author: STEVENSON, J.

text:
    Edward MARREEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1892.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.

      David F. Pleasanton of David F. Plea-santon, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Edward Marreel, an Internet user, pled guilty to one charge of computer child exploitation. On appeal, Marreel argues that his verified motion to dismiss the charge on the grounds of entrapment should have been granted. Because the trial court correctly concluded that there was no improper inducement by law enforcement to cause Marreel to commit the crime and that, in any event, Marreel was predisposed to commit the offense, we affirm.

The Computer Pornography and Child Exploitation Prevention Act of 1986 provides in part:

(3) CERTAIN USES OF COMPUTER SERVICES PROHIBITED. — Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in ... chapter 800, relating to lewdness and indecent exposure ... commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 847.0135, Fla. Stat. (2000)(emphasis added). Section 800.04(l)(a), Florida Statutes, prohibits oral, anal, or vaginal sexual activity with a person under the age of sixteen. The statute further prohibits the touching of a child in a lewd or lascivious manner or having the child touch the perpetrator in this way. See § 800.04(5)(a), (6)(a). A lewd or lascivious act under chapter 800 has been defined as “an unlawful indulgence in lust, eager for sexual indulgence.” Chesebrough v. State, 255 So.2d 675, 678 (Fla.1971).

On July 10, 2001, special agent Don Condon of the Florida Department of Law Enforcement monitored an America Online (AOL) chatroom entitled “Married Wants Affair,” while posing as a fifteen-year-old girl named “Kelly.” While in the chat-room, Condon received an instant message from appellant:

[Appellant]: Hi Kelly, how are you today?
[Condon]: pretty kewl. how bout u?
[Appellant]: Pretty good. Where are you today?
[Condon]: fort lauderdale. how bout u?
[Appellant]: West Palm.
[Appellant]: So, are you married?
[Condon]: kewl. asi [age, sex and location]?
[Appellant]: 34m
[Condon]: too young to be married
[Appellant]: How old?
[Condon]: 15
[Appellant]:' Oh, very young. So why are you in the married/affair room? [Condon]: curious I guess
[Condon]: got a pic?
[Appellant]: No, sorry. You?
[Condon]: no. PARENTS!!! AHHHÜ! need I say more
[Appellant]: Yeah. So looking for older guys?
[Condon]: I just think they’re more together, ya know
[Appellant]: So are you looking for just a sexual relationship?
[Condon]: ... maybe if I found the right guy
[Condon]: ... You seem like a nice guy. How come your [sic] in this room?
[Appellant]: Well, like I said I was hoping to meet someone.
[Condon]: hey you met me!
[Appellant]: Not yet. I mean in real.
[Condon]: we could if you wanted to maybe
[Appellant]: You know ... an affair ... Yeah, I’d like that.
[Condon]: ah huh. me too I think
[Appellant]: So, what would we do and where would we meet if we both agreed?
[Condon]: ... all I want is for you to be honest with me. so I know [what] to expect cause you’d be my first
[Appellant]: Ok, I’ll ask you Is a kiss too far?
[Condon]: No. that’s okay with me ... and then
[Appellant]: Maybe some touching. Is that too far?
[Condon]: No. I don’t think so, where would you touch me ...
[Appellant]: Wherever you like!
[Condon]: lol [laugh out loud]
[Appellant]: You have some ideas?
[Condon]: right now i’d like to hear them from you
[Appellant]: Well, let’s just say I like to use my mouth.
[Condon]: to do what ...
[Appellant]: That is for your imagination. Let it run wild.
So, think you may want to meet me? (emphasis added).

Several weeks and many e-mails, online chats, and telephone calls later, appellant arranged to meet “Kelly” at a local Mc-Donalds with the clearly expressed intention of the two engaging in some type of sexual activity.

The trial court denied appellant’s pretrial motion to dismiss which was based on entrapment, stating:

Although the initial contact between the Defendant and officer occurred in a chat room for “Married Wants Affair,” the officer established within the first two minutes that he was representing himself to be a 15 year old girl. The Defendant being aware of the age, continued to exchange messages with the officer and within fourteen minutes asked her if she was “just looking for a sexual relationship?.”
The transcripts do not support a conclusion that the Defendant was induced or lured into a sexual conversation or that he was not predisposed to this type of activity. The Defendant has not met the initial burden under Munoz v. State, 629 So.2d 90 (Fla.1993), of establishing by a preponderance of the evidence that the government induced him to commit the offense charged. At this pretrial stage, the Court does not find that “entrapment as a matter of law” has been established.

We agree with the trial court that appellant has failed to establish by a preponderance of the evidence that he was induced by law enforcement to commit the offense. See Aidone v. State, 763 So.2d 1127, 1129-30 (Fla. 4th DCA 1999)(citing Munoz, 629 So.2d at 99). Appellant points out that, after the first chat, there were numerous subsequent conversations between the two which were initiated by “Kelly.” Appellant argues that “Kelly’s” prodding for a sexual relationship in these later conversations induced him to speak about potential sexual conduct between himself and “Kelly.” We disagree. Inducement cannot be found by prompting or creating an opportunity:

Neither mere solicitation nor the creation of opportunities to commit an offense comprises inducement.... Rather, inducement refers to government conduct that persuades a person to turn “from a righteous path to an iniquitous one.”

United States v. Gifford, 17 F.3d 462, 468 (1st Cir.1994) (citations omitted). Inducement entails some semblance of “arm-twisting,” pleading, or coercive tactics. See id. Furthermore, when the later conversations occurred, appellant had already demonstrated his predisposition to commit the offense, and, by that time, Condon was simply trying to arrange a convenient opportunity to make the arrest.

In conclusion, there was no unlawful government inducement in the instant case. After appellant made contact with “Kelly” in the “Married Wants Affair” chatroom, she immediately told him that she was only fifteen years old. Upon learning “Kelly’s” age, appellant was not deterred but continued to engage her in the idea of having an affair involving oral sex, touching, and possibly more. “Kelly” merely created an opportunity for appellant to attempt to lure or entice a minor to participate in sexual activities. There were no coercive tactics or “arm-twisting” on the part of law enforcement; appellant was already on the “iniquitous path.” Gifford, 17 F.3d at 468. The fact that “Kelly” helped to keep the idea of an affair going by initiating some of the later contacts with appellant is of no moment. By the end of the first chat, appellant had already shown that he was “predisposed” and that, independent of the government’s actions, he stood “ready and willing, without persuasion, to commit the offense.” Munoz, 629 So.2d at 99.

Accordingly, the judgment on review is AFFIRMED.

GROSS and MAY, JJ., concur.

      . Marreel’s birth date of July 29, 1962, listed in the arrest report suggests that he was actually thirty-nine at the time,

      . In total, there were about forty-seven communications: thirty-three by e-mail, eleven via the chat rooms, and three phone calls. "Kelly” initiated approximately nineteen of the e-mails and seven of the chat sessions.

      . We also reject appellant's argument that law enforcement engaged in egregious conduct in this case due to the numerous chat sessions, electronic mailings, and telephone contacts with appellant. Egregious conduct on the part of the police is only found where such conduct is " 'so outrageous that- due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.' ” State v. Glosson,
        462 So.2d 1082, 1084 (Fla.1985)(quoting United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973)).


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    E.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1493.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

E.C., a child, was charged by a consolidated Petition for Delinquency with burglary of a structure (Count I) and criminal mischief over $200 but less than $1,000 (Count II). There were five other juveniles charged in the same Petition. Each was charged with the same offenses as E.C. E.C. entered a plea of no contest to a misdemeanor charge of criminal mischief while reserving the right to appeal the ruling on the motion to suppress, as dis-positive. The trial court entered an Order of Disposition placing E.C. on probation and withholding adjudication. Joint and several restitution was ordered in the amount of $920.96. We reverse.

The charges result from an incident where E.C. and the five other juveniles entered a house that was under construction and rode their bicycles throughout the house causing damages to the floor, the walls, and a closet door that the juveniles used as a ramp for the bicycles. The property was owned by American Financial Network who reported that the home had been locked and that the boys had gained entry through a rear sliding glass door. Bicycle tire marks were found throughout the walls of the entire house and there were seven holes in the walls.

Detective Cecala, from the Port St. Lu-cie Police Department, visited E.C.’s home and obtained the following statement, “I admit that I was there and I’m sorry. I know it was wrong, I made a bad decision, and I’ll never do it again. I rode my bike with all the other kids in the house.”

E.C. filed a motion to suppress requesting that the court suppress from use as evidence any statement, confession, or admission made by E.C. as being illegally obtained. The motion alleged that Detective Cecala visited E.C.’s home and made promises to E.C. and his mother that E.C. would not be charged in the matter nor would it become a court matter if E.C. made a statement admitting to his involvement in the incident. The motion further alleged that E.C. made a statement as a direct result of those promises which were not honored by the State.

An evidentiary hearing was held on the motion relating to E.C. and two of the other juveniles who had also filed motions to suppress. Detective Cecala testified that when he went to E.C.’s home to interview him, E.C. admitted to being involved. Detective Cecala testified that he explained to E.C.’s mother that his intention was to handle the complaint administratively and not take E.C. into custody. He denied leading E.C. to believe that charges would not be brought if he confessed. Detective Cecala was then questioned as to the other two juveniles and made essentially the same statements. He said that he explained to the juveniles’ parents that his intent was to handle the complaint administratively. He explained what was meant by “administratively” as follows:

One of the alternatives is through your office is to apply for the taking hold which is approved by a magistrate, physically take the child into custody, have him fingerprinted, photographed and transported to the Juvenile Detention Center. That’s one alternative. The other one, is to I feel if it’s a more lesser of a complaint to have it handled it administratively which is a letter from you ... I would imagine explaining to them a Court date has been set and that’s the way another complaint could be handled.

Detective Cecala testified that there were no promises made to the boys in exchange for their statements.

E.C.’s mother testified that Detective Cecala told her that if E.C. cooperated and gave his statement that there would be no charges filed, no court appearances, and no juvenile record. She stated that he told her, if anything, E.C. may have to see a juvenile probation officer as a means to pay restitution to the victim and write a letter of apology to the victim. Based on what Detective Cecala told her, she “saw no problem with my son being honest.” She believed that if E.C. was honest with Detective Cecala that he would not have a juvenile record and would not have to go to court.

After speaking with Detective Cecala, E.C.’s mother went to the Department of Juvenile Justice (the “Department”) where she was told that the victim was seeking restitution in the amount of $1,800.10. She disagreed with the amount of restitution requested. After her meeting with the Department, at which E.C. gave a statement, her next contact with the Department was through a letter indicating that a court date had been set. She told the court that she would like a hearing where the victim could show documentation to substantiate the damages that are the basis for the requested restitution.

The parents of the other two juveniles also testified. They gave similar accounts of their meetings with Detective Cecala. They testified that Detective Cecala also told them that there would be no charges pressed and no court date. All of the witnesses testified that Detective Cecala seemed very nice and cooperative and was not at all coercive.

E.C.’s counsel argued that E.C. confessed in reliance on Detective Cecala’s statements that he would not press charges, therefore, the statements were involuntary and should be suppressed. The State argued that Detective Cecala complied with his promises to handle the case administratively by not taking the boys into custody and just turning the file over to the Department of Juvenile Justice.

The trial court found that there was clearly a promise made that if the boys were truthful to Detective Cecala that it probably would not go any further. The trial court then went on to say:

The hang up though obviously from the consistent testimony of the parents’ was restitution. I mean I think the promise was made and was followed through on. And in fact that it went to a diversion option. I guess the one parent allegedly didn’t get notice or something, diversion. And that hang up was the amount of the restitution, and that wasn’t worked out and so there was no choice but to file.

The trial court found that Detective Cecala made a promise which induced the statements; however, it also found that if E.C.’s mother had cooperated with the diversion and the restitution set up by the Department of Juvenile Justice that there would be no court proceedings. Based on that reasoning, the trial court denied the motion to suppress.

On appeal, E.C. argues that the trial court abused its discretion in denying his motion to suppress because Detective Cecala’s promise to handle it “administratively” is sufficient to render E.C.’s statements involuntary. A confession or inculpatory statement is not freely and voluntarily given if it has been elicited by direct or implied promises, however slight. See Walker v. State, 771 So.2d 578, 575 (Fla. 1st DCA 2000). In Walker, the first district noted that the promise of leniency alone is sufficient to render an inculpatory statement involuntary. In the instant case, the trial court clearly found that Detective Cecala made a promise of leniency. This promise of leniency was the quid pro quo for the inculpatory statements made by E.C. and, therefore, under Walker, the statements were involuntary.

The trial court’s finding that Detective Cecala’s statements induced E.C’s confession is presumptively correct and should not be disturbed absent an abuse of discretion. See Walker, 771 So.2d at 575 (citation omitted). There is competent substantial evidence on the record to support the trial court’s finding that the statements were involuntary. The trial court found that Detective Cecala’s statements went beyond informing E.C. of realistic penalties and encouraging him to tell the truth, but in fact was a promise of leniency or a promise not to prosecute. This renders the confession invalid.

Without conceding that Detective Cecala made promises which induced E.C. to make inculpatory statements, the State argues that Detective Cecala fulfilled his promise and it was only after E.C. failed to agree to restitution that the petition for delinquency was filed. However, the State cites no support for its proposition that the confession, even though found to be involuntary, can now be admitted because Detective Cecala attempted to follow through on his promises. That does not change the court’s findings that the statements were influenced by Detective Cecala’s promises and therefore involuntary under Walker.

Based on its finding that the statements were involuntary, the trial court erred in denying the motion to suppress.

Reversed.

POLEN, C.J., and KLEIN, J., concur.


author: PER CURIAM.

text:
    T.R.C., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1499.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Borges v. State, 459 So.2d 459 (Fla. 3d DCA 1984).


text:
    M.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1492.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr. Attorney General, Tallahassee, and Monique E. L’italien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the trial court’s denial of his motion to suppress. For the reasons set forth in the co-defendant’s case, E.C. v. State, 841 So.2d 604 (Fla. 4th DCA 2008), we reverse and remand the case for further proceedings.

STEVENSON, GROSS and MAY, JJ., concur.


text:
    CHURCH BY THE SEA, INC., Appellant, v. BAL HARBOUR SHOPS, LTD., Appellee.
    No. 3D01-1195.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Holland & Knight,- and Daniel S. Pearson, James Porter, and Lucinda A. Hof-mann, Miami, for appellant.
    Katz, Barron, Squitero & Faust, and Mathai Jacob and Michael D. Katz, Miami; Carlton Fields, and Sylvia H. Walbolt, J. Andrew Meyer, and Henry G. Gyden, St. Petersburg, for appellee.
    Before GODERICH, GREEN and FLETCHER, JJ.
   PER CURIAM.

Because there were no genuine issues of material fact and, as a matter of law, The Church by the Sea did not acquire an irrevocable license to park at no charge, we affirm the trial court’s order granting final summary judgment in favor of Bal Harbour Shops, Ltd. See Dance v. Tatum, 629 So.2d 127 (Fla.1993); Seaboard Air Line Ry. Co. v. Dorsey, 111 Fla. 22, 149 So. 759 (1933); Albrecht v. Drake Lumber Co., 67 Fla. 310, 65 So. 98 (1914), receded from on other grounds by Dance v. Tatum, 629 So.2d 127 (Fla.1993).

Affirmed.


text:
    STATE of Florida, DEPARTMENT OF REVENUE, et al., Appellants, v. BARRY S. FRANKLIN & ASSOCIATES, P.A., Appellee.
    No. 3D01-3481.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, for appellants.
    Franklin & Criscuolo, and Barry S. Franklin, North Miami Beach, for appel-lee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   PER CURIAM.

The findings of fact do not support an award of attorney’s fees pursuant to the inequitable conduct doctrine. See Diaz v. Diaz, 826 So.2d 229 (Fla.2002); Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002)(holding that attorney’s fees pursuant to the inequitable conduct doctrine “must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees”); Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla.1998)(holding that inequitable conduct doctrine is rarely applicable), cert. denied, 525 U.S. 1187, 119 S.Ct. 1133, 143 L.Ed.2d 126 (1999). As such, we reverse the award of attorney’s fees in favor of the appellee.

Based on the disposition of the above issue, we do not reach the remaining arguments raised by the appellants.

Reversed.


text:
    Fulgencio PADILLA, Sr., Appellant, v. Donald BUELL, Appellee.
    No. 3D02-1945.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    William M. Tuttle, II, Miami, for appellant.
    Tew Cardenas Rebak Kellogg Lehman DeMaria Tague Raymond & Levine and William G. Burd and John S. McPhee and Peter F. Valori, Miami, for appellee.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

Fulgencio Padilla, Sr., plaintiff below, appeals an award of attorney’s fees and costs against him under the offer of judgment statute. See § 768.79, Fla. Stat. (1997). On the issue of entitlement, we conclude that the offer was neither ambiguous nor conditional. It does not appear that there was an entire change in the defense offered by the defendant, and thus the decision in Southwinds Farm, Inc. v. Albertson, 664 So.2d 13 (Fla. 3d DCA 1995), is inapplicable. We see no harmful procedural error, nor does the fact that the defense offer of judgment was $2,500 render it a bad faith offer. See Levine v. Harris, 791 So.2d 1175 (Fla. 4th DCA 2001). The amount of attorney’s fees and costs is supported by the record.

Affirmed.

       For present purposes we have assumed that there is no procedural bar under Silva v. U.S. Security Ins. Co., 734 So.2d 429 (Fla. 3d DCA 1999).


text:
    Joan M. BIGLER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Bath & Body Works, Inc., Appellees.
    No. 3D02-1977.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Joan M. Bigler, in proper person.
    John D. Maher, for appellee, Commission.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

The appellant was fired because she had removed a “tester” from the shop at which she was employed. It was undisputed, however, that she did not do so for her own purposes, but instead gave the item to employees of another business for services it had provided to the store at no cost. We reverse the denial of the unemployment compensation benefits below on the grounds stated by the Chair of the Unemployment Appeals Commission’s dissenting opinion. That opinion correctly states, in accordance with countless decisions of this and every other Florida court, that a mistake in judgment of this kind does not, as a matter of law, amount to disqualifying misconduct. See Castillo v. Florida Unemployment Appeals Comm’n, 785 So.2d 552 (Fla. 3d DCA 2001); Savage v. Macy’s East, Inc., 719 So.2d 1208, 1208-09 n. 1 (Fla. 3d DCA 1998); Castillo v. Sally Beauty Co., 637 So.2d 269 (Fla. 3d DCA 1994); King v. Walgreen Co., 635 So.2d 997 (Fla. 3d DCA 1994); Kelley v. Pueblo Wholesale Co., 627 So.2d 534 (Fla. 3d DCA 1993).

Accordingly, we reverse the Unemployment Appeals Commission’s order and remand with instructions that there was no disqualifying conduct and that the appellant is eligible for unemployment benefits.

      . Alan Orantes Forsl, Chairman, Dissenting
      I respectfully dissent. I would reverse the decision of the appeals referee.
      The Unemployment Compensation Law of Florida defines misconduct connected with work as:
      (a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or
      (b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.
      Section 443.036(29), Florida Statutes. Additionally Florida’s appellate courts have quoted with approval the following language of the Wisconsin Supreme Court in Boynton Cab
        Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941):

      [M]ere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct” within the meaning of the statute.

        Tucker v. Florida Department of Commerce, 366 So.2d 845, 847 (Fla. 1st DCA 1979); Fredericks v. Florida Department of Commerce, 323 So.2d 286, 288 (Fla. 2d DCA 1975); Spaulding v. Florida Industrial Commission, 154 So.2d 334, 336-37 (Fla. 3d DCA 1963).
      The claimant was discharged for giving merchandise to employees of another business in appreciation of the services it provided to the claimant's store at no cost. The claimant acted for the benefit of the store and not herself. While the claimant may have made an error in judgment, I do not concur in the decision of the Commission finding the claimant's actions constituted misconduct connected with work. Accordingly, I dissent.


text:
    Jonelle K. COLLINGTON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION & Fairfield Communities, Inc., Appellees.
    No. 4D02-4172.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.
    Jonelle K. Collington, Fort Lauderdale, pro se, for appellant.
    John D. Maher, Tallahassee, for appellee Unemployment Appeals Commission.
   PER CURIAM.

Jonelle Collington seeks review of the Florida Unemployment Appeals Commission (U.A.C.) dismissal of her appeal from the referee’s determination that she was discharged from her place of employment for misconduct and therefore not entitled to benefits. On November 19, 2001, the Notice of Determination was mailed to Collington notifying her of her disqualification for benefits. Collington did not appeal that determination with the U.A.C. until July 17, 2002.

We affirm the U.A.C. dismissal based on the untimeliness of Collington’s appeal. Fla. Stat. § 443.151(4)(b)(2001); see Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002).

AFFIRMED.

GUNTHER, STONE and HAZOURI, JJ., concur.


author: GREEN, J.

text:
    FLORIDA DEPARTMENT OF INSURANCE, DIVISION OF RISK MANAGEMENT, Appellant, v. Frank AMADOR, Appellee.
    No. 3D02-2905.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.

      Vernis & Bowling of Miami, P.A. and Patrick H. Gonyea; Littler Mendelson, P.C. and Scott A. Forman, North Miami, for appellant.
    James H. Greason, Miami, for appellee.
    Before GREEN and RAMIREZ, JJ., and NESBITT, Senior Judge.
   GREEN, J.

The Department of Insurance appeals a non-final order denying its motion to dismiss due to improper venue. For the following reasons, we reverse.

Appellee, Frank Amador, formerly employed by Florida International University (“FIU”), was sued in 1997 by two individuals for alleged acts committed by Amador in the course and scope of his employment at FIU. The Department of Insurance (“the Department”) provided counsel to Amador to defend against these suits. In February of 2001, the Department withdrew its provided representation, and Amador secured his own counsel to represent him. The Department reimbursed Amador for his legal costs until August of 2001, when it advised Amador that it would no longer reimburse his legal fees or indemnify him against any adverse judgment. A few months later, both lawsuits against Amador were dismissed.

Amador filed suit against the Department, claiming that the Department’s withdrawal of legal representation constituted a breach of contract. The Department moved to dismiss the case due to improper venue pursuant to the “home venue privilege.” The trial judge heard argument, and ultimately denied the motion to dismiss. This appeal follows.

The Department argues that the trial judge erred in refusing to dismiss the case because under Florida’s “home venue privilege,” the proper venue in this suit would be Leon County, Florida, where the Department’s principle agency headquarters is located. Amador claims that valid exceptions to the home venue privilege apply, and therefore, he was correct in bringing suit in Miami-Dade County.

The home venue privilege is a long-established principle of Florida common law which, absent waiver or exception, entitles the state or one of its agencies or subdivisions in civil actions to sue or be sued in the county where the agency or subdivision maintains its principle headquarters. Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 363-64 (Fla.1977). The privilege is intended to promote orderly and uniform handling of state litigation, and help minimize expenditure of public funds and manpower. Id. at 364. There are three recognized exceptions to the home venue privilege: (1) statutory waiver; (2) state agency as joint tortfea-sor; and (3) state agency as “sword-wielder.” Amador contends that both the joint tortfeasor and sword-wielder exceptions apply to this case. We disagree.

Amador argues that the joint tortfeasor exception applies because the Department’s co-defendants in this case are being sued in tort; however, in order for the joint tortfeasor exception to apply, the state agency itself must be sued as a joint tortfeasor. See Bd. of County Comm’rs of Madison County v. Grice, 438 So.2d 392, 394 (Fla.1983); Dep’t of Mgmt. Svcs. V. Fastrac Constr., 701 So.2d 1200, 1201 (Fla. 5th DCA 1997). We have before us a simple breach of contract claim by Amador against the Department; therefore, this exception is not implicated.

The sword-wielder doctrine, which Amador also claims is applicable here, applies only in cases where the official state action being complained of has been or is being performed in the county where the suit is filed, or when the threat of such action in said county is both real and imminent. Carlile, 354 So.2d at 363 (citing Smith v. Williams, 160 Fla. 580, 35 So.2d 844 (1948)). The purpose is to enable plaintiffs to obtain direct judicial protection from an alleged unlawful invasion of fundamental constitutional rights within the county where the suit was initiated. Id. at 365. Florida common law also acknowledges the application of the sword-wielder doctrine where plaintiffs’ personal property rights are threatened. See e.g., Dep’t of Labor & Employment Sec. v. Lindquist, 698 So.2d 299, 303 (Fla. 2d DCA 1997)(finding plaintiff sufficiently articulated claims for deprivation of procedural due process in personal property interest to support application of sword wielder doctrine to deprive state agency of home venue privilege).

Amador’s suit against the Department is not “in the nature of a shield against the state’s thrust,” as no constitutionally guaranteed right or property interest was infringed upon. See Monroe County v. Graham, 493 So.2d 74, 75 (Fla. 3d DCA 1986). There is no constitutional right in Florida to have one’s attorney’s fees paid. Furthermore, Amador is not entitled by statute to have his fees paid under § 111.07, Florida Statutes , as individual application of § 111.07 is to be decided by the respective governmental unit (i.e. the Department), not the judiciary. See Nuzum v. Valdes, 407 So.2d 277, 279 (Fla. 3d DCA 1981). In short, Amador may not characterize this breach of contract claim against the Department as an unconstitutional taking of a property interest so as to invoke the sword wielder doctrine. Dep’t of Corrections v. Ross, 680 So.2d 622, 623 (Fla. 5th DCA 1996); see also Fla. Agency for Health Care Admin. v. St. John’s Med. Plans, Inc., 674 So.2d 911, 912 (Fla. 3d DCA 1996)(fmding that contract claim may not be presented as inverse condemnation action to qualify as exception to home venue privilege under sword wielder exception).

Thus, for the reasons expressed herein, we reverse the order denying the motion to dismiss and remand with directions that the trial court transfer this cause to Leon County, Florida.

Reversed and remanded with directions.

      . Section 111.07, Florida Statutes (2001), provides, in pertinent part:
      Any agency of the state, or any county, municipality, or political subdivision of the state, is authorized to provide an attorney to defend any civil action arising from a complaint for damages or injury suffered as a result of any act or omission of action or any of its officers, employees, or agents for an act or omission arising out of and in the scope of his or her employment....


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Michael Jovan BARNES, Appellee.
    No. 2D02-2092.
    District Court of Appeal of Florida, Second District.
    April 2, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, Bartow, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellee.
   DAVIS, Judge.

The State challenges Michael Barnes’ downward departure sentence for vehicular homicide. The trial court based the departure on section 921.0026(2)©, Florida Statutes (2001), which provides that a downward departure can be reasonably justified if “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” The State, however, argues that this is not a valid reason for departure in a vehicular homicide case because such offense cannot be committed in either a sophisticated or an unsophisticated manner. We disagree.

The statute makes no exception for vehicular homicide or other offenses involving driving, and the record here supports the trial court’s finding. See State v. Van-Bebber, 805 So.2d 918 (Fla. 2d DCA 2001). Accordingly, we affirm.

Affirmed.

NORTHCUTT and STRINGER, JJ„ Concur.


text:
    Fannings JOHNSON, Petitioner, v. FLORIDA PAROLE COMMISSION and James V. Crosby, Jr., Secretary, Department of Corrections, Respondents.
    No. 1D02-2047.
    District Court of Appeal of Florida, First District.
    April 3, 2003.

      Fannings Johnson, pro se, petitioner.
    William L. Camper, General Counsel, and Mark J. Hiers, Assistant General Counsel, Florida Parole Commission, Tallahassee, for respondents.
   PER CURIAM.

Petitioner seeks a writ of certiorari to review an order of the circuit court which denied a petition for writ of habeas corpus. We grant the petition.

The Florida Parole Commission (FPC) revoked petitioner’s parole on August 23, 2000. On April 12, 2001, FPC established petitioner’s presumptive parole release date (PPRD). On September 6, 2001, petitioner challenged the PPRD by filing a petition for writ of mandamus in the Leon County Circuit Court. The petition for writ of mandamus was denied and this court affirmed the circuit court’s action when review was sought by petition for writ of certiorari. Johnson v. Florida Parole Comm’n, 833 So.2d 123 (Fla. 1st DCA 2002).

Meanwhile, on December 10, 2001, petitioner filed a petition for writ of habeas corpus in the county where he was incarcerated to challenge the factual basis of his parole revocation. The Gulf County Circuit Court denied the petition for writ of habeas corpus finding that it was a successive petition to the petition for writ of mandamus filed in Leon County and that habeas corpus could not be used as a substitute for appeal. Petitioner now seeks certiorari review of that order pursuant to Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998).

The circuit court improperly denied the petition for writ of habeas corpus as a successive petition. See Johnson v. State, 589 So.2d 456 (Fla. 5th DCA 1991). In rejecting a similar finding of successive petitions, the court in Johnson stated

Not only were different issues raised in the petitions, but the relief sought and the grounds necessary for relief are different in the two forms of writ. Mandamus is a remedy used to compel a public officer to perform a duty, while habeas corpus seeks immediate release from illegal detention. In the early petition, Johnson properly sought a writ of mandamus to compel the [Florida Parole] Commission to correct the PPRD score sheet. No direct appeal is available from a PPRD determination, and Johnson properly sought review by way of mandamus to correct the score sheet used to determine the date. See, e.g., Zatler v. State, 457 So.2d 1083 (Fla. 5th DCA 1984). He also properly sought a writ of habeas corpus to challenge the parole revocation. Young v. Simmons, 506 So.2d 434 (Fla. 2d DCA 1987).

Johnson, 589 So.2d at 457.

Because the jurisdiction of District Courts of Appeal to entertain direct appeals by parolees from final orders of the Florida Parole Commission has been eliminated, prisoners and parolees must seek their remedy in circuit court by way of a petition for an extraordinary writ. See Johnson v. Florida Parole and Probation Comm’n, 543 So.2d 875 (Fla. 4th DCA 1989), disapproved on other grounds, Sheley v. Florida Parole Comm’n, 720 So.2d 216 (Fla.1998); Thomas v. Florida Parole and Probation Comm’n, 436 So.2d 349 (Fla. 1st DCA 1983); Hansen v. Florida Parole and Probation Comm’n, 436 So.2d 349 (Fla. 1st DCA 1983). Petitioner’s previous mandamus petition sought to challenge the PPRD and was properly filed in the circuit court where the agency was headquartered. See Lewis v. Florida Parole Comm’n, 697 So.2d 965 (Fla. 1st DCA 1997). The habeas corpus petition challenged the parole revocation and was properly filed in the county where petitioner was detained. See Campbell v. Florida Parole Comm’n, 630 So.2d 1210 (Fla. 1st DCA 1994) rev. denied, 639 So.2d 976 (Fla.1994), vacated, 514 U.S. 1094, 115 S.Ct. 1819, 131 L.Ed.2d 742 (1995), reinstated, 657 So.2d 67 (Fla. 1st DCA), cert. denied, 516 U.S. 996, 116 S.Ct. 533, 133 L.Ed.2d 438 (1995); Young v. Simmons, 506 So.2d 434 (Fla. 2d DCA 1987); § 79.09, Fla. Stat. (2000). Because there is no right to appeal the revocation of parole, review by petition for writ of habeas corpus in the circuit court is proper.

Finally, we note that unlike the 30 day time limit imposed by Florida Rule of Appellate Procedure 9.100(c)(4), to file a petition challenging an order of the Department of Corrections entered in prisoner disciplinary proceedings, the Florida Supreme Court has not by rule adopted a similar time limit to challenge orders of FPC in parole revocation or PPRD proceedings. Accordingly, the question of timeliness must be raised by the affirmative defense of laches. See McCray v. State, 699 So.2d 1366 (Fla.1997)(the doctrine of laches is properly applied to habe-as corpus petitions when the delay in bringing a claim has been unreasonable and the state has been prejudiced in responding to the claim).

We grant the petition for writ of certio-rari, quash the order of the circuit court and remand for further proceedings.

PETITION GRANTED.

BARFIELD, KAHN and PADOVANO, JJ., concur.


text:
    Mary L. BARLEY, Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.
    No. 1D03-0376.
    District Court of Appeal of Florida, First District.
    April 3, 2003.
    E. Thom Rumberger of Rumberger, Kirk & Caldwell, P.A., Tallahassee, for appellant.
    Eric M. Lipman, Assistant General Counsel, Florida Elections Commission, Tallahassee, for appellee.
   PER CURIAM.

We treat the stipulated motion to relinquish jurisdiction as a confession of error. In accordance therewith, the default final order being appealed herein is reversed, and the matter is remanded to the Florida Elections Commission for further proceedings.

REVERSED AND REMANDED.

BOOTH, WEBSTER and LEWIS, JJ., concur.


text:
    David NOURACHI, as Trustee of the South Beach Trust, a Florida Land Trust Under F.S. 689.071 dated 7/11/2001, Appellant, v. SOUTH BEACHES PROFESSIONAL PARK OWNERS’ ASSOCIATION, INC., a Florida Non Profit Corporation, et al., Appellee.
    No. 1D03-0148.
    District Court of Appeal of Florida, First District.
    April 3, 2003.
    Eric S. Kolar, Jacksonville, for Appellant.
    Ann Krueger Smith, Jacksonville, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated February 17, 2003, we dismiss for lack of jurisdiction. The order on appeal, Final Judgment on Plaintiffs Second Amended Complaint to Quiet Title and for Declaratory Judgment and Defendant’s Counterclaim for Declaratory Judgment, rendered on December 18, 2002, declares a tax deed void, awards $75,000 spent on the tax deed, but reserves jurisdiction pursuant to section 197.602, Florida Statutes (2002), to determine and award the interest on the refund of taxes paid, legal expenses in obtaining the tax deed, and the fair cash value of improvements made to the property. The reservation of jurisdiction encompasses claims which arose out of the same operative facts surrounding money awarded on the tax deed. Because the order does not resolve a distinct and severable cause of action and judicial labor remains on an interrelated claim involving the same transaction and parties, the appeal is premature. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); Fla. R.App. P. 9.110(k), (m). Additionally, such a reservation relates to more than simply execution of the judgment and does not concern an ancillary matter which can be determined in a separate final order as attorney’s fees and costs can be. See McGurn v. Scott, 596 So.2d 1042, 1043-44 (Fla.1992). The appellant’s Motion to Relinquish Jurisdiction, filed February 19, 2003, is denied because the appellant has failed to show exceptional circumstances. See Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995).

DISMISSED.

BOOTH, WEBSTER and LEWIS, JJ., concur.


text:
    Eddie T. CAMPBELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-3890.
    District Court of Appeal of Florida, First District.
    April 3, 2003.
    Eddie T. Campbell, petitioner, pro se.
    Charlie Crist, Attorney General, and Giselle Lynn Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence imposed on September 21, 2001, in Leon County Circuit Court case number R2000-3348, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). We note that in accordance with the lower tribunal’s order regarding petitioner’s entitlement to a belated appeal, the Public Defender has been appointed to represent petitioner on appeal.

BOOTH, WEBSTER and LEWIS, JJ., concur.


text:
    Alphonso SARAVIA, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1767.
    District Court of Appeal of Florida, First District.
    April 3, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The trial court erred as a matter of law in summarily denying claims of ineffective assistance of trial counsel on the ground that these claims should have been raised on direct appeal. See State v. Barber, 301 So.2d 7 (Fla.1974). The order is therefore REVERSED, and the case is REMANDED to the trial court for further proceedings. As to the appellant’s claim that the trial court abused its discretion in failing to rule on his timely filed motion to amend the post-conviction motion, we note that the record on appeal contains no motion to amend, but that if such a motion was timely filed, it should have been addressed prior to ruling on the post-conviction motion, and suggest the trial court consider the issue on remand.

BARFIELD, KAHN, and PADOVANO, JJ., concur.


text:
    SOUTHLAND WASTE SYSTEMS, INC., a foreign corporation, Appellant, v. Jack D. KERSEY and Nadine Kersey, his wife, Appellees.
    No. 1D01-3826.
    District Court of Appeal of Florida, First District.
    April 3, 2003.
    Richard A. Sherman of Richard A. Sherman, P.A., Fort Lauderdale; Peter A. Diamond and Dale R. Hightower of Hightower, Rudd, Weiser, & Acosta, P.A., Miami, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; Robert P. Eshelman and Daniel C. Shaughnessy of Robert P. Eshel-man, P.A., Jacksonville, for Appellees.
   PER CURIAM.

Because it is apparent from the record that the trial court was of the opinion that appellant’s motion for remittitur had not been timely served, as required by Florida Rule of Civil Procedure 1.530(b), and because that finding is supported by competent substantial evidence, the trial court lacked jurisdiction to rule on that motion. See Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So.2d 988, 991 (Fla. 1st DCA) (noting that “[a] motion for remittitur is essentially a conditional motion for a new trial”), review denied, 828 So.2d 385 (Fla.2002); Fla. R. Civ. P. 1.090(b) (stating that a trial court “may not extend the time for making a motion for new trial”); Pruitt v. Brock, 437 So.2d 768, 772 (Fla. 1st DCA 1983) (stating that a trial court loses jurisdiction over a case upon expiration of the time for serving a motion for new trial or rehearing unless such a motion has been timely served). Accordingly, we affirm the trial court’s denial of that motion without addressing its merit.

AFFIRMED.

WEBSTER, PADOVANO and HAWKES, JJ., concur.


author: GRIFFIN, J.

text:
    DEPARTMENT OF CHILDREN & FAMILIES, Petitioners, v. E.M.S, a child, et al., Respondent.
    Nos. 5D02-3241, 5D02-3242.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2003.
    Ralph J. McMurphy, Wildwood, for Petitioners.
    Brad King, State Attorney, and Linda Johns Herrick, Assistant State Attorney, Ocala, for Respondent.
   GRIFFIN, J.

Petitioner, Department of Children and Families [“DCF”], has filed in this court two petitions for writ of certiorari challenging trial court orders entered in two separate juvenile delinquency cases. The two orders at issue were entered by the same judge and are similar. Both petitions raise the same issue and have been consolidated.

The order regarding E.M.S. declares E.M.S. to be incompetent and then provides in pertinent part:

CONCLUSIONS OF LAW
A. The child, who is incompetent to proceed due to the child’s mental illness and who is charge[d] with a misdemeanor, is hereby not committed to the Department of Children and Families.
B. The child does not meet the criteria for secure placement to a treatment program of the Department of Children and Families as set forth in 985.223(3), Fla. Stat. (Supp.1998).
C. The Department of Children and Families will place the child in a community treatment program as permitted by 985.223(6)(a), Fla. Stat. (Supp.1998), which is the least-restrictive, most appropriate type of program available for the child consistent with the needs of public safety-

inconsistent with paragraph A above, however, the court’s order further provides: “The child is committed to the Department of Children and Families with the goal of restoration of the child’s competency to proceed.”

DCF urges that both orders, to the extent that they mandate commitment of the juveniles to DCF, are at odds with the statutory language of section 985.223(2), Florida Statutes (2002), as well as opinions from the First District Court of Appeal in Department of Children & Families v. J.K., 752 So.2d 87 (Fla. 1st DCA 2000) and this court in Department of Children & Families v. A.A.ST.M., 706 So.2d 867 (Fla. 5th DCA 1998) (on rehearing en bane). J.K is the only Florida appellate decision construing section 985.223(2); A.A.ST.M. involves an earlier version of section 985.223 and facts similar to those in the instant case.

Section 985.223(2) states:

A child who is mentally ill or retarded, who is adjudicated incompetent to proceed, and who has committed a delinquent act or violation of law, either of which would be a felony if committed by an adult, must be committed to the Department of Children and Family Services for treatment or training. A child who has been adjudicated incompetent to proceed because of age or immaturity, or for any reason other than for mental illness or retardation, must not be committed to the department or to the Department of Children and Family Services for restoration-of-competency treatment or training services. For purposes of this section, a child who has committed a delinquent act or violation of law, either of which would be a misdemeanor if committed by an adult, may not be committed to the department or to the Department of Children and Family Services for restoration-of-competency treatment or training services.

In J.K., the First District Court of Appeal held: “Because J.K. was committed to the Department following a misdemeanor charge, the commitment was a clear departure from the essential requirements of law under the language of section 985.223(2).” 752 So.2d at 89.

As indicated, this court in A.A.ST.M. addressed the prior version of section 985.223, then section 39.0517. Under former section 39.0517(1), Florida Statutes (Supp.1996): “If, at any time prior to or during a delinquency case involving a delinquent act or violation of law that would be a felony if committed by an adult, the court has reason to believe that the child named in the petition may be incompetent to proceed ... the court ... may, or on the motion of the child’s attorney or state attorney must, stay all proceedings and order an evaluation of the child’s mental condition.” In A.A.ST.M., this court held that in light of section 39.0517(1), a juvenile incompetent may be involuntarily committed to the custody of DCF only if the act would constitute a felony had it been committed by an adult. Since the acts in A.A.ST.M. only constituted misdemeanors, commitment to DCF was improper.

The facts and circumstances of A.A.ST.M. are indistinguishable from those before us now. The only difference is that the legislature has since amended and recodified section 39.0517 in an apparent effort to make it even more clear that an incompetent juvenile charged with the equivalent of a misdemeanor offense may not be committed to DCF. Ch. 98-207, Laws of Florida.

Accordingly, in both of these cases, we grant DCF’s petitions and vacate the orders under review.

Petitions GRANTED; Orders VACATED; and REMANDED.

SHARP, W. and PALMER, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Jason R. LIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-974.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Chief Judge.

Jason R. Light appeals his conviction for second-degree murder. After carefully reviewing all of the evidence in the light most favorable to the State, we conclude that the State faked to present a prima facie case of second-degree murder. We reverse and remand with directions to the trial court to enter a judgment of conviction for the lesser-included offense of manslaughter and to resentence Mr. Light accordingly.

On July 24, 1999, Jason Light and some of his friends went to a Sarasota bar, “The Rum Shack,” to listen to live performances by three bands playing heavy metal music. Although Mr. Light was only 18 years old, he and his friends had apparently been drinking prior to arriving at the bar. The bar was dark, smoky, crowded, and very loud. One of the other patrons happened to videotape the performance of a band called “Struggle,” during which this incident occurred. Thus, the conditions inside the bar that caused witnesses to have limited and varying descriptions of the incident are well presented in this record.

During the concert, a mosh pit formed. For those fortunate enough to be unfamiliar with this practice, a “mosh pit” is an area adjacent to a concert stage where people slam dance. “Slam dancing” is a form of dance in which participants, typically male, hurl themselves forcefully and repeatedly into one another. It is essentially a consensual contact sport with few clear-cut rules, and no designated referees. When it occurs at bars, as it did in this case, many of the participants and onlookers may be under the influence of alcohol. Slam dancing is usually performed to heavy metal or punk rock music, which has a hard rhythm and often aggressive lyrics.

Mr. Light was slam dancing about 11:15 p.m. when the victim entered the mosh pit. Mr. Light did not know the victim, and there is no evidence that they had ever had any prior contact with one another. The victim, a man in his twenties, was intoxicated. A bartender had previously refused to serve the victim any more drinks. Witnesses described him as constantly stumbling in the mosh pit.

At some point, the victim fell back against Mr. Light. At least one witness testified that Mr. Light claimed the victim hit him in the genitals. The victim remained on the dance floor and began rolling around in the area of the mosh pit. Although versions of this incident varied and are not described clearly by the witnesses, the best evidence for the State suggests that Mr. Light immediately picked up the victim in what witnesses described as a wrestling move, upended him, and slammed him to the floor. The victim’s head hit the solid floor, rendering him unconscious. This entire incident took only seconds and was not accompanied by any fighting words or other indications of an ongoing altercation between the two dancers.

Employees of the Rum Shack carried the unconscious victim outside and laid him on the ground. They placed ice on his head and shined flashlights in his eyes until he regained some level of consciousness. Apparently thinking the victim was merely intoxicated, they permitted his friends to take him home. The bar employees ordered Mr. Light to leave the bar.

The victim’s friends assisted him in walking to a car and drove him home. Although the victim was initially able to walk with some assistance, once at home he became lethargic and began to lose consciousness again. His friends called 911 and the victim was rushed to the hospital. When the victim arrived at the hospital, his blood alcohol level was .295. Despite heroic measures at the hospital, the victim died as a result of a blunt force trauma to the left side of his head.

The State originally charged Mr. Light with manslaughter in this case and offered him a six-year youthful offender sentence. When Mr. Light rejected that offer, the State amended the information and sought a conviction for second-degree murder.

At trial, Mr. Light’s counsel moved for a judgment of acquittal, arguing that the State had failed to prove that Mr. Light’s actions demonstrated a depraved mind sufficient to sustain a conviction for second-degree murder. Although the trial court expressed doubt that Mr. Light’s actions demonstrated the necessary ill will, hatred, spite, or evil intent, it denied the motion for judgment of acquittal. The jury ultimately convicted Mr. Light of second-degree murder, and the trial court sentenced him to a guidelines sentence of 249.67 months’ imprisonment followed by 8 years’ probation.

On appeal, Mr. Light argues that his motion for judgment of acquittal should have been granted to the extent that the case should have been presented to the jury on only the lesser-included offense of manslaughter. In essence, he argues that the State was correct in its original assessment of its case against him. We agree.

In Pagan v. State, 830 So.2d 792, 803 (Fla.2002), the Florida Supreme Court recently summarized the standard of review on a motion for judgment of acquittal:

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.

Id. at 803 (citations omitted).

Although the factual fines that must be drawn between first-degree murder, second-degree murder, and manslaughter are often subtle and must permit a certain level of judgment by juries, the legal elements of these crimes are still distinct. Manslaughter is defined as “[t]he killing of a human being by the act, procurement, or culpable negligence of another.” § 782.07(1), Fla. Stat. (1999). Culpable negligence is

a course of conduct showing reckless disregard of human fife, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

Fla. Std. Jury Instr. (Crim.) 101. There is no question that Mr. Light’s act of slamming the victim to the floor exhibited a “reckless disregard” for the fife or safety of his victim.

The crime of second-degree murder, however, requires a more serious mens rea. The definition of second-degree murder is: “The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human fife, although without any premeditated design to effect the death of any particular individual.” § 782.04(2), Fla. Stat. (1999). As explained in the standard jury instructions: “An act is ‘imminently dangerous to another and demonstrating a depraved mind’ if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human fife.” Fla. Std. Jury Instr. (Crim.) 98; see also Duckett v. State, 686 So.2d 662, 663 (Fla. 2d DCA 1996).

The context of these events admittedly makes it difficult to evaluate the first and third prongs necessary to a jury’s determination that an act is imminently dangerous and evincing a depraved mind. For purposes of this opinion, we assume that those prongs were proven by the State. However, the State failed to present competent, substantial evidence such that a rational trier of fact could find beyond a reasonable doubt that Mr. Light’s acts were the product of ill will, hatred, spite, or an evil intent. See State v. Ellison, 561 So.2d 576 (Fla.1990); Duckett v. State, 686 So.2d 662 (Fla. 2d DCA 1996); see also Michelson v. State, 805 So.2d 988 (Fla. 4th DCA 2001). Although these cases are not completely analogous to the unique facts of this case, they demonstrate that extremely reckless behavior itself is insufficient from which to infer any malice. Moreover, other cases demonstrate that an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent. See Williams v. State, 674 So.2d 177 (Fla. 2d DCA 1996); McDaniel v. State, 620 So.2d 1308 (Fla. 4th DCA 1993).

Although exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim. See, e.g., Conyers v. State, 569 So.2d 1360 (Fla. 1st DCA 1990) (victim is defendant’s son); Dellinger v. State, 495 So.2d 197 (Fla. 5th DCA 1986) (victim is defendant’s wife); Larsen v. State, 485 So.2d 1372 (Fla. 1st DCA 1986) (victim is defendant’s wife). Hatred, spite, evil intent, or ill will usually require more than an instant to develop. See Hooker v. State, 497 So.2d 982 (Fla. 2d DCA 1986) (holding that second-degree murder established where defendant shot into occupied trailer killing stranger because of preexisting racial ill will). In this case, Mr. Light had no prior relationship with the victim prior to the victim entering the mosh pit. The conditions inside the bar made it virtually impossible for any witness to provide testimony that Mr. Light demonstrated any enmity at the time of the incident, and no such testimony was provided. The circumstantial evidence in this case regarding Mr. Light’s intent or state of mind is equally supportive of a theory that Mr. Light was simply guilty of a serious, momentary misjudgment concerning the amount of force that was permissible on the dance floor or that he reacted impulsively and excessively to being hit in the genitals. Such conduct fits within the definition of culpable negligence, which allows a homicide conviction, but only as manslaughter. See § 782.07(1).

Accordingly, we reverse and remand with directions to enter a judgment of conviction for the lesser-included offense of manslaughter and to resentence Mr. Light accordingly. See § 924.34, Fla. Stat. (2002).

CASANUEVA and DAVIS, JJ„ concur.

      . Indeed, the few published legal opinions that reference slam dancing or mosh pits all involve some traumatic injury either from the act of slam dancing itself or from a later altercation stemming from the dance. See, e.g., Orear v. Allstate Ins. Co., 619 So.2d 974 (Fla. 2d DCA 1993) (reversing summary judgment in favor of insurance company because genuine issue of material fact existed as to whether slam dancing injuty was result of intentional act that would be excluded from coverage); see also Adams v. Metallica, Inc., 143 Ohio App.3d 482, 758 N.E.2d 286 (2001); Fever's, Inc. v. Va. Alcoholic Beverage Control Bd., 24 Va.App. 213, 481 S.E.2d 476 (1997).

      . We note that this language mirrors the Florida Supreme Court’s definition of malice. See Reed v. State, 837 So.2d 366 (Fla.2002).


text:
    BAYFRONT MEDICAL CENTER, INC., Appellant, v. DIVISION OF ADMINISTRATIVE HEARINGS, and Mike, Lynn, and Christopher Kocher, Appellees. Florida Birth-Related Neurological Injury Compensation Association, Appellant, v. Division of Administrative Hearings and Mike, Lynn, and Christopher Kocher, Appellees.
    Nos. 2D01-2343, 2D01-2513.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.

      David S. Nelson, of Smith & Fuller, P. A., Tampa, for Appellant Bayfront Medical Center, Inc.
    Wilbur E. Brewton and Kelly B. Plante of Brewton, Plante & Plante, P.A., Tallahassee, for Appellant Florida Birth-Related Neurological Injury Compensation Association.
    James L. Ferraro and Markenzy La-Pointe, of Ferraro & Associates, P.A., Miami, for Appellee Christopher Kocher.
   DAVIS, Judge.

In this consolidated appeal, Bayfront Medical Center, Inc. (Bayfront), and the Florida Birth-Related Neurological Injury Compensation Association (NICA) challenge an order entered by an administrative law judge (AL J) determining that, due to Bayfront’s failure to give the statutorily required notice, Bayfront was not entitled to the exclusiveness of remedy provision of section 766.303, Florida Statutes (1997), and that both Bayfront and the delivering physician were potentially liable in a medical malpractice action in the circuit court. Because we conclude that the ALJ exceeded the scope of his statutory duties by addressing issues beyond the compensability of the injury, we reverse in part and affirm in part.

In November 1995, Lynn Kocher visited OB/GYN Associates, a group of obstetricians and gynecologists, and learned she was pregnant with twins. At the outset of her prenatal care, OB/GYN provided Kocher with the statutorily mandated notice that the doctors in the group were participants in the NICA program. However, upon entering the Bayfront facility for delivery, the hospital failed to provide Kocher with the notice required by section 766.316. The delivery of the second of Kocher’s twins involved complications, and the infant lived only three days.

In 1999, Mike Kocher, as personal representative of the estate of the deceased child, filed a medical malpractice/wrongful death action against Bayfront in the circuit court. No claim had been filed with NICA. Bayfront moved to abate the civil lawsuit until Kocher pursued a claim under NICA, and following O’Leary v. Florida Birth-Related Neurological Injury Compensation Ass’n, 757 So.2d 624 (Fla. 5th DCA 2000), the circuit court abated the action.

On November 8, 2000, the Kochers filed a claim for NICA benefits. After reviewing the ease, NICA notified the Kochers of its acceptance of the claim and offered to pay plan benefits. The Kochers advised that since Bayfront failed to provide the required notice, they intended to reject the benefits. NICA then filed and served a “Notice of Acceptance and Request for Evidentiary Hearing on Compensability” by which it requested an evidentiary hearing to allow the ALJ to determine the issues of compensability and notice. The ALJ subsequently granted Bayfront’s petition to intervene and participate in the hearing.

Following an evidentiary hearing, the ALJ issued his order on May 14, 2001. In the order, the ALJ found that (1) the child did suffer a birth-related neurological injury that was compensable under the NICA plan, (2) the child was delivered by a physician who was participating in the plan and who had given the proper notice as required by law, and (3) Bayfront had failed to give appropriate notice. The ALJ concluded that since only the physician gave notice, the parents had two choices. They either could accept the benefits of the plan and forego their civil action, or they could reject the benefits and proceed with their civil action. The ALJ also concluded that since the exclusivity of remedy provision was not severable, Bayfront’s failure to provide notice denied both the delivering physician and the hospital the immunity protection of the plan unless the parents chose to accept the NICA benefits.

Bayfront and NICA agree that the ALJ correctly determined the compensability and notice issues. However, Bayfront and NICA challenge the ALJ’s conclusion that the notice provision of the statute requires both the doctor and the hospital to give notice before they are entitled to the immunity protection of the plan. Because we conclude that the ALJ exceeded the scope of his statutory duties, we need not reach the question of whether he properly interpreted the notice provision.

Prior to the 1998 amendment of the plan, the Florida Supreme Court determined that the ALJ did not have exclusive jurisdiction to decide whether an injury was compensable under the plan and that NICA immunity was to be raised as an affirmative defense in a civil law suit. See Fla. Birth-Related Neurological Injury Comp. Ass’n v. McKaughan, 668 So.2d 974 (Fla.1996). The legislature subsequently amended the Act to provide that the ALJ has exclusive jurisdiction to decide whether the injury is compensable. Ch. 98-113, Laws of Fla. This amendment applies to this ease. See O’Leary v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 757 So.2d 624 (Fla. 5th DCA 2000). However, once the ALJ has determined that the injury is compensable, his statutory duties are discharged. Any decision made regarding a claimant’s election of remedies and the impact of the determination that the injury is compensable is beyond his jurisdiction and must be reversed. Gugelmin v. Div. of Adm. Hearings, 815 So.2d 764 (Fla. 4th DCA 2002). Accordingly, we remand to the ALJ with instructions that all rulings regarding the election of remedies and the finding regarding the Act’s exclusivity of remedy provisions should be deleted from the order. The findings regarding the compensability'of the injury and the provision or absence of notice are affirmed.

Affirmed in part, reversed in part, and remanded with instructions.

KELLY, J., and SCHEB, JOHN M., Senior Judge, Concur.

      . Section 766.315, Florida Statutes (Supp. 1998), establishes the Florida Birth-Related Neurological Injury Compensation Association (NICA) to administer the Florida Birth-Related Neurological Injury Compensation Plan. See § 766.302(2). The plan "provides a no fault and exclusive remedy for birth-relat-, ed neurological injuries when the medical service providers elect to participate.” O’Leary v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 757 So.2d 624, 625 (Fla. 5th DCA 2000); see abo §§ 776.301-.316.


author: FULMER, Judge.

text:
    James Michael O’NEILL, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2870.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
    James Marion Moorman, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

James Michael O’Neill appeals the sentences imposed for several of the nine offenses with which he was charged based on a single crime spree. O’Neill entered a negotiated no contest plea to all counts in the information with the understanding that he would be sentenced to no less than fourteen and no more than twenty years in prison. After a sentencing hearing, the court imposed a twenty-year sentence on each offense, concurrent with each other, and imposed a three-year minimum mandatory on all nine counts for the use of a firearm.

O’Neill raised two sentencing issues in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court ruled on the motion but not within sixty days as the rule requires. Accordingly, the motion is deemed denied. See Jackson v. State, 793 So.2d 117, 118 (Fla. 2d DCA 2001).

Of the several issues raised on appeal, one has merit. We agree, and the State concedes, that the minimum mandatory provision should be stricken from counts seven and nine. We reverse and remand for that purpose. In all other respects we affirm. From our review of the record and the terms of the negotiated plea agreement, we conclude that a claimed scoresheet error did not adversely affect the sentence imposed. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Affirmed in part, reversed in part, and remanded with directions to the trial court to strike the minimum mandatory provision of counts seven and nine.

SALCINES and STRINGER, JJ„ Concur.


author: SILBERMAN, Judge.

text:
    Kenneth GUNN, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-4617.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.

      James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.
    Charles R. Crist, Jr., Attorney General, Tallahassee, and Ha T. Dao, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Kenneth Gunn appeals his judgment and sentences for two counts of sexual battery when the victim was physically incapacitated, one count of attempt to commit sexual battery when the victim was physically incapacitated, and one count of home invasion robbery. He argues that the trial court erred in denying his motion to withdraw plea prior to sentencing and by not affording him conflict-free counsel at the hearing on his motion. We reverse and remand for an evidentiary hearing with conflict-free counsel on the motion to withdraw plea.

On August 14, 2000, Gunn appeared with defense counsel for a plea hearing. Gunn entered a guilty plea in exchange for twenty-four years’ imprisonment followed by five years’ probation. On September 20, 2000, Gunn appeared for sentencing but indicated that he desired to withdraw his plea. He claimed that he had been denied his right to see what was on the videotaped deposition of the alleged victim and that his attorney had assured him that he would not be registered as a sexual predator if he entered the plea.

Defense counsel responded to Gunn’s claim concerning the videotape, stating that on two occasions he set up the videotape for viewing, but Gunn refused to watch. Defense counsel did not respond to the claim that he misadvised Gunn regarding registration as a sexual predator.

The trial court denied Gunn’s request to withdraw his plea and proceeded to sentence him in accordance with the plea agreement. The trial court declared Gunn to be a sexual predator pursuant to section 775.21, Florida Statutes (1999).

The standard of review of a trial court’s decision on a motion to withdraw a plea is abuse of discretion. Graham v. State, 779 So.2d 604, 605 (Fla. 2d DCA 2001). In order to withdraw a guilty plea before sentencing, the defendant has the burden to show good and sufficient cause to support the withdrawal. See Fla. R.Crim. P. 3.170(f); Caddo v. State, 806 So.2d 520, 521 (Fla. 2d DCA 2001).

The designation of a person as a sexual offender or predator is a collateral consequence of a guilty plea. State v. Partlow, 840 So.2d 1040 (Fla.2003); Collie v. State, 710 So.2d 1000, 1008 (Fla. 2d DCA 1998). The failure of the trial court or counsel to advise the defendant of a collateral consequence does not render the plea involuntary and does not provide a basis on which to withdraw the plea. Watrous v. State, 793 So.2d 6, 10 (Fla. 2d DCA 2001). However, affirmative misadvice about a collateral consequence of a plea provides a basis on which to withdraw the plea. See Walkup v. State, 822 So.2d 524, 525 (Fla. 2d DCA 2002); Roberti v. State, 782 So.2d 919, 920 (Fla. 2d DCA 2001). B&cause Gunn’s claim concerning defense counsel’s alleged affirmative misadvice was not addressed by the trial court, reversal is required for an evidentiary hearing. See Ayers v. State, 831 So.2d 1260 (Fla. 2d DCA 2002); Snodgrass v. State, 837 So.2d 507 (Fla. 4th DCA 2003).

Gunn also asserts that when he raised the issue of withdrawing his plea, defense counsel took an adversarial position by refuting Gunn’s claim regarding the videotape. Gunn argues that he should have been provided with conflict-free counsel to represent him on his motion to withdraw plea. We agree. Once a conflict becomes apparent between the defendant and defense counsel during a hearing on the defendant’s motion to withdraw plea, the defendant is without representation and is entitled to the appointment of conflict-free counsel. See Smith v. State, 835 So.2d 1259 (Fla. 2d DCA 2003); see also Padgett v. State, 743 So.2d 70, 73 (Fla. 4th DCA 1999).

Accordingly, we reverse the judgment and sentences and remand with instructions that the trial court appoint conflict-free counsel for the purpose of an eviden-tiary hearing on Gunn’s motion to withdraw his plea.

Reversed and remanded.

NORTHCUTT and SALCINES, JJ., Concur.


text:
    Evelyn MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-2132.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Evelyn Martinez appeals from the sentence imposed upon revocation of her community control. The trial court imposed a sentence of thirty months in prison followed by one year of drug offender probation. The sole issue she raises on appeal concerns a special condition of probation that was not orally pronounced at sentencing. The State concedes error.

The written order of probation contains a provision in condition 13 requiring Martinez to pay for tests to determine whether she has a treatable problem with alcohol or drugs. The requirement that Martinez pay for testing is a special condition of probation that must be orally pronounced. See Edwards v. State, 814 So.2d 1197, 1198 (Fla. 2d DCA 2002); Miller v. State, 809 So.2d 101, 102 (Fla. 2d DCA 2002). Accordingly, we reverse and remand for the trial court to strike the payment requirement in condition 13.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ., Concur.


author: COVINGTON, Judge.

text:
    Leslie DAEDA, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3828.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.

      John Charles Coleman, Ft. Myers, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appel-lee.
   COVINGTON, Judge.

The appellant, Leslie Daeda, challenges her judgment and sentence for tampering with or fabricating physical evidence. On appeal she alleges that the trial court erred by not allowing her to impeach a crucial State witness. Because we agree, we reverse and remand for a new trial.

Around March 1998, the Cape Coral police department investigated an individual named Katherine Smith on charges of burglary and grand theft of certain items claimed to be the property of the Daeda family. Ms. Daeda provided the prosecutor assigned to the Smith case with a document entitled “Gentlemans Agreement and Promissory Note.” This was an important piece of evidence because it provided written corroboration of some of the accusations made against Ms. Smith. According to Ms. Daeda, the contents of the agreement had been dictated by Ms. Smith and typed by Ms. Daeda. Ms. Daeda told investigators that she had witnessed Ms. Smith sign the agreement in the presence of notary Richard Singleton.

The prosecutor assigned to the Smith investigation, Nicholas Thompson, testified that when he first received the copy of the agreement he noticed that the signature of Ms. Smith “looked odd” and so he presented it to the office’s investigator for his review. Likewise, Investigator Ed Boone had some questions concerning Ms. Smith’s signature.

Mr. Boone contacted Mr. Singleton. Initially, Mr. Singleton stated that he had indeed witnessed Ms. Smith’s signature. After Mr. Singleton was asked to travel to the downtown office of the State Attorney and advised that “perjury [was] a crime,” Mr. Singleton changed his story. He told investigators and testified at trial that he did not witness Ms. Smith’s signature on the agreement. Rather, Ms. Daeda, whom he knew, asked him to do her a favor and notarize the document for her. Ms. Smith’s purported signature was already on the document when Mr. Singleton notarized it. After further investigation, Ms. Daeda was charged with tampering with or fabricating physical evidence.

As part of its case in chief, the State called Ms. Smith as a witness. In her testimony Ms. Smith denied signing the agreement or dictating the contents of the agreement to Ms. Daeda. Ms. Smith said that the first time she saw the document was in October 1998 when her lawyer showed it to her. During cross-examination, Ms. Smith was asked about a particular conversation that she had had in February 1998 with Ms. Daeda in the presence of Richard Daeda, Leslie’s brother. Although Ms. Smith admitted that such a conversation took place, she denied that there was any mention of the agreement during that conversation.

Richard Daeda was called as a witness for the defense. The focus of Mr. Daeda’s direct examination was the conversation discussed above. In particular, Mr. Daeda was asked about comments made by Ms. Smith during her discussion with Ms. Dae-da. The trial court allowed Mr. Daeda to testify as to a number of matters — including the fact that he was a witness to the discussion between his sister and Ms. Smith.

However, the following colloquy transpired:

[By the Defense Attorney, Mr. Coleman]
Q. Did Ms. Smith admit that she had signed an agreement?
A. Yes.
[By the Prosecutor,] MR. DORAN: Objection; hearsay.
THE COURT: Sustained.
MR. COLEMAN: Could I please—
THE COURT: I made my ruling.
BY MR. COLEMAN:
Q. Did Ms. Smith admit that she had signed a document?
A. Yes.
MR. DORAN: Objection; hearsay.
THE COURT: Sustained. I will instruct the jury to disregard that.

The defense argued that Mr. Daeda’s testimony was not being offered for the truth of the matter asserted, but rather that it was being offered to impeach Ms. Smith’s testimony and thus should be admitted. Defense counsel then sought permission to proffer some additional testimony by Mr. Daeda. During the proffer, the following significant questions were asked:

Q. What was the discussion with regard to the subject of money owed to your sister?
A.... Kathy Smith stated that Leslie didn’t need the money; and ... “I’m on Prozac, under duress, and that agreement will not hold up in a court of law.”
Q. Then there was some discussion about not honoring the agreement?
A. Yes.

Likewise, the trial court found that this testimony was hearsay and not relevant to the matter. Accordingly, the proffered testimony was not permitted to be submitted to the jury. It is these rulings that are being challenged on appeal.

A party may attack the credibility of a witness by introducing statements of that witness that are inconsistent with her present testimony. § 90.608(1), Fla. Stat. (1997). As we recognized in Williams v. State, 472 So.2d 1350, 1352 (Fla. 2d DCA 1985), “The prior inconsistent statement may be oral and unsworn and may be drawn out on cross-examination of the witness himself and, if on cross-examination the witness denies, or fails to remember, making such a statement, the fact that the statement was made may be proved by another witness.” (Citations omitted.)

Because Ms. Smith denied that there was any mention of the agreement, her trial testimony is inconsistent with Mr. Daeda’s version of the conversation.

In resolving whether it was error for the trial court not to have permitted Mr. Daeda’s testimony, we must first decide whether Ms. Smith was being questioned on a collateral or irrelevant matter. “It is well established that if a witness is. cross-examined concerning a collateral or irrelevant matter, the cross-examiner must ‘take’ the answer, is bound by it, and may not subsequently impeach the witness by introducing extrinsic evidence to contradict the witness on that point.” Caruso v. State, 645 So.2d 389, 394 (Fla.1994). See also Arrington v. State, 700 So.2d 777, 778 (Fla. 2d DCA 1997) (stating that it is error to permit the State to call a witness to contradict collateral answers given dining the State’s cross-examination of another witness).

In Lawson v. State, 651 So.2d 713 (Fla. 2d DCA 1995), this court set forth the standards to be followed by courts in determining whether a matter is collateral or irrelevant.

The test is whether the proposed testimony can be admitted into evidence for any purpose independent of the contradictions. Two types of evidence pass this test: (1) facts relevant to a particular issue; and (2) facts which discredit a witness by pointing out the witness’ bias, corruption, or lack of competency.

Id. at 715 (citations and internal quotations omitted).

Because Ms. Smith’s purported admission that she signed the agreement “is relevant to independently prove material fact or issue,” Lawson, 651 So.2d at 714, Mr. Daeda’s testimony should have been allowed. We disagree with the State’s contention that the testimony was not relevant to the issue in the case at bar. Whether Ms. Smith signed the agreement goes to the heart of the charges filed against Ms. Daeda. Thus, it was error for the trial court not to have permitted Mr. Daeda to testify concerning Ms. Smith’s purportedly inconsistent statements.

We cannot agree with the State’s contention that this was harmless error. As we discussed above, the issue of whether Ms. Smith signed the agreement formed the essence of the charges against Ms. Daeda. The State has not met its burden of proving beyond a reasonable doubt that the error did not contribute to the verdict or to the conviction. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

For these reasons, we reverse and remand for a new trial.

Reversed and remanded.

NORTHCUTT and SALCINES, JJ., Concur.


author: STRINGER, Judge.

text:
    Philip PIGNATARO, Appellant, v. Ara RUTLEDGE, Appellee.
    No. 2D01-5521.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.

      Philip Pignataro, pro se.
    No appearance for Appellee Ara Rutledge.
   STRINGER, Judge.

Philip Pignataro, the former husband, challenges various aspects of the final judgment dissolving his marriage to Ara Rutledge, the former wife. We affirm in part, reverse in part, and remand for further proceedings.

Pignataro and Rutledge were married in 1995, and they have two children, one born in 1995 and the other born in 1998. In July 1999, Rutledge filed her petition for dissolution of marriage, seeking primary residential custody of the children, child support, equitable distribution of the parties’ assets and liabilities, lump sum alimony, and attorneys’ fees. Pignataro filed a counterpetition, seeking sole parental responsibility for the children, child support, equitable distribution of the parties’ assets and liabilities, permanent periodic alimony, and attorneys’ fees. The dissolution proceedings were quite acrimonious, and, at the time of the final hearing, Pignataro was in prison for the attempted murder of Rutledge’s boyfriend.

At the final hearing, Rutledge was present with her attorney. Pignataro, who was no longer represented by counsel in this action, appeared by telephone from prison. In the final judgment of dissolution that resulted from this hearing, the trial court awarded Rutledge sole parental responsibility for the children and denied Pignata-ro visitation with the children while he is in prison. The trial court awarded Rutledge the personal property in her possession and the liabilities associated with that personal property. The trial court awarded Pignataro the personal property he had in his possession before he was imprisoned. The trial court did not value either the marital assets or liabilities, and it did not distribute all of the liabilities listed by the parties on their financial affidavits. The trial court also made no ruling on the issues of alimony and attorneys’ fees. Pig-nataro challenges all of these rulings in this appeal.

On the issues of parental responsibility and visitation, Pignataro asserts that the final judgment must be reversed because it does not include a finding that shared parental responsibility would be detrimental to the children or that visitation would not be in the children’s best interest. While Pignataro is correct that the trial court must make these findings, neither chapter 61, Florida Statutes, nor case law require these findings to be included in the written final judgment. If these findings were made on the record at the final hearing, the oral findings are sufficient to satisfy the statutory requirements. See Bader v. Bader, 639 So.2d 122, 124 (Fla. 2d DCA 1994) (en banc) (holding that the trial court may make the findings relating to shared parental responsibility “either on the record or in the final judgment”). However, Pignataro has not provided this court with a transcript of the final hearing, and apparently none exists. In the absence of a transcript of the final hearing, this court cannot say that the trial court erred by failing to make the required findings. See Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979) (holding that the trial court should be affirmed if the record brought forth by the appellant is inadequate to demonstrate reversible error). Therefore, we affirm on these issues.

On the equitable distribution issue, Pignataro contends that the trial court abused its discretion in distributing the marital assets because the distribution is not equal. While we cannot say that the trial court abused its discretion in fashioning its equitable distribution scheme, we must nevertheless reverse the final judgment on this issue because the final judgment does not include the required statutory findings.

In fashioning an equitable distribution scheme, the trial court is required to set apart to each spouse his or her nonmari-tal assets and liabilities because those are not subject to equitable distribution. See § 61.075(1), Fla. Stat. (1997). The trial court must then identify and value the marital assets and distribute those equitably between the parties. Id. See also Robertson v. Robertson, 593 So.2d 491 (Fla.1991); Embry v. Embry, 650 So.2d 190 (Fla. 2d DCA 1995). The trial court must begin its distribution with the premise that the distribution should be equal unless equitable factors compel a different result. See Robertson, 593 So.2d at 493; Lavelle v. Lavelle, 634 So.2d 1111, 1112 (Fla. 2d DCA 1994). The final distribution must be supported by factual findings based on substantial competent evidence. See § 61.075(3), Fla. Stat. (1997). A final judgment which purports to equitably distribute the parties’ marital assets but which fails to comply with the statutory requirements is difficult, if not impossible, to review and requires reversal. See Staton v. Staton, 710 So.2d 744, 745 (Fla. 2d DCA), review denied, 728 So.2d 205 (Fla.1998).

Prest v. Tracy, 749 So.2d 538, 538-39 (Fla. 2d DCA 2000).

Here, the final judgment does not identify or value any of the parties’ assets or liabilities, and it provides no factual findings to support the distribution scheme. Therefore, we reverse this aspect of the final judgment and remand for further proceedings.

On the issue of alimony and attorneys’ fees, Pignataro correctly points out that the final judgment wholly fails to address either issue. There is nothing in the record to indicate that these issues were withdrawn from the trial court’s consideration before the final hearing. When issues raised by the pleadings are properly before the trial court, it is error for the trial court to fail to rule on them. See Allen v. Heinrich, 623 So.2d 540 (Fla. 2d DCA 1993). Therefore, we remand for further proceedings on these issues.

Finally, while we are remanding for further consideration on three issues, we note that the trial court does not necessarily have to conduct a new hearing. Because we do not have a transcript of the final hearing, we cannot say that the trial court did not consider all of the equitable distribution issues on the record or that the parties did not reach some agreement on alimony and attorneys’ fees that is not incorporated into the written final judgment. Therefore, on remand, the trial court must conduct a new hearing only if these matters were not sufficiently addressed at the original hearing. If these matters were addressed at the original hearing, the trial court need only enter an amended final judgment memorializing its earlier findings.

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

DAVIS and CANADY, JJ„ Concur.