IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
vs. Appeal No. CRC 01-02021 CFANO
Opinion filed ________________________
Appeal from Order Withholding
Adjudication of Guilt
Judge Amy M Williams
Judge Richard A. Luce
Appellant, pro se
Gary M. White, Esquire
Attorney for Appellee
THIS CAUSE came before the Court on appeal, filed by Columbus J. Southerland (Southerland), from the Order Withholding Adjudication of Guilt and Placing Defendant on Probation, entered December 11, 2000. Upon review of the briefs,  the record, and being otherwise fully advised, the Court affirms the Order as set forth below.
The record shows that on September 21, 2000, the State filed a first-degree misdemeanor information against Southerland charging him with Unlicensed Specialty Contracting (Painting) in violation of Florida Statutes, § 489.127(1)(f), and Laws of Florida, Chapter 75-489. The State alleged that, on or about July 31, 1999, Southerland unlawfully engaged in the business of Painting Specialty Contractor during his transaction with Frank A. Sanna. After being found guilty by jury verdict, the trial court withheld adjudication of guilt, but placed Southerland on 12 months probation and assessed restitution to Frank A. Sanna in the amount of $1,901.17. Following his notice of appeal, the trial court stayed its order upon Southerland posting a supersedeas bond of $2,500. The trial court also determined that Southerland was not indigent for purposes of appeal.
On appeal before this Court, Southerland raises six issues: (1) the court erred in denying Southerland’s Motion to Dismiss based on a lack of probable cause; (2) the court erred in denying Southerland’s Motion to Dismiss based on Statute of Limitations; (3) the court erred when it denied Southerland’s Motion to reset trial date based on the State’s non-compliance of discovery; (4) the court erred when it failed to swear the jury as required by the rules of criminal procedure; (5) the court erred in denying Southerland’s Motion for new trial and arrest of judgment based on new found evidence that would support verdict of not guilty; and, (6) the court erred in setting excessive bond, restitution for appeal, and finding defendant solvent for purposes of appeal.
In reviewing the first two issues de novo, the Court finds that there is no support for Southerland’s argument that the trial court erred in denying his Motion to Dismiss. See e.g. Bell v. State, 835 So.2d 392, 394 (Fla. 2d DCA 2003)(stating that the standard of review for a trial court order regarding a motion to dismiss is de novo); State v. Glatzmayer, 789 So.2d 297, 301 (Fla. 2001)(providing that a ruling on probable cause is subject to de novo review but the court’s factual findings must be sustained if supported by competent substantial evidence). As pointed out by the trial court during the hearing below, the Motion was not filed pursuant to Rule 3.190(c)(4), so the State was not required to file a traverse. A review of the record shows that the State presented a prima facie case of unlicensed specialty contracting and timely commenced prosecution of Southerland within the two-year statute of limitations.
In reviewing the third issue, the Court finds that Southerland
fails to demonstrate that the trial court abused its discretion in denying
Southerland’s motion to continue the trial. See e.g. Woods v. State,
490 So.2d 24, 26 (
As to issue four, the transcript clearly provides that
the jury was duly sworn by the Clerk of Court prior to opening statements. In reviewing the fifth issue, the Court finds
that Southerland is unable to show that the trial court erred in denying his
Motion for New Trial. See e.g.
Blanco v. State, 702 So.2d 1250, 1252 (
Lastly, is addressing the sixth issue, the Court finds
that the trial court did not abuse its discretion in setting bond at $2500,
or $373.83 more than court costs and fines, $225, and restitution, $1901.17,
combined. See e.g. Pabian
v. Pabian, 469 So.2d 189, 191 (Fla. 4th DCA 1985)(providing that the proper
amount and conditions of the supersedeas bond are determined by the facts
of a particular case). Likewise, the
record shows that the trial court considered testimony and evidence from both
parties in determining the amount of restitution, which was less than the
amount sought by the State. As the
record supports the amount awarded to Mr. Sanna for damages and loss, the
Court cannot find that the trial court abused its discretion in this regard. See e.g. Johnston v. State, 870 So.2d 877, 878
ORDERED AND ADJUDGED that the Order Withholding Adjudication of Guilt and Placing Defendant on Probation is affirmed.
DONE AND ORDERED in Chambers, at
ROBERT J. MORRIS, JR.
DAVID A. DEMERS
Copies furnished to:
Judge Amy M. Williams
Judge Richard A. Luce
Gary M. White, Esquire
Assistant State Attorney
 The parties resubmitted their briefs to include citations to the transcripts in response to this Court’s Order Requiring Appellant to File Amended Initial Brief, entered August 8, 2003. The Court will consider the Appellant’s issues as presented in his most recent brief, filed September 2, 2003.