author: McMILLAN, Presiding Judge.

text:
    Corey Latrell LEE v. STATE.
    CR-02-0549.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.
    Corey Latrell Lee, pro se.
    William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appel-lee.
   McMILLAN, Presiding Judge.

The appellant, Corey Latrell Lee, filed a Rule 32, Ala. R.Crim. P., petition, attacking his conviction for second-degree receiving stolen property and his sentence of 21 years’ imprisonment in the state penitentiary. In his petition, Lee claimed that he was denied effective assistance of counsel. Specifically, he argued that counsel was deficient for the following reasons: (1) counsel’s failure to object to the State’s failure to prove that Lee had “control” over the stolen property; (2) his failure to raise a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), challenge during jury selection; and (3) his failure to perfect Lee’s appeal. Lee also argued that the trial judge should have recused himself from this case, stating as grounds for this claim that Lee’s aunt was employed by the Lauderdale County District Attorney’s Office and that the judge had previously been a deputy district attorney in Lauderdale County. The State moved to dismiss, arguing that Lee’s claims were procedurally barred by Rules 32.2(a)(3) and (5), Ala. R.Crim. P. Further, the State alleged that Lee’s failure to make financial arrangements with the court reporter for a copy of the trial transcript had resulted in the dismissal of his appeal. The trial court thereafter summarily denied the petition.

On appeal, Lee argues only that his counsel was ineffective for failing to perfect his appeal. Because he does not argue the other issues presented in his petition, he is deemed to have abandoned them on appeal. Bmvnlee v. State, 666 So.2d 91 (Ala.Crim.App.1995). However, it should be noted that he would not be entitled to relief on those claims if they were properly before this Court. These issues all present nonjurisdictional claims that should have been, but were not, raised either at trial or on appeal. Rules 32.2(a)(3) and (5), Ala. R.Crim. P.

The State has requested that this Court remand this case for the trial court to determine whether Lee’s appellate counsel was ineffective for failing to perfect his appeal. A review of the record supports this request. Therefore, this case is remanded to the Lauderdale Circuit Court for that court to hold an evidentiary hearing if necessary and to make specific findings of fact regarding Lee’s claim that counsel’s failure to perfect Lee’s appeal constituted ineffective assistance of counsel. Specifically, the circuit court should determine whether Lee was indigent at the time of his appeal, and, if so, whether counsel attempted to obtain a free transcript. If the circuit court finds that Lee was not indigent, the court should then determine whether counsel advised Lee of the necessity of paying for the transcript. Due return shall be made to this Court within 56 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB and WISE, JJ., concur. BASCHAB and SHAW, JJ., concur in the result, without opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMENDMENTS TO THE ARTICLES OF INCORPORATION OF THE FLORIDA BAR FOUNDATION.
    No. SC04-504.
    Supreme Court of Florida.
    June 3, 2004.
   PER CURIAM.

The Florida Bar Foundation, Inc. (Foundation), petitions this Court for approval of proposed amendments to its Articles of Incorporation, also known as the Florida Bar Foundation Charter. The proposed amendments were authorized by the board of directors of the Foundation and approved by the Board of Governors of The Florida Bar. This Court has the authority to finally approve the proposed amendments. See Fla. Bar Found. Charter, art. 10.2(c).

After considering the petition and the proposed amendments, we hereby approve the amendments to the Articles of Incorporation of the Florida Bar Foundation, Inc., as set forth in the appendix to this opinion. Additions are indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective upon their filing with the Secretary of State as provided by law. See Fla. Bar Found. Charter, art. 10.3.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

THE FLORIDA BAR FOUNDATION, INC. ARTICLES OF INCORPORATION

ARTICLE I

NAME

The name of this corporation shall be: The Florida Bar Foundation, Inc. For convenience it is herein called the corporation or the Foundation. The principal office and place of business shall be at a location in Florida established and ordered by the board of directors. The business of this corporation shall be carried on at its principal office in Florida, and at such other places as may from time to time be authorized by the board of directors.

ARTICLE II

PURPOSES AND POWERS

2.1 Purposes. The Foundation shall be operated exclusively for charitable, scientific, literary and/or educational purposes as described in Section 501(c)(3) of the Internal Revenue Code of 1954, or corresponding provisions of any subsequent federal tax law (“Code”) including, but not limited to the following particular purposes:

a) The improvement of the administration of justice and the elevation of judicial standards;

b) The promotion of the study of law and research in the law, the diffusion of legal knowledge and the continuing legal education of lawyers;

c) The publication and distribution of works on legal subjects.

d) The improvement of relations between members of the Bar, the judiciary and the public;

e) The fostering of suitable standards of legal education and of admission to the Bar, and the furnishing of funds for making grants and loans to qualified and worthy persons for the study of law;

f) The aiding of members of The Florida Bar who shall be in great need of assistance because of illness, misfortune or advanced age;

g) The promotion of the preservation of the American constitutional form of government;

h) In furtherance of the foregoing charitable, scientific, literary and/or educational purposes, the ass.ets and earnings of the Foundation, including, but not limited to those assets or earnings derived from the Interest on Trust Accounts Program, implemented by Order of the Supreme Court of Florida, In re: Interest on Trust Accounts, 402 So.2d 389 (Fla.1981), as such Order may be amended from time, to time, may be used for any one or more of the following charitable activities undertaken for exclusively public purposes:

(1) To provide legal aid to the poor;
(2) To provide law student loans and scholarships;
(3) To improve the administration of justice; and
(4) For such other programs for the benefit of the public as are specifically approved from time to time by the Supreme Court of Florida for exclusively public purposes.

i) No part of the assets or pet earnings of the Foundation (including such assets or net earnings as may be derived from the Interest on Trust Accounts Program described in Article 2.2 hereof) shall inure to the benefit of any private shareholder or individual. Further, no substantial part of the activities of the Foundation shall consist of carrying on propaganda, or otherwise attempting to influence legislation, nor shall the Foundation participate in or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

Except as more specifically herein-above set forth, such activities may be undertaken directly by the Foundation, or by the.provision of funds by the Foundation to The Florida Bar, Florida Legal Services, Inc., or other organizations, to be used exclusively for such purposes.

2.2 Contributions. The Foundation may receive, by contribution, gift, bequest, devise, or in any other-manner, money, assistance, and any other form of real, personal, or mixed property, from any perpon, firm or corporation to be used in the furtherance of the purposes of the Foundation, provided, however, that gifts shall be subject to acceptance by the board of directors as required by the ByLaws. The Foundation may also receive all funds generated by the Interest on Trust Accounts Program.

2.3 Offices and Employees. The Foundation may establish one or more offices and employ such agents, employees and clerical force as may be deemed necessary or proper to conduct and carry on the work of the Foundation, and it may pay reasonable compensation for the services of such persons.

2.4 Powers: General. The Foundation may contract and be contracted with, sue and be sued, invest and reinvest the funds of the Foundation, and do all acts and things requisite, necessary, proper, or desirable to carry out and further the purposes for which the Foundation is formed.

2.5 Powers: Interest on Trust Accounts Program. With respect to the activities of, and assets and earnings derived, frpm, the Interest on Trust Accounts Program, the Foundation may: .

a) Authorize capital expenditures,- accumulations, or reserves, only as may be necessary to meet the reasonable working needs of the Foundation.

b) Retain professional investment advisory services;

c) Through its directors adopt rules of procedure reasonably necessary or helpful in carrying out the purposes and powers of the Foundation in managing and administering the Interest on Trust Accounts Program.

ARTICLE III

MEMBERS

3.1 Qualification. Each- mMembers of the Foundation shall be a member-of-The Florida Bar who ispersons interested in the purposes of the Foundation.

3.2 Admission. Members shall be admitted by the directors in the manner determined by the ByLaws.

3.3 Terms. The terms of membership of members shall be established by the ByLaws.

3.4 Rights. Each member shall be entitled to hold office and serve as a director of the Foundation, and shall be entitled to one vote at meetings of members of the Foundation, but no member of the Foundation shall have any vested right, privilege or interest of, in or to the assets, functions, affairs or franchise of the Foundation, or any right, interest or privilege which may be transferable or inheritable or which shall continue if the member’s membership ceases or while the member is not in good standing.

3.5 Termination. Membership shall be terminated in the manner provided by the ByLaws. — If a member ceases to be a member of The Florida Bar,-the member’s member-ship in the Foundation shall be thereby-.terminated. A membership may be terminated for cause by concurrence of a majority of all directors of the Foundation after due notice to the member and an opportunity to be heard.

3.6Meetings. Meetings of members may be called in the manner provided in the ByLaws.

ARTICLE IV

TERM; DISSOLUTION

This corporation shall have perpetual existence. In the event of a dissolution of the corporation, its assets, after payment of all debts and charges of the corporation, and expenses of dissolution, shall be distributed among all fully accredited schools of law within the State of Florida, not organized and operating exclusively for the benefit of any private shareholder, or individual, nor substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation, and which does not participate in or intervene in (including the publishing or distributing of statements) any political campaign on behalf of (or in opposition to) any candidate for public office.

ARTICLE V

The'names and residences of the origi nal subscribers-hereto are as-follows:

NAME RESIDENCE
Donald-K-, Carroll 1200-Sreenloaf Building Jacksonville, Florida
J. -Laneo Laaonby Baird-Office Building Gainesville, Florida
Kenneth B.- -Sherouse Supremo Court Building Tallahassee, Florida
William A, Gillen Citiaens-Building Tampa, Florida
J. Lewis Hall ■íaifcE, Jefforson St. Tallahassee, Florida
Sherwood-Spencor 1924-Hollywood Boulevard Hollywood,-Florida

each-of-wfaom has-been an-officer or member -ef-the Board of Governors of The Florida Bar.

ARTICLE VI

DIRECTORS

56.1 Number. The affairs of the Foundation shall be managed by a board of directors consisting of eight (8) — six (6) directors as set forth in Article 5 £.2 (a) through Article 5.2(e) hereof, no fewer than two or more than four directors as set forth in Article 5.2(f) hereof, eighteen (18) directors as set forth in Article 56.3 hereof, and the duly elected officers, set forth in Article 56.4 hereof. Directors as set forth in Article 56.2(f) and Article 56.3 hereof shall be selected for staggered terms of office. Directors shall be members of the Foundation during their term(s) as directors.

56.2 Designated Directors. No fewer than eEight (8) or more than ten (10) directors shall be directors by virtue of office, designation, or selection as follows:

a) Two judicial officers to be designated by the Chief Justice of the Supreme Court of Florida;

b) The president of The Florida Bar;

c) The immediate past president of The Florida Bar;

d) The president-elect of The Florida Bar;

e) The president of Florida Legal Services, Inc.

and

f) No fewer than Ttwo or more than four public members, who shall not be lawyers, to be selected by the joint nominating committee of The Florida Bar Foundation and The Florida Bar in the manner provided by the ByLaws. Membership on such joint nominating committee shall be comprised of three directors of the Foundation appointed by the president of the Foundation and three members of the Board of Governors of The Florida Bar appointed by the president of The Florida Bar.

56.3 Selected Directors. Eighteen (18) directors shall be selected as follows:

a) One-third selected by the Foundation in the manner provided by the ByLaws;

b) One-third selected by the Board of Governors of The Florida Bar and certified to the Foundation no later than March 1st of every year; and

c) One-third selected by the Supreme Court of Florida and certified to the Foundation no later than March 1st of every year; and

d) Any director selected as set forth in Article 56.3 hereof who is a member of The Florida Bar shall be a member of the Foundation at the beginning of their term of office.

56.4 Officers Serve as Directors. In the event a person is elected president; president-elect, or secretary-treasurer, secretary, or- treasurer of the Foundation, such person shall resign his or her remaining term of office as a director of the Foundation, but shall be a director of the Foundation by virtue of his or her office.

56.5 Term; Removal; Vacancies.

a) The president of The Florida Bar, president-elect of The Florida Bar, and president of Florida Legal Services, Inc. shall be directors of the Foundation during their respective terms in office. The two judicial officers designated by the Chief Justice shall serve for two-year terms of office and may be redesignated for additional two-year terms at the pleasure of the Chief Justice. The immediate past president of The Florida Bar shall serve for a one-year term.

b) The two-public members selected pursuant to Article 56.2(f) hereof shall serve for not more than two, two-year staggered terms. Their removal from office shall be determined by the ByLaws. Vacancies of directors selected pursuant to Article 56.2(f) hereof which are caused in any manner shall be filled by the joint nominating committee of The Florida Bar Foundation and The Florida Bar pursuant to Article 56.2(f) hereof for the unexpired term.

c) Directors selected pursuant to Article 56.3 hereof shall serve for a three-year term, and may serve for one additional, consecutive three-year term. Their removal from office shall be determined by the ByLaws. Vacancies of directors selected pursuant to Article 56.3 hereof which are caused in any manner shall be filled by the selecting authority for such directors for the unexpired term.

d) Officers of the Foundation who are directors only by virtue of being officers shall be directors for their terms in office only. Their removal from office and the filling of vacancies shall be determined by the ByLaws.

56.6 Executive Committee. The affairs of the Foundation may be managed by an executive committee between meetings of the board of directors. The executive committee shall consist of directors and shall be established in the manner and with the authority provided by the ByLaws.

6^7 — Transition- To-achieve Article 6.2(f) hereof and in order to-achieve Article 6.3 hereof, as terms of existing directors -expire-or are terminated, selections of directors shall be-made-in the following man-

—a-)-lR-June-1990,

-(l)-The nominating- eommittee shall seleet-one-(l) lay member for a -one-year term-beginning- June -1990 and one (1) lay member -for a — two-year term beginning June 1990.as -set forth in-Artiele 6.2(f) hereof;

-(2) The Board-of-Governors of-The Elorida^-Bar-shall-select-four -(4) directors as-set-4orth-in Article 673(b) -hereof- and

-(3) The Supreme-Court of Florida shall -select-four (4) directors as set forth in Article-6.3(-c-)-hereof.

—b) In June 1991,

-(1) The Board- of-Governors of The Florida- Bar-shall select two-(2-)-dir-eetors-as-setrLorth-in-Arti&le 6.3(b) hereof;

-(2) The Supreme Court of Florida shall select two- (2)-directors as-set forth in Article-6,3(c) -hereof; and

-(3) The Foundation shall select one (-1-) director-as. set forth in Article 6.3(a)

—c)-In June 1992, the Foundation-shall select-five -(5) directors as- set- forth in Article-6,3(a)-hereof.

ARTICLE VII

OFFICERS

67.1 Number. The affairs of the Foundation shall be managed by a board of directors and administered by a president, president-elect, and secretary-treasurer, each of whom has previously served on the board of directors, and such assistant officers as the board of directors shall from time to time deem desirable. The board of directors may, from time to time as it deems desirable, separate the office of secretary-treasurer and elect, for that term, a secretary and a treasurer. Officers and assistant officers shall be members of the Foundation-at the beginning of-their terms of office.

67.2 Election. The officers shall be elected annually by the board of directors in the manner provided by the ByLaws. Terms of office may be limited as provided in the ByLaws.

ARTICLE VIH

BYLAWS

The board of directors of this corporation shall make and adopt ByLaws for the corporation, and said board and its successors in office shall have power to alter, amend, and rescind such ByLaws or to adopt new ByLaws.

ARTICLE VIIIIX

DIRECTORS’ AND OFFICERS’ COMPENSATION AND INDEMNIFICATION

89.1 Compensation. Directors of the Foundation shall not receive compensation, directly or indirectly, for their services as directors. Officers of the Foundation shall not receive compensation, directly or indirectly, for their services as officers, unless they are employed by the board of directors as a member of the administrative staff of the Foundation. These prohibitions shall not preclude reimbursement of a director, officer or duly appointed committee member for expenses or advances made for the Foundation that are reasonable in character and amount and approved for payment in the manner provided by the ByLaws.

89.2 Indemnification. Every director and every officer of the Foundation shall be indemnified by the Foundation against all expenses and liabilities, including counsel fees, reasonably incurred by or imposed upon such director or officer in connection with any proceeding or any settlement of any proceeding to which such director or officer may be a party or in which such director or officer may become involved by reason of such director or officer being or having been a director or officer of the Foundation, whether or not such director or officer is a director or officer at the time such expenses are incurred, except when the director or officer is adjudged guilty of willful misfeasance or malfeasance in the performance of the director’s or officer’s duties; provided that in the event of a settlement before entry of judgment, the indemnification shall apply only when the board of directors approves such settlement and reimbursement as being in the best interest of the Foundation. The foregoing right of indemnification shall be in addition to and not' exclusive of all other rights to which such director or officer may be entitled. Appropriate liability insurance, if available, shall be provided for every officer, director and agent of the Foundation in amounts determined from time to time by the board.

89.3Interest of Directors and Officers in Contracts. Any contract, whether for compensation or otherwise, or other transactions between the corporation and one or more of its directors or officers, or between the corporation and any firm of which one or more of its directors or officers are stockholders or employees, or in which they are interested, or between the corporation and any corporation or association of which one or more of its directors or officers are shareholders, members, directors, officers or employees, or in which they are interested, shall be valid for all purposes, notwithstanding the presence of such director or directors, officer or officers, at the meeting of the board of directors of the corporation which acts upon or in reference to such contract or transaction and notwithstanding their participation in such action, if the fact of such interest shall be disclosed or known in writing to the board of directors, and the board of directors shall, nevertheless, authorize, approve and ratify such contract or transaction by vote or majority of the directors present, such interested director or directors, officer or officers to be counted in determining whether a quorum is present but not counted in calculating the majority of such quorum necessary to carry such vote. This section shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto.

ARTICLE IX

AMENDMENT

910.1 Notice of Amendments. Notice of the subject matter of a proposed amendment to these Articles shall be included in the notice of the meeting at which a proposed amendment is considered.

910.2 Procedure. These Articles of Incorporation may be amended in the following ways:

a) By petition of 50 or more members of the Foundation directly to the Supreme Court of Florida, after advance notice to and opportunity for consultation with and comment by the board of directors of the Foundation and the Board of Governors of The Florida Bar, and approval by the Court.

b) By petition of the Board of Governors of The Florida Bar directly to the Supreme Court of Florida, after advance notice to and opportunity for consultation with and comment by the board of directors of the Foundation, and approval by the Court. A resolution adopting a proposed amendment or amendments shall be approved by an absolute majority of the members of the Board of Governors of The Florida Bar.

c) By petition of the board of directors of the Foundation directly to the Supreme Court of Florida, after advance notice to and opportunity for consultation with and comment by the Board of Governors of The Florida Bar, and approval by the Court. A resolution adopting a proposed amendment or amendments shall be approved by an absolute majority of the directors of the Foundation.

d) “Advance Notice” means submission of the subject matter and language of the proposed amendment to the body having the right to consult and comment at least thirty days before its next regularly scheduled meeting.

910.3Effective Date. Any amendment approved by the Supreme Court of Florida shall be effective upon filing with the Secretary of State as provided by law.

Historical Note: The names and residences of the original incorporators of the Foundation are: Donald K. Carroll, Jacksonville, Florida, J. Lance Lazonby, Gainesville, Florida, Kenneth B. Sherouse, Tallahassee, Florida, William A. Gillen, Tampa, Florida, J. Lewis Hall, Tallahassee, Florida, Sherwood Spencer, Hollywood, Florida.


text:
    James L. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0819.
    District Court of Appeal of Florida, First District.
    May 10, 2004.
    Rehearing Denied July 12, 2004.
    James L. Williams, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The amended petition alleging ineffective assistance of appellate counsel is dismissed for lack of jurisdiction. The petition was filed outside the two-year time limit set forth in Florida Rule of Appellate Procedure 9.141(c)(4)(B).

DISMISSED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.


text:
    Sarah BRODIE, Appellant, v. ALL CORPORATION OF USA; Fuji, Inc. of NPB, d/b/a Tokyo Gardens, a Florida corporation; and Nyon Kim, an individual, Appellees.
    Nos. 4D02-2348, 4D03-2011.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.

      Gerald F. Richman, Mark A. Romance, Ricardo L. Carmona and Michael J. Napo-leone of Richman, Greer, Weil, Brum-baugh, Mirabito & Christensen, P.A., West Palm Beach and Miami, for appellant.
    Mark R. Osherow of Mark R. Osherow, P.A., Boca Raton, for appellees.
   PER CURIAM.

Sarah Brodie appeals the final summary judgment entered against her on a seven-count complaint. The first five counts were against Nyon Kim, Fuji, Inc. of NPB, and All Corporation based on an oral contract. The last two counts were against Kim regarding a separate oral contract. For the reasons discussed below, we reverse.

Brodie and Kim met through a mutual friend and began dating. Kim soon asked Brodie to help him at his restaurant, the Tokyo Gardens in North Palm Beach, and Brodie began working evenings as a hostess. Brodie and Kim traveled to Japan upon the death of Kim’s father, and Brodie asserts that Kim and his family offered her joint ownership of the restaurant with Kim if she would assume management responsibility for the restaurant. Brodie accepted and began working at the restaurant full-time and undertaking managerial tasks. It is this purported oral contract that forms the basis of Counts I-V of Brodie’s complaint.

Brodie and Kim also decided to purchase a residence together. Brodie alleges that because Kim had poor credit, she promised to secure a mortgage for the home in exchange for Kim paying the monthly mortgage payments and household expenses. Brodie secured a mortgage, and Brodie and Kim took title as joint tenants with the right of survivorship. It is this purported oral contract that forms the basis of Counts VI-VII of Bro-die’s complaint.

After four years at the restaurant and two years in the home, the relationship between Brodie and Kim deteriorated. Brodie found it necessary to move out of the residence and cease working at the restaurant. Kim then discontinued making the monthly mortgage payments on the house. Kim also refused Brodie an ownership interest in the restaurant or compensation for her work.

As a result, Brodie filed a seven-count complaint. Counts I-V related to the purported restaurant contract and named Kim, and the two family corporations holding the restaurant and its underlying land, as defendants. The counts alleged breach of oral contract, constructive trust, unjust enrichment, promissory estoppel, and quantum meruit. Counts VI-VII related to the purported residence contract and alleged breach of contract and enforcement of a cohabitation agreement against Kim.

The defendants moved for summary judgment on Counts I-V, primarily on the ground that Florida Statutes section 678.319, the Statute of Frauds provision requiring contracts for the sale of securities to be in writing, barred the claims. The trial court granted the motion for summary judgment based solely on section 678.319. Kim then moved for summary judgment on counts VI-VII, based on Florida Statutes section 725.01, the Statute of Frauds provision relating to conveyances of real property, and section 670.206, the Statute of Frauds provision addressing personal property, which the trial court granted.

The standard of review applicable to summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Bruckner v. City of Dania Beach, 823 So.2d 167, 171 (Fla. 4th DCA 2002)(quoting Aberdeen ). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Aberdeen, 760 So.2d at 130.

We turn first to Counts I-V. The trial court granted summary judgment on these counts solely on the basis of section 678.319.Prior to its repeal in 1998, the section provided:

A contract for the sale of securities is not enforceable by way of action or defense unless:
(1) There is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker, sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price.

§ 678.319(1), Fla. Stat. (1997).

We conclude that the trial court erred by granting summary judgment on this ground. The oral contract at issue is an employment contract, not a contract for the sale of securities. As such, section 678.319 does not bar Counts I-V of Bro-die’s complaint. See Collier v. Brooks, 632 So.2d 149, 153 (Fla. 1st DCA 1994)(rejecting argument that a claim for breach of an oral contract for an ownership interest in a business in exchange for successful management of the business was barred by section 678.319 because the contract was an employment agreement rather than a contract for the sale of securities); Byrd v. Bentley, 850 So.2d 232, 240 (Ala.2002)(holding that an oral contract providing for an interest in a corporation in exchange for managerial success is not a sale of securities, but an employment contract); Baldassarre v. Singer, 444 Pa. 100, 282 A.2d 262, 264 (1971)(discussing the analogous Uniform Commercial Code provision, the court concluded that the section did not apply to an employment contract because: “There is no ‘price’ for stock transferred pursuant to an employment contract. The only consideration is the employment itself.”).

We next address Counts VI-VII. The trial court granted summary judgment on these counts based on sections 725.01 and 678.319. The trial court erred in granting summary judgment on these grounds because Brodie fulfilled her obligation under the oral residence contract to secure the mortgage. Full performance of an agreement takes the agreement outside the Statute of Frauds. Rubenstein v. Primedica Healthcare, Inc., 755 So.2d 746, 748 (Fla. 4th DCA 2000); Shaffer v. Ricci, 603 So.2d 566, 568 (Fla. 4th DCA 1992). As such, sections 725.01 and 678.319 did not bar Counts VI-VII or Brodie’s complaint.

In sum, the trial court erred by granting summary judgment to the defendants on Counts I-V because the oral employment contract was just that, not a contract for the sale of securities. The trial court also erred by granting summary judgment to Kim on Counts VI-VII, because Brodie’s full performance under the oral residence contract placed the agreement outside the Statute of Frauds. Consequently, we reverse.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

GUNTHER, TAYLOR, and MAY, JJ., concur.


text:
    Michael Alan KASMARIK, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3821.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2004.
    Rehearing Denied July 1, 2004.
    Michael Alan Kasmarik, Sanderson, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Lewis v. Moore, 753 So.2d 1242, 1243 (Fla.2000); Dowdy v. Singletary, 704 So.2d 1052 (Fla.1998).

PLEUS, MONACO and TORPY, JJ., concur.


text:
    David E. MORRELL, Appellant, v. NATIONAL HEALTH INVESTORS, INC., a Maryland corporation and American Medical Associates, Inc., Appellees.
    No. 1D04-0945.
    District Court of Appeal of Florida, First District.
    June 3, 2004.
    Rehearing Denied July 12, 2004.
    David E. Morrell, pro se, appellant.
    Karen K. Specie of Scruggs & Carmichael, P.A., Gainesville, for appellees.
   PER CURIAM.

Appellees’ motion to dismiss, filed April 5, 2004, is granted. This appeal is hereby dismissed. Appellate review is limited to the parties in the lower tribunal. See Penabad v. A.G. Gladstone Associates, Inc., 823 So.2d 146 (Fla. 3d DCA 2002). As David E. Morrell was not a party to the proceedings below', he cannot participate in appellate review.

DISMISSED.

BOOTH,.POLSTON and HAWKES, JJ., concur.


author: SHARP, W., J.,

text:
    I.B. and D.B., Foster Parents of T.T., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-2480.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.

      Richard J. D’Amico, Daytona Beach, and Rick Brown, Daytona Beach, for Appellants.
    • George P. Beckwith, Jr., Acting District Legal Counsel, Department of Children and Families, Daytona Beach, for Appel-lee.
   SHARP, W., J.,

I.B. and D.B., the foster parents of T.T., appeal from an order of the trial court which dismissed their petition to adopt the child, removed the child from their home and placed him with J.D. and T.D., the child’s relatives in Tennessee and the parties approved by the Department to adopt the child. The trial court concluded it lacked the authority, under the doctrine of separation of powers, to interfere with the Department’s selection of the adoptive parents and that the foster parents lacked standing to challenge the Department’s selection. We conclude that under the facts of this' case, the trial court had the authority and should' have conducted a hearing to consider whether the change in placement from the foster parents to the relatives was in the child’s best interests.

The record discloses that a few days after his birth in October 2001, the child was taken into the Department’s custody and a guardian ad litem appointed for him. Both the child and his mother tested positive for cocaine. The mother has had other children removed from her custody. The person listed as the child’s father is not his biological father but allowed his name to be placed on the birth certificate. Apparently he has no interest in the child.

In December, the Department filed a petition seeking to declare the child depen-dant. In February 2002, the Department placed the child with the foster parents. According to the foster parents, they had been seeking a child for adoption and the Department granted them a foster care license specifically for this child. The guardian ad litem reported the child was being well cared for and loved by his foster parents, who were planning to adopt him.

Also in February, the Department contacted the mother’s cousin, T.D., who lives in Tennessee. She was also interested in adopting the child. The Department requested that Tennessee conduct a home study on T.D. and her husband J.D. More than six months elapsed before the home study was completed.

In March, Judge Julianne Piggotte adjudicated the child dependant and ordered the Department to proceed with the goal of adoption. In April, the Department moved to terminate parental rights. Sometime in April, the Department notified the foster parents that the relatives were interested in adopting the child.

At the end of April, the guardian submitted a report in which she stated the child seemed healthy, happy and secure, was receiving a lot of attention and love and was being well cared for by the foster parents. Her report also states:

The foster parents are anxious to adopt the child and I believe that they would make excellent parents. They are loving and caring and have the best interests of the child in mind. I also have had an opportunity to interview the cousin [T.D.] from Tennessee. She was visiting in the Daytona area with her husband and her .mother. This couple are also most interested in adopting the child and also seem to be loving and caring people. In this placement the child would also have an extensive extended family.

In early June, the Department submitted its predispositional study. The report notes the child has been well cared for by the foster parents who are anxious to adopt him. The report also notes the relatives are -willing to adopt the child.

On June 10th, Judge Robert Rawlins, Jr. entered an order terminating parental rights to the child. The order notes the child is attached to his foster parents and there is currently no suitable, permanent arrangement with a relative. (At this time, the relatives’ home study had not yet been received.) At about this samé time, the guardian ad litem moved out-of-state.

In October, the Department moved to change placement from the foster parents to the relatives. The Department noted the relatives want to adopt the child and a positive home study had now been completed by Tennessee.

A few days later, the foster parents filed their own petition to adopt the child. The foster parents did not have the consent of the Department for their adoption.

After a hearing, Judge Piggotte denied the Department’s motion for a change of placement, noting the child has only had one contact with the relatives. The judge ordered the Department to provide visitation for the relatives and the child.

At the end of October, the Guardian Ad Litem Program was discharged from the case. The motion for discharge notes the child has been placed with foster parents who have filed a petition for adoption, is receiving all needed services, and the guardian supports Judge Piggotte’s ruling which ordered the child remain in his current placement.

Although the guardian had moved out-of-state and the Guardian Ad Litem Program had been discharged from the case, the guardian continued to have contact with the parties and the Department. In February 2003, the guardian wrote a letter to the Department stating that in her opinion, it was in the child’s best interests for him to remain permanently with the foster parents. In a deposition taken a short time later, the guardian again recommended the child remain with the foster parents. . ‘

In its March 2003 case plan update, the Department noted that the adoption applications from both the foster parents and the relatives had been submitted to its adoption review committee and a decision was pending. The Department’s adoption review committee ultimately selected the relatives as the adoptive parents.

Both the foster parents and the Department filed a number of motions relating to the adoption. Among other things, the foster parents moved to reappoint a guardian ad litem, intervene in the dependency action, consolidate the dependency action with their adoption case and place the case on the trial docket. The Department moved to strike the motions filed by the foster parents, to change placement from the foster parents to the relatives, and to dismiss the foster parents’ petition for adoption.

In May 2003, Judge Shawn Briese reappointed the^ Guardian Ad Litem Program. Unfortunately, the Program responded they had- no available guardians and so were discharged from the appointment.

On June- 5th, Judge Briese held a non-évidentiary hearing on the motions filed by the foster parents .and the Department. Counsel for the foster parents pointed out the child had been in their care for the past sixteen months and had developed a very strong bond with them. Counsel also noted the guardian recommended the child remain with the foster parents since they had cared for him for over a year and the child had bonded with them. .

The Department acknowledged there had been a delay in this case caused in part by the home study in Tennessee and in part by the Department’s own paper work errors. Nevertheless, the Department argued there was nothing to show the child would suffer psychological damage from the change in placement or that the relatives were not an appropriate placement. The Department also claimed the foster parents did not have an agreement to adopt this particular child.

Although both parties raised matters which clearly impacted the child’s welfare, Judge Briese did not take any evidence at this hearing, did not hear from the foster parents or the guardian and did not consider the child’s best interests in removing him from his home of sixteen months. Instead he simply ruled as a matter of law that the decision to select the suitable adoptive parents was one for the Department, and not the judiciary, and that the foster parents lacked standing to challenge the Department’s decision.

The judge then dismissed the foster parents’ adoption petition and denied their related motions, granted the Department’s motions and placed the child with the relatives in Tennessee with that state to supervise the pre-adoptive placement. The foster parents moved to stay the proceedings pending their pursuit of administrative remedies but that request was denied.

As a threshold matter, we conclude the foster parents clearly have standing to intervene in these proceedings. The nature of the interest that entitles a party to intervéne “must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.” Sullivan v. Sapp, 866 So.2d 28, 33 (Fla.2004).

Here “the matter in litigation” was the placement for adoption of the foster parents’ child, the child they wanted to adopt and had cared for the past sixteen months. The foster parents would directly gain or lose by the court’s rulings. Thus the foster parents have sufficient interest to warrant intervention in the litigation. See In the Interest of Z.J.S., 787 So.2d 875 (Fla. 2d DCA 2001); In the Interest of C.G., 612 So.2d 602 (Fla. 4th DCA 1992).

Even if the foster parents were not properly intervenors in these proceedings, they were already “participants” under Florida Rule of Juvenile Procedure 8.210(b) since they were the child’s foster parents. Under this rule, participants may be granted leave by the court to be heard without the necessity of filing a motion to intervene. See N.S. v. Department of Children and Families, 857 So.2d 1000 (Fla. 5th DCA 2003).

Turning to the substantive issues, the foster parents contend the trial court erred in failing to determine that section 39.812 is unconstitutional, both facially and as applied in this case. We are unable to find the foster parents presented this issue to the trial court. Thus they may only challenge the facial constitutionality of the statute. Westerheide v. State, 831 So.2d 93 (Fla.2002).

Section 39.812 provides in part:

39.812. Postdisposition relief; petition for adoption
(1) If the department is given custody of a child for subsequent adoption in accordance with this chapter, the department may place the child with an agency as defined in s. 63.032, with a child-caring agency registered under s. 409.176, or in a family home for prospective subsequent adoption. The department may thereafter become a party to any proceeding for the legal adoption of the child and appear in any court where the adoption proceeding is pending and consent to the adoption, and that consent alone shall in all cases be sufficient.
(4) The court shall retain jurisdiction over any child placed in the custody of the department until the child is adopted. After custody of a child for subsequent adoption has been given to the department, the court has jurisdiction for the purpose of reviewing the status of the child and the progress being made toward permanent adoptive placement. As part of this continuing jurisdiction, for good cause shown by the guardian ad litem for the child, the court may review the appropriateness of the adoptive placement of the child.
(5) The petition for adoption must be filed in the division of the circuit court which entered the judgment terminating parental rights, unless a motion for change of venue is granted pursuant to s. 47.122. A copy of the consent executed by the department as required under s. 63.062(7) must be attached to the petition. The petition must be accompanied by a form provided by the department which details the social and medical history of the child and each parent and includes the social security number and date of birth for each parent, if such information is available or readily obtainable. The person seeking to adopt the child may not file a petition for adoption until the judgment terminating parental rights becomes final. An adoption proceeding under this subsection is governed by chapter 63, as limited under s. 63.037. (emphasis added)

Chapter 63 specifically provides:

63.022. Legislative intent
(2) It is the intent of the Legislature that in every adoption, the best interest of the child should govern and be of foremost concern in the court’s determination. The court shall make a specific finding as to the best interest of the child in accordance with the provisions of this chapter.

The foster parents argue section 39.812 violates the due process and equal protection guarantees of the Florida and federal constitutions by providing children adopted through the Department with less rights than children adopted through other means. According to the foster parents, section 39.812 gives the Department “unfettered” discretion to determine adoptive placements whereas adoptions under chapter 63 must be in the “best interests” of the child.

We find section 39.812 is facially constitutional. Section 39.812(5) specifically provides that an adoption proceeding under this subsection is governed by chapter 63. In turn, section 63.022(2) specifically provides that in every adoption, the best interests of the child should govern and be of foremost concern in the court’s determination. Since the trial court must determine that the adoption of every child, including those in the Department’s custody, is in the child’s best interests, children in the Department’s custody are not denied their constitutional rights to due process and equal treatment.

However, we do conclude the trial court erred in this case by refusing to consider the child’s best interests before changing placement from the foster parents to the relatives. The trial court clearly has the authority, as well as the duty, under sections 39.812(4) and(5) and section 63.022(2) to consider the child’s best interests in these circumstances. We also note that trial courts have inherent power when determining issues relating to children to consider the child’s best interests. See Department of Children & Family Services v. Interest of J.C., 847 So.2d 487 (Fla. 3d DCA 2002); Bilbo v. Bilbo, 688 So.2d 1031 (Fla. 5th DCA 1997); Waters v. Waters, 578 So.2d 874 (Fla. 2d DCA 1991).

The trial court’s resolution of this case on separation of powers grounds may have been appropriate if, for example, the child was being cared for by a third party and neither the foster parents nor the relatives had formed any bond with the child. There is no doubt the Department is the entity charged with the responsibility and given the resources to do the background checks and home studies necessary to evaluate the suitability of prospective adoptive parents. See In re Interest of K.A.B., 483 So.2d 898 (Fla. 5th DCA 1986) (Department is better equipped to make the day-to-day health and welfare decisions which concern the child).

Nevertheless, the authority and the discretion of the Department with respect to adoptive placements are not absolute. The trial court has inherent and continuing jurisdiction to entertain matters pertaining to child custody and to enter any order appropriate to a child’s welfare. B.B. v. Department of Children & Families, 854 So.2d 822 (Fla. 1st DCA 2003).

In a similar case, Department of Children and Family Services v. Interest of J.C., 847 So.2d 487 (Fla. 3d DCA 2002), the appeals court held the trial judge had the authority to prohibit the Department from taking the child from the child’s foster mother pending an appropriateness hearing. In that case, the Department placed the child with Scott, a friend of the father. Like the foster parents here, Scott had provided a warm and loving home for the child, the two developed a close bond and Scott wanted to adopt the child. Scott and the child moved to Virginia with the approval of the Department. However, Virginia declined to accept adoptive placement of the child with Scott because the financial stability of Scott, who was not receiving assistance from Florida, was questionable.

Since Virginia did not accept the placement, the Department decided to remove the child from Scott. While Scott was in Florida on vacation, the Department requested that she come in their office with the child. The child was then taken away from her. At a hearing a few days later, the Department contended it had exclusive jurisdiction to take the child away from Scott in order to select the adoptive parents.

■ The guardian ad litem moved the court to conduct a good cause hearing to review the appropriateness of the placement under section 39.812(4). The judge granted the motion, ordered a childhood intervention specialist to see the child immediately and ordered the Department’ to return the child to Scott pending the subsequent appropriateness hearing.

The Department then petitioned the appeals court for a writ of prohibition, seeking to quash the trial judge’s order. The Department argued the trial court exceeded its jurisdiction by preventing the Department from changing the child’s placement and in maintaining the status quo pending review of the appropriateness of the adoptive placement.

In rejecting this argument, the court pointed out that under chapter 39, the judicial and executive branches exercise concurrent jurisdiction over the welfare of foster children who have been placed in the Department’s custody. This grant of concurrent power furthers the state’s compelling interest in protecting children, based on the recognition that there are instances in which the best interests of the child and the Department may differ. Judicial review is an important part of the “checks and balances” process and serves to ensure accountability from the Department.

As part of its legislatively-mandated review authority, the judiciary is specifically authorized to exercise its review powers in analyzing the appropriateness of the Department’s proposed adoptive placement. In exercising this review power, the courts possess inherent authority to maintain the status quo and prevent irreparable harm:

Especially in the context of children, our trial courts have a continuing responsibility to vigilantly protect the welfare and best interests of the child....
Here, the trial judge was faced with a situation where a child had been placed with a loving and competent caregiver since birth, and thereafter under suspect circumstances was abruptly removed from that caregiver, the only'mother he had ever known, to be placed with strangers. It is presumptively in the best interests of a child to remain in the home where he or she has spent the majority of his or her life. See Rumph v. V.D., 667 So.2d 998 (Fla. 3d DCA 1996); S.J. ex rel. M.W. v. W.L., 755 So.2d 753 (Fla. 4th DCA 2000). Clearly there was no error in the trial court’s finding that it was in the best interests of J.C. to remain with [Scott] pending a determination of the appropriateness- of J.C.’s adoptive placement.

847 So.2d at 491.

In this case, the foster parents claim they were granted a license specifically for this child. Thus encouraged by the Department, the foster parents may have developed a stronger than normal bond with the child. The Department disputes this and claims the foster parents only had an agreement to provide substitute care and the care was not specifically for this child.

However, the guardian ad litem supported the foster parents’ claim the child had been placed with them for adoption. The guardian specifically stated that Department workers told her the child’s placement was a pre-adoptive placement. The guardian was opposed to any change in placement given the child’s bond with the foster parents.

The foster parents also point out that children in the Department’s custody are supposed to be placed in a permanent home as quickly as possible. In fact, the Legislature has specifically provided that one of the purposes of chapter 89 is:

To ensure that permanent placement with the biological or adoptive family is achieved as soon as possible for every child in foster care and that no child remains in foster care longer than 1 year, (emphasis added)

§ 39.001(l)(h), Fla. Stat. Here the child remained with the foster parents for longer than one year through no fault or delay on their part.

The issues raised by the parties at the June 5th hearing suggest this was not a case which should have been decided on a separation of power basis and the foster parents should have been heard on a matter which directly affects them. The foster parents may or may not have had an agreement with the Department to provide foster care for this child with the intention of adopting him. Even if there were no such agreement, the child lived with the foster parents for sixteen months, which violates the statutory directive that foster "care be limited to one year. In addition, the child had bonded with them and they were the only parents he had ever known. Given the length of time the child lived with the foster parents and the bond that had formed between them, the judge should have considered whether moving the child from this home to an out-of-state placement was in the child’s best interest.

In reaching our decision, we are aware of cases from the fourth district which hold that a trial court cannot interfere with the Department’s decision in selecting an adoptive family where the Department’s selection was “appropriate, consonant with its policies and made in an expeditious manner.” See Florida Department of Children & Families v. Adoption of B.G.J., 819 So.2d 984 (Fla. 4th DCA 2002); C.S. v. S.H., 671 So.2d 260 (Fla. 4th DCA), rev. denied, 680 So.2d 424 (Fla.1996).

However, we agree with the first district that an “appropriate” selection depends on the facts of a particular case and must always be consistent with Florida law. See B.B. v. Department of Children & Families, 854 So.2d 822 (Fla. 1st DCA 2003) (it falls to the trial court to ensure that the Department’s selection is appropriate and consonant with its policy). The fact that the child had lived with the foster parents for sixteen months by itself casts doubt on whether the Department’s decision was made in an “expeditious” manner.

Accordingly, we remand to the trial court to hold a hearing to determine whether the change in placement was in the child’s best interests. The child shall remain in its current placement pending any decision by the trial court.

REVERSED and REMANDED.

MONACO and TORPY, JJ., concur.

      . Florida Rule of Civil Procedure 1.230 provides as follows:
      Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.

      . Rule 8.210. Parties and Participants
      (a) Parties. For the purpose of these rules the terms "party” and "parties” shall include the petitioner, the child, the parent(s) of the child, the department, and the guardian ad litem ’or the representative of the guardian ad litem program, when the program has been appointed.
      (b) Participants. "Participant” means any person who is not a party but who should receive notice of hearings involving the child. Participants include foster parents or the legal custodian of the child, identified prospective parents, actual custodians of the child, grandparents entitled to priority for adoption consideration as provided by law, the state attorney, and any other person whose participation may be in the best interest of the child. The court may add additional participants. Participants may

        be granted leave by the court to be heard without the necessity of filing a motion to intervene and shall have no other rights of a party except as provided by law. (emphasis added)

      . An agreement not to seek adoption of a foster child standing alone does not preclude the foster parents from adopting the child. C.S. v. S.H., 671 So.2d 260, 270 n. 12 (Fla. 4th DCA), rev. denied, 680 So.2d 424 (Fla.1996).

      . At this point, we decline to address the foster parents’ argument the trial court erred in refusing to appoint a guardian ad litem at the June hearing. We note the judge reappointed the Guardian Ad Litem Program, but the Program had no volunteers available. We also note the ultimate responsibility for determining the best interests of the child rests with the trial judge and whether the failure to have a guardian is reversible error will depend on the circumstances of each case. See In re E.F., 639 So.2d 639, 644 (Fla. 2d DCA 1994) ("We cannot reverse a trial judge who uses his or her own judgment to determine the best interests of a child when the judge has requested and not received a voluntary guardian ad litem.”)


author: SHARP, W., J.

text:
    Scottie McMULLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2066.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.
    Jack R. Maro, Ocala, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assis-taut Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

McMullen appeals from his judgment and sentences for sale of cocaine within 1,000 feet of a place of worship and possession of cocaine with intent to sell or deliver within 1,000 feet of a place of worship. He raises three points on appeal. We affirm.

First, McMullen claims he was denied effective assistance of counsel and a fair trial resulting from prosecutorial misconduct compounded by deficiencies of trial counsel. With rare exceptions, ineffective assistance of trial counsel claims are not cognizable on direct appeal. Gore v. State, 784 So.2d 418 (Fla.2001); Dorsey v. State, 847 So.2d 587 (Fla. 5th DCA 2003). They should normally be raised on a motion for post-conviction relief in the trial court where the issues of counsel’s incompetence and ineffectiveness can be fully developed, if necessary, after an evidentiary hearing. Grant v. State, 864 So.2d 503 (Fla. 4th DCA 2004). Only in cases where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious do appellate courts address this issue on direct appeal. Gore; White v. State, 850 So.2d 624 (Fla. 2d DCA 2003); Noble v. State, 543 So.2d 402 (Fla. 4th DCA 1989). We find that McMullen’s claims in this point fall into “the normal” category and thus we do not consider them on the merits.

Second, McMullen contends that the trial judge departed from his role as a neutral arbiter and, instead, acted as a second prosecutor by assisting the state and rectifying the shortcomings in the state’s case. See Gamble v. State, 492 So.2d 1132 (Fla. 5th DCA 1986)(judge departed from his role as impartial conductor of trial by accusing defense counsel of being untruthful). In this case, the complained-of actions by the trial judge were not objected to by defense counsel, and in fact, were largely prompted by or necessitated by actions taken by defense counsel.

Third, McMullen contends his convictions for sale of cocaine and possession of the same cocaine with intent to sell or deliver, violates double jeopardy. The Florida Supreme Court answered this question in State v. McCloud, 577 So.2d 939 (Fla.1991). It concluded that there are situations in which a sale can occur without possession and thus possession is not an essential element of sale, citing section 775.021(4)(a), Florida Statutes. Therefore, the court held that the possession count was not a lesser-included offense of the crime of sale. This case is factually indistinguishable from McCloud, because the prosecution established McMullen was in possession of cocaine with the intent to sell it, and that he sold some to a confidential informant.

AFFIRMED.

THOMPSON and MONACO, JJ„ concur.

      . § 893.13(1)(e)1. Fla. Stat.

      . § 893.13(l)(e)l„ Fla. Slat.


author: MONACO, J.

text:
    Marc H. PILORGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1930.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Marc H. Pilorge was convicted of aggravated battery, attempted false imprisonment, and violation of a condition of his pretrial release. While he raises a number of issues in this appeal from his judgment and sentence, only one requires our attention. Mr. Pilorge correctly argues that his motion for judgment of acquittal on the charge of violation of a pretrial condition should have been granted.

We review the denial of a motion for judgment of acquittal using a de novo standard. See Jones v. State, 844 So.2d 745, 750 (Fla. 5th DCA 2003). Generally, an appellate court will not reverse a conviction that is supported by substantial competent evidence. See e.g., Pagan v. State, 830 So.2d 792, 803 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003).

After Mr. Pilorge was arrested for beating his wife and throwing her from a second story window, he was released on $20,000 bond. The State contends that his release was specially conditioned on his having no contact with the victim. At trial, however, there was no evidence presented by the State showing that he had ever been advised of the special condition either orally or in writing. There was no testimony that the judge at Mr. Pilorge’s first appearance orally advised him of the condition (although there was some testimony that the first appearance judge usually does so), and Mr. Pilorge’s signature is not found on the “First Appearance Sheet.” Instead, in the section of the document indicating that the defendant acknowledges being advised of his various rights and acknowledges receiving a copy of the First Appearance Sheet with the special conditions marked, there is only the word, “Unable” written.

The statute that defines the crime of violation of a condition of pretrial release is section 741.29, Florida Statutes (2002), which provides:

(6) A person who willfully violates a condition of pretrial release provided in s. 903.047, when the original arrest was for an act of domestic violence as defined in s. 741.28, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, and shall be held in custody until his or her first appearance.

One of the conditions authorized by section 903.047 is no contact with the victim. More specifically, that section states:

(1) As a condition of pretrial release, whether such release is by surety bail bond or recognizance bond or in some other form, the court shall require that:
(a) The defendant refrain from criminal activity of any kind; and
(b) The defendant refrain from any contact of any type with the victim, except through pretrial discovery pursuant to the Florida Rules of Criminal Procedure.

(emphasis added).

As written, this statute requires the court to impose the no contact provision on a person charged with domestic violence. It does not create a presumption that the defendant knows that he or she is to have no contact. Thus, the imposition of the condition must be proved by substantial competent evidence in order to convict of the crime. Cf., State v. Hart, 668 So.2d 589 (Fla.1996). In the present case, it was not. The motion for judgment of acquittal in this regard should have been granted.

Accordingly, we affirm the judgments and sentences for aggravated battery and attempted false imprisonment, but reverse with respect to the violation of a pretrial condition.

AFFIRMED in part, REVERSED in part.

SHARP, W. and THOMPSON, JJ., concur.

      . This apparently resulted from the use of a video link for first appearances. The paperwork was with the judge; the defendant was in another location and was unable to sign the documentation.

      . Compare this statute with section 948.03(1), Florida Statutes (2002), which specifically exempts from oral pronouncement at sentencing the conditions of probation specified in subparagraphs (l)(a) through (m) and (2)(a) of the statute. Special conditions, however, must be specifically pronounced at sentencing. See State v. Hart, 668 So.2d 589 (Fla.1996).


text:
    Meridith R. CAIN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-2889.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.

      Meridith R. Cain, Melbourne, pro se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   MONACO, J.

This is an administrative appeal from a final order of the Unemployment Appeals Commission affirming the determination of the unemployment compensation appeals referee that the appellant, Meridith R. Cain, was disqualified from receiving unemployment benefits because she voluntarily left her employment without good cause attributable to her employer. We affirm.

The standard of review of an administrative agency’s adjudicative findings is whether those findings are supported by substantial competent record evidence. See Gfrorer v. Unemployment Appeals Comm’n, 864 So.2d 1290, 1290 (Fla. 5th DCA 2004). If they are, the findings are generally not reversable on appeal. See Walukiewicz v. Unemployment Appeals Comm’n, 861 So.2d 1288 (Fla. 5th DCA 2004). Whether a claimant for unemployment benefits leaves his or her employment voluntarily and without good cause attributable to the employer is a question of fact, and thus should not be disturbed on appeal provided there is competent, substantial evidence supporting it. See Gfrorer, Rozell v. Unemployment Appeals Comm’n, 752 So.2d 99 (Fla. 2d DCA 2000).

In the present case our review reflects that there is sufficient evidence in the record to support the finding that Ms. Cain failed to meet or maintain known or accepted conditions of employment, and that she, therefore, left her employment voluntarily and without good cause attributable to her employer. See, e.g., School Bd. of Lee County v. Florida Unemploy ment Appeals Comm’n, 500 So.2d 253 (Fla. 1st DCA 1986).

AFFIRMED.

SHARP, W., and THOMPSON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Clarence Edward WALTHOUR, Appellee.
    No. 5D03-3252.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellee.
   SHARP, W., J.

The state appeals from the trial court’s order which dismissed charges of possession of a concealed weapon by a convicted felon and possession of drug paraphernalia, pursuant to Walthour’s rule 3.190(c)(4) motion. We reverse because, in our view, whether Walthour violated the statute by carrying a steak knife in a leather holder on his belt underneath his shirt presented a prima facie case precluding summary dismissal of the charge.

The record reveals that on May 5, 2003 Orlando police officers noticed Walthour walking with a shopping cart in the middle of the street. They stopped him for impeding traffic and asked for identification. As he reached for his identification, one officer saw a bulge under his shirt. The officer conducted a pat-down and found a knife and a box cutter in a pouch hooked to Walthour’s belt. They were concealed from sight. A computer check revealed Walthour was a career criminal, having been charged with 19 felonies and convicted of 7 felonies, including one for carrying a concealed weapon.

Walthour was arrested for carrying a concealed weapon by a career criminal. Drug paraphernalia was found on his person during a search incident to the arrest, and he was charged with possession. He pled not guilty.

On the day of trial, defense counsel filed a(c)(4) motion to dismiss in open court. The attorney for the state announced the state had no witnesses, but requested that a photograph of the knife and box cutter be admitted in evidence. It was, with no objection by the defense. Immediately thereafter the judge granted the motion to dismiss in open court, and by an amended order, later dismissed both charges.

The function of a “(c)(4)” motion is to ascertain whether the undisputed facts which the state will rely on to prove its case, establish a prima facie case, as a matter of law, so as to permit a jury to determine the defendant guilty of the crime charged. State v. Williams, 539 So.2d 575 (Fla. 5th DCA 1989); State v. Raulerson, 403 So.2d 1102 (Fla. 5th DCA 1981); State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981). The appellate standard of review is de novo. Bell v. State, 835 So.2d 392 (Fla. 2d DCA 2003).

In this case, Walthour’s motion sets forth the undisputed facts, coupled with the photographs of the two knives. The motion to dismiss recited the following facts.

1. The Defendant is charged in this case with Ct. 1 Possession of a Concealed Weapon by a Convicted Felon in violation of Fla. Stat. 790.23, Ct. 2, Possession of Drug Paraphernalia in violation of Fla. Stat. 893.147(1) for an incident occurring on May 5, 2003.
2. The Defendant was stopped in this case in reference to an investigation of an infraction at Atlanta Blvd. in Orange County, Florida.
3. The officer asked if the Defendant had any identification on his person and in response, the Defendant proceeded to reach around his waist were [sic] the officer saw a box cutter and steak knife in a leather holder along the Defendant’s belt.
4. A steak knife is a common household item.
5. There is no allegation in the police report that the Defendant ever used or tried to used [sic] the steak knife in a threatening manner.
6. The Defendant allowed the officer to retrieve the knife and the Defendant was placed under arrest for Carrying a Concealed Weapon by a Convicted Felon.
7. There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the Defendant.
8. The steak knife was a common household item and there is no allegation that the item was ever used in a threatening manner. See State v. Tremblay, 642 So.2d 64 (Fla. 4th DCA 1994); Robinson v. State, 547 So.2d 321 (Fla. 5th DCA 1989).

Also forming part of the undisputed facts for purposes of the (c)(4) motion was the photograph of the knives — the box cutter and the steak knife. Based on our viewing of the photograph, the steak knife more closely resembles a kitchen knife, with a substantial blade and wooden handle, as opposed to a smaller sharp “steak” knife one normally uses to cut one’s T-bone at the dinner table.

Walthour was charged with violating section 790.23 by carrying a concealed weapon. Section 790.001 defines “concealed weapon” and “weapon” as follows:

(3)(a) “Concealed weapon” means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.
(13) ‘Weapon” means any dirk, metallic knuckles, slingshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.

Under the undisputed facts, the knives were concealed. The issue in this case appears to be whether the knives could be deemed by a jury to be deadly “weapons” or another item prohibited by the statute.

In State v. A.D.H., 429 So.2d 1316 (Fla. 5th DCA 1983), this court held that whether a juvenile was guilty of carrying a concealed weapon was a question of fact, in a fact situation similar to this one. There, A.D.H. carried a butcher knife with a six-inch blade inside or next to the lining of her jacket. In reversing the trial court’s dismissal of the delinquency petition, we said:

[The state] argues on appeal that a butcher knife is included under section 790.01(1) as a “weapon,” defined in section 790.001(3)(a) and (13). We agree with [the state] and hold that a butcher knife can be included under section 790.01(1). See Miller v. State, 421 So.2d 746 (Fla. 4th DCA 1982). Whether the accused is guilty of the alleged crime is a factual question and if [A.D.H.] was innocently carrying the butcher knife (in a shopping bag to her house after purchasing it, for instance; or to a picnic, for another instance) then the trier of the facts would be the one to acquit her. Carrying a concealed butcher knife is not per se lawful in view of the statutory language. Of course, neither is that conduct per se unlawful. Again, it depends upon the facts of each case.... It was error to dismiss the delinquency petition based solely upon a motion that ascribes vagueness to the statute and the charge under the statute, (footnotes and citation omitted)

429 So.2d at 1317-1318.

Like A.D.H.’s possession of the butcher knife, Walthour’s possession of the steak knife as a concealed “weapon” presents a question of fact for the jury which should not have been resolved by a motion to dismiss.

To be convicted under the statute, the defendant must have carried and concealed one of the items listed in the statute, or a weapon considered to be a “deadly weapon.” Hutchinson v. State, 816 So.2d 1186 (Fla. 2d DCA 2002); Nystrom v. State, 777 So.2d 1013 (Fla. 2d DCA 2000). A deadly weapon is any instrument which will likely cause death or great bodily harm when used in the ordinary manner contemplated by its design and construction. Hutchinson; Robinson v. State, 547 So.2d 321 (Fla. 5th DCA 1989).

Since the undisputed facts in this case establish Walthour did not use the-steak knife in a threatening manner, it may not qualify as a deadly weapon. See M.L. v. State, 842 So.2d 257 (Fla. 1st DCA 2003); Nystrom; State v. Tremblay, 642 So.2d 64 (Fla. 4th DCA 1994); Robinson.

However, the knife may constitute a “dirk,” one of the items listed in section 790.001. In Miller v. State, 421 So.2d 746 (Fla. 4th DCA 1982), the defendant was charged with robbery with a deadly weapon, a knife. At trial, he moved for judgment of acquittal, asserting there was insufficient proof the knife was a “deadly” weapon because he did not use or threaten to use the knife in a manner to produce death or great bodily harm. The court concluded the evidence supported the lesser crime of robbery with a weapon, noting that a “dirk” is a specifically prohibited weapon under section 790.001(3)(a).

A dirk or dagger is defined as any straight knife worn on a person which is capable of inflicting death, except for a “pocket knife.” “Dirk” and “dagger” are used synonymously, and consist of any straight stabbing weapon. The test is its capacity for use a stabbing weapon. Fletcher v. State, 472 So.2d 537, 539, n. 1 (Fla. 5th DCA 1985); Miller, 421 So.2d at 747, n. 1. Based on the photograph in the record, it is clear and undisputed that the knife was clearly not a pocket knife. It had a sizable fixed blade and the capacity to be used as a stabbing weapon.

Under the undisputed facts, the steak knife may be a dirk, or an innocent household item. But that determination is one for the finder of fact based on a consideration of the circumstances, for example, the manner in which it was carried, how assessable it was to the accused, its purpose, or the accused’s motive for carrying it, and its ability to cause harm to another. Garcia v. State, 789 So.2d 1059 (Fla. 4th DCA 2001), rev. denied, 817 So.2d 846 (Fla.2002); Evans v. State, 703 So.2d 1201 (Fla. 1st DCA 1997).

REVERSED and REMANDED for further proceedings.

THOMPSON and MONACO, JJ., concur.

      . § 790.23, Fla. Stat.

      . § 893.147(1), Fla. Stat.

      .This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(l)(A)(state may appeal an order dismissing an indictment or information or any count thereof).


author: THOMPSON, J.

text:
    L.R.D., JR., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2156.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

L.R.D., Jr., a minor, appeals an order adjudicating him delinquent of possession of less than 20 grams of marijuana. We affirm because the trial court properly denied L.R.D.’s motion to suppress.

Police officers took L.R.D. into custody because they believed he was truant. In addition, the officers checked a truancy center’s computer records and found that L.R.D. was listed as a truant. In searching L.R.D. in preparation for taking him to a truancy center, the officers found marijuana in L.R.D.’s pocket. Contrary to the computer records, it appears that in fact L.R.D.’s absence from school was authorized, and he contends that the marijuana should have been suppressed because there was invalid information on the computer.

We conclude that the trial court properly denied the motion to suppress because the officers had probable cause to take L.R.D. into custody, exclusive of the computer information. A child may be taken into custody by a law enforcement officer “when the officer has reasonable grounds to believe that the child is absent from school without authorization or is suspended or expelled and is not in the presence of his or her parent or legal guardian, for the purpose of delivering the child without unreasonable delay to the appropriate school system site.” § 984.13(l)(b), Fla. Stat. (emphasis supplied). Here, the police found L.R.D. talking to a young woman in a bus terminal, one of the truancy “hot spots.” L.R.D. told the police officer that he was sixteen years old and not in school. L.R.D. was not in the presence of a legal guardian. Upon an initial check with the truancy center, the officer learned that L.R.D. was not registered as a student in Orange County. This gave the officers reasonable grounds to take L.R.D. into custody for truancy.

The order denying L.R.D. s motion to suppress is AFFIRMED.

PETERSON and MONACO, JJ., concur.


author: SAWAYA, C.J.

text:
    Gerald Andrew CRUMBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2326.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.

      C. Michael Barnette, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, C.J.

Gerald Crumbley appeals the judgment and sentence he received after the jury found him guilty of aggravated assault with a deadly weapon. Crumbley contends that he was denied a fair trial and deprived of due process when his wife, the victim, testified regarding prior acts of violence committed by Crumbley in violation of an order in limine. We affirm.

A long history of acrimony and marital discord between Crumbley and his wife served as the catalyst for the quarrel between the two that culminated in Crum-bley’s arrest, conviction and imprisonment. As the argument escalated, the wife became terrified of the belligerent Crumbley. In her attempt to retreat from him, she became entrapped in a corner of the home where Crumbley, in the presence of their son, held a knife to her throat and threatened to kill her if she proceeded with plans to divorce him.

Prior to Crumbley’s trial, the trial court entered an order in limine that precluded the wife from disclosing prior acts of violence committed against her by Crumbley. During the trial, however, the wife alluded to Crumbley’s past conduct, but stopped short of revealing any details because she testified that she was precluded from do- ■ ing so. Specifically, the wife testified as follows:

Well, Andy always goes through a period after he gets real angry where he’ll start pacing, so that’s what he was doing, he was pacing back and forth between the kitchen and the table. And I had at that time seated myself in the swivel chair at the computer, and I looked at my son, and he was looking at me, and I went, (indicating). And after-wards — Christopher waited a few minutes and then got up, told his dad — he grabbed the phone book, and his dad said what are you doing, he said I’m gonna call my friend Dillon, and then he proceeded to go back into our back bedroom.

The following testimony was in response to questions asked by Crumbley’s attorney relating to the wife’s involvement with another person and why the son did not come to her aid during the incident:

[Defense Counsel]: Your state of mind at the time ... was that you loved Andy or you didn’t love Andy?
[Wife]: I can’t — I’m limited to what I can tell you because I can’t go — I can’t go back to what happened previously to cause me to want the divorce.
He was going through one of his quiet periods, a time where he was being good. And I wanted the divorce because he was a violent man. He had threatened me in the past. He promised me—
My son is terrified of his father. See, there again I have to go back and explain some things that happened.

These revelations are the basis for Crum-bley’s argument that he was denied due process and a fair trial. The State asserts, despite the order granting the motion in limine, that Crumbley’s failure to object to this testimony at trial waives his right to raise the issue on appeal.

The courts have consistently held that in order to preserve an error for appellate review, an objection must be made when the error occurs. F.B. v. State, 852 So.2d 226 (Fla.2003). Commonly referred to as the contemporaneous objection rule, the rationale for its application is two-fold: 1) to require an objection at the time the error is committed to give the trial court the opportunity to correct it; and 2) to prevent a litigant from allowing an error to go unchallenged so it may be used as a tactical advantage later. Id. Numerous decisions hold that despite a motion in limine to exclude certain evidence, a contemporaneous objection must nevertheless be made at the time an attempt is made to introduce the evidence. The vast majority of decisions that have applied this rule have done so when the motion in limine was denied. The court in Coffee v. State, 699 So.2d 299 (Fla. 2d DCA 1997), extended application of the contemporaneous objection rule to instances where the motion in limine was granted and then violated during the course of the trial. See also Jennings v. State, 744 So.2d 1126 (Fla. 4th DCA 1999) (finding that defense counsel’s failure to offer a specific objection to evidence admitted after the court receded from a previously granted order in limine waived the issue for review). It is not necessary for us to decide whether to adopt the rationale of Coffee and require a contemporaneous objection after a motion in limine has been granted because our review of this record leads us to conclude that the errors of which Crumbley complains are harmless.

The standard for harmless error analysis emanates from the decision in State v. DiGuilio, 491 So.2d 1129 (Fla.1986). See Williams v. State, 863 So.2d 1189 (Fla.2003). The state must bear the burden, as the beneficiary of the error, to “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, stated alternatively, that there is no reasonable possibility that the error contributed to the conviction.” Stires v. State, 824 So.2d 943, 946 (Fla. 5th DCA 2002) (citing DiGuilio). In order to focus, as we must, on the effect of the error on the jury, Goodwin v. State, 751 So.2d 537, 542 (Fla.1999), we are obligated to examine the entire record and closely examine the permissible evidence that the jury could have properly relied upon in reaching its verdict. Moreover, we must examine even more closely the impermissible evidence that possibly may have influenced the verdict. DiGuilio; Russell v. State, 844 So.2d 725 (Fla. 5th DCA 2003). Hence we are not permitted to examine only the permissible evidence and determine for ourselves whether a guilty verdict could be sustained. Goodwin.

We have closely examined the testimony of the victim and her son. The son witnessed Crumbley take a knife, back his mother into a corner and threaten to kill her. The son further testified that Crum-bley lunged at the victim with the knife and as she ducked out of the way, the tip of the knife struck the wall and broke off. Crumbley eventually returned the knife to the kitchen and the son called 911 for help. When he arrived, the police officer found the victim huddled in the corner where the incident occurred. The officer described the victim as utterly terrified.

We have even more closely analyzed the excerpts of testimony that are the focus of Crumbley’s complaints. Essentially this testimony reveals that the wife knew she was unable to discuss the past events that had led her to conclude that she wanted a divorce; that Crumbley was a violent man; and that Crumbley had threatened her in the past. However, based on the testimony presented to the jury in its entirety from all of the witnesses, these are conclusions that the jury could logically make from the permissible evidence admitted. Moreover, the victim did not testify to any specific past events or provide details of the marital discord between Crumbley and herself. We conclude that there is no reasonable possibility that the erroneous testimony contributed to the guilty verdict.

We are aware of the recently adopted provision of section 90.104(1), Florida Statutes (2003), which provides in pertinent part that “[i]f the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” This provision was to become effective July 1, 2003. See Ch.2003-259, § 1, Laws of Fla. However, as of the trial date, this provision of the statute has not yet been adopted by the Florida Supreme Court. It is the constitutional prerogative of the Florida Supreme Court, not the Legislature, to enact rules that regulate court procedure. Art. V, § 2(a), Fla. Const. (“The supreme court shall adopt rules for the practice and procedure in all courts.... ”). Therefore, when the Legislature enacts a procedural rule of evidence, it must be adopted by the supreme court. See State v. McFadden, 772 So.2d 1209, 1213 (Fla.2000) (“As this Court has determined, section 90.610(1) involves a matter of court procedure solely within the province of this Court to enact pursuant to article V, section 2(a) of the Florida Constitution”) (citing State v. Page, 449 So.2d 813, 815 (Fla.1984); Bobb v. State, 647 So.2d 881, 883 (Fla. 4th DCA 1994)); see also In re Florida Evidence Code, 372 So.2d 1369, 1369 (Fla.1979). In order to comply with its constitutional responsibility and recognizing that the evidence code contains both substantive and procedural provisions, the Florida Supreme Court regularly issues opinions adopting or refusing to adopt the procedural rules enacted as amendments to the Florida Evidence Code. See, e.g., In re Amendments to the Fla. Evidence Code, 782 So.2d 339 (Fla.2000) (considering the quadrennial report of The Florida Bar Code and Rules of Evidence Committee concerning amendments to the Florida Evidence Code that were made by the Legislature over the previous four years).

Although it is sometimes difficult to discern the difference between rules of substance and procedure, we conclude that the provision of section 90.104 under consideration is procedural. The question arises whether it is appropriate to apply a procedural rule of evidence enacted by the Legislature but not yet adopted by the supreme court. We note with interest that when the Florida Supreme Court does adopt a previously enacted amendment to the evidence code that is procedural, it usually specifies that the effective date of the rule is the date the Legislature designated as the effective date of the enactment. This fact has led one court to suggest that the rule may be applied by the trial courts pending adoption by the supreme court. See McLean v. State, 854 So.2d 796, 804 n. 7 (Fla. 2d DCA 2003) (“Apparently, the supreme court intends to allow trial courts to utilize a rule of evidence during the period between its legislative enactment and its adoption by the supreme court if the trial court determines that the new rule of evidence is procedural and does not violate the prohibition against ex post facto application. Obviously, the trial court uses the new rule at the risk that it may later be disapproved by the supreme court”) (citation omitted).

This is an issue that we need not decide in the instant proceeding because, as we have previously indicated, the error is harmless. Hence even if this court were to apply the statute, the outcome would be the same.

AFFIRMED.

SHARP, W. and TORPY, JJ., concur.

      . See Lawrence v. State, 614 So.2d 1092, 1094 (Fla.) ("The contemporaneous objection rule applies to evidence about other crimes, and, even if 'a prior motion in limine has been denied, the failure to object at the time collateral crime evidence is introduced waives the issue for appellate review.’ ”) (quoting Correll v. State, 523 So.2d 562, 566 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988)), cert. denied, 510 U.S. 833, 114 S.Ct. 107, 126 L.Ed.2d 73 (1993); Shaw v. State, 824 So.2d 265 (Fla. 4th DCA 2002); Morrell v. State, 779 So.2d 304 (Fla. 2d DCA 1999). In Hardwick v. Dugger, 648 So.2d 100, 107 n. 5 (Fla.1994), the court noted:
      Although trial counsel filed a motion in limine to preclude testimony relating to Hardwick's drug activities, the trial court denied that motion. Upon introduction of that testimony, trial counsel did not object and did not request that the jury be given a limiting instruction. Failure to object at the time collateral crimes evidence is introduced waives the issue for appellate review, even where a prior motion in limine relating to that evidence has been denied. Correll v. State, 523 So.2d 562, 566 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 152 (1988).

      . If an error is properly preserved for review, we apply the harmless error analysis to determine whether reversal is required. On the other hand, if the error is not properly preserved, we must employ the fundamental error analysis to determine whether further review of the alleged error is appropriate. Having already determined that the error is harmless, application of the fundamental error analysis becomes unnecessary. See Reed v. State, 837 So.2d 366, 370 (Fla.2002) ("If the error was not harmful, it would not meet our requirement for being fundamental."); see also Goodwin v. State, 751 So.2d 537, 544 (Fla.1999) (recognizing that harmless error is the converse of harmful error) (citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986)). We therefore conclude that it is unnecessary to decide whether to adopt the rationale in Coffee and extend application of the contemporaneous objection rule to instances where a motion in limine was previously granted because either way, affirmance is appropriate.

      . We note parenthetically that the provisions of section 924.051(7), Florida Statutes (2003), do not alter the requirement that appellate courts independently review constitutional and nonconstitutional errors for harmlessness pursuant to the DiGuilio standard. Williams; Goodwin.


text:
    Katherine L. HARRIER, Appellant, v. Candice Slaughter WARMKE and Jerome Warmke, Appellee.
    No. 2D03-4106.
    District Court of Appeal of Florida, Second District.
    June 9, 2004.

      Robert C. Burnette, Zephyrhills, for Appellant.
    Laurie R. Chañe of Chañe & Eble, P.A., Dade City, for Appellees.
   PER CURIAM.

In this proceeding concerning the custody of the minor daughter of Katherine Harrier (“the Mother”), the order appealed improperly allows physical custody to remain with Hamer’s parents, and therefore, we reverse.

On January 31, 2002, the Mother filed a verified emergency motion for child pickup order to enforce her custody rights to her minor child, who was born in 1993, as against her parents, Candice and Jerome Warmke. See Fla. Fam. L. Form 12.941(d). In that motion, the Mother asserted that in 1997, she and the child’s father, her ex-husband, signed an agreement placing custody of their minor daughter with the Warmkes because the Mother could not afford to provide health insurance for the child. The Mother stated that to her knowledge, the agreement had not been submitted to a circuit court as a petition for temporary custody of a minor child, see § 751.02, Fla. Stat. (2003), and no order had been entered granting the Warmkes custody of the child. The Mother asserted her right to custody of the child pursuant to the Ohio decree dissolving her marriage to the child’s father, and she filed a Uniform Child Custody Jurisdiction Act affidavit. The Mother stated in the motion that she had learned on Christmas Day that her parents were planning to move to France and to take her child with them. She discussed the move with her child, and the child said she did not want to move. When the Mother advised her mother that she did not want the child removed from the country and asked that custody of the child be returned to her immediately, Mrs. Warmke refused. The Mother asserted that she had not seen her mother or her child since January 12 and that her father was in the process of moving out of the Warmkes’ home.

The circuit court, finding that it had jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), initially granted the Mother’s motion on the day it was filed and heard and then entered an order to pick-up the minor child. The order scheduled a return hearing because it was entered without notice to the Warmkes. After the return hearing, the court vacated its order, finding that the agreement signed by the Mother and her ex-husband does not have a procedure whereby either parent can unilaterally revoke custody from the Warmkes, and therefore, the Mother had to move to terminate the agreement pursuant to chapter 751 (“Temporary Custody of Minor Children By Extended Family”) or petition for modification of custody due to changed circumstances.

The Mother filed a motion for rehearing of the order vacating the pick-up order. After several judges recused themselves, Judge Diskey granted the motion and assigned Judge Bray to rehear the matter. Judge Bray entered an order denying the motion for rehearing on the ground that a pick-up motion standing alone is not a cause of action. Noting that chapter 61 provides for registration and enforcement of child custody determinations, the order denied the Mother’s motion for rehearing without prejudice to her right to file a statutory action pursuant to chapter 61.

The circuit court erred in denying the Mother’s motion because “a circuit court has inherent jurisdiction over minor children as to their custody and welfare. That jurisdiction is not dependent on the case having originated in either a chapter 61 or chapter 39 action or under any other statute.” Waters v. Waters, 578 So.2d 874, 874 (Fla. 2d DCA 1991) (reversing dismissal of grandparents’ petition seeking custody of grandchild, with parents’ consent, because petition was not filed in context of a dissolution action under chapter 61 or a dependency action under chapter 39). See also Ward v. Hysell, 777 So.2d 1206, 1206-07 (Fla. 3d DCA 2001) (rejecting father’s argument that trial court lacked subject matter jurisdiction to enter order awarding permanent custody of minor child to grandparents pursuant to custody agreement executed by parents on ground that trial court has inherent jurisdiction to determine issues of custody) (citing Richardson v. Richardson, 766 So.2d 1036, 1043 (Fla.2000) (“[I]n all custody cases, trial courts have broad continuing jurisdiction to ensure the protection of children within the court’s jurisdiction and over matters related to the well-being of a child.”)).

Accordingly, we reverse the circuit court’s order denying the Mother’s motion for rehearing and remand with directions that the order to pick-up minor child be reinstated.

Reversed and remanded with directions.

WHATLEY, NORTHCUTT and KELLY, JJ., Concur.

      . The court was mistaken. The custody-agreement did not legally transfer custody to the Warmkes because it was never ratified by the circuit court in an order awarding temporary custody. Section 751.02, Florida Statutes (2003), provides that “any relative of a minor child who has the signed, notarized consent of the child’s legal parents, or any relative of the child ... may bring proceedings in the circuit court to determine the temporary custody of the child." After a hearing of which the parents have been notified and given an opportunity to be heard, the court may enter an order awarding temporary custody to a relative if such action is in the best interests of the child and the parents do not object. Although the Warmkes filed a motion for an order approving the custody agreement after the pick-up order was vacated, the record does not show that any action was taken on that motion. Thus, the custody agreement, which did not include a waiver of parental rights, was not by itself effective to give the Warmkes rights to the minor child superior to those of the Mother. See K.N.B. v. M.C. (In the Interest of N.Z.B. & M.T.B.), 779 So.2d 508 (Fla. 2d DCA 2000) (holding that absent waiver of parental rights, father was free to withdraw consent to custody of his children with maternal grandmother, particularly when no valid court order had approved private agreement).