author: GROSS, J.

text:
    MAXWELL BUILDING CORPORATION, Michael Maxwell, Matthew Bartlett and Accountable Designer Services, LLC, Appellants, v. EURO CONCEPTS, LLC d/b/a The Kitchen Company, and Michael Banks, Appellees.
    No. 4D03-4139.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.

      Raymond M. Masciarella II of Raymond M. Masciarella II, P.A., North Palm Beach, for appellants.
    Julie K. Oldehoff of Oldehoff Law Offices, P.A., Stuart, for appellee Michael Banks.
   GROSS, J.

Maxwell Building Corporation, Michael Maxwell, Matthew Bartlett, and Accountable Designer Services, LLC (collectively referred to as “Maxwell”) appeal a final order vacating an award of attorney’s fees pursuant to 57.105, Florida Statutes (2002), against Euro Concepts, LLC and its former attorney, appellee Michael Banks.

The effect of the final order was to deny Maxwell’s motion for attorney’s fees. The court held that Maxwell had not complied with the procedural requirements of the statute. Finding no breach of section 57.105 procedures, we reverse.

On January 3, 2002, Maxwell sued Euro Concepts for breach of contract. In its March 29, 2002 counterclaim, Euro Concepts raised three claims: civil theft, conversion, and breach of contract. A July 1, 2002 amended counterclaim maintained the original civil theft and conversion counts. A second amended counterclaim, filed on July 31, 2002, contained the identical civil theft and conversion counts.

On September 17, 2002, Maxwell moved for summary judgment as to the civil theft and conversion counts. On October 4, 2002, Maxwell moved for attorney’s fees pertaining to the civil theft and conversion claims pursuant to section 57.105. Complying with section 57.105(4), Maxwell had served the motion for attorney’s fees on September 11, 2002.

Euro Concepts filed a third amended counterclaim on December 6, 2002. The new pleading contained the same civil theft and conversion counts that had been a part of the case since the original counterclaim.

Maxwell’s answer to the third amended counterclaim sought attorney’s fees under section 57.105. On January 17, 2003, Maxwell filed a motion for summary judgment directed at the civil theft and conversion counts of the third amended counterclaim. The motion also sought attorney’s fees under section 57.105 because Euro Concepts and its counsel “knew or should have known” that the civil theft and conversion claims “were not supported by any material facts or the law as applied to those facts.”

On March 6, 2003, the trial court entered an order granting Maxwell’s motion for summary judgment on the civil theft and conversion claims. Subsequently, after a hearing, the court entered an order granting Maxwell’s motion for attorney’s fees. The court found that Euro Concepts and “Michael Banks Esquire knew or should have known at the inception of this case that the claims raised by the Defendant in Counts VII and VIII of the Defendant’s Third Amended Counterclaim were meritless in that they were not supported by any material fact or the law as applied to any material fact.” The court ordered Euro Concepts and Michael Banks each to pay one-half of Maxwell’s attorney’s fees, with the amount to be determined at a later hearing.

Banks moved for rehearing. He argued that Maxwell failed to comply with the statutory notice requirements of section 57.105. Banks alleged that the October 4, 2002 motion was directed at the second amended counterclaim, not the third amended counterclaim. The trial court granted the motion for rehearing and vacated its July 23, 2003 order which granted attorney’s fees. In vacating its previous order, the court ruled, inter alia, that Maxwell was required to file a motion for attorney’s fees directed at the third amended counterclaim:

2. That Defendant’s Second Amended Counterclaim was superseded by the filing of its Third Amended Counterclaim.
3. That this Court granted Plaintiffs Motion for Summary Judgment directed to Counts VII and VIII of Defendant’s Third Amended Counterclaim.
4. That Plaintiff did not file a Motion under Fla. Stat. Section 57.105 directed toward the Third Amended Counterclaim.
6. That Plaintiff failed to strictly comply with the terms of Fla. Stat. Section 57.105and is thereby precluded from recovery under that statute.

Contrary to the trial court’s ruling, it was not necessary for Maxwell to serve and file a second motion for attorney’s fees directed at the third amended counterclaim in order to preserve its section 57.105claim.

Maxwell’s requests for attorney’s fees in its summary judgment motion and in the answer to the third amended counterclaim were sufficient to preserve a claim for relief under section 57.105. See, e.g., Freedom Commerce Ctr. Venture v. Ranson, 823 So.2d 817, 819 (Fla. 1st DCA 2002) (finding that a motion for summary judgment that mentioned a request of fees pursuant to section 57.105 was sufficient as a motion for fees); Miami-Dade County v. Imagine Props., Inc., 752 So.2d 129, 130 (Fla. 3d DCA 2000); Landry v. Countrywide Home Loans, Inc., 731 So.2d 137, 140 (Fla. 1st DCA 1999) (finding that a request for attorney’s fees under section 57.105 in the pleading and in the body and the prayer for relief portion of a motion for summary judgment was sufficient even though statutory reference was not made in the motion for summary judgment).

Although not addressed by the trial judge, we turn to Banks’s contention that Maxwell failed to comply with section 57.105(4), which provides:

A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

Section 57.105(4) is a procedural change in the statute that became effective July 1, 2002. See Ch.2002-77, § 1-2 at 908-09, Laws of Fla.

The primary purpose of section 57.105(4) is not to spring a procedural trap on the unwary so that valid claims are lost. Rather, its function is to give a pleader a last clear chance to withdraw a frivolous claim or defense within the scope of subsection (1) or to reconsider a tactic taken primarily for the purpose of unreasonable delay under subsection (3). Having the parties police themselves, instead of requiring judicial intervention on section 57.105issues, promotes judicial economy and minimizes litigation costs.

In this case, Euro Concepts and Banks had well more than twenty-one days to withdraw the civil theft and conversion claims, so that we do not find a section 57.105(4) violation that precludes recovery. The claims first appeared in the March 29, 2002 counterclaim and were included in the same form in all the amended counterclaims. Maxwell mounted its first section 57.105attack on the civil theft and conversion counts in a motion filed on October 4, 2002, which had been served in compliance with section 57.105(4) on September 11, 2002. Banks and Euro Concepts did not eliminate the offending counts from the case. Instead, they filed a third amended counterclaim on December 6, 2002, which contained the identical civil theft and conversion counts. Banks and Euro Concepts had the chance afforded by the statute to withdraw the claims before section 57.105 liability was triggered; they did not avail themselves of the opportunity.

Because it was based on erroneous legal grounds, we reverse the order granting the motion for rehearing and remand to the circuit court for further proceedings.

WARNER and KLEIN, JJ., concur.


source: Caselaw Access Project

author: STONE, J.

license: Public Domain

text:
    SILVER SPRINGS PROPERTIES, L.L.C., a Maryland limited liability corporation, Appellant, v. ERA MURRAY REALTIES, INC., a Florida corporation, Appellee.
    No. 4D03-3274.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Fred W. Mattlin of Fred W. Mattlin, P.A., Boca Raton, for appellant.
    Harry Hipler of Harry Hipler, P.A., Da-nia Beach, for appellee.
   STONE, J.

We reverse an order denying Silver Springs’ motion to tax attorney’s fees and costs against ERA. The trial court concluded that Florida Rules of Civil Procedure 1.100(b) and 1.525 require a party to submit a supporting affidavit as to the amount of claimed attorney’s fees and costs along with service of that party’s post-judgment motion for fees and costs.

Silver Springs sued to vacate and cancel a lien filed by ERA upon Silver Springs’ property. The trial court entered a final order cancelling the lien and reserving jurisdiction to award attorney’s fees and costs pursuant to Silver Springs’ request in its complaint. The trial court also denied ERA’S motion to quash the order cancelling the lien and again reserved ju-risdietion to award attorney’s fees and costs.

At an initial hearing, the trial court determined that Silver Springs, as prevailing party, was entitled to its attorney’s fees and costs. At a subsequent hearing, however, the trial court denied the motion for attorney’s fees and costs, finding that Silver Springs’ motion failed to “comport with either Rule 1.100(b) or Rule 1.525, which in [the] court’s view requires that there be supporting affidavits attached to the motion.”

Rule 1.525 provides, “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” Rule 1.100(b), governing motions, provides:

An application to the court for an order shall be by motion which shall be made in writing unless made during a hearing or trial, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. All notices of hearing shall specify each motion or other matter to be heard

The trial court relied on Gulf Landings Ass’n v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003), and Diaz v. Bowen, 832 So.2d 200 (Fla. 2d DCA 2002), in concluding that parties must attach supporting affidavits to a motion for fees and costs, reasoning that without supporting affidavits in support of the motion, the other party would be unable to prepare for hearing.

We have considered Gulf Landings and Diaz, and deem them distinguishable. In Gulf Landings, the question was whether a notice of hearing could be considered a motion under the rules, not whether the motion was accompanied by supporting affidavits. 845 So.2d at 346. There, within a week after the entry of the-judgment, the appellee served a notice of hearing scheduling a hearing on the issue of attorney’s fees. Id. at 345. Thereafter, Gulf Landings filed a memorandum arguing that the appellee had failed to file a motion for attorney’s fees and costs within thirty days as required by rule 1.525. Id. Concluding that the appellee need not comply with rule 1.525, because the trial court had specifically reserved jurisdiction in the final judgment to resolve the issues necessary to award attorney’s fees, the trial court granted the appellee’s claim for attorney’s fees and costs. Id.

The Gulf Landings court reluctantly reversed the fee award, however, concluding that, under rule 1.525, it is not sufficient for a trial court to “reserve jurisdiction”; rather, a motion must be served within thirty days. Id. at 346.

Noteworthy, but not important for this analysis, is that this court has held to the contrary. See Fisher v. John Carter and Assocs., Inc., 864 So.2d 493 (Fla. 4th DCA 2004)(holding that the trial court’s reservation of jurisdiction over attorney’s fees in a final judgment extends the thirty day time limit for corporation to file motion for fees without the need to show excusable neglect). The court in Gulf Landings also considered whether the appellee’s basic notice of hearing, could be treated as a motion for attorney’s fees under rule 1.100(b). The Second District explained that the notice of hearing simply indicated the date of the hearing and contained no reference to the grounds upon which fees were sought or the amount requested and omitted any mention of costs. Accordingly, the Gulf Landings court held that the bare notice of hearing could not be interpreted to incorporate a “motion” as defined in rule 1.100(b). Id. Unlike here, in Gulf Landings, it was undisputed that the appellee failed to file a post-judgment motion for attorney’s fees. Further, here, in contrast to Gulf Landings, there is absolutely no suggestion that Silver Springs’ four-page motion for fees and costs fails to comply with rule 1.100(b).

Moreover, the Second District decided Diaz based upon the timeliness of the motion, not on the issue addressed in this appeal. Id. at 201. Upon concluding that a request for fees in a complaint was insufficient to put the adversary on notice, the Diaz court stated that “[t]o recover fees and costs, a party must file a post-trial pleading and supporting proof.” Id. at 200. Although ERA relies on this language in advancing its position, nowhere does the Second District suggest that the supporting proof must consist of an accompanying affidavit.

Clearly, by their terms, neither rule 1.525, nor rule 1.100(b) requires supporting affidavits. More closely on point is P & R Smith Corp. v. Goyarrola, 864 So.2d 584 (Fla. 3d DCA 2004), a case that was not available to the trial court. There, the defendants sought attorney’s fees and costs after the trial court entered a final judgment in their favor. Id. Pursuant to rule 1.525, on May 9, 2002, within thirty days of the final judgment, the defendants filed their motion to tax costs and attorney’s fees based on an offer of judgment. Id. Much later, on October 11, 2002, the defendants filed affidavits itemizing the attorney’s fees and costs incurred in the defense of the action. Id. Thereafter, the plaintiffs moved to strike the motion, arguing it was a “bare bones” motion and that “the supporting affidavits had not been filed within thirty days of the filing of the final judgment as required by rule 1.525.” Id.

The Third District reversed the trial court order granting the plaintiffs’ motion to strike. Id. at 585. Reasoning that rule 1.525 is silent as to the time frame within which to serve supporting documentation, the P & R Smith court concluded that the trial court erred by striking the defendants’ motion based solely upon the defendants’ failure to contemporaneously file supporting documentation. Id. at 584.

Further, as to the suggestion that rule 1.100(b) requires the motion to be accompanied by affidavits, we note that in Exceletech, Inc. v. Williams, 579 So.2d 850, 853 (Fla. 5th DCA 1991), the First District asked the court to determine whether rule 1.100(b) required an oath or sworn motion in impleading a third-party defendant. The court stated:

Rule 1.100(b) provides that an application to the court for an order shall be by motion which shall be made in writing unless made during a hearing or trial. There is not even a requirement that any such motion be supported by affidavit.

Id. at 852 (emphasis added).

We, therefore, conclude that there is no requirement in the rules that a supporting affidavit be filed or served with the motion for attorney’s fees and, accordingly, remand for further proceedings.

ERA’S additional claim that the motion for attorney’s fees was untimely is without merit. See Fisher, 864 So.2d at 496.

STEVENSON and HAZOURI, JJ., concur.

      . The court recognizes its reference to Gulf Landings in its opinion in Gosselin v. Gosse

        lin, 869 So.2d 667, 668 (Fla. 4th DCA 2004), however, that case, dealing with post-decretal orders in marital dissolution actions, was decided on other grounds.


author: PER CURIAM.

text:
    Dale E. DERREVERE, Appellant, v. Gena B. DERREVERE, Appellee.
    No. 4D04-484.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Shirley Jean McEachern of Derrevere & Hawkes, West Palm Beach, for appellant.
    Martin H. Colin of the Law Offices of Martin H. Colin, Lake Worth, for appellee.
   PER CURIAM.

Dale Derrevere obtained a final default judgment against his former daughter-in-law, Gena Derrevere. Gena subsequently filed a Verified Motion to Vacate Final Judgment. The trial court granted the motion and Dale filed this non-final appeal. For the reason expressed below, we reverse.

On November 24, 2003, Dale filed a complaint against Gena seeking to recover $110,000 that he allegedly lent her. Gena was served with the complaint on December 2, and no responsive pleading was filed or served within twenty days. Dale sought a clerk’s default, which he obtained on January 5, 2004. He then obtained a final default judgment on January 9, 2004, the same day that Gena filed a responsive pleading.

On January 13, Gena filed a Verified Motion to Vacate Final Judgment, alleging that due to inadvertence, her counsel failed to properly calendar the due date for the responsive pleading. Gena served a notice for the hearing on the motion on Dale, stating a hearing date of Thursday, January 21, 2004. January 21 was actually a Wednesday, and on that day only Gena’s counsel appeared for the hearing. The trial court granted Gena’s motion. Dale’s counsel appeared for the hearing on Thursday, January 22, and learned that the hearing had been held on Wednesday. Dale then appealed the granting of the motion to vacate the default judgment to this Court, alleging certain technical deficiencies in the motion.

We conclude that this case must be reversed and remanded for a hearing on the motion to vacate with counsel for both parties in attendance. The notice of hearing served by Gena on Dale stated a day and date that did not properly correspond with the calendar. As a result, the notice was defective because it caused Dale to miss the hearing and the opportunity to present his opposition to the motion to the trial court before it made its ruling. See Butts v. Hegmann, 705 So.2d 1007, 1008 (Fla. 4th DCA 1998)(“The notice required for any proceeding which may produce a final result is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”). Therefore, we do not see fit to address Dale’s arguments, because the trial court has not yet heard or ruled upon them. Consequently, we reverse and remand for the trial court to hold a hearing on Gena’s Verified Motion to Vacate Final Judgment at which time both Gena’s inadvertence argument and Dale’s technical deficiency argument can be presented and considered by the trial court.

REVERSED AND REMANDED.

GUNTHER, GROSS and TAYLOR, JJ., concur.


text:
    FIRST UNION NATIONAL BANK OF FLORIDA, Petitioner, v. Larry A. KNYAL and Alice L. Knyal, Respondents.
    No. 4D04-774.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Marc B. Cohen of the Law Offices of Cohen, Copeland, Paiva & Merrill, P. A., Stuart, for petitioner.
    No response for respondents.
   PER CURIAM.

First Union National Bank of Florida petitions this court for a writ of mandamus to compel the trial court to issue a continuing writ of garnishment pursuant to section 77.0305, Florida Statutes.

A final judgment was entered in favor of First Union and against the debtors for $91,353.39. The debtors were credited $76,714.00. First Union moved for a post-judgment continuing writ of garnishment pursuant to section 77.0305 to collect the balance of the debt and the post-judgment interest. The trial court denied the motion, concluding that the debtors were entitled to notice and a hearing before issuing the writ of garnishment.

The Florida Supreme Court has recognized that there is a distinction between pre-judgment and post-judgment garnishment. United Presidential Life Ins. Co. v. King, 361 So.2d 710, 713 (Fla.1978). Post-judgment garnishment provides a procedure for enforcement of a judgment after the validity of the debt has been adjudicated. Id. In this situation, the supreme court held, “neither due process under the Fourteenth Amendment of the United States Constitution nor any provision of the Florida Constitution requires prior notice to a judgment debtor and a hearing before a writ of garnishment may issue.” Id.

Because First Union recovered a judgment against the debtors, First Union has the right to a writ of garnishment. § 77.01, Fla. Stat. (2003). Upon motion by the plaintiff (First Union), the court shall issue the continuing writ of garnishment. §§ 77.03 and 77.0305, Fla. Stat. (2003). Once the writ issues, the garnishee has twenty days to serve an answer. § 77.04, Fla. Stat. (2003). In addition, upon issuance of the writ, if the debtor is an individual, the clerk of the court shall attach a notice of right against garnishment of wages or other property. § 77.041, Fla. Stat. (2003). Pursuant to section 77.041, the debtor can claim certain exemptions in writing, and the debtor has the right to request a hearing. After the garnishee serves its answer, or the time for service has expired, the petitioner is required to serve the debtor with the garnishee’s answer and a notice that the debtor must move within twenty days to dissolve the writ if any of the allegations in the motion for garnishment are untrue. § 77.055, Fla. Stat. (2003).

First Union is entitled to a post-judgment writ of garnishment, and the debtors do not have a right to a hearing before issuance of the writ. Therefore, we grant the petition for writ of mandamus. The circuit court shall issue the continuing writ of garnishment in accordance with Chapter 77, Florida Statutes.

STONE, TAYLOR and HAZOURI, JJ., concur.


text:
    Anthony M. KOVALESKI, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1826.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2004.
    Anthony M. Kovaleski, Vero Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

WARNER, POLEN and STEVENSON, JJ., concur.


text:
    Randy Lavern SPENCER, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D03-5534.
    District Court of Appeal of Florida, First District.
    June 3, 2004.
    Randy Lavern Spencer, pro se.
    Charles J. Crist, Jr., Attorney General, for Appellee.
   PER CURIAM.

The trial court did not err in transferring appellant’s petition for a writ of habe-as corpus to the judicial circuit of the county in which appellant is currently detained. § 79.09, Fla. Stat. (2003); Gillard v. Florida Parole Comm’n, 784 So.2d 1214 (Fla. 1st DCA 2001); Williams v. Florida Parole Comm’n, 760 So.2d 959 (Fla. 1st DCA 2000); Clark v. State, 779 So.2d 606 (Fla. 2d DCA 2001); Collins v. State, 777 So.2d 436 (Fla. 3d DCA 2001); Magnus v. State, 738 So.2d 446 (Fla. 4th DCA 1999).

AFFIRMED.

WEBSTER, VAN NORTWICK and POLSTON, JJ., concur.


text:
    Gregory C. SIMPSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D04-1407.
    District Court of Appeal of Florida, First District.
    June 3, 2004.
    Gregory C. Simpson, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for belated appeal is hereby denied. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999).

BOOTH, POLSTON and HAWKES, JJ., concur.


text:
    Raymond SPRINGER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1294.
    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 Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Raymond Springer appeals the judgment and sentence growing out of his conviction of lewd and lascivious molestation of a 10-year old girl in violation of section 800.04(5)(b), Florida Statutes (2002). Mr. Springer raises four issues on this appeal. As we find that none are meritorious, however, we affirm.

Mr. Springer first argues that the partial closure of the courtroom in accordance with section 918.16, Florida Statutes (2002), during the testimony of the victim denied him a right to a fair and open public trial. This issue was previously addressed by this court in Clements v. State, 742 So.2d 338 (Fla. 5th DCA 1999), which we view as dispositive.

Mr. Springer next contends that the trial court abused its discretion in permitting the State to play the videotaped statement of the victim to the jury after the victim had testified. The trial court admitted the videotape pursuant to section 90.803(23), Florida Statutes (2002). Under similar circumstances the Fourth District Court of Appeal affirmed a conviction for sexual battery in Mikler v. State, 829 So.2d 932 (Fla. 4th DCA 2002). We concur with the reasoning expressed in that decision.

The third issue presented by Mr. Springer posits that the requirement that he give DNA samples as required by section 943.325, Florida Statutes (2002), violates his Fourth Amendment right to be free from unlawful searches. This issue was resolved by the First District Court of Appeal in L.S. v. State, 805 So.2d 1004 (Fla. 1st DCA 2001), review denied, 821 So.2d 297 (Fla.2002). As we agree with our sister court in this regard, we find no error.

The final issue presented argues that Mr. Springer’s designation as a sexual predator violates his due process rights. We have addressed this issue in Rickman v. State, 871 So.2d 310 (Fla. 5th DCA 2004); Martin v. State, 864 So.2d 589 (Fla. 5th DCA 2004), and have concluded that the designation does not offend due process. As we did in Rickman and Martin, however, we certify conflict with Espindo-la v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

AFFIRMED.

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

      . Both parties agree that Crawford v. Washington, — U.S. -, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), is inapplicable to the present case.


author: CASANUEVA, Judge.

text:
    In the Interest of S.M., a child. E.K., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D03-5797.
    District Court of Appeal of Florida, Second District.
    June 9, 2004.

      Kimberly A. Campbell of the Law Offices of Thomas J. Donnelly, Clearwater, for Appellant.
    Bernie McCabe, State Attorney, and Mariela Llanes, Assistant State Atttorney, Clearwater, for Appellee.
   CASANUEVA, Judge.

After sheltering S.M. in the days following her premature birth, the Department of Children and Family Services filed a petition to declare her a dependent child. During the dependency proceedings, S.M.’s mother testified that she did not know she was pregnant until she gave birth to the child, that she moved' from Philadelphia, Pennsylvania, to Florida soon after S.M. was conceived, that the child’s father was E.K., with whom she maintained a sexual relationship in Pennsylvania for approximately twenty-two years, and that E.K. had never traveled outside of Pennsylvania. Upon being served with the petition and other papers, E.K, without submitting himself to the jurisdiction of the court and without admitting or denying paternity, filed several motions, including a motion to dismiss for lack of personal jurisdiction. The circuit court denied his motion on the ground that personal jurisdiction was irrelevant in a dependency action and ordered E.K to submit to paternity testing. We reverse, and in doing so distinguish between the inherent authority of the circuit court to adjudicate a child dependent and its lack of power to determine paternity of a parent who possesses no jurisdictional ties to this state.

When he was first notified of the dependency action, E.K. hired an attorney who moved to dismiss on the basis of insufficient service of process and lack of jurisdiction. The trial court moved forward and adjudicated dependency as to the mother; however, the court continued the dependency arraignment as to E.K pending proof of personal service on him.

Ultimately, E.K. was personally served by the sheriff of Montgomery County, Pennsylvania, with a summons and notice of an arraignment hearing. The papers contained the following bold warning required by section 39.506(3), Florida Statutes (2003):

FAILURE TO PERSONALLY APPEAR AT THE ARRAIGNMENT HEARING CONSTITUTES CONSENT TO THE ADJUDICATION OF THIS CHILD (OR CHILDREN) AS A DEPENDENT CHILD (OR CHILDREN) AND MAY ULTIMATELY RESULT IN LOSS OF CUSTODY OF THIS CHILD (OR CHILDREN).

The papers contained an additional warning that E.K. could be held in contempt of court if he failed to appear.

At the hearing, E.K’s attorney vigorously objected to any notion that the circuit court in Florida could assert personal jurisdiction over his Pennsylvania client pursuant to the Florida long-arm statute, section 48.193(l)(h), Florida Statutes (2003), which provides that a nonresident person submits himself to the jurisdiction of this state “[w]ith respect to a proceeding for paternity, [by] engaging in the act of sexual intercourse within this state with respect to which a child may have been conceived.” As E.K’s attorney argued, by its obvious terms, this statute is inapplicable to E.K. because the Department has never alleged that he engaged in sexual intercourse in Florida. Furthermore, to the extent that the dependency action would ultimately lead to a proceeding for child support, section 48.193(l)(e) is likewise unavailable because E.K. neither maintained a matrimonial domicile nor resided in Florida prior to the commencement of the action. Moreover, E.K.’s attorney raised significant constitutional due process concerns, based on E.K’s lack of minimum contacts with the state, citing Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).

The circuit court rejected E.K’s arguments on the basis that personal jurisdiction over the parents is irrelevant in a dependency action. Rather, the judge reasoned, the court’s jurisdiction attaches when the Department demonstrates that a child’s best interests are in jeopardy, and the court can declare the child dependent whether or not the parents appear at the arraignment.

We agree with the circuit court’s conclusion that its jurisdiction over the child in a dependency action is irrelevant to personal jurisdiction over the parents. Section 39.013(2) confers upon the circuit court original jurisdiction in dependency proceedings. And, as stated in section 39.506(3), “[fjailure of a person served with notice to personally appear at the arraignment hearing constitutes the person’s consent to a dependency adjudication.” This is the rationale behind the requirement of the bold warning on the notice E.K. received.

Here, however, the circuit court declined to enter a default and declare the child dependent as to E.K. Instead, the court ordered E.K. to cooperate with a paternity test before a determination of dependency and denied his motion to dismiss. We hold that the circuit court erred in ordering E.K., an out-of-state resident with absolutely no connections to Florida, to submit to paternity testing before moving forward with the dependency action.

E.K. was originally named as a putative father at the inception of these proceedings, when the circuit court conducted an inquiry of the mother pursuant to section 39.503(1) regarding the father’s identity. E.K. received notice of the proceedings under section 39.503(3). Section 39.502(7) specifically provides that “service of the summons and service of pleadings ... on persons outside this state must be made pursuant to s. 61.509 [formerly § 61.1312.],” which is part of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), section 61.501-.542, Florida Statutes (2003). “Child custody proceedings,” defined in section 61.503(4) of the UCCJEA, include proceedings for dependency or paternity in which the issue of legal or physical custody may appear. Furthermore, section 61.507 provides that if a person is validly served or given notice in accordance with section 61.509, and if the court has jurisdiction, the court’s child custody determination “is conclusive as to all decided issues of law and fact except to the extent the determination is modified.”

Given the interplay of the UCCJEA with chapter 39, E.K.’s lawyer professed well-founded apprehension that if personal jurisdiction over E.K. had attached when he was served in Pennsylvania with the summons for the arraignment, then E.K. would be exposed to potential liability for child support after the child was adjudicated dependent. For instance, section 39.521(d)(7) provides that, for a child like S.M. who is in out-of-home placement, “the court may exercise jurisdiction over all child support matters, shall adjudicate the financial obligation of the child’s parents or guardian, and shall enforce the financial obligation as provided in chapter 61.” And, because the court believed it could exercise jurisdiction over E.K. to order paternity testing, this anxiety was certainly legitimate.

E.K’s status as a putative parent could not become that of a parent with all attendant rights and obligations absent a determination of paternity. Chapter 39 addresses a situation somewhat analogous to E.K’s wherein the known parent contests the recognition of a prospective parent who has filed a sworn affidavit of parenthood. In that instance, “the prospective parent shall not be recognized as a parent until proceedings under chapter 742 have been concluded. However, the prospective parent shall continue to receive notice of hearings as a participant pending results of the chapter 742 proceedings.” § 39.503(8).

Paternity actions pursuant to chapter 742, Florida Statutes (2003), can be brought “in the circuit court of the county where the plaintiff resides or of the county where the defendant resides.” § 742.021. The Uniform Interstate Family Support Act (UIFSA), chapter 88, Florida Statutes (2003), is the vehicle for Florida courts to establish jurisdiction over certain nonresidents in proceedings to determine parentage. However, section 88.2011 lists eight bases for jurisdiction over nonresidents, all of which require some connection with this state unless the individual submits to the jurisdiction of the Florida courts and none of which apply to E.K.

Thus, should the Department or the mother desire to establish E.K’s paternity, it appears that they must go to the courts of Pennsylvania and institute a paternity or support action there. If any orders as to E.K’s parentage are ultimately entered, section 742.105 provides that they “shall be given the same legal effect as if such final order was entered ... pursuant to this chapter.”

The case law supports this interpretation of the statutes. In Department of Health & Rehabilitative Services v. Wright, 522 So.2d 838 (Fla.1988), the court upheld the dismissal of a paternity complaint by a resident of Florida against an alleged nonresident of Florida who lived in Idaho. Under the long-arm statute then in effect, section 48.193(l)(e), Florida Statutes (1983), the circuit court could not obtain personal jurisdiction over the defendant because he did not maintain a matrimonial domicile in Florida when the action was commenced nor did he reside in Florida prior to the commencement of the action. More recently, this court examined the bases for jurisdiction under the current long-arm statute in a paternity action in Rafaeil v. Rafaeil, 832 So.2d 202 (Fla. 2d DCA 2002), and reversed the denial of a motion to dismiss the petition for lack of jurisdiction. There, the petition did not allege that the parties had maintained a matrimonial domicile in Florida, nor that the alleged father resided in Florida when the action commenced, nor that the mother and alleged father engaged in sexual intercourse in Florida- that resulted in the conception of the children. In this case, S.M.’s mother affirmatively negated each basis for assertion of jurisdiction over E.K. As the Fifth District observed in Pluess-Staufer Industries v. Rollason Engineering & Manufacturing, Inc., 597 So.2d 957, 958 (Fla. 5th DCA 1992) (citations omitted), cited in Wrenn v. McDonnell, 671 So.2d 884, 885 (Fla. 5th DCA 1996):

[U]nder Florida law, even the entry of a default judgment against a nonresident defendant cannot prevent assertion of lack of personal jurisdiction over a defendant when the complaint lacks sufficient jurisdictional allegations to bring the claim within the ambit of the long-arm statute. Without a basis for jurisdiction appearing in the complaint and any attachments, service of long-arm process is void and any judgment obtained is also void.

Accordingly, we hold that the circuit court erred in denying E.K’s motion to dismiss for lack of personal jurisdiction and in ordering E.K. to submit to paternity testing. We remand for further proceedings consistent with this opinion.

Reversed and remanded.

SALCINES and DAVIS, JJ., concur.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Robert COLLINS, Appellee.
    No. 2D03-2266.
    District Court of Appeal of Florida, Second District.
    June 9, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellee.
   DAVIS, Judge.

The State challenges the trial court’s order granting Robert Collins’ motion to suppress. We reverse.

The charges against Collins stem from an incident in which Winter Haven police were conducting surveillance on a closed convenience store located in an area known for drug sales. Specifically, Officer Zagar testified that he had previously observed numerous hand-to-hand transactions in the area and had previously made arrests in front of the convenience store. Additionally, Officer Jones testified that she had previously participated in a “rush” of the area, during which officers approached the area from all angles, causing the majority of people in the area to flee and leave behind their narcotics.

On the night in question, Officer Jones witnessed Collins approach a vehicle, pull something out of his pocket, put his hand in the vehicle, take something from the individual in the car, and place the object in his pocket. She did not specifically see drugs or money exchange hands. Based on this, Officers Jones and Zagar approached the group standing by the convenience store and asked Collins to step away from the group to speak with them. Collins appeared nervous upon seeing the officers, and without responding to them, he fled. Officer Zagar reached for Collins but was able to grab only his jacket. Collins essentially ran out of his jacket, leaving it behind with Officer Zagar. The officer searched the jacket and found crack, cannabis, and paraphernalia inside. Collins was apprehended about a mile away.

Collins moved below to suppress the evidence discovered in his pocket, arguing that the evidence was found as the result of an illegal search without warrant. Collins also alleged that the evidence was fruit of the poisonous tree obtained as a result of an illegal stop and detention.

Following a hearing, the trial court granted the motion, concluding (1) that the police had a reasonable, articulable suspicion that “criminal activity was afoot”; (2) that the police did not have probable cause to arrest or search; and (3) that Collins did not abandon his jacket but that rather it was pulled off him by Officer Zagar. The trial court further concluded that the search of Collins’ jacket was illegal.

On appeal, the State agrees with the trial court’s finding that the officers had a reasonable suspicion that Collins had committed a crime. However, it challenges the trial court’s other conclusions. The State maintains that Collins’ apparent nervousness upon seeing the police, coupled with his running when they asked him to step away from the crowd, turned the officers’ reasonable suspicion into probable cause to search or arrest. Additionally, the State argues that by continuing to run after his jacket came off, Collins abandoned the jacket.

Initially we note that “a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” Popple v. State, 626 So.2d 185, 186 (Fla.1993). During such an investigatory stop, a suspect is required to stop and is not free to leave. See State v. Wimbush, 668 So.2d 280, 282 (Fla. 2d DCA 1996) (holding detention proper where officer had founded suspicion that suspects were involved in criminal activity); see also Siplin v. State, 795 So.2d 1010, 1011 (Fla. 2d DCA 2001) (noting that once consensual encounter was transformed into investigatory stop by show of police authority, appellant was required to stop and was not free to leave).

Based on the totality of the circumstances, as reflected in the record, we agree with the trial court’s conclusion that when the officers approached Collins and asked him to step away from the group, they had the “reasonable suspicion” necessary to make an investigatory stop. See Burnette v. State, 658 So.2d 1170, 1171 (Fla. 2d DCA 1995) (“[O]ther factors are important to our assessment of whether the stop is reasonable. Of significance are the officer’s narcotics experience; the reputation of the location for drive-up transactions; the extended period of surveillance; and the history of previous multiple arrests from that site.”). Accordingly, Collins was not free to leave, and the police were well within their rights to grab hold of him, and his jacket, in order to stop him from fleeing.

The issue then becomes whether Officer Zagar’s search of Collins’ jacket was legal. We conclude that because Collins abandoned the jacket, the search was legal. The question of whether a person abandons property, in the context of forfeiting the right to complain of a search or seizure of it, involves a combination of action and intent and is subject to de novo review. O’Shaughnessy v. State, 420 So.2d 377, 378 (Fla. 3d DCA 1982). Here, it can be inferred by Collins’ action of leaving his jacket behind in an attempt to flee from police that he did not intend to return to retrieve it.

As such, the trial court erred in reaching the legal conclusion, based on these facts, that the search of Collins’ jacket was illegal, and we reverse.

Reversed.

NORTHCUTT and VILLANTI, JJ., Concur.


text:
    Omar CASADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-7.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and FLETCHER, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Upon the state’s proper confession of error we reverse the sentence imposed and remand for resentencing as the trial court violated Rule 3.720(b), Florida Rules of Criminal Procedure. On remand the trial court shall afford Casado the benefits of the rule. The defendant, of course, shall be present at resentencing.

We reject Casado’s self-defense or defense of others contention. See State v. James, 867 So.2d 414 (Fla. 3d DCA 2003).

Casado’s sentence is reversed and remanded. The cause is otherwise affirmed.

      . Which reads:
      "The court shall entertain submissions and evidence by the parties that are relevant to the sentence."


text:
    Moises ATENCIO, Appellant, v. STATE of Florida, Appellee.
    No. 3D03-776.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Bennett H. Brummer, Public Defender and Todd G. Scher, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Moisés Atencio appeals from his conviction and sentence for the armed manslaughter of Vladimir Mazo and for aggravated assault on Isaac Argules. After a careful review of the record, we find no reversible error below.

Affirmed.


text:
    Joe E. MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-963.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Joe E. Moore, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, FLETCHER and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. Johnson v. State, 763 So.2d 283, 284-85 (Fla.2000) (“Prior to the amendments produced by chapter 95-182, robbery was one of the qualifying offenses which allowed a trial court to sentence a defendant as a habitual violent felony offender. See § 775.084(l)(b)l.c., Fla. Stat. (1993). Thus, Johnson would have qualified as a habitual violent felony offender prior to the amendments reflected in chapter 95-182.... In sum, we find that Johnson was not affected by the passage of chapter 95-182.”).


text:
    Michael CAJUSTE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3081.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Bennett H. Brummer, Public Defender, and Andrew M. Teschner, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, and Adrienne Sampson, Certified Legal Intern, for appellee.
    Before COPE, FLETCHER and RAMIREZ, JJ.
   PER CURIAM.

Michael Cajuste appeals his convictions for first degree murder, attempted murder, and attempted armed robbery.

We conclude that the trial court’s rulings on voir dire questions were within the court’s discretion, as was the court’s refusal to grant additional peremptory challenges. See Hooper v. State, 476 So.2d 1253, 1256 (Fla.1985); Parker v. State, 456 So.2d 436, 442 (Fla.1984).

We conclude that there was no impermissible shifting of the burden of proof. See Caballero v. State, 851 So.2d 655, 660 (Fla.2003); Evans v. State, 838 So.2d 1090, 1094-95 (Fla.2002) cert. denied, — U.S. -, 124 S.Ct. 121, 157 L.Ed.2d 84 (2003). The evidentiary rulings were within the court’s discretion. To the extent it could be said that the prosecutor argued that defendant-appellant Cajuste was fleeing from the scene of the crime, this was a fair comment on the evidence and was not objected to at trial.

Affirmed.


text:
    Anthony Antrone LEWIS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D03-3094.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Anthony A. Lewis, in proper person.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for respondent.
    Before COPE, GERSTEN and RAMIREZ, JJ.
   PER CURIAM.

Anthony Antrone Lewis filed an emergency petition for writ of habeas corpus which is in substance a petition for belated appeal. See Fla. R.App. P. 9.141(c).

Defendant-petitioner entered a guilty plea to the charge of attempted second degree murder, as well as a plea of admission to a violation of probation, and was sentenced as a youthful offender to a term of incarceration followed by two years of probation.

In the defendant’s petition, he alleges that after he entered his guilty plea, he requested that his appointed counsel file an appeal but counsel did not do so. Counsel denied that any such request was ever made of him.

This court appointed Honorable Mark King Leban to act as a Commissioner of this Court to conduct an evidentiary hearing and resolve the factual dispute. See State v. Trowell, 739 So.2d 77, 81 (Fla.1999); Walker v. State, 742 So.2d 342 (Fla. 3d DCA 1999). The Court accepts the report of the Commissioner, with the thanks of the Court.

After hearing the testimony of the defendant and his trial counsel, as well as considering the other evidence in the case, the Commissioner stated, “The undersigned Commissioner resolves the credibility dispute against the defendant and finds that he did not at any time ask his attorney to file an appeal, but instead, knowingly waived his right to any appeal.” Commissioner’s Report and Recommendation at 4.

In accordance with the Commissioner’s Report, the emergency petition for writ of habeas corpus is denied. See Gonzalez v. Singletary, 763 So.2d 1282, 1283 (Fla. 3d DCA 2000).

Petition denied.


text:
    George BAILEY, and Donna Bailey, Appellants, v. ISLAMORADA, Village of Islands, a political subdivision of the State of Florida, and Donald W. Horton, in his capacity as Building Official, Appellees.
    No. 3D03-3298.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Nicholas W. Mulick, for appellants.
    Weiss Serota Helfman Pastoriza Guedes Cole & Boniske and Edward Guedes, Miami, for appellees.
    Before GREEN, SHEVIN and WELLS, JJ.
   PER CURIAM.

Affirmed. See City of Sanibel v. Buntrock, 409 So.2d 1073 (Fla. 2d DCA 1981)(procedures governing zoning and rezoning applicable to ordinance affecting land use); Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980)(permit applications can be denied if zoning changes pending at time of application).


text:
    Rupert DESOUZA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-157.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Rupert Desouza, in proper person.

      Charles J. Crist, Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and WELLS, JJ.
   PER CURIAM.

The defendant appeals an order denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We affirm, finding that the trial court properly ruled that the defendant had failed to sign and swear the motion. See Fla. R.Crim. P. 3.850(c)(stating that a motion for post-conviction relief “shall be under oath ... ”); see also Fla. R.Crim. P. 3.987 (providing pro se defendants with a model form to use when filing a post-conviction motion which satisfies the rule 3.850(c) oath requirement). Nevertheless, we conclude that the defendant should be afforded an opportunity to refile a properly sworn post-conviction motion. See Groover v. State, 703 So.2d 1035, 1038 (Fla.1997)(finding that the “DQailure to meet the oath requirement [under rule 3.850(c)] warrants dismissal of the motion without prejudice”); Weisman v. State, 651 So.2d 148, 149 (Fla. 2d DCA 1995)(where the trial court denied the defendant’s belated appeal pursuant to rule 3.850 because it was not made under oath, finding that “the trial court should have afforded [the defendant] an opportunity to refile a properly sworn motion for belated appeal”).

Affirmed.


text:
    Kevin A. FRANKLIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-914.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Kevin A. Franklin, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, FLETCHER and RAMIREZ, JJ.
   PER CURIAM.

Kevin A. Franklin appeals an order denying his motion to correct sentencing error in which he requests additional credit for time served.

In its trial court response, the State conceded that defendant Franklin was entitled to varying amounts of additional credit for time served on each of his four circuit court cases. Inconsistently, the State requested that the motion be denied, and the trial court did so.

As the State’s response acknowledges that the defendant is, in fact, entitled to additional credit for time served, we reverse the order now before us and remand for further proceedings on the defendant’s motion.

Reversed and remanded.


text:
    Barry E. KRISCHER, State Attorney, Appellant, v. Herbert MEEKS, Appellee.
    No. 4D03-2947.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Atkinson, 831 So.2d 172 (Fla.2002); Gordon v. Regier, 839 So.2d 715 (Fla. 2d DCA 2003); and State v. Siddal, 772 So.2d 555 (Fla. 3d DCA 2000).

POLEN, KLEIN and GROSS, JJ., concur.


text:
    Jere MAUDSLEY, Appellant, v. Sandra MAUDSLEY, Appellee.
    No. 4D03-2688.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Lise Armater Morrison, Boca Raton, for appellant.
    Terrence P. O’Connor of Mrogan, Car-ratt & O’Connor, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm the order adjudging the former husband in contempt. However, we strike the last sentence of the trial court order, which prohibits the former husband from leaving the State of Florida without prior court order.

FARMER, C.J., STONE and MAY, JJ., concur.


text:
    John CHESTNUT, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-5025.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

John Chestnut appeals from the denial of his Motion to Correct Sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) (2001). Chestnut was sentenced to life in prison as a prison releasee reoffender under section 775.082(9)(a)l, Florida Statutes (2001).

During the sentencing hearing, the State presented an affidavit under seal from Joyce Hobbs, records custodian of the Florida Department of Corrections, which certified that she was the department’s records custodian and that Chestnut’s last release date was September 8, 2001, less than three months before the date of the robbery for which he was being sentenced. The state also presented certified copies of three prior convictions along with forms signed by a fingerprint analyst indicating that Chestnut’s fingerprints taken in the instant case matched those on the three prior convictions. Chestnut objects to this proof as insufficient to support his sentencing as a prison releasee reoffender. We agree. Without the sworn testimony at the hearing by a fingerprint analyst, the analyses of the fingerprints are hearsay and inadmissible to prove the prior convictions were Chestnut’s.

We therefore remand for a resentencing hearing at which the state will be permitted to present the requisite evidence to support sentencing as a prison releasee reoffender.

REVERSED and REMANDED.

WARNER, KLEIN and HAZOURI, JJ., concur.


author: FARMER, C.J.

text:
    Irvin TRIPP, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-109.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.

      Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

We address only the issue concerning the denial of a post-trial interview of a juror. During jury selection the juror in question effectually answered the Judge’s question that he did not know defendant or any members of his family. After the trial was over, defendant learned from his brother that the juror did in fact know him. Defendant’s motion sought a new trial under rule 3.600 on account of juror misconduct.

Under Florida Rule of Criminal Procedure 3.600(b)(4), a juror’s breach of duty to disclose information relating to service in a particular ease constitutes misconduct entitling the defendant to a new trial when prejudice is established. See, e.g., Marshall v. State, 664 So.2d 302, 304 (Fla. 3d DCA 1995). In deciding whether a juror’s non-disclosure during voir dire warrants a new trial, the court held:

“First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” [c.o.]

De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995); accord Davis v. State, 778 So.2d 1096, 1097 (Fla. 4th DCA 2001). Moreover, “a juror’s non-disclosure need not be intentional to constitute concealment.” Roberts v. Tejada, 814 So.2d 334, 343 (Fla.2002).

Here, the trial judge asked all the jurors whether any of them knew defendant or his family. The question is not reasonably susceptible to mistake or misinterpretation. Non-disclosure of this kind of relevant and material information is reasonably capable of affecting a decision to exercise peremptory challenges even if the juror is not disqualified for cause. And as defendant notes, the juror’s failure to disclose his knowledge of defendant’s brother was reasonably material to the exercise of a peremptory or cause challenge against Johnson. In Tejada, the court found that counsel exercised “due diligence” in not questioning jurors further on a subject, but instead relying on truthful responses and full disclosure to proffered questions by the trial court on the material subjects at issue. 814 So.2d at 343-44.

The trial court’s denial of a new trial was error without conducting a juror interview. At this point, therefore, we reverse only the order denying the motion for a new trial and remand for an evidentiary hearing, including an interview of the juror. See Davis, 778 So.2d at 1097. If defendant satisfies the requirements of De La Rosa and Davis, the trial court shall grant defendant a new trial. We leave that decision in the first instance to the trial court.

SHAHOOD and TAYLOR, JJ., concur.


text:
    Margherita DOWNEY, Appellant, v. Robert W. DOWNEY, Appellee.
    No. 4D03-1238.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Anthony J. Natale of Anthony J. Natale, P.A., West Palm Beach, for appellant.
    Ronald K. Lantz, West Palm Beach, for appellee.
   STONE, J.

The trial court entered orders of contempt, commitment, and for income deduction against Margherita Downey, the former wife, for the non-payment of child support. We reverse because the trial court’s finding of present ability to pay a purge conflicts with an order, entered two weeks earlier, that the former wife was insolvent.

The former wife filed a timely motion to vacate the orders, arguing that there was no evidence of her present ability to pay. Significantly, she pointed out that within a few weeks prior to the subject hearing on January 15, 2003, the court entered an order of insolvency for payment of costs in another appeal pending before this court.

A contempt hearing was held on January 29, 2003. The former wife did not attend the contempt hearing at which the former husband introduced the former wife’s financial affidavit, filed a month earlier in support of an affidavit of indigency, that indicated she was employed by the office of the public defender earning a gross monthly income of $3,406.

Generally, incarceration cannot be imposed for willful failure to pay child support unless the court first determines that the party in contempt has the ability to pay. See, e.g., Gregory v. Rice, 727 So.2d 251 (Fla.1999). On its face, the court’s January 15, 2003 finding of insolvency conflicts with the trial court’s earlier findings of the former wife’s ability to pay.

In finding that the former wife had the ability to pay the purge, the trial court relied on the former wife’s affidavit of insolvency. Significantly, it is the same financial affidavit upon which the court entered the insolvency order.

In Marcellus v. Voltaire, 649 So.2d 944 (Fla. 4th DCA 1995), the trial court entered a contempt order and incarcerated Marcellus for failing to pay child support. Id. Soon thereafter, the trial court also entered an order of indigency finding Mar-cellus indigent for the purposes of paying appellate filing fees and costs. Id. While recognizing Marcellus’s uncooperativeness in paying support, this court stated, “we none-the-less are compelled to reverse the order under review.” Id. In reversing the trial court’s order, this court relied on Bowen v. Bowen, 471 So.2d 1274, 1279 (Fla.1985), where the supreme court held that “[t]he finding of the trial judge that the respondent was indigent for purposes of the appeal affirmatively established that the respondent was indigent and had no present ability to pay the purge amount.” Id. Accordingly, the matter was remanded for the trial court to “conduct a hearing in order to make specific findings on the appellant’s present ability to pay the purge amount....” Id.

Similarly, in Brown v. Brown, 658 So.2d 627, 628 (Fla. 5th DCA 1995), relying on Bowen and Marcellus, the court concluded that, because Brown’s ability to pay was contradicted by the trial court’s finding of indigence for appeal purposes, the order of contempt should be reversed and remanded for the trial court to conduct a hearing in order to make a specific finding regarding Brown’s present ability to pay the purge. Id.

We recognize that in Marcellus and Broum, the indigency orders were entered shortly after, rather than before, the order on appeal. Nevertheless, because the indi-gency finding here establishes that the former wife did not have the ability to pay, we must reverse so that the trial court may make more specific findings as to her ability to pay.

All other issues raised are moot. We remand for further proceedings.

SHAHOOD and HAZOURI, JJ., concur.


text:
    J.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-625.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the finding of violation of probation and adjudication of delinquency for burglary of a dwelling, but remand to the circuit court to strike any reference to grand theft in the February 10, 2003 disposition order.

GUNTHER, POLEN and GROSS, JJ., concur.


text:
    Philip MAJOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1906.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    Michelle Migdal of Migdal & Migdal, P.A., Boynton Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm all issues raised by appellant, but strike the imposition of $50 costs of prosecution and remand for further proceedings.

With regard to the $50 assessed for costs of prosecution and investigation this court has held that it is fundamental error to impose investigative costs on a defendant where the state did not request the costs and there is no documentation to support the award. See Abbott v. State, 705 So.2d 923 (Fla. 4th DCA 1997). Thus, because this record lacks either a request by the state or any supporting documentation, we strike these costs from appellant’s sentence and remand for further proceedings. On remand, these costs may be reimposed provided the state can produce proper documentation. See Hill v. State, 845 So.2d 310 (Fla. 2d DCA 2003); Pagliuca v. State, 860 So.2d 1095 (Fla. 5th DCA 2003).

AFFIRMED IN PART; REVERSED IN PART; REMANDED

GUNTHER, POLEN and GROSS, JJ., concur.


text:
    M.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-739.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

M.M. appeals a delinquency disposition order entered after a violation of probation hearing. There was insufficient evidence to support findings of violations as to all of the allegations except the failure of appellant to remain in contact with his probation officer. The failure to file a single monthly report may, in certain circumstances, justify probation revocation if such failure is willful and substantial and supported by the greater weight of the evidence. See State v. Carter, 835 So.2d 259, 261 (Fla.2002).

Here, there was insufficient evidence to support the other violations and the court did not state which violations it relied upon to revoke appellant’s probation. Therefore, we remand the case to the circuit court to consider whether it would still violate appellant’s probation based on the one ground for which there was sufficient evidence. See Oates v. State, 872 So.2d 351 (Fla. 2d DCA 2004); Thompson v. State, 710 So.2d 80 (Fla. 4th DCA 1998) (where evidence insufficient to find that defendant violated two conditions of probation, case remanded for circuit court to determine if violation of remaining conditions warranted revocation of probation).

GUNTHER, POLEN and GROSS, JJ., concur.


text:
    Darrell DEMPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1338.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Darrell Demps was charged with armed carjacking and aggravated fleeing. At the conclusion of the state’s case in Demps’s jury trial, the trial court granted a judgment of acquittal as to the aggravated fleeing. The jury found Demps guilty of carjacking with a deadly weapon, a lesser included offense.

Sentencing occurred about a month after the trial. The trial court sentenced Demps to ten years in prison, followed by five years probation, for the carjacking. However, the trial court also sentenced Demps to five years in prison on the fleeing charge. Both sentences were to be served concurrently. A disposition order indicates that Demps was found guilty of both carjacking with a firearm and aggravated fleeing. The written final judgment states that Demps pled nolo contendere to both armed carjacking and aggravated fleeing.

On March 13, 2003, Demps filed a motion to correct sentencing error, pointing out that the trial court had incorrectly-sentenced him for the fleeing, having granted a judgment of acquittal on that charge. Demps also pointed out that the final judgment incorrectly noted he had pled nolo contendere. Because the trial court did not rule on this motion within sixty days, it is deemed to have been denied. See Fla. R.Crim. P. 3.800(b)(1)(B).

The state concedes error. This case is reversed for the trial court to vacate its sentence on the aggravated fleeing charge and to correct the final judgment.

GUNTHER, POLEN and GROSS, JJ„ concur.


text:
    Howard THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-675.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Watts v. State, 855 So.2d 100 (Fla. 4th DCA 2003); Simmons v. State, 753 So.2d 762 (Fla. 4th DCA 2000); and Quinn v. State, 751 So.2d 627 (Fla. 4th DCA 1999).

GUNTHER, POLEN and GROSS, JJ., concur.


author:
hVICTORY J.
     | SHORTESS, J.,

text:
    STATE of Louisiana v. Allen SNYDER.
    No. 98-KA-1078.
    Supreme Court of Louisiana.
    April 14, 2004.
    Rehearing Denied June 25, 2004.

      Marion B. Farmer, Covington, Jerry L. Fontenot, Mandeville, for applicant.
    Charles C. Foti, Jr., Attorney General, Paul D. Connik, Jr., District Attorney, Terry M. Boudreaux, Gretna, Alfred A. Olinde, Jr., James A. Williams, for respondent.
   hVICTORY J.

The defendant in this case, Allen Snyder, is before this Court on direct appeal for a second time from his conviction for first-degree murder and sentence of death. Having conditionally affirmed the defendant’s conviction upon his first appeal to this Court (See State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832), we remanded this case to the district court to determine (1) whether the defendant’s competency to stand trial can be adequately examined retrospectively, and, if so (2) whether the defendant was competent to stand trial. The district court, after a hearing on these issues, determined that a retrospective determination 'of competency was possible in this case and that the defendant was, in fact, competent to stand’ trial. We now affirm these rulings.

FACTS AND PROCEDURAL HISTORY

On August 29, 1996, a jury convicted the defendant, Allen Snyder, of the first-degree murder of Howard Wilson. After the penalty phase of a bifurcated trial, the jury unanimously determined that the defendant should, receive the death penalty, and he was sentenced accordingly by the trial judge. The incident for which Snyder was | ^.convicted arose in August of 1995, when he attacked Mary Snyder, his estranged wife, and her companion Howard Wilson. During the attack, the defendant killed Mr. Wilson by inflicting nine knife wounds, and seriously injured Mary, stabbing her a total of nineteen times.

The defendant was arrested by the police without incident and was subsequently incarcerated at the Jefferson Parish Correctional Center. After the defendant’s arrest, but before his trial, Snyder began showing signs of severe depression. Dr. Richoux, a psychiatrist working with the correctional facility, began treating the defendant for depression, and the defense counsel moved for a sanity commission to be appointed to examine the defendant’s competency to stand trial.

On August 1, 1996, the defendant’s competency was examined by a sanity commission composed of Dr. Debra DePrato and Dr. Barbara McDermott. During their examination of the defendant, the doctors performed the standard tests used to determine legal competency, or competency to stand trial (See State v. Bennett, 345 So.2d 1129, 1138 (La.1977) (on rehearing)). Seven days later, when the sanity hearing was held, both examining doctors submitted a report stating that Snyder was legally competent to stand trial. After considering the report of the two doctors, and the testimony of Dr. DePrato, the trial judge determined Snyder to be legally competent. During the course of the competency hearing, Dr. DePrato testified that in her expert opinion the defendant was “able to assist in his own defense as well as understand the proceedings, against him.” However, she went on to say that the defendant had difficulty focusing on certain issues and “became mildly circumstantial and tangential.” | a)Snyder, 750 So.2d at 847. In accordance with her opinion that the defendant exhibited a deficiency in his ability to concentrate,- Dr. DePrato recommended that the defendant’s anti-depressant medication be changed from Sinequan to Prozac, which would allow an increased dosage of medication to be given to the defendant without the side-effects.

Dr. Richoux, who was then Snyder’s treating physician, agreed with this recommendation, and the defendant’s medication was changed to Prozac on August 16, 1996. The defense counsel then moved for a five-week continuance in order to allow the new medication enough time to take full effect. A hearing on this motion was conducted on August 20, 1996, in which the defense counsel stated that although the defendant was technically competent, a five-week continuance was being requested to allow the defendant to have “every bit of [counsel’s] assistance, which [counsel] cannot render adequately at this time.” Despite a letter from the defendant’s attending psychiatrist, Dr. Richoux, which indicated that his inability to focus could interfere with his ability to assist his attorney without waiting six weeks, the court denied the motion for a continuance and did not order any further inquiry regarding this issue.

Following the trial court’s denial of the defendant’s motion for continuance, the defendant saw two more clinical psychologists. Dr. Thomas Hannie, Jr. examined the defendant on August 21, 1996, one week after his change in medication, and found the ^defendant to be well oriented and his speech to be clear and well organized. He also noted that the defendant’s concentration was excellent, and that he was able to correct the doctor’s notes from across the desk and by reading upside down. The second such examination was done by Dr. Elaine Salzer on August 22, 1996. She gave the opinion that the defendant had not yet stabilized on his medication, and while he does not “reflect a psychotic process or formal thought disorder, ... at times, this individual’s thinking is slow and he can become easily confused.”

After these evaluations, the trial counsel for the defendant requested that she- be allowed to present in camera testimony to the court to explain her difficulties communicating with the defendant. Although the trial court denied this request, defense counsel was permitted to testify in open court regarding her problems communicating with defendant and relating that her representation of the defendant had been compromised by the defendant’s depression and inadequate treatment.

Based on this evidence, this Court determined that the trial judge erred when he failed to further inquire into the defendant’s capacity to proceed with trial. Accordingly, we conditionally affirmed the defendant’s conviction and sentence, but remanded the case to the district court for a retrospective determination of competency, if one could be made.

Pursuant to this Court’s order and upon remand, the trial court held a bipartite hearing to determine if a nunc pro tunc ruling could be made regarding the defendant’s competency at the time of trial, and if the defendant was competent to proceed with trial. After hearing testimony of witnesses and reviewing the evidence, the district court ruled that a retrospective determination of the defendant’s competence was possible and that the defendant was, in fact, competent at the time of trial. It is from Isthese rulings that the defendant appeals.

DISCUSSION

It has long been established that a person whose mental condition is such that he lacks the capacity to understand the nature of the proceedings against him, and is unable to assist counsel, may not be subject to trial. Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975). Thus, in order to proceed with trial, a defendant must be “legally competent.” Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 2579, 120 L.Ed.2d 353, 365-66 (1992). Louisiana’s statutory scheme for detecting mental incapacity “jealously guards a defendant’s right to a fair trial.” State v. Nomey, 92-1631 (La.1/19/93) 613 So.2d 157, 161. (quoting State v. Rogers, 419 So.2d 840, 843 (La.1982)).

In evaluating the legal capacity of the criminally accused, we have stated that the considerations in determining whether the defendant is fully aware of the nature of the proceedings include:

whether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction. State v. Bennett, 345 So.2d at 1138.

More specifically to this ease, we have stated that the facts to consider in determining the defendant’s ability to assist in his defense include:

whether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial. Id. at 1138.

IfiAs such, a court has a duty to order further inquiry into the competence of an individual any time such competency is called into question. Drope, 420 U.S. at 173, 95 S.Ct. at 904. In Louisiana, “[m]en-tal incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently [emphasis added] lacks the capacity to understand the proceedings against him or to assist in his defense.” La.C.Cr.P. art. 641; see also Nomey, 613 So.2d at 161. This language suggests that the defendant’s capacity may need to be reevaluated if there is a significant change in the defendant’s psychiatric condition between the sanity hearing and trial.

In the defendant’s previous appeal to this Court, we decided that the arguments presented by defense counsel “raised the issue of whether defendant could communicate with counsel well enough to allow her to effectively assist him.” State v. Snyder, 98-1078 (La.4/14/99), 750 So.2d 832, 851. Although the defense counsel stated that the defendant was “technically competent,” and that the continuance was requested simply to allow better communication between Snyder and his attorneys, we found that by asking for a continuance, the motion actually was directed to Snyder’s competence. Further, we stated that it was doubtful that this due process right could be waived by any actions of the incompetent party. Id. at 852. We held, then, that although a sanity commission had already been appointed to examine the defendant, the purported effects of a change in the defendant’s medication and the testimony presented subsequent to the sanity hearing gave the trial judge sufficient reason to order further inquiry into the defendant’s ability to communicate with counsel. Thus, it was the “trial court’s absolute failure to investigate these claims [of legal incapacity], |7which were substantiated by objective medical evidence, that cause[d] us to determine he abused his discretion in failing to investigate defense claims of incompetence.” Id. at 852.

Subject to our remand, the trial court conducted a bipartite hearing, in which three witnesses testified as to Snyder’s competency as of the date of the trial. On December 16, 1999, two of the defendant’s attorneys testified concerning the difficulty they had in communicating with the defendant prior to the trial. Mr. Cesar Vasquez, who was appointed as Snyder’s counsel during the penalty phase of his trial, testified that he “met with him on approximately three or four occasions over at the Correctional Center, when I would attempt to interview him or speak to him regarding the preparation of his penalty phase” and that during these interviews he “had an almost impossible task of communicating with him, he would break down and cry within ... five minutes of sitting down and talking to him.” Thus, he urged that Snyder was not legally competent to proceed with trial as he was not able to assist counsel in the preparation of his own defense.

Additionally, the defendant’s guilt phase lawyer, Graham daPonte, testified at the hearing that she had an extremely difficult time communicating with Snyder. When consulting with him, Ms. daPonte found the defendant to be “agitated and difficult to talk to ..., difficult to work with” and “very circuitous and circular in his dealings with me.” She additionally stated that although the defendant had expressed the desire to testify in his own defense, she didn’t feel that Snyder “could maintain a clear train of thought” and therefore she “was not going to let him testify.”

The last witness was presented by the state on September 7, 2000, after a continuance had been granted by the trial judge. Dr. Richard Richoux, a board certified psychiatrist with a sub-specialty in forensic psychiatry, testified that after | ¡treating Snyder over a period of about a year and nine months, including the period of time immediately prior to trial, it was consistently his opinion that the defendant was suffering from depression. It was Dr. Ri-choux’s opinion that Snyder’s depression appeared:

to be of a reactive nature; meaning that people that are incarcerated and have very serious criminal charges facing them frequently manifest a certain amount of depression which I think makes sense from simply a common sense standpoint.

Addressing the first issue, as to whether the defendant’s competency could be examined retrospectively, the doctor explained that:

when one looks at a situation retrospectively, the first question one asks is; based on the data available ... was a mental defect present at that point in time that was of a certain degree of severity.

Dr. Richoux stated that he was “able to look back at [his] treatment of this individual at the point in question and give an opinion about the severity of any psychiatric impairments that he was showing at that time.” Thus, he believed that the detailed treatment records that were kept regarding Snyder’s treatment, enabled him to give an informed opinion regarding the defendant’s past psychiatric condition.

Although Dr. Richoux admitted that during his treatment of the defendant he did not evaluate the defendant’s legal competency under the Bennett criteria, he testified that he understood and was experienced in giving such an evaluation. 345 So.2d 1129 (La.1977). He described the test for legal competency as determining:

whether an individual suffers from a mental disease or defect ... which is sufficiently severe to render them unable to understand legal proceedings and/or unable to assist counsel in their defense.

19Thus, Dr. Richoux felt certain that he was:

able to give an opinion about what [Snyder] was experiencing psychiatrically in terms of any specific psychiatric diagnosis or impairment and what, based on that, my expectation would be as to his ability to meet the Bennett criteria. Id.

After testifying as to the possibility of a retrospective determination of competence, Dr. Richoux articulated the substance of his findings. In doing so, he explained that the primary issue in determining competency involves the determination of:

whether that individual is suffering from a relatively severe mental disease or defect of some sort at a given point in time. If the mental disease or defect, should there be one present, is not of a certain degree of severity, then it’s highly unlikely that whatever that mental disease or defect is going to render the individual unable to understand the proceedings and/or unable to assist counsel in that person’s defense.”

After careful analysis of his treatment, Dr. Richoux testified that it was never his opinion that Snyder’s “depression rose to the level of affecting his comprehension so severely that he would be unable to assist counsel with a trial.” Thus, in Dr. Ri-choux’s opinion, Snyder was legally competent at the time of trial.

In addition to the testimony by Dr. Ri-choux, the trial court also consulted the pre-trial testimony of Dr. DePrato, from the defendant’s competency hearing, along with the report she submitted with Dr. McDermott. Likewise, the court took into consideration the letter submitted by Dr. Hannie, and a separate psychological evaluation by Dr. Salzer. In total, the district court assessed the evaluations of five psychiatrists/ psychologists who had all met with the defendant prior to trial.

Although conflicting testimony was presented to the trial court concerning Snyder’s legal competency at the time of trial, there is a legal presumption that a defendant is sane and competent to proceed. La. R.S. 15:432; State v. Bridgewater, 00-1529, p. 6 (La.1/15/02), 823 So.2d 877, 888; State v. Martin, 00-0489 (La.9/22/00) 769 So.2d 1168, 1169. Accordingly, the defendant has the burden of proving by a preponderance of the evidence his incapacity to stand trial. State v. Frank, 96-1136 (La.10/4/96), 679 So.2d 1365, 1366 (citing Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996)). A reviewing court owes the trial court’s determinations as to the defendant’s competency great weight, and the trial court’s ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. Bridgewater, 823 So.2d at 888; Martin, 769 So.2d at 1169. The testimony of Dr. Richoux and the reports submitted by the four other psychiatrists/psychologists, though they differ as to the seriousness of his condition, all indicate that Snyder had legal capacity at the time of trial. Thus, given the testimony and evidence presented in the nunc pro tunc hearing, we find that the weight of the evidence supports the trial court’s ruling that it was possible to determine the defendant’s competency and that, in fact, the defendant was competent at the time of trial.

CONCLUSION

After reviewing the record of the hearing conducted by the trial court, we find that the lower court has complied with the procedural due process requirements that must be afforded him under State v. Bennett, 345 So.2d 1129. The testimony and evidence presented during the nunc pro tunc hearing support the trial court’s determinations of competency. Specifically, the testimony of Dr. Richoux is convincing as to the ability of the defendant to communicate with his counsel and as to the defendant’s cognitive ability to understand the nature of the proceedings during | ^the trial. Thus, we find no error in the lower court’s ruling that the defendant was legally competent to stand trial.

DECREE

In accordance with the above reasons assigned by this Court, we unconditionally affirm the judgment of the trial court and the sentence of death. In the event this judgment becomes final on direct review when either: (1) the defendant fails to petition timely the United States Supreme Court for certiorari; or (2) that court denies his petition for certiorari; and either (a) the defendant, having filed for or and been denied certiorari, fails to petition the United States Supreme Court timely, under its prevailing rules, for rehearing of denial of certiorari; or (b) that court denies his petition for rehearing, the trial judge shall, upon receiving notice from this Court under La.C.Cr.P. art. 923 of finality of direct appeal, and before signing the warrant of execution as provided by La. R.S. 15:567(B), immediately notify the Louisiana Indigent Defense Assistance Board and provide the Board with reasonable time in which: (1) to enroll counsel to represent the defendant in any state post-conviction proceedings, if appropriate, pursuant to its authority under La. R.S. 15:149.1; and (2) to litigate expeditiously the claims raised in that original application, if filed in the state courts.

AFFIRMED.

SHORTESS, Justice Ad Hoc, concurs in the result and assigned reasons.

| SHORTESS, J.,

(ad hoc.) concurs.

I agree, with the majority’s finding that the nunc pro tunc hearing amply demonstrated that it was possible for the Trial Court to determine the defendant’s competency to stand trial retrospectively and that he was competent to stand trial.

I write further to point out that during the mitigation stage of the penalty phase Allen J. Smith, a fleet superintendent for a barge and shipyard operation, who had employed defendant for seven or eight years, testified for the defendant.

In an open ended question coming at the conclusion of his direct examination witness Smith was asked by counsel, “is there any particular incident that stands out in your mind that Allen many have participated in .?” The question drew a hearsay objection from the state. Witness Smith then responded “okay, he saved a man’s life on ... that fell over board on the bow of a barge”. The State objected again stating it had not been shown that the witness personally saw defendant saving a man. Smith was not a personal observer, so the Trial Court instructed the Jury to disregard the comment. Assuming the fact to be true and competently proven the Jury was never able to consider in mitigation whether defendant, convicted with taking a life in the first degree, in fact, had earlier saved a life.

Mr. Smith was an excellent mitigation witness, who testified also, that he had watched defendant progress from laborer to welder, to fitter, to crane operator and finally to night dispatcher. He stated, “My impression in dealing with him, Allen, was that he was a very caring person.”

Counsel points to nothing else during trial that could have negatively impacted upon defendant’s present legal competence that the Trial Court found. In my opinion it was not a “lack of focus or competency” problem that kept the Jury from hearing the facts about the defendant’s “lifesaver experience.”

I respectfully concur in the result, which unconditionally finds defendant competent during this trial, which makes the conviction and sentence final.

       Retired Judge Melvin A. Shortess, assigned as Associate Justice Ad Hoc., sitting for Associate Justice Jeanette T. Knoll, recused.

      . The nature and specifics of the crime for which Snyder was convicted are discussed in State v. Snyder 98-1078 (La.4/14/99), 750 So.2d 832.

      . For a transcript of the relevant testimony from the sanity hearing, refer to State v. Snyder 750 So.2d at 848.

      . When questioned about the defendant's medication, Dr. DePrato advised that due to the side effects caused by Sinequan, including urinaiy retention and constipation, he was given a low dosage; and while this dosage had helped the defendant’s symptoms of depression, it did not totally alleviate these problems. Additionally, her testimony revealed that because of the side effects, he wasn't taking Sinequan consistently enough to be fully effective.

      .The testimony of expert witnesses suggests that, although Prozac can take effect in as little time as a week from when it is started, it takes six weeks for the medication to reach its maximum effect.

      . Id. at 863.

      . La.C.Cr.P. art. 642 allows "the defendant's mental capacity to proceed [to] be raised at any time by the defense, the district attorney, or the court” [emphasis added].

      . In Snyder, we stated that "[defense counsel's] difficulty in communicating with the defendant ... coupled with the medical evidence presented, while not necessarily dispos-itive of the issue, were nevertheless sufficient to warrant the trial court’s attention.” 750 So.2d at 851.

      . Dr. Richoux had seen the defendant approximately 21 times during this time period.

      . The factors to be considered in determining legal competency are explained supra p. 742 in this opinion.

      .At the time of the hearing, Dr. Richoux had been involved in over 5,000 sanity commissions in which the Bennett factors were used to evaluate the competency of an accused to stand trial.

      . The opinions of Drs. Salzer and Hannie are discussed supra p. 741.

      . See also Cooper, 517 U.S. at 354, 116 S.Ct. at 1377; Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); State v. Nomey, 613 So.2d 157 (La.1993).