bridge.

Based on our review of the record, we agree with the defendant’s argument. See Williams v. State, 896 So.2d 805, 806-07 (Fla. 4th DCA 2005) (state failed to present sufficient evidence to demonstrate defendant’s probation violations for changing residence without consent and failing to report were willful and substantial where defendant was living on the street and his homelessness was not intentional). We reverse and remand with directions to: (1) dismiss the violations of probation, and (2) reinstate the defendant’s probation.

Reversed and remanded.

TAYLOR and LEVINE, JJ., concur.


author: KAHN, J.

text:
    Timothy J. REYNOLDS, Appellant, v. CSR RINKER TRANSPORT, a/k/a/ Rinker Transportation Corp., and Crawford & Company, Appellees.
    No. 1D09-1052.
    District Court of Appeal of Florida, First District.
    March 25, 2010.

      Richard W. Ervin, III, of Fox & Lo-quasto, P.A., Tallahassee, and Laurie Thrower Miles of Smith, Feddeler, Smith & Miles, Lakeland, for Appellant.
    James B. Birmingham of Fulmer, Leroy, Albee, Bauman & Glass, P.L.C., Orlando, and Christopher A. Thorne of Thorne & Storey, P.A., Orlando, for Appellees.
   KAHN, J.

Claimant, Timothy Reynolds, seeks review of an order of the Judge of Compensation Claims (JCC) that concludes Reynolds was an “owner-operator” as that term is used in section 440.02(14)(d)4., Florida Statutes (2000), excepting him from coverage as an employee under the Florida Workers’ Compensation Law. In the first of three points raised on appeal, claimant argues the JCC erred because the unambiguous terms of the owner-operator agreement that he entered into with Rink-er Transportation Corp. (Rinker), and the plain language of section 440.02(14)(d)4., Florida Statutes, compel a conclusion that he was not an owner-operator as the term is used in the statute. We agree and reverse. We need not reach the remaining issues raised by claimant.

BACKGROUND

Claimant, the owner of a truck (referred to hereafter as a tractor), entered into a “Vehicle Lease Agreement” (Agreement) with Rinker on January 9, 1998. The Agreement designated claimant as the “OWNER” of the tractor, and obligated him to furnish a qualified and approved driver for the tractor and provide Rinker a complete transportation service from origin to destination. In practical terms, the Agreement required claimant to haul trailers arranged for and provided by Rinker.

On February 28, 2001, claimant suffered an accidental injury while performing work under the terms of the Agreement. Claimant filed a petition for benefits (PFB) against Rinker claiming the right to receive workers’ compensation medical and indemnity benefits. Rinker denied the PFB, alleging claimant was an owner-operator as described in section 440.02(14)(d)4., Florida Statutes, and thus excluded from coverage under chapter 440.

At an evidentiary hearing, claimant introduced the Agreement into evidence. Neither party alleged the Agreement was ambiguous or required judicial interpretation. After hearing the evidence and reviewing the Agreement, the JCC found that, under the Agreement, and contrary to assertions made by Rinker at trial, Rinker was responsible for, and incurred certain costs for, bodily injury, property damage liability, and cargo insurance, applicable when claimant operated his tractor on Rinker’s business. Notwithstanding this finding, the JCC concluded such an arrangement had no legal significance and denied all compensation, reasoning claimant was an owner-operator as provided in section 440.02(14)(d)4., Florida Statutes, and not an employee entitled to workers’ compensation coverage under the law. Claimant seeks review of this legal conclusion.

ANALYSIS

Because our review turns on construction of the statute and the plain terms of the contract between the parties, the standard of review is de novo. See e.g., Gilbreth v. Genesis Eldercare, 821 So.2d 1226, 1228 (Fla. 1st DCA 2002). The statute in effect on a claimant’s date of injury controls the substantive rights of the parties, see e.g., Russell v. P.I.E. Nationwide, 668 So.2d 696, 697 (Fla. 1st DCA 1996) (holding substantive statutes cannot be applied retroactively); therefore, the 2000 version of the owner-operator statute controls the disposition of this case.

Section 440.02(14)(d)4., Florida Statutes, provides that the term “employee” does not include:

An owner-operator of a motor vehicle who transports property under a written contract with a motor carrier which evidences a relationship by which the owner-operator assumes the responsibility of an employer for the performance of the contract, if the owner-operator is required to furnish the necessary motor vehicle equipment and all costs incidental to the performance of the contract, including, but not limited to, fuel, taxes, licenses, repairs, and hired help; and the owner-operator is paid a commission for transportation service and is not paid by the hour or on some other time-measured basis.

(emphasis added). The statute sets up a conjunctive five-part test for the owner-operator status: 1) a written agreement must exist; 2) the agreement must evidence a relationship by which the owner-operator assumes the responsibility of an employer for the performance of the contract; 3) under the agreement, the owner-operator must furnish the necessary motor vehicle equipment; 4) the owner-operator must furnish all costs incidental to the performance of the contract; and 5) the owner-operator is paid on commission and not on an hourly basis.

The issue framed by claimant concedes all prongs of this test with the exception of the fourth requirement, that he be responsible for furnishing “all costs incidental to performance of the contract.” The plain language of the statute dictates that all elements be met to exclude an owner-operator from the definition of “employee.” Claimant correctly argues that the failure of one element precludes such an exclusion. Thus, disposition of the central issue on appeal depends entirely on whether claimant had to furnish all costs incidental to performance of the Agreement.

The eight-page Agreement entered into between claimant and Rinker contains the various obligations and responsibilities of the parties for performance of the contract. Most significantly for our purposes, paragraph twelve of the Agreement states:

12. Insurance to be Furnished by Rinker Materials Corporation: Rinker shall at its expense furnish and maintain bodily injury, property damage liability, and cargo insurance applicable while OWNER’S equipment is being operated on RINKER business....

At oral argument, counsel for Rinker candidly admitted that the insurance coverage required by this paragraph was necessary to the performance of the contract. Also, in no fewer than eight instances, the Agreement utilizes the word “equipment” synonymously with claimant’s tractor. Indeed, a plain reading of the unambiguous terms of the Agreement reveals that the furnishing and maintenance of insurance was an essential and necessary term of the Agreement, the cost of which was to be borne by Rinker, not claimant. Here, the JCC correctly found that Rinker incurred the cost of the insurance required by paragraph twelve of the Agreement, and this finding is not challenged on appeal. The JCC erred, however, in concluding that Rinker’s provision of such insurance was of no legal significance.

Section 440.02(14)(d)4., Florida Statutes, conditions the exclusion of coverage upon a showing that the owner-operator is required to furnish all costs for performance of the owner-operator agreement. Rinker did not, and could not, show that this condition was met and, therefore, claimant was not, at the time of his accident, a statutory owner-operator, as described in section 440.02(14)(d)4., Florida Statutes. Accordingly, the order of the JCC must be REVERSED and the case REMANDED to the JCC to conduct further proceedings to determine claimant’s entitlement to benefits.

BENTON and ROBERTS, JJ., concur.

       In 2005, the Legislature changed the statutory owner-operator exclusion by providing an owner-operator is not an employee if he is required to furnish the principal (as opposed to all) costs incidental to performance of the contract. See Ch. 2005-78, § 1, Laws of Fla.; § 440.02(15)(d)4. Fla. Stat. (2005).


text:
    Gabriel DIAZ, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D09-1011.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2010.
    Annette M. Lyn, Fort Myers, for Appellant.
    Louis A. Gutierrez, Tallahassee, for Ap-pellee.
   PER CURIAM.

Appellant appeals from a final order of the Unemployment Appeals Commission (“Commission”) denying his request for unemployment compensation benefits. We reverse and remand.

Appellant filed a claim for unemployment compensation benefits after separating from his employment as a prep cook. The claims adjuster denied his claim, finding that “the reason for quitting was not attributable to the employer.” Appellant filed an appeal arguing that his hours were cut so severely that he spent more money getting to work than he actually earned. After hearing, the appeals referee set forth the following findings of fact:

[Appellant] was employed as a prep cook for an employee leasing company beginning in November 2007. [Appellant] informed the employer he was not getting enough hours of work. The employer informed [Appellant] that they were (sic) going to be opening another restaurant and his hours could then be increased. [Appellant] walked out in the middle of his shift on or about May 4, 2008, and quit the position because he believed he was not getting enough hours of work.

The referee then concluded that because Appellant left his employment due to the hours of work, the employer did not cause Appellant to leave. Therefore, the referee determined that Appellant was disqualified from receiving unemployment benefits. The Commission issued its final order affirming the referee’s decision.

An employee who voluntarily leaves his employment without good cause attributable to the employer is not eligible for unemployment compensation benefits. Brown v. Unemployment Appeals Comm’n, 633 So.2d 36, 38 (Fla. 5th DCA 1994) (citing § 443.101(l)(a), Fla. Stat. (1991)). “ ‘Good cause’ for voluntarily quitting are those circumstances which would impel the average, able bodied, qualified worker to give up his employment.” Ritenour v. Unemployment Appeals Comm’n, 570 So.2d 1106, 1107 (Fla. 5th DCA 1990). A reduction in hours or salary may constitute good cause attributable to the employer, which would allow an employee to voluntarily terminate his employment and still remain eligible for unemployment benefits. Manning v. State Unemployment Appeals Comm’n, 787 So.2d 954, 955 (Fla. 4th DCA 2001).

In Manning, the referee found that the employee quit her job because her hours had dropped to only six hours per day. The referee determined that because the employer did not guarantee a specific number of hours at the time of hire, the employee was not eligible for unemployment benefits. Our sister court noted, however, that the employer’s right to change the conditions of employnent is irrelevant in determining the employee’s entitlement to unemployment compensation. It reversed and remanded for the referee to consider whether the reduction in the employee’s hours was substantial enough to constitute good cause attributable to the employer. Id.

Here, Appellant testified that he separated from his employment based on a significant reduction in his hours. The employer did not dispute Appellant’s testimony that his hours had been cut and he was only working one to two days per week, sometimes for only one hour at a time. Instead, the employer testified that he asked Appellant if he could “hang on ... a little longer? You know, we’re opening this new place. Maybe, you know, you can come over here.” The employer never provided any testimony specific to Appellant’s hours, but simply testified that Appellant was never promised a specified number of hours per week.

We reverse and remand for consideration of whether the reduction in Appellant’s hours was substantial enough to constitute good cause attributable to the employer. See also Rivero v. Miami-Dade County, 764 So.2d 850 (Fla. 3d DCA 2000) (reinstating unemployment compensation benefits where employer never disputed employee’s hours were cut).

REVERSED AND REMANDED.

ORFINGER, TORPY and LAWSON, JJ., concur.


author: ORFINGER, J.

text:
    Michelle McROY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1571.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2010.

      Robert Wesley, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

While attending a juvenile court proceeding, Michelle McRoy’s cell phone rang, drawing the attention of the presiding judge. Ms. McRoy was asked by the court why her phone was not turned off as the court instructed at the commencement of the proceedings. Ms. McRoy explained that she had turned her phone off as directed. However, while in court, she loaned the phone to her sister who went outside to make a call and returned the phone to her without turning it off. Ms. McRoy admitted that she did not check whether the phone was off when her sister returned the phone. Apparently viewing this conduct as contumacious, the trial court found Ms. McRoy in direct criminal contempt, forfeited the cell phone, and ordered the Orange County Sheriffs Department to destroy it. Ms. McRoy appeals and we reverse.

Contempt is an act tending to embarrass, hinder, or obstruct the court in the administration of justice, or to lessen the court’s authority or dignity. Richey v. McLeod, 137 Fla. 281, 188 So. 228, 229 (1939). Contempt does not exist just because a judge feels aggrieved or vexed. Via v. State, 633 So.2d 1198, 1198 (Fla. 2d DCA 1994). Direct criminal contempt is summary punishment for conduct that occurs in the presence of the court. Fla. R.Crim. P. 3.830. Direct criminal contempt must be proven beyond a reasonable doubt. Braisted v. State, 614 So.2d 639, 640 (Fla. 4th DCA 1993); see Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 632, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988).

Rule 3.830 requires that the judgment of guilt of contempt include a recital of those facts underlying the charged contempt upon which the adjudication of guilt is based. This requirement cannot be dismissed as merely a technical requirement. Gidden v. State, 613 So.2d 457, 460 (Fla.1993). Purely conclusory statements will not meet the requirement of a recitation of facts. For example, citing the contemnor’s “unjudicious, unethical and intemperate conduct before the court” is insufficient. See Ray v. State, 352 So.2d 110, 111-12 (Fla. 1st DCA 1977). Here, neither the written order nor the oral pronouncement of the court recited evidentia-ry facts supporting the finding of contempt. In its entirety, the substantive portion of the contempt order provides: “Michelle McRoy was found guilty of contempt of court. Cell phone is forfeited and to be destroyed by the Orange County Sheriffs Office.” The trial court’s oral statements at the contempt proceeding were equally lacking in specificity. This alone would require reversal for the entry of a proper order.

Even if the order was facially sufficient, we would reverse the conviction of direct criminal contempt as there is no evidence beyond a reasonable doubt that Ms. McRoy’s actions, annoying as they undoubtedly were, embarrassed, hindered or obstructed the court in the administration of justice, or lessened the court’s authority or dignity. The power of contempt must be used only rarely and with circumspection. See State v. Clemmons, 150 So.2d 231, 234 (Fla.1963). “The provocation must never be slight, doubtful or of shifting interpretations. The occasion should be real and necessary, not murky, and not ameliorated in some less formal manner.” Schenck v. State, 645 So.2d 71, 74 (Fla. 4th DCA 1994).

Trial judges must be allowed to control them courtrooms. They must have the tools suitable to the purpose when the loss of control is threatened and the dignity and purpose of the court are challenged. However, because of the potency of the powerful remedy of criminal contempt, we must carefully guard the requirements for its use, premised only on indisputable record support. Id. Because such proof is lacking here, we reverse the order of contempt.

REVERSED.

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


author: WHATLEY, Judge.

text:
    Leroy McKENZIE, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3351.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.
   WHATLEY, Judge.

Leroy McKenzie appeals the postconviction court’s order summarily denying his motion to correct an illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). McKenzie seeks correction of his life sentences for two convictions of attempted second-degree murder with a firearm, which he claims exceed the statutory maximum penalties. We agree and reverse.

McKenzie was charged with two counts of attempted second-degree murder with a firearm and one count each of carrying a concealed weapon and shooting into an occupied building. In the initial information, the State charged McKenzie with the attempted murder of two victims by discharging a firearm and, as a result, inflicting great bodily harm on the victims. The State filed an amended information, again charging McKenzie with two counts of attempted second-degree murder with a firearm, one count of carrying a concealed weapon, and one count of shooting into an occupied building. However, the amended information failed to allege infliction of great bodily harm.

McKenzie was tried and found guilty on all counts. The jury specifically found that McKenzie discharged a firearm during the course of the attempted murders and that, as a result of the discharge, great bodily harm was inflicted on the victims. McKenzie’s convictions for attempted second-degree murder were reclassified from second-degree felonies to first-degree felonies as a result of the firearm element, pursuant to section 775.087(1), Florida Statutes (2000). The trial court sentenced McKenzie to two terms of life in prison for the attempted murders, each with a twenty-five-year minimum mandatory term pursuant to section 775.087(2)(a)(3), five years in prison for carrying a concealed weapon, and fifteen years in prison for shooting into a building, all to run concurrently.

This court ordered the State to respond to McKenzie’s claim that the trial 'court imposed illegal sentences beyond the statutory maximum term, and the State properly concedes that McKenzie’s life sentences exceed the statutory maximum penalty of thirty years’ incarceration for first-degree felonies. See § 775.082(3)(b). The State also properly concedes that the trial court could not legally impose twenty-five-year minimum mandatory terms. Although the jury found McKenzie guilty of two counts of attempted second-degree murder during the commission of which he discharged a firearm resulting in great bodily harm to the victims, the element of great bodily harm was not alleged in the amended information. A jury finding cannot cure this defect in the amended information. See Daniel v. State, 935 So.2d 1240, 1241 (Fla. 2d DCA 2006). However, the amended information did specifically allege that McKenzie attempted to murder the victims “by shooting at or in the- direction of’ the victims with a firearm. The jury found that McKenzie discharged a firearm in the course of committing the attempted murders. Therefore, McKenzie was charged with, and convicted of, an attempt to commit a felony during which he discharged a firearm, an offense that carries a minimum mandatory term of twenty years in prison, pursuant to section 775.087(2)(a)(2). See Daniel, 935 So.2d at 1241.

On remand, the postconviction court shall resentence McKenzie on the attempted second-degree murder counts to no more than thirty years in prison on each count, with minimum mandatory terms of twenty years.

Reversed and remanded.

CRENSHAW and MORRIS, JJ, Concur.


author: SILBERMAN, Judge.

text:
    Renard DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3849.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.
    Renard Davis, pro se.
   SILBERMAN, Judge.

Renard Davis appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

In April 1990, Davis was convicted of attempted armed robbery and first-degree felony murder. The convictions were affirmed on appeal. See Davis v. State, 590 So.2d 1071 (Fla. 2d DCA 1991). Davis filed his postconviction motion in June 2009 claiming that Tony Brown was a key State witness whose testimony served to implicate Davis as the shooter in the botched robbery attempt. The motion alleged that at trial Brown denied ever being involved with selling drugs and testified falsely that he had no pending criminal charges. Davis claimed a Giglio violation, alleging that Brown had pending charges and had a secret deal with the State calling for Brown to be sentenced to two years’ community control instead of prison, in exchange for Brown’s testimony against Davis. Attached to the motion are Brown’s plea and sentencing documents for several charges and a portion of his trial testimony. Davis alleged that in September 2008, Brown contacted Talvin Bowman and told Bowman that he had testified falsely in exchange for the no prison deal, that the State was aware of the false testimony and agreed to not delve into it, that Davis was not the person who shot the victim, and that the shotgun blast was an accident.

“To establish a Giglio violation, it must be shown that: (1) the testimony given was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material.” Guzman v. State, 868 So.2d 498, 505 (Fla.2003). The post-conviction court denied the claim. The court first reasoned that because Davis never received recantation evidence himself, but only through Talvin Bowman, the claim was merely based on inadmissible hearsay. The court’s reasoning is erroneous because the fact that Davis’s allegations rely on hearsay does not render his claim insufficient. See Butler v. State, 946 So.2d 30, 31 (Fla. 2d DCA 2006) (reversing denial of motion where allegations were based in part on hearsay and noting that rule 3.850 only requires a brief statement of facts in support of the motion and does not require supporting affidavits). Davis’s motion is facially sufficient to state a claim of newly discovered evidence based on the recantation by the State’s witness of his trial testimony. See id.

The postconviction court also reasoned that Davis’s trial counsel was aware of Tony Brown’s pending charges. This finding is confirmed by the trial transcript excerpt attached to Davis’s motion. Counsel referred to the fact that Brown had pending possession and sale charges, and the limited excerpt attached to the motion does not reflect that Brown denied that he had pending charges.

The postconviction court stated that “the attachments included by Defendant with his Motion show that when Tony Brown was asked if he had pending charges, his answer of no was correct as Mr. Brown had resolved those charges on February 27, 1990, prior to the Defendant’s trial.” This finding misconstrues the documents attached to Davis’s motion. One of the documents is a plea agreement that was signed by the assistant state attorney on February 27, 1990. The agreement called for Davis to enter a plea to sale of cocaine and possession of cocaine with intent to sell in case number 89-5366 and to resisting without violence and possession of cocaine in case number 90-0526. The agreement indicates that a sentence of either two years’ community control and probation or two years’ imprisonment and probation would be imposed. An attached judgment shows that Brown was sentenced in May 1990 to the two years’ community control in 90-0526 concurrent with 89-5366. Thus, these documents seem to confirm that Brown was awaiting sentencing at the time he testified in April 1990 and that he had a plea agreement with the State calling for community control or prison.

Finally, the court reasoned that there is no indication that Brown’s testimony was false when he testified that he was not selling drugs on the night of the shooting. It is not clear how the postconviction court could have made this finding without first conducting an evidentiary hearing on the alleged newly discovered evidence.

The claim that Brown testified falsely as to Davis’s involvement in the shooting, with the State’s knowledge, in order to get a deal for no prison time on his pending charges is not refuted by attachments to the postconviction court’s order. Therefore, we reverse and remand for the postconviction court to reconsider Davis’s claim. On remand, the postconviction court shall either attach those portions of the record that conclusively refute the claim or conduct an evidentiary hearing on the issue. See Benton v. State, 884 So.2d 90, 92 (Fla. 2d DCA 2004).

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.

      . Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      . The statement as to two years’ community control and probation was circled on the form.


author: LaROSE, Judge.

text:
    James LYNN a/k/a James Donofrio, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4983.
    District Court of Appeal of Florida, Second District.
    March 26, 2010.

      James Lynn a/k/a James Donofrio, pro se.
   LaROSE, Judge.

James Lynn a/k/a James Donofrio appeals the denial of his “Motion to Accredit Jail Time.” The postconviction court addressed the motion under Florida Rule of Criminal Procedure 3.800.

Mr. Lynn was arrested on October 2, 2007, for false application of a driver’s license, a third-degree felony. See § 322.212(5)(a), Fla. Stat. (2007). On December 16, 2008, he was sentenced on this charge and several others. He received only 7 days of jail credit for the false application charge. He claims entitlement to over 500 days’ credit.

In denying relief, the postconviction court relied on a printout entitled “Pinellas County Justice Information System Custody Screen.” It shows that Mr. Lynn was, indeed, arrested on October 2, 2007, but that a bond was posted on October 8, 2007. Presumably, the postconviction court concluded that the court files did not establish that Mr. Lynn was entitled to relief. See Fla. R.Crim. P. 3.800(a) (providing for correction of sentence that does not grant proper credit for time served when record shows entitlement to relief). The postcon-viction court did not address Mr. Lynn’s motion under Florida Rule of Criminal Procedure 3.850.

The printout is at odds with the sworn allegations of Mr. Lynn’s motion. Despite the bond, Mr. Lynn allegedly was never released from jail for the false application charge. He contends that this charge caused a violation of probation that precluded his release. Thus, according to Mr. Lynn, he was in jail on this charge from October 2, 2007, until sentencing in December 2008. The records relied upon by the postconviction court do not reflect that Mr. Lynn was actually released.

The facts in Green v. State, 979 So.2d 395 (Fla. 2d DCA 2008), are strikingly similar. Mr. Green filed a postconviction motion seeking additional jail credit. Id. at 395. The trial court denied the motion because the record showed that bond was posted. Id. Mr. Green’s sworn motion claimed that he was not actually released on bond, but was detained for a probation violation. Id. We reversed because the documents relied on by the trial court did not refute Mr. Green’s claim that he was not actually released. Id. at 396.

Accordingly, we reverse and remand for the postconviction court to consider Mr. Lynn’s motion under rule 3.850. If appropriate, the postconviction court may conduct an evidentiary hearing concerning Mr. Lynn’s claimed entitlement to more jail credit for the sentence he received on the false application offense.

Reverse and remanded with instructions.

NORTHCUTT and KELLY, JJ., Concur.


text:
    Bernardino Ramos VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4750.
    District Court of Appeal of Florida, Second District.
    March 31, 2010.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Bernardino Ramos Vazquez appeals his convictions and sentences for burglary of an unoccupied dwelling and grand theft and contends that he is entitled to additional jail credit for time served. The trial court properly dismissed as facially insufficient Vazquez’s motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Because Vazquez may be able to prove that he is entitled to additional credit, we affirm his convictions and sentences without prejudice to any right he may have to file a timely postcon-viction motion that seeks additional credit. See Lowe v. State, 889 So.2d 931, 933 (Fla. 2d DCA 2004). The circuit court should not deem such a motion successive. Id.

Affirmed without prejudice to seek post-conviction relief.

LaROSE and CRENSHAW, JJ., Concur.