text:
    Earl Thomas ACKERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-843.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    . Charlie Crist, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Defendant below, Earl Thomas Acker-man [“Ackerman”], was charged by amended information with lewd or lascivious act in the presence of a child under the age of sixteen and stalking. He entered a plea of nolo contendere to a lesser charge of “attempt” and was placed on sex offender probation for five years. On August 21, 2001, the State filed an affidavit charging Ackerman had violated probation Condition 5 by committing a new law violation and Condition 8 by failing to obey the instructions of the probation officer. Following a hearing, the court entered an order finding Ackerman in violation of probation, revoking his probation, and sentencing him to three years imprisonment. He now appeals his judgment and sentence, contending that the trial court erred in revoking his probation because the alleged violation was not a judicially announced condition of his probation but was unilaterally imposed by his probation officer.

At the violation of probation and sentencing hearing, Christine Oliver, a prekindergarten teacher at the Leesburg Regional Medical Center [“LRMC”] Learning Center and also Ackerman’s next door neighbor, testified that she was at the center when one of the teachers informed her that there was a truck stuck in the mud in front of the school. She recognized Ackerman and believed that Acker-man was not supposed to be near the child care center. On cross-examination, she explained that the center was for children of hospital employees and that it was located on hospital grounds. There were no signs on the building indicating it is a day care and a chain-link fence surrounded the center. There is playground equipment surrounding the center as well. She agreed that a person visiting the hospital could park near the day care center.

Barbara Hudson, another teacher at the LRMC day care center, testified that she observed Ackerman driving his truck back and forth in front of the center for thirty to forty-five minutes before he eventually got stuck in the mud and she called hospital security.

Officer Michael Cassidy with the Lees-burg Police Department testified that he arrived on the scene in response to a call that there was a sex offender near the day care property. He stated he observed Ackerman standing less than 100 feet from the day care center in the parking lot with a security officer and that Ackerman’s truck was stuck in the mud. The officer issued a trespass warning to Ackerman at that time. He testified this did not constitute a crime or law violation. Ackerman moved for dismissal as to Condition 5 of the affidavit because the testimony indicated there was no law violation. The State offered no objection.

Probation officer William Gouveia testified that he had informed Ackerman of all the conditions of his probation, including Conditions 5 and 8. The probation officer also testified that during his meeting with Ackerman he “emphasized that he was not to have any contact with playgrounds and other places where children congregate.” Barbara Ackerman, Ackerman’s mother, testified that her son left work that day around 5:00 p.m. He had told her he was going to the hospital to pay a bill and then to meet his probation officer between 6:00 p.m. and 6:30 p.m.

Ackerman testified on his own behalf. He testified that he went to the hospital to pay a bill and then planned on meeting with his probation officer. Ackerman stated he parked his car in the parking lot and went to the wrong building to pay his bill. Upon realizing it was the wrong building, he claimed that he went to another building where he was informed that the office he needed was closed because it was after 5:00 p.m. Ackerman then testified he got in his truck to leave, but that it got stuck in the mud in the parking lot. He claimed he was in the parking lot for five or six minutes before being contacted by the security guard. Ackerman also stated that he was not aware that the building next to the parking lot was a day care center. He testified that he had been on sex offender probation for over two years as of the day of the incident.

Officer Cassidy was recalled to the stand to testify that Ackerman offered no explanation as to why he was in the parking lot when asked by the officer on the day the trespass warning was issued.

At the close of testimony, the court ruled:

So I think that ... the evidence is there to support a factual finding that Mr. Ackerman was, in fact, in violation of condition eight of his probation in that he was violating the instructions which were given to him by his probation officer to remain apart and away from child daycare centers, which is what the Court finds that he has, in fact, done. So the Court is going to adjudicate Mr. Acker-man guilty of the violation.

Defense counsel noted for the record its objection that the violation alleged was outside the oral pronouncements of the court at the time of the sentence.

Ackerman here contends that the condition prohibiting him from being near any facility where children might gather is one which was unilaterally imposed by his probation officer, and therefore not a valid condition of his probation. He further argues that the condition was so vague that it ensured violation.

The State responds that Ackerman waived any challenge to probation by accepting the benefit of probation and failing to challenge the conditions of probation until they were violated. It further responds that the probation officer had the discretion to set reasonable restrictions that were within the parameters of the written probation conditions.

Probation may not be revoked for violation of a condition or requirement unilaterally imposed by a probation officer but not by the trial court in the sentencing order. Perez v. State, 805 So.2d 76 (Fla. 4th DCA 2002); Eddie v. State, 740 So.2d 583 (Fla. 1st DCA 1999) (citing Kiess v. State, 642 So.2d 1141 (Fla. 4th DCA 1994)). However, the Florida supreme court has held that reasonable delegations by the trial court of incidental discretion to a probation officer are allowed. Larson v. State, 572 So.2d 1368 (Fla.1991). In Larson, the Court stated:

For example, we believe this can include authority for a probation officer to supervise the counseling required of some defendants, so long as this discretion is to be used only for rehabilitative purposes and does not take on the character of an essentially judicial act.

Id. at 1371.

The written conditions of Acker-man’s probation prohibited him from living within 1,000 feet of a school, day care center, park, playground, or other place where children regularly congregate, as prescribed by the court (Condition 25). There was also a prohibition on unsupervised contact with a child under the age of 18 without another adult present unless authorized by the sentencing court (Condition 28), and a prohibition on working for pay or as a volunteer at any school, day care enter, park, playground, or other place where children regularly congregate (Condition 29). There is, however, no condition which prohibits “contact with playgrounds or other places where children congregate.” The order of the probation officer resulting in the violation is more than the exercise of delegated incidental discretion. In this case, the probation officer went beyond supervising the probationer’s judicially imposed conditions; he imposed a new condition. See, e.g. Paterson v. State, 612 So.2d 692 (Fla. 1st DCA 1993). The trial court’s several “child contact” instructions were thorough: He could not live near a day care center or playground and he could not work there. He also could not have unsupervised contact with a child. He was not prohibited by the court, however, from mere physical presence near such a facility. Since only the court can impose probation conditions on Ackerman, the instruction by the probation officer not to have any contact with playgrounds or other places children congregate was not a valid limitation on Ackerman’s conduct. His probation could not be revoked for violating such an invalid condition. See White v. State, 606 So.2d 1265 (Fla. 1st DCA 1992).

REVERSED and REMANDED.

SHARP, W., GRIFFIN and ORFINGER, JJ., concur.

      . "You will promptly and truthfully answer all inquiries directed to you by our supervising officer, and allow the officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions he may give you.”

      . Gloria Escorcia, an employee for patient financial services at LRMC, testified that no payments were made by Ackerman on the date the trespass warning was issued. On cross-examination, she testified that Acker-man did have an outstanding balance with the hospital for medical care.


source: Caselaw Access Project

author: PETERSON, J.

license: Public Domain

text:
    Stella THOMPSON, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-1016.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.

      David H. Jacoby, Palm Bay, for Appellant.
    Eric D. Dunlap and William D.Rowland, Orlando, for Appellee.
   PETERSON, J.

Stella Thompson appeals a final order of the Department of Children and Families (DCF) that denied Ms. Thompson’s application for Medicaid Institutional Care Program (ICP) benefits.

Ms. Thompson, a 71-year-old woman suffering from a leg infection, transferred from a Virginia hospital to a Florida nursing home. At the hearing that led to the denial of ICP benefits, we note that no evidence was presented that Ms. Thompson’s health would ever allow her to live outside of a nursing home. Indeed, it was reported that her health continues to deteriorate.

Ms. Thompson’s sister, Josephine Greene, also lives in Florida near the nursing home caring for her sister. Three months after her sister’s arrival in Florida, Ms. Greene used the power of attorney granted to her by her sister to purchase for her sister a life estate in a condominium apartment owned and occupied by herself. The life estate was for the term of Ms. Thompson’s life, was purchased by a transfer of $18,250 from Ms. Thompson to Ms. Greene and the stated purpose of the purchase “was to ensure that [Ms. Thompson] would always has [sic] a place to live.”

Ms. Greene then applied for ICP benefits on behalf of her sister in order to pay for the nursing home room and board. DCF denied the benefits when it interpreted the $18,250 depletion of Ms. Thompson’s assets as an improper transfer that was accomplished in order to meet the financial eligibility requirement of the ICP. It was DCF’s view that Ms. Thompson failed to demonstrate that the fair market value of the life estate purchased in her sister’s condominium had a significant value approaching the price paid of $18,250.

A hearing was requested and held following the initial denial at which time Ms. Thompson’s professional appraiser testified in support of the purchase price of $18,250. The appraisal was flawed in its assumption that Ms. Thompson is of “average health” and that there is an “open market” for life estates. The hearing officer found that although Ms. Thompson acquired some value for her purchased life estate, that value was not substantively shown. Neither was there any evidence to establish what proceeds would be expected if the life estate were to be sold on the open market in the geographical area. The final order resulting from the hearing concluded that “there was insufficient proof that the transfer occurred solely for a reason other than to become Medicaid eligible.”

The Medicaid program was enacted in 1965 as a cooperative federal-state endeavor designed to provide health care to needy individuals. 42 U.S.C. § 1396; Atkins v. Rivera, 477 U.S. 154, 156, 106 S.Ct. 2456, 91 L.Ed.2d 131 (1986). The program provides federal financial assistance to states that choose to reimburse certain costs of medical treatment for needy persons. Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). States are not required to participate in the program, but once a state chooses to adopt the program it must establish a plan conforming with the requirements of the federal statute. Id. Florida has elected to participate in the program and has assigned DCF the task of administering the program. § 409.901-.920, Fla. Stat. (2002); 65 Fla.Admin.Code R. 65A-1.701.

After the Medicaid program was enacted, a field of legal counseling arose involving asset protection for future disability. The practice of “Medicaid Estate Planning,” whereby “individuals shelter or divest their assets to qualify for Medicaid without first depleting their life savings,” is a legal practice that involves utilization of the complex rules of Medicaid eligibility, arguably comparable to the way one uses the Internal Revenue Code to his or her advantage in preparing taxes. See generally Kristin A. Reich, Note, Long-Term Care Financing Crisis — Recent Federal and State Efforts to Deter Asset Transfers as a Means to Gain Medicaid Eligibility, 74 N.D. L.Rev. 383 (1998). Serious concern then arose over the widespread divestiture of assets by mostly wealthy individuals so that those persons could become eligible for Medicaid benefits. Id.; see also Rainey v. Guardianship of Mackey, 773 So.2d 118 (Fla. 4th DCA 2000). As a result, Congress enacted several laws to discourage the transfer of assets for Medicaid qualification purposes. See generally Laura Herpers Zeman, Estate Planning: Ethical Considerations of Using Medicaid to Plan for Long-Term Medical Care for the Elderly, 13 Quinnipiac Prob. L.J. 187 (1988). Recent attempts by Congress imposed periods of ineligibility for certain Medicaid benefits where the applicant divested himself or herself of assets for less than fair market value. 42 U.S.C. § 1396p(c)(1)(A); 42 U.S.C. § 1396p(c)(1)(B)(i); Fla. Admin. Code R. 65A-1.712(3). More specifically, if a transfer of assets for less than fair market value is found within 36 months of an individual’s application for Medicaid, the state must withhold payment for various long-term care services, i.e., payment for nursing home room and board, for a period of time referred to as the penalty period. Fla. Admin. Code R. 65A-1.712(3). Medicaid does not, however, prohibit eligibility altogether. It merely penalizes the asset transfer for a certain period of time. See generally Omar N. Ahmad, Medicaid Eligibility Rules for the Elderly Long-Term Care Applicant, 20 J. Legal Med. 251 (1999).

Ms. Thompson contends that because her expert witness testimony on fair market value was the only one presented, the hearing officer should have ruled in her favor citing to Thomas v. Florida Department of Children and Families, 707 So.2d 954 (Fla. 4th DCA 1998). The trier of fact, however, may accept or reject all or any part of an expert’s testimony and is in no way bound by uncontroverted expert opinion testimony. E.g., Weygant v. Fort Myers Lincoln Mercury, Inc., 640 So.2d 1092 (Fla.1994) (a jury may reject expert medical testimony when there exists relevant conflicting lay testimony); Easkold v. Rhodes, 614 So.2d 495 (Fla.1993) (jury may give expert opinion testimony whatever weight that it finds the testimony deserves); Tolley v. Dep’t of Health and Rehabilitative Servs., 667 So.2d 480 (Fla. 5th DCA 1996) (the trier of fact may accept or reject all or any part of an expert’s testimony); Gordon v. Smith, 615 So.2d 843 (Fla. 4th DCA 1993) (when an expert has been hired and called to testify by one of the adversaries to a contested proceeding, there is nothing unreasonable or improper with the fact finder declining to accept the testimony of such an expert).

We agree with DCF that the transfer of assets from the medically disabled applicant to her sister in return for the right to a life estate in a condominium owned by and occupied by the sister was a sham to gain eligibility for ICP benefits in the absence of any competent evidence to support a reasonable purpose and a market value for the transfer.

AFFIRMED.

PLEUS and PALMER, JJ„ concur.

      . The appraiser had the difficult, if not impossible, task of supporting a value of $18,250 that would be paid by a willing purchaser who would be content to share a condominium apartment with a stranger, Ms. Greene, from the date of purchase to the date of death of a 71-year-old person with deteriorating health.

      . Congressional attempts in the last 30 years to amend the Medicaid program to make it more effective in reserving Medicaid for the truly needy included the passage of a provision aimed at attorneys which made it a crime to take a fee for advising a person to transfer assets in order to become eligible for Medicaid. 42 U.S.C. § 1320a-7b. The enforceability of this provision, however, is questionable given an opinion letter written by Attorney General Janet Reno to Speaker Newt Gingrich which states that the office of the Attorney General will not defend the constitutionality of Medicaid criminalization law. See generally Jason A. Frank, The Necessity of Medicaid Planning, 30 U. Balt. L.F. 29 (1999); see also New York State Bar Ass’n v. Reno, 999 F.Supp. 710 (N.D.N.Y.1998) (the executive branch of the federal government was enjoined from enforcing provision which criminalizes counseling or assisting an individual to transfer assets for Medicaid planning purposes).

      . Fla. Admin. Code R. 65A-1.712(3) provides in pertinent part:
      (3) Transfer of Resources and Income. According to 42 U.S.C. § 1396p(c), if an individual, the spouse, or their legal representative, disposes of resources or income for less than fair market value on or after the look-back date, the department must presume that the disposal of resources or income was done to become Medicaid eligible and impose a period of ineligibility for nursing facility care services or HCBS waiver services. The look-back period is 36 months prior to the date of application, except in the case of a trust treated as a transfer in which case the look-back period is 60 months prior to the date of application, but no earlier than October 1, 1993. These transfer policies apply to actual transfers made by applicants for institutional Hospice services that occur on or after October 1, 1998. Transfers made prior to October 1, 1998, will not be subject to a penalty.
      (a) The department follows the policy for transfer of assets mandated by 42 U.S.C. §§ 1396p and 1396r. For transfers prior to October 1, 1993, transfer policies apply only to transfers of resources. For transfers on or after October 1, 1993, transfer policies apply to the transfer of income and resources.

      (d) Except for allowable transfers described in 42 U.S.C. § 1396p(c)(2), in all other instances the department must presume the transfer occurred to become Medicaid eligible unless the individual can prove otherwise.
      1. An individual who disposes of a resource for less than fair market value or reduces the value of a resource prior to incurring a medical or other health care related expense which was reasonably capable of being anticipated within the applicable transfer look back period shall be deemed to have made the transfer, in whole or part, in order to qualify for, or continue to qualify for, medical assistance.

      (e) Each individual shall be given the opportunity to rebut the presumption that a resource or income was transferred for the purpose of qualifying for Medicaid eligibility. No period of ineligibility shall be imposed if the individual provides proof that they intended to dispose of the resource or income at fair market value or for other valuable consideration, or provides proof that the transfer occurred solely for a rea- • son other than to become Medicaid eligible.

      . The 36 month pre-application financial review period is referred to as the "look-back” period. An extended look-back of 60 months will apply when trust-related transfers are made.

      . The period of ineligibility, or period of restricted coverage for medicaid institutional services, is generally calculated by the following formula: Dollar value of transfer divided by average monthly cos.t for one month of nursing home care equals the number of months of ineligibility for Medicaid institutional services.


author: SHARP, W., J.

text:
    Leticia R. GRASSO, f/k/a, Leticia R. Mulholland, Appellant, v. Michael P. MULHOLLAND, Appellee.
    No. 5D02-255.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    Seymour, Benson and Michael P. Sampson, of Carlton Fields, P.A., Orlando, for Appellant.
    James M. Campbell, Orlando, for Appel-lee.
   SHARP, W., J.

We agree with appellant that three of the four visitation orders rendered by the trial court are appealable, but a fourth order denying appellant’s objection to a hearing to alter, modify or extend visitation is a non-final, non-appealable order. We also decline to review by certiorari any of the parenting orders sought to be brought before us by appellant, and requirements that the parties keep diaries of their behavior with one another and attend certain classes.

We reject appellant’s position that the trial court lacked jurisdiction to render the appealable orders because appellee failed to file pleadings seeking a modification of the parties’ dissolution decree regarding visitation rights and asserting a substantial change in circumstances.

Although this is a close case, it appears to us that the court was, in essence, interpreting and clarifying the parties’ agreement, incorporated into the decree of dissolution, with regard to the parties’ visitation schedule with their three children. See Fussell v. Fussell, 778 So.2d 517 (Fla. 1st DCA 2001); Roque v. Paskow, 812 So.2d 500 (Fla. 4th DCA 2002); Dickinson v. Dickinson, 746 So.2d 1253 (Fla. 5th DCA 1999). The trial court found that the provision in the settlement that the former husband have not “less than” the times stated in the schedule for visitation with his children was ambiguous and, based on the parties’ intent and their performance of the agreement over the years, this provision meant that he was intended to have more time with his children than the schedule provided.

An ambiguity in a contract should be resolved by the trier of fact. North Star Beauty Salon, Inc. v. Artzt, 821 So.2d 356 (Fla. 4th DCA 2002); Board of Trustees of Internal Improvement Trust Fund v. Lost Tree Village Corp., 805 So.2d 22, 26 (Fla. 4th DCA 2001). And, in this context, ambiguities should be resolved in accord with the best interest of the children. Delissio v. Delissio, 821 So.2d 350 (Fla. 1st DCA 2002); Ballantyne v. Ballantyne, 666 So.2d 957 (Fla. 1st DCA 1996); Bingemann v. Bingemann, 551 So.2d 1228 (Fla. 1st DCA 1989). The trial court did so in this case, finding that it was in the best interest of the children to have more visitation with their father than was set forth in the visitation schedule. See Sinclair v. Sinclair, 804 So.2d 589 (Fla. 2d DCA 2002).

AFFIRMED.

PLEUS, J., and COBB, W.H., Senior Judge, concur.

      . See Fla. R.App. P. 9.030(1)(b)(A); Fla. R.App. P. 9.030(1)(b)(B).

      . Fla. R.App. P. 9.130. See Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315 (Fla. 3d DCA 1987).

      . The Notice of Appeal lists the following orders as appealable: (1) Order on Former Wife’s Objection to Hearing to Alter, Modify, Vary or Extend Visitation; (2) Order on Former Wife's Motion to Enforce Agreement; (3) Amended Order on Former Wife's Motion to Enforce Agreement; (4) Order on Former Husband's Request for Expanded Visitation, all of which constitute the Visitation Orders; and (5) Order Requiring Parents' Diaries; and (6) Order for Assessment by the Court Care Center for Divorcing Families, the Parenting Orders.

      . See Ellis v. Ellis, 603 So.2d 114 (Fla. 4th DCA 1992).


author: GRIFFIN, J.

text:
    Linda F. JONES, Appellant, v. Stanton R. JONES, Appellee.
    No. 5D02-820.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.

      Anthony P. Mario, of Mario, Moreau, Gunde, Peters & Rhoden, Cocoa, for Appellant.
    No Appearance for Appellee.
   GRIFFIN, J.

Linda Jones appeals the final judgment dissolving her marriage to Stanton Jones. She makes several claims of error in the equitable distribution of assets, denial of special equity claims, alimony awarded and denial of her claim for attorney’s fees.

We find no abuse of the trial court’s broad discretion.

AFFIRMED.

ORFINGER, J., and HARRIS, C., Senior Judge, concur.


text:
    Lysirick D. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-715.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

This is a Heggs resentencing case. The defendant went to trial and was convicted of a variety of offenses in 1997. On one of the more serious counts, he received a sentence of 386 months (32.2 years) in prison. On the remaining count, he was sentenced to five years running concurrently. In 2001, the appellant applied for and received Heggs relief. The successor judge announced that he had reviewed the court file a couple of times, twice heard the victim proffer, heard from appellant and had reviewed the sentencing transcripts. He concluded that the appellant should be sentenced to 300 months on Counts I-IV and to sixty months on count Y.

Apparently recognizing that the trial judge was entitled to impose this guidelines sentence, the appellant’s complaint is that the trial judge failed to do enough to acquaint himself with the facts of the case before making the sentencing decision. Relying on a case out of the Third District Court of Appeal, Spencer v. State, 611 So.2d 16 (Fla. 3d DCA 1992), the appellant contends that the successor judge had a duty to receive a statement of the proceedings covering so much of the trial proceedings as the parties would contend would be relevant for the sentencing decision to be appropriately made. We see no error here. The trial court did what was required to appropriately resentence under Heggs.

AFFIRMED.

PLEUS, J., and COBB, W., Senior Judge, concur.

      . Heggs v. State, 759 So.2d 620 (Fla.2000).


author: PALMER, J.

text:
    Walter L. SMITH, Appellant, v. Carl CORLEY, Appellee.
    No. 5D01-3406.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    Roy A. Praver, Law Offices of Roy A. Praver, Titusville, for Appellant.
    Douglas W. Baker of John H. Evans, P.A., Titusville, for Appellee.
   PALMER, J.

Walter Smith appeals the trial court’s order confirming an arbitration award. Finding no error in the trial court’s decision, we affirm.

Judicial review of arbitration awards is extremely limited. Chandra v. Bradstreet, 727 So.2d 372 (Fla. 5th DCA 1999), rev. denied, 741 So.2d 1134 (Fla.1999). Section 682.13 of the Florida Statute (1999) sets forth the statutory grounds which must be present before an arbitration award can be vacated:

682.13. Vacating an award
(1) Upon application of a party, the court shall vacate an award when:
(a) The award was procured by corruption, fraud or other undue means.
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.
(c) The arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers.
(d) The arbitrators or the umpire in the course of her. or his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.
(e) There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising the objection.

§ 682.13, Fla. Stat. (1999). In the absence of one of the five statutory grounds neither the trial court nor the appellate court possesses the authority to overturn an award. Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327 (Fla.1989).

In this case, Smith argues that reversal is warranted because the arbitrator erred in ruling that his claims were precluded by an earlier arbitration. In an attempt to fit within one of the statutory grounds, Smith argues that this error demonstrates that the arbitrator exceeded his power. We disagree.

The supreme court explained the concept of an arbitrator exceeding his authority in the Schnurmacher decision as follows:

An arbitrator exceeds his or her power under subsection (c) when he or she goes beyond the authority granted by the parties or the operative documents, and decides an issue not pertinent to the resolution of the issues submitted to arbitration.

542 So.2d at 1329. The court further noted:

To allow judicial review of the merits of an arbitration award for any reason other than those stated in § 682.13(1) would undermine the purpose of settling disputes through arbitration. We find it incumbent to adhere to the long standing principle of, finality of arbitration awards in order to preserve the integrity of the arbitration process as a means of alternative dispute resolution.

Id.

The instant record reflects that both parties presented evidence to the arbitrator concerning the effect of the parties’ first arbitration award on the current proceedings. Under these circumstances,

Smith cannot credibly argue that the arbitrator’s decision on that issue exceeded his authority. Thus, even if we were to conclude that the arbitrator erred in determining that the first arbitration precluded an award in the second arbitration, such error would not constitute a legal ground for vacating the award. If we were to hold otherwise, we would significantly undermine the purpose and finality of arbitration awards.

We have considered Smith’s other arguments and find them to be without merit.

AFFIRMED.

PLEUS J. and COBB, W., Senior Judge, concur.

      . The record is somewhat incomplete in this regard, since the transcript of the initial arbitration proceeding was not made a part of the record in the second arbitration proceeding.


text:
    ALLIANT CAPITAL, LTD., et al., Appellants, v. Z. Cliff SINGLETON, et al., Appellees.
    No. 5D02-1442.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    John R Beranek, Robert N. Clarke, Jr. and Martin B. Sipple, of Ausley & McMul-len, Tallahassee, for Appellants.

      Michael R. Levin, Christa C. Werder and Leslie B. Bissinger, of Rumberger, Kirk & Caldwell, Orlando, for Appellee.
   SHARP, W., J.

The appellants (collectively referred to as Alliant) bring this nonfinal appeal of an order granting appellees a temporary injunction, which mandated that appellees, partnerships owned or controlled by Singleton, and Singleton, remain in management control and as general partners of Crane Creek Senior Housing Partners Ltd. and Hatton House Senior Housing Partners “until further order of the court.” The relationship between these complicated, inter-related parties was formed to finance the construction and management of two “affordable housing” projects: Crane Creek in Melbourne, Florida, and Hatton House in Sneads, Florida.

Disputes arose between the conglomerate opposing entities concerning the appellants’ alleged commitment to and inability to raise funds-for the projects, and their default in funding, and the appellees’ alleged defaults and mismanagement of the projects. Based on documentation, appellants claimed appellees had defaulted and terminated them as general partners and managers of the project. However, appel-lees claimed their removal and termination was not justified and would jeopardize a “SAIL” loan, for which Singleton had applied, in order to salvage the projects. He claimed appellees’ removal would result in the loss of the projects, elderly persons being thrown out of their homes, and the salutary purposes of the tax and loan benefits, state and federal, being offended. Limited testimony was taken at the initial hearing, although subsequent hearings were held which resulted in no change in the temporary injunction on appeal.

We have serious doubts' that the circumstances set forth in the record before us justify the issuance of a temporary injunction. However, we do not reach the merits of that question because we find the trial judge failed to comply with the rule for entering a temporary injunction. See Fla. R. Civ. P. 1.610; Yardley v. Albu, 826 So.2d 467 (Fla. 5th DCA 2002); Florida Water Services. Corp. v. Blue Stone Real Estate Constr., 747 So.2d 406, 408 (Fla. 5th DCA 1999); citing, Watkins v. Colonial Life & Accident Ins. Co., 719 So.2d 934 (Fla. 5th DCA 1998). Specifically, the court failed to set forth facts to support each element that a moving party must establish to be entitled to the issuance of a temporary injunction: (1) irreparable harm; (2) no adequate remedy at law; (3) a clear legal right to the relief; (4) that the injunction will serve the public interest. See Coscia v. Old Florida Plantation, Ltd., 828 So.2d 488 (Fla. 2d DCA 2002); Yardley; Ksaibati v. Ksaibati, 824 So.2d 219 (Fla. 2d DCA 2002); Florida Water; Watkins. Further, the trial court erred in not setting and requiring a bond, as is mandated by Florida Rule of Civil Procedure 1.610(b).

REVERSED and REMANDED.

GRIFFIN and ORFINGER, JJ., concur.

      . Alliant Capital, Ltd.; Alliant Tax Credit IX, Inc.; Alliant Tax Credit Fund IX, Ltd.; Alliant Tax Credit VIII, Inc.; Alliant Tax Credit Fund VIII, Ltd., Alliant Mortgage Company, Inc.; Alan Schnier, Individually; Shawn Horowitz, Individually; and Scott Kotick, Individually.

      . Florida Rule of Appellate Procedure 9.130(3)(B).

      . Z. Cliff Singleton, individually and derivatively of RHT Crane Creek Partners, Ltd., RHT Hatton House Partners, Limited Partnership, Tax Credit Senior Properties, LLC.

      . The financing of these endeavors utilized a federal tax-incentive program, administered in Florida by the Federal Finance Housing Corp. Under this program, tax credits are provided to help fund affordable housing.


author: HARRIS, C., Senior Judge.

text:
    William E. HILL, Jr., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-1820.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    R. Wm. Lyng, III, of R. Wm. Lyng, P.A., Kissimmee, for Appellant.
    No Appearance for Appellee.
   HARRIS, C., Senior Judge.

Within five days of ordering a paternity test in this case (the record does not reflect the result), the court ordered temporary support from the putative father to the Department of Children and Families and entered an income deduction order. Appellant claims, and the limited record does not dispute that the support order and the income deduction order were both entered without notice and without an opportunity to be heard. The Department has not responded. We reverse.

REVERSED and REMANDED.

THOMPSON, C.J., and PALMER, J., concur.


author: WHATLEY, Judge.

text:
    Richard W. McCARTHY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2928.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
   WHATLEY, Judge.

Richard W. McCarthy challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). McCarthy argues that his sentences as a prison releasee reoffender are illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed by 821 So.2d 302 (Fla.2002). Taylor held that chapter 99-188, Laws of Florida, was unconstitutional because it was enacted in violation of the single subject rule. The effective date of the Prison Releasee Reof-fender Punishment Act is May 30, 1997. Jefferson v. State, 777 So.2d 1082 (Fla. 2d DCA 2001). Chapter 99-188 broadened the definition of a prison releasee reoffen-der to include a defendant who commits a listed offense while serving a prison sentence or is on escape status. See ch. 99-188, § 2, at 1041, Laws of Fla. Because McCarthy has not alleged that he was affected by the amendments to the prison releasee reoffender statute and that he could not have been sentenced as a prison releasee reoffender pursuant to the statute in existence prior to the passage of chapter 99-188, his claim is facially insufficient. See Bush v. State, 823 So.2d 833 (Fla. 2d DCA 2002) (holding that the validly enacted statutes in effect prior to the enactment of chapter 99-188 control sentencing). Accordingly, we affirm the order of the trial court.

ALTENBERND and CASANUEVA, JJ., concur.

      . Ch. 97-239, Laws of Fla.


author: ALTENBERND, Judge.

text:
    Frank PLUTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-267.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Frank Piute appeals the sentences imposed after the trial court granted his motion to correct illegal sentences pursuant to Florida Rule of Criminal Procedure 3.800(a). His earlier sentences had been imposed pursuant to an open plea under the 1995 sentencing guidelines. The trial court determined that he was entitled to be resentenced under the rule announced in Heggs v. State, 759 So.2d 620 (Fla.2000). This determination was made in accordance with our mandate in Plute v. State, 765 So.2d 238 (Fla. 2d DCA 2000). On resentencing, the trial court imposed habitual offender sentences. Mr. Piute argues that the trial court could not impose habitual offender sentences at resentenc-ing because guidelines sentences had been imposed at the first sentencing hearing. We disagree and affirm the sentences.

In the spring of 1997, Mr. Piute apparently developed a fondness for McNatt’s Cleaners & Laundry establishments. He committed an armed robbery at various locations approximately once a week for two months. Eventually he was apprehended and charged in six separate infor-mations with five armed robberies, one robbery, and one attempted robbery. The State filed a habitual offender notice.

In December 1997, Mr. Piute pleaded guilty before Judge Behnke. Facing the possibility of consecutive, habitual offender sentencing, he entered an open plea. At that sentencing hearing, Judge Behnke used a 1995 scoresheet. The range on that scoresheet was between 240.9 points and 401.5 points. Judge Behnke determined that Mr. Piute qualified for habitual offender sentencing but decided to impose multiple concurrent sentences under the guidelines. The five armed robberies each resulted in a sentence of 321.2 months or 26.76 years, and each sentence included a 3-year minimum mandatory term for use of a firearm.

When Mr. Piute received relief under Heggs, his 1994 guidelines scoresheet resulted in a significantly lower sentencing range' — 96 to 160 months. At the resen-tencing, Judge Fuente decided that adequate sentences could not be structured under the lower guidelines range. Accordingly, he elected to impose concurrent 25-year habitual offender sentences for all of the armed robberies with 3-year minimum mandatory terms for use of a firearm. Thus, the new sentencing structure produces a total sentence that is roughly equivalent to the old sentences.

Mr. Piute argues that Judge Fuente was obligated to employ the guidelines because Judge Behnke had declined to impose a habitual offender sentence. We disagree. This is not a case in which the trial court decided to impose a habitual offender sentence on revocation of probation or community control arising from an earlier legal sentence under the guidelines. Cf. King v. State, 681 So.2d 1136 (Fla.1996) (holding that guidelines sentence cannot be upgraded to habitual offender sentencing at revocation proceeding unless defendant agrees at original sentencing). Mr. Piute’s original sentence was illegal, having been imposed in reliance upon an unconstitutional statute that had never been validly enacted. It is well established that a harsher sentence may be imposed on re-sentencing in such a context without violating double jeopardy. See State v. Swider, 799 So.2d 388 (Fla. 4th DCA 2001). The mandate in Heggs requires trial courts to resentence eligible defendants “in accordance with the valid laws in effect” on the date that the defendant committed the relevant offense. Heggs, 759 So.2d at 630-31. Unfortunately for Mr. Piute, those valid laws include the statutes authorizing habitual offender sentencing.

Affirmed.

WHATLEY and CASANUEVA, JJ., Concur.


author: PER CURIAM.

text:
    Thomas WOODY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-4062.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2003.

      Thomas Woody, Century, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Wright v. State, 780 So.2d 216 (Fla. 5th DCA 2001).

GRIFFIN, ORFINGER and MONACO, JJ., concur.


text:
    Gregory R. LANE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-4014.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2003.
    Gregory R. Lane, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Major v. State, 814 So.2d 424 (Fla.2002).

THOMPSON, C.J., PETERSON and TORPY, JJ., concur.


text:
    William CARR, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1636.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2003.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Rebecca A. Rock, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Crider, 625 So.2d 957 (Fla. 5th DCA 1993).

SAWAYA and PLEUS, JJ, and COBB, W, Senior Judge, concur.


text:
    Charles JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1743.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2003.

      Appellant, pro se.
    Richard E. Doran, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal from a postconviction proceeding, the appellant challenges the trial court’s summary denial of a claim that we previously remanded to the trial court for resolution, giving specific instructions. See Johnson v. Moore, 801 So.2d 289, 289 (Fla. 1st DCA 2001). Because the trial court did not follow the instructions that we gave, we reverse and remand. See Collins v. State, 680 So.2d 458, 459 (Fla. 1st DCA 1996).

The appellant originally filed a petition for writ of habeas corpus in which he claimed, inter alia, that he suffered a violation of the ruling announced in Hale v. State, 630 So.2d 521, 524 (Fla.1993), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994), because he received five consecutive habitual offender life sentences for offenses that arose out of only two separate criminal episodes in lower tribunal case numbers 84-279 and 85-510. When the appellant challenged the trial court’s summary denial of the entire petition, we reversed the portion of the trial court’s order denying the appellant’s Hale claim. See Johnson v. Moore, 801 So.2d at 289. Because we determined that this claim was facially sufficient under rule 3.800(a), we instructed the trial court to treat this claim under that rule and to review the entire written record to determine if the appellant is entitled to be resentenced per the dictates of Hale. Id.

On remand, the trial court treated the petition as a rule 3.800(a) motion, but it failed to review the written record as instructed. Rather, the trial court denied the appellant’s claim on the basis that it was facially insufficient.

A trial court’s failure to follow specific instructions on remand constitutes reversible error. See Collins, 680 So.2d at 459. Because we previously determined that the appellant had stated a facially sufficient claim and because the trial court failed to follow the specific instructions that we gave, which were to review the entire written record in this case in order to determine whether the appellant is entitled to relief under Hale, we reverse. See Johnson, 801 So.2d at 289.

We again remand this cause with specific instructions to the trial court to review the entire written record to determine if the appellant is entitled to resentencing per the dictates of Hale.

REVERSED; REMANDED WITH SPECIFIC INSTRUCTIONS.

BARFIELD, BROWNING, and LEWIS, JJ., concur.


text:
    Vincent A. McCORMICK, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 1D01-5135.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2003.
    Vincent A. McCormick, pro se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

AFFIRMED. Wolfson v. Unemployment Appeals Comm’n, 649 So.2d 363 (Fla. 5th DCA 1995).

ERVIN, WOLF and VAN NORTWICK, JJ., concur.


text:
    Frank T. GANGI, Appellant, v. James G. CAFARELLI, individually, and derivatively o/b/o Omega III, C.G., Inc., Appellee.
    No. 3D02-3362.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.
    Zuekerman Spaeder and Daniel S. Gel-ber and Walter J. Tache and Ronald B. Hauser, Miami; Glenn L. Widom, for appellant.
    Goldstein, Tanen & Trench and Susan Trench, Miami, for appellee.
    Before SCHWARTZ, C.J., FLETCHER and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Puma Enters. Corp. v. Vitale, 566 So.2d 1343 (Fla. 3d DCA 1990); Interdevco, Inc. v. Brickellbanc Sav. Ass’n, 524 So.2d 1087, 1089 (Fla. 3d DCA 1988).


text:
    Timothy R. COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4248.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Janelle C. Gillaspie, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his rule 3.800 motion for jail credit. The appellant has made a facially sufficient claim for jail credit under rule 3.800 by providing the dates for which he is seeking credit, the date of his sentence, and alleging that the jail certificate would show that he is entitled to credit. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So.2d 429, 433 (Fla.1998). Furthermore, the record portions attached to the trial court’s order were clerk’s notes that do not conclusively refute the appellant’s claim. Mayo v. State, 825 So.2d 1006 (Fla. 4th DCA 2002). We accordingly reverse and remand for the trial court to support its denial with record attachments or to grant the relief sought.

REVERSED and REMANDED.

VAN NORTWICK and POLSTON, JJ., and SMITH, LARRY G„ Senior Judge, Concur.


author: BROWNING, J.

text:
    Thomas Mitchel HOLLINGSWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1466.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2003.

      Nancy A. Daniels, Public Defender; and Ed Harvey, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

This is an appeal from an order granting restitution to the minor victim’s mother for the mother’s lost wages. Appellant relies on Gluesenkamp v. State, 636 So.2d 1367 (Fla. 1st DCA 1994), P.H. v. State, 774 So.2d 728 (Fla. 2d DCA 2000), and Ocasio v. State, 586 So.2d 1177 (Fla. 4th DCA 1991), all of which hold that the mother of a victim is not a “victim” for purposes of the restitution statute, section 775.089, Fla. Stat. We distinguish these cases and affirm the award of restitution.

Gluesenkamp and Ocasio both apply the pre-1994 version of the restitution statute, which defined “victim” as “the aggrieved party, the aggrieved party’s estate if the aggrieved party is deceased, and the aggrieved party’s next of kin if the aggrieved party is deceased as a result of the offense.” § 775.089(l)(c), Fla. Stat. (1993). The two cases explicitly hold, in accordance with that definition, that family members of a victim are not entitled to restitution unless the aggrieved party is deceased. P.H., although decided more recently, relies on the two older cases to reach its result.

The restitution statute was amended in 1994 to read, as it reads today,

The term “victim” as used in this section and in any provision of law relating to restitution means each person who suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant’s offense or criminal episode, and also includes the victim’s estate if the victim is deceased, and the victim’s next of kin if the victim is deceased as a result of the offense.

§ 775.089(1)(c), Fla. Stat. (2002). Under this definition, it is clear that a victim’s mother could be entitled to restitution if she suffered property damage or loss, monetary expense, or physical injury or death. In the instant case, there is evidence that the victim’s mother lost wages as a result of being unable to go to work because of the emotional turmoil caused by Appellant’s offense. Lost wages may be the basis for a restitution award. Graham v. State, 720 So.2d 294 (Fla. 5th DCA 1998); § 775.089(2), Fla. Stat. (2002). Thus, the victim’s mother is entitled to restitution under the applicable version of section 775.089, Florida Statutes, and competent substantial evidence supports such award.

AFFIRMED.

DAVIS and POLSTON, JJ., concur.


text:
    Mauricio SOLORZANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3262.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.

      Bennett H. Brummer, Public Defender and Todd G. Scher, Special Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Appellant, defendant below, appeals his convictions claiming first, that the trial court abused its discretion in certain evi-dentiary rulings, and second, that the trial court erred in denying his motions for judgment of acquittal. We affirm.

The evidentiary rulings at issue, were not properly preserved for our review. See Correll v. State, 523 So.2d 562 (Fla.1988) (even when prior motion in limine has been denied, failure to object at time evidence introduced waives issue for appellate review). Even if they had been preserved, we find no error in the trial court’s rulings. See Griffin v. State, 639 So.2d 966, 968 (Fla.1994); Gorham v. State, 454 So.2d 556 (Fla.1984). See also Osborne v. State, 743 So.2d 602 (Fla. 4th DCA 1999).

Appellant also contends his motions for judgment of acquittal should have been granted. We disagree, finding that there was legally sufficient evidence on which to base verdicts of guilt in this case. See Crump v. State, 622 So.2d 963, 971 (Fla.1993); Tibbs v. State, 397 So.2d 1120 (Fla.1981).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Geronimo MENDEZ, Appellee.
    No. 3D02-1440.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.
    Charlie Crist, Attorney General and Steven R. Parrish, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J., and FLETCHER and SHEVIN, JJ.
   PER CURIAM.

The downward departure sentence entered on the basis of a plea agreement with the trial court alone without the concurrence and over the objection of the state is vacated. State v. Paulk, 813 So.2d 152 (Fla. 3d DCA 2002), review denied, 832 So.2d 105 (Fla.2002); State v. Perez, 802 So.2d 1167 (Fla. 3d DCA 2001), review denied, 823 So.2d 125 (Fla.2002); State v. Johnson, 796 So.2d 1213 (Fla. 3d DCA 2001). The cause is remanded for resen-tencing or, at the option of the defendant, withdrawal of the plea and further proceedings consistent therewith.

      . We do not agree that the objection was not sufficiently asserted below.


author: SHEVIN, Judge.

text:
    Sandra STILL, Appellant, v. Arthur STILL, Appellee.
    No. 3D01-3517.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.
    Welbaum, Guernsey, Hingston, Green-leaf & Gregory, Coral Gables, and Robert J. Black, Coral Gables, for appellant.
    Hersch & Talisman and Patrice A. Talisman, Miami, for appellee.
    Before SCHWARTZ, C.J., FLETCHER and SHEVIN, JJ.
   SHEVIN, Judge.

Sandra Still, former wife, appeals a final dissolution judgment that vacates a mediation settlement agreement. We affirm.

The court properly granted the former husband’s motion to set the agreement aside. The evidence presented below demonstrated: that the former wife made false statements concerning a specific material fact — to wit, that she and the daughter would remain in the marital home so the child could grow up there; that the former wife knew the representation was false; that the former wife intended the representation to induce reliance by the former husband; and that the former husband was injured by his reliance on the representation. Lopez-Infante v. Union Central Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA), review denied, 832 so.2d 106 (Fla.2002). Therefore, we affirm the final judgment in all respects.

Affirmed.


text:
    Carlos FLEITAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-9.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.
    Bennett H. Brummer, Public Defender, and Carlos Gonzalez, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Michael J. Neimand, Assistant Attorney General, and Frank Ingrassia, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Carlos Fleitas appeals his judgment of conviction and sentence complaining that the trial court improperly excluded his sister from the courtroom at his probation violation hearing. He argues that although he did not object at the time, a contemporaneous objection was not necessary because the hearing was a deferred sentencing proceeding which can be corrected pursuant to Florida Rule of Criminal Procedure 3.800. We reject this novel and creative argument. See Leveritt v. State, 817 So.2d 891, 900 (Fla. 1st DCA 2002) (“Objections are required to place the trial court on notice that error may-have been committed to provide the court an opportunity to correct any error.”), citing Castor v. State, 365 So.2d 701, 703 (Fla.1978). A probation violation hearing is subject to the same Florida Evidence Code as any other hearing with the exception that hearsay is admissible. See Gonzalez v. State, 814 So.2d 1210, 1211 (Fla. 4th DCA 2002).

Affirmed.


text:
    GEORGE M. NACHWALTER, P.A., and George M. Nachwalter, Appellants, v. IKON OFFICE SOLUTIONS, Appellee.
    No. 3D02-593.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.
    Jeffrey C. Perlman, for appellants.
    Jacobson, Sobo & Moselle and Justin D. Jacobson, for appellee.
    Before SCHWARTZ, C.J., GODERICH and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980).


author: RAMIREZ, J.

text:
    The STATE of Florida, Petitioner, v. Matthew COOPER, Respondent.
    No. 3D02-3133.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.

      Charlie Crist, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for petitioner.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for respondent.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   RAMIREZ, J.

We grant the State of Florida’s petition for writ of certiorari and quash the trial court’s order excluding from evidence the resident alien card, the photograph of respondent Matthew Cooper, the field interview card, and any testimony regarding said items.

On April 17, 2001, Officers Rosario and Watson responded to a domestic disturbance call. The officers encountered Cooper outside the residence and he requested assistance in retrieving his belongings from the house. Officer Rosario entered the home to speak with a female who was identified as Lily Williams. Williams became upset, retrieved an alien identification card from Cooper’s room, gave it to Officer Rosario and told the officer to run a check on it.

After making inquiries, Officer Rosario determined that the card belonged to the victim of an armed robbery which had occurred at a nearby gas station on March 25, 2001. The card had been in the victim’s wallet when the wallet was taken during the robbery.

The officers then photographed Cooper and turned over the photograph, the field interview card and the alien identification card to a detective from the robbery unit. The robbery victim identified Cooper as the robber from a photographic lineup using a different photograph.

The trial court excluded the photograph taken on April 17, the field interview card, and any testimony regarding either one, as inferential hearsay pursuant to Postell v. State, 398 So.2d 851 (Fla. 3d DCA 1981) and Molina v. State, 406 So.2d 57 (Fla. 3d DCA 1981). The alien identification card was excluded as not relevant to prove Cooper’s guilt. The State has conceded that Williams probably will not be testifying.

We find Postell and Molina to be inapplicable in this case. In Postell, the State sought to bolster a shaky victim identification through detailed testimony of a police officer concerning the statements of a non-testifying eyewitness who identified Postell as the robber. The statements were given at the scene of the robbery, immediately after the robbery, and caused the officer to proceed directly to Postell’s residence and place him under arrest. As in Molina, this Court held in Postell that where the inescapable inference drawn from the testimony is that the non-testifying witness furnished direct evidence of the defendant’s guilt, the testimony is hearsay, notwithstanding that the actual statements made by the non-testifying witness are not repeated.

In the present case, the non-testifying witness did not provide the police with evidence of Cooper’s guilt. The identification card was not acquired in the course of the robbery investigation. Williams did not make any statements regarding Cooper’s guilt nor did she claim to be an eyewitness to the armed robbery. See Hernandez v. State, 547 So.2d 138 (Fla. 3d DCA 1988) (It was harmless error to allow the detective to testify that he began looking for the defendant after various interviews because the non-testifying witnesses were not eyewitnesses and the nature of the information they gave was vague.). All Williams said was that the card should be checked out. The identification card was not direct evidence of guilt which led to Cooper’s immediate arrest, but merely the initial step in good police work which eventually led to an arrest. Testimony that Officer Rosario acquired the card at Cooper’s residence, without details, does not necessarily lead to the logical conclusion that a non-testifying witness gave the police evidence of Cooper’s guilt. Additionally, the testimony is permissible to explain the robbery investigation. See State v. Baird, 572 So.2d 904 (Fla.1990). However, the trial court is not precluded from excluding hearsay testimony as to what Williams said on the night of the domestic violence call, whether or not she testifies at trial.

We therefore conclude that the alien identification card which the non-testifying witness provided the police officer did not constitute hearsay. The photograph, as well as the field interview card, are likewise admissible as non-hearsay. The trial court ruled that the alien identification card was not relevant. We disagree. If Cooper had possession of the card, which was taken from a robbery victim, the probative value outweighed its prejudicial effect. The State, however, may be unable to lay a predicate for the admission of the card without Williams’ testimony. That issue is not before us at this time.

Petition granted.


text:
    Lotti MEIER, Petitioner, v. Jurg Andreas MEIER, Respondent.
    No. 3D02-2900.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.

      Robert F. Kohlman, Miami, for petitioner.
    No appearance for respondent.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Petitioner Lotti Meier seeks certiorari review of the trial court’s denial of her motion to compel counsel for her former husband to produce discovery documents for an in-camera inspection. We grant the petition.

The wife filed for dissolution of marriage in 2001. Shortly after the wife filed for divorce, the husband respondent Jurg An-dreas Meier moved to his native Switzerland where he now resides.

On three separate occasions, the trial court ordered the husband to produce certain documents. The husband did not comply with the discovery orders and the trial court struck his pleadings and entered a default against him. Subsequently, the wife learned that the husband had provided discovery documentation to his counsel and had also instructed him not to release the documentation to the wife, to return the documentation to him.

The wife again moved to compel the production of documents and to compel the husband’s counsel to produce the documentation to the trial court for an in-camera inspection. The trial court denied the motion finding that it did not have the authority to order the husband’s counsel to turn over the documents against the will of his client, and thereby subject the husband’s counsel to a disciplinary action. The documentation the wife seeks remains in the possession of the husband’s counsel.

Rule 4-3.4(d), Rules Regulating the Florida Bar, prohibits the intentional failure to comply with a discovery request. Rule 4-3.4 provides, in pertinent part,

A lawyer shall not:

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.
(d) in pretrial procedure, make a frivolous discovery request or intentionally fail to comply with a legally proper discovery request by an opposing party, (emphasis added).

Rule 4-3.4(a), Rules Regulating the Florida Bar, also prohibits a lawyer’s unlawful obstruction of another party’s access to evidence and the concealment of a document or other material that the lawyer knows or reasonably should know is relevant to a pending proceeding.

The husband in this case has failed to comply with several orders of discovery and the husband’s counsel plainly has the ability to do so. The wife seeks the discoverable documentation to determine the extent of the parties’ assets and she is unlikely to obtain the documents’ equivalent through other means. Under these circumstances, the husband’s conduct constitutes an unjustified and deliberate disregard of the court’s authority. The husband’s counsel’s obligation to comply with the orders is thus absolute. To hold otherwise not only disregards the authority of a court, but defies the importance of promoting the truth-seeking function of the discovery rules.

We therefore quash the order under review. Counsel for the husband is to release the documentation in his possession to the trial court for an in-camera review.

Petition granted.


text:
    In the Interest of S.Q., C.Q., T.Q., and S.B., Children. S.B., mother, Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-2566.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2003.
    Jeffrey A. King, Special Appointed Public Defender, Sarasota, for Appellant.
    Melanie Newby, Department of Children and Family Services, Sarasota, for Appellee.
   ALTENBERND, Judge.

S.B. (the mother) appeals an order terminating her parental rights to four children. We reverse because the Department of Children and Family Services did not prove the grounds for termination pursuant to section 39.806(l)(e), Florida Statutes (2002). Moreover, because there was no evidence that the youngest child was ever abandoned, abused, or neglected so as to support her continued dependency, we direct the trial court upon remand to immediately reexamine whether this child is dependent.

This case began in November 1998 when the mother’s three older children, S.Q., T.Q. and C.Q., were adjudicated dependent, apparently due to an unknown psychotic episode requiring the mother’s hospitalization. During this episode, the mother was apparently misdiagnosed as schizophrenic. An expert opined that with proper medication the mother could reunite with her children and therefore a case plan was established. It appears that the mother was close to reunification with her three children when she became pregnant with her fourth child, S.B., in the fall of 1999. The case plan was temporarily delayed, in part because it relied upon the mother taking medications that could be harmful if taken while pregnant.

When S.B. was born in June 2000, the child initially remained in the care of the mother. The mother was reevaluated to determine whether she needed to begin taking medications again. The conclusion of the reevaluation was that the mother was not schizophrenic and did not require medications. Although a new case plan was developed, there appears to have been little analysis of whether there was a continued need for dependency and, if so, what specific tasks would be necessary to alleviate that need.

In November 2000, the Department sheltered the youngest child, S.B. The shelter petition alleged that the child was found in the care of a babysitter who was intoxicated. Other record evidence suggests the child was sheltered because a routine urinalysis required of the mother revealed alcohol use. There was no order adjudicating this child dependent, however, until after the Department first proceeded to trial to seek termination of the mother’s parental rights for these four children in June 2001.

In the first trial, the Department sought to terminate the mother’s parental rights pursuant to sections 39.806(l)(c) and (e), Florida Statutes (2001) (allowing termination when continued involvement of parent with children would threaten life, safety, and well-being of children or when children have been adjudicated dependent and continue to be abandoned, abused, or neglected as can be evidenced by noncompliance with case plan for period of twelve months). At the time of this trial, the mother was pregnant and within a month of delivering a fifth child. Judge Lee E. Haworth denied the petition for termination. He recognized that the entire dependency of these children was based upon a “false premise”- — the misdiagnosis of schizophrenia. Judge Haworth expressed his concern that the simultaneous reunification of all four children with the mother could be disastrous. He therefore adjudicated all four children dependent and, in an attempt to place the case back on track, required the entry of a new case plan with a goal of reunification to include twelve very specific tasks for the mother. Moreover, Judge Haworth ordered one of the children returned to the mother within sixty days after the birth of her fifth child, with staggered reunifications of the remaining children thereafter if everything progressed according to plan. The fifth child was born two weeks after the trial.

Judge Haworth entered his written order denying termination and requiring staggered reunification on July 16, 2001. On July 17, 2001, the Department submitted an amended case plan. This case plan set forth 17 very detailed tasks for the mother to complete, modeled on the tasks indicated by Judge Haworth, but much more extensive than that required by the court. Three of these tasks were required only upon reunification of the youngest child with the mother.

No child was ever reunited with the mother. Rather, the Department filed reports indicating its concerns about reuniting the first child, and no further action was taken. Apparently, the case was reassigned to a new judge during this time. Although the mother made significant progress on her case plan until December 2001, thereafter the relationship between the mother and the Department appears to have deteriorated and the mother’s compliance declined. In January 2002, seven months after Judge Haworth’s order, the Department amended the case plan to again pursue a goal of termination and adoption. The Department filed a second petition for termination of parental rights on February 15, 2002, which was granted on May 24, 2002, less than a year after the entry of Judge Haworth’s order denying termination and requiring a new case plan. Although the petition sought termination pursuant to sections 39.806(l)(c) and (e), at trial the Department indicated it was proceeding solely based on section 39.806(l)(e). In the order granting the termination of parental rights, Judge Robert W. McDonald concluded that the Department had established the grounds for termination under section 39.806(l)(e) and detailed the facts supporting his finding that the mother had failed to comply with her case plan thus justifying a termination of her parental rights.

Section 39.806(l)(e) provides:

A petition for termination of parental rights may also be filed when a child has been adjudicated dependent, a case plan has been filed with the court, and the child continues to be abused, neglected, or abandoned by the parents. In this case, the failure of the parents to substantially comply for a period of 12 months after an adjudication of the child as a dependent child or the child’s placement into shelter care, whichever came first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due either to the lack of financial resources of the parents or to the failure of the department to make reasonable efforts to reunify the parent and child.

The trial court erred in failing to require the Department to prove the elements required by section 39.806(l)(e) before terminating the mother’s parental rights. Specifically, the Department did not establish that the mother continued to abuse, neglect, or abandon her children by failing to substantially comply with the applicable case plan for a period of twelve months. Rather, the new case plan, which attempted for the first time to address the new reasons for finding the children dependent, was in effect only between July 2001 and May 2002. We therefore reverse the order terminating the mother’s parental rights. See C.C. v. Dep’t of Children & Family Servs., 812 So.2d 520, 521 (Fla. 1st DCA 2002) (reversing termination because trial court’s finding that parent neglected or abandoned child for twelve months was clearly erroneous when trial court terminated parental rights seven months after child was adjudicated dependent); Gaines v. Dep’t of Children & Families, 711 So.2d 190 (Fla. 5th DCA 1998) (reversing termination where Department never offered mother opportunity to abide by performance agreement for at least twelve months).

On remand, we require the trial court to immediately address whether the youngest child, S.B., is a dependent child. See § 39.01(14), Fla. Stat. (2002) (defining dependent child, in part, as one who was abandoned, abused, or neglected or is at substantial risk of imminent abuse, abandonment, or neglect). Although Judge Haworth adjudicated all of the children, including S.B., dependent after the first unsuccessful termination trial, he did so based upon concerns that the mother could not handle all four children being returned at once. He anticipated the children would be reunited with the mother within a short time frame and actually entered a disposition order requiring S.B. be returned to the mother after the birth of her fifth child. At the second termination trial, the guardian ad litem opined that the mother could “probably” handle parenting this child, although she had concerns regarding whether the mother could parent all five children. On remand, if this child is not dependent as defined by section 39.01(14), the child must be returned to the mother.

Because we are reversing the order terminating the mother’s parental rights and remanding for further proceedings, we express concerns regarding the trial court’s findings that the mother was not in substantial compliance with her case plan and that termination was in the manifest best interests of these children. Section 39.01(68) defines “substantial compliance” to mean “that the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent.” In this case, the mother had completed many of the tasks related to improving her parenting skills. The tasks she had not completed related primarily to financial matters, for example, maintaining stable employment and obtaining a GED. There was no indication that the mother’s lack of employment or financial resources ever resulted in the neglect or abuse of the children. To the contrary, the mother had obtained housing appropriate to accommodate all of the children despite her relative poverty. Admittedly, the mother’s decision to have two additional children while her first three children were the subject of dependency proceedings has contributed to her difficulties in complying with a case plan, but it is far from clear that the mother cannot earn the right to regain custody of some or all of the children subject to these proceedings.

Finally, there was little evidence that termination was in the manifest best interests of these children. See, e.g., J.L.C. v. State of Fla., Dep’t of Children & Family Serus. (In the Interest of K.C.C.), 750 So.2d 38 (Fla. 2d DCA 1999) (taking issue with trial court’s finding that termination was in child’s best interest when only evidence about children’s condition showed that they required counseling due to anxiety over separation from their parents). The children’s clinical specialist specifically stated termination was in the children’s interest simply because they needed some kind of permanency. Indeed, the children’s need for permanency was highlighted by the fact that the three older children had been in four or more foster placements. However, the evidence established that the Department had no available plan to provide permanency to these children if their mother’s parental rights were terminated. The current foster parents for these children testified that they would keep the children as foster children for now, but two of the foster homes were unwilling to adopt and the third family could not indicate whether they would adopt or not. Thus, it appears the children’s only hope of permanency may depend upon reunification with their mother if at all possible.

Reversed and remanded for proceedings consistent with this opinion.

WHATLEY and SILBERMAN, JJ„ Concur.


author: NORTHCUTT, Judge.

text:
    Claude E. YOUNG, Appellant, v. Charles BALL; McDaniel & Ball, P.A., Janelle Miller, Faye Hagy, and Jere Carrick, Appellees.
    No. 2D01-3201.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2003.
    Richard W. Groner of Groner, Schieb & Williams, Bradenton, for Appellant.
    Robert E. Turffs, Sarasota, for Appel-lees.
   NORTHCUTT, Judge.

The circuit court entered summary judgment in this case, finding that Claude Young’s claims were barred by the statute of limitations. We affirm based on the Florida Supreme Court’s recent decision in Davis v. Monahan, 832 So.2d 708 (Fla.2002).

Young initially filed a two-count complaint in May 1996, seeking specific performance and damages against numerous defendants, none of whom are .parties to this appeal. That complaint was amended in October 1996. On February 8, 1999, Young filed a motion for leave to file supplemental pleadings, seeking to amend all claims against Carrick and Ball individually. The court granted his motion in March 1999. Then in June 1999, Young filed an “amended supplemental complaint.” The pertinent portions of this complaint added counts of civil conspiracy against the ap-pellees in this case: Ball individually, McDaniel & Ball, P.A., Miller, Hagy, and Carrick (the “conspiracy defendants”).

The factual basis of the conspiracy counts involved a mortgage loan from C & S Bank obtained in the name of Claude Young on September 24, 1990. Young claimed his name was forged on the application, and it was not disputed that he did not sign the note and mortgage. Someone other than Young made the installment payments until sometime in 1993, when the loan went into default. At that time, a representative of the bank telephoned Young to tell him that the loan in his name was in default. Young then brought the debt current and began making the monthly payments on the loan. But he claimed he did not discover the forged bank documents, which put him on notice of the conspiracy, until December 1995.

The conspiracy defendants moved for summary judgment on the grounds that Young had discovered the conspiracy when the bank contacted him in 1993, and that the four-year limitations period had therefore expired before the civil conspiracy claims were first asserted against them in 1999. See § 95.11(3), Fla. Stat. (1993). The circuit court agreed, and granted summary judgment.

The Monahan decision now makes it clear that the delayed discovery doctrine does not apply to a cause of action for civil conspiracy. 832 So.2d at 708, 711. Therefore, in this case the statute of limitations began to run when Young’s cause of action accrued. § 95.031(1), Fla. Stat. (1989). That happened in 1990, when the alleged conspirators applied for the loan and received the proceeds. Thus, Young’s 1999 action was barred under the four-year limitation period in section 95.11(3)(p), Florida Statutes (1989). The circuit court decided this case correctly, albeit for the wrong reason. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999).

Affirmed.

STRINGER and SILBERMAN, JJ., concur.

      . All the parties agree that the four-year statute of limitations applies to this case. See § 95.1 l(3)(p), Fla. Stat. (1989).

      . Young’s amendment does not relate back to the date of the original complaint. See Arnwine v. Huntington Nat'l Bank, N.A., 818 So.2d 621, 624-26 (Fla. 2d DCA 2002) (explaining that the relation back doctrine does not allow for .the addition of a new party, nor does it permit an entirely new claim for civil conspiracy to relate back to an original complaint asserting counts for reconstruction of lost documents, conversion, accounting, fraud, and breach of fiduciary duty).

      .On appeal, all parties address Young's causes of action as if they sounded in fraud. However, the complaint alleges civil conspiracy and does not mention fraud. Thus, the statutory delayed discovery doctrine for fraud, § 95.031(2), Fla. Stat. (1989), does not apply here. See Monahan, 832 So.2d 708, 709.


author: DAVIS, Judge.

text:
    Becky Ann SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4709.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2003.
    Brandon L. Rafool of Brandon J. Rafool, L.L.C., Winter Haven, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Becky Ann Smith appeals her convictions for armed trafficking in amphetamine, possession of cannabis, and possession of paraphernalia. We affirm the trial court’s denial of Smith’s motion to suppress and the denial of the two requested special jury instructions without comment. However, we reverse the conviction for armed trafficking in amphetamine.

Becky Ann Smith was stopped by law enforcement, and two plastic baggies of suspected methamphetamine were seized. During the investigation, the officer performed a Yaltox field test on the contents of each baggie. The tests showed a positive reading for each baggie. The officer, without weighing either of the baggies, then poured the contents of the two into one large bag. The one bag with the suspected drugs was sent to the laboratory for testing; however, the two baggies were not.

At trial, the chemist testified that the bag he received contained a mixture of methamphetamine and other ingredients and that the contents weighed 21.4 grams. The chemist did not testify as to the purity of the mixture, but stated that it did not appear to be “weak.” After the State rested its case, Smith moved for a judgment of acquittal on the armed trafficking charge, arguing that the State had failed to prove that she. was in possession of the requisite amount of methamphetamine. Specifically, Smith argued that the only evidence presented was the weight of the mixture containing methamphetamine after the officer combined the two baggies. Because the weight and the nature of the contents of the individual baggies were not presented to the jury, the evidence was insufficient to support a conviction on the trafficking charge. Smith maintained that one baggie could have contained less than fourteen grams of methamphetamine or a mixture containing methamphetamine while the other baggie contained a legal substance with no methamphetamine. The subsequent combining of the two by the officer created a mixture containing methamphetamine that weighed more than the fourteen grams required for a trafficking charge. In support of her argument, Smith cited Safford v. State, 708 So.2d 676 (Fla. 2d DCA 1998), wherein the officer combined the contents of forty separate packets of suspected cocaine prior to sending the alleged drugs to the laboratory for testing. This court reversed the conviction of trafficking in cocaine, finding that the failure to perform the laboratory tests on the contents of each packet prior to combining them precluded the use of the combined weight to prove a trafficking amount.

The trial judge below denied Smith’s motion, distinguishing Safford by pointing out that there is no mention in that opinion of a Valtox or other presumptive test being performed. Accordingly, the trial court found that since the State had presented evidence of a positive Valtox test on the contents of each of the baggies prior to combining them, Safford did not apply and a prima facie ease was made that should be submitted to the jury.

We disagree with the trial court’s conclusion that the Valtox test distinguishes Safford from the facts of this case. The evidentiary value of a presumptive test was determined in L.R. v. State, 557 So.2d 121 (Fla. 3d DCA 1990). In that case, the State’s evidence that the suspected contraband was cocaine included the officer’s opinion based on his experience and the positive results of the field test. However, because there was no laboratory report nor testimony from a chemist, the Third District reversed the trial court’s adjudication of delinquency, finding the evidence insufficient. In this case, the only evidence as to the contents of each of the baggies prior to mixing the two is the field test. The officer admitted he could not distinguish between methamphetamine and other white powdery substances by visual observation. Furthermore, there is no evidence as to the weight of the contents of either baggie.

Accordingly, based on- the Third District’s reasoning in L.R., we conclude that the field test alone does not make a prima facie case and that, following the Safford decision, the trial court erred in denying Smith’s motion for judgment of acquittal on the armed trafficking charge.

The conviction for armed trafficking in methamphetamine is reversed, and this matter is remanded to the trial court with instructions to reduce the subject conviction to armed possession of methamphetamine and to resentence Smith accordingly-

Reversed and remanded.

SALCINES and COVINGTON, JJ., Concur.


text:
    LAKE MARION ASSOCIATES, LTD., a Florida limited partnership; Lake Marion Golf Estates, Ltd., a Florida limited partnership; Amnon Golan; and Richard Davenport, Appellants, v. BULL RUN COUNTRY CLUB, INC., an Indiana corporation, Appellee.
    No. 2D02-1823.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2003.
    Robert D. Gatton of Broad and Cassell, Orlando, for Appellants.
    Douglas A. Lockwood, III of Peterson & Myers, P.A., Winter Haven, for Appellee.
   PER CURIAM.

We affirm the trial court’s order granting a temporary injunction in favor of Bull Run Country Club, Inc. We write solely to note that our decision and the trial court’s findings of fact and conclusions of law, in granting the temporary injunction, will not be binding at a trial on the merits. See Ladner v. Plaza Del Prado Condo. Ass’n, 423 So.2d 927, 929 (Fla. 3d DCA 1983).

NORTHCUTT, STRINGER, and SILBERMAN, JJ., Concur.


author: CASANUEVA, Judge.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. Isaac GALLMON, Respondent.
    No. 2D02-3439.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2003.

      Elizabeth K. Russo, Jude Gillespie, and Charmain Williams of Russo Appellate Firm, P.A., Miami, for Petitioner.
    William F. Merlin, Jr. and Kelly L. Kub-iak of Gunn Merlin, P.A., Tampa, for Respondent.
   CASANUEVA, Judge.

State Farm Florida Insurance Co. petitions for a writ of certiorari to quash an interlocutory order requiring it to disclose certain internal operating materials and various other items. We have jurisdiction pursuant to Florida Rule of Appellate Procedure Rule 9.030(b)(2)(A) and grant the petition.

Isaac Gallmon has a homeowner’s insurance policy issued by State Farm. Mr. Gallmon’s residence began to show signs of damage that he thought might be attributable to a sinkhole. State Farm’s experts investigated and determined that the damage was probably due to a sinkhole and to the loose, sandy soil condition under Mr. Gallmon’s home. Pursuant to the policy, State Farm offered to pay for repairs for the damage attributable to the sinkhole and for a process known as “grouting,” which retards sinkhole activity. Mr. Gall-mon was unhappy with that offer and claimed that because the repair would not guarantee against further damage, State Farm should offer the full policy limits. When State Farm refused to pay for anything more than its original damage offer and the grouting procedure, Mr. Gallmon instituted this first-party breach of contract action against State Farm.

During discovery, the circuit court issued a wide-ranging order to State Farm to produce its claim files, investigative reports, adjuster notes, underwriting files, company policies and manuals, training materials, certain personnel files, sales brochures and marketing materials, computer manuals for operating internal software and programs, details of rewards and bonus programs for employees, employee incentive and compensation programs, third-party programs and correspondence about sinkhole claims, its casualty claims manual and estimating manual, and minutes of meetings at which sinkhole claims were discussed. We quash the order in its entirety.

These materials are either irrelevant to the first-party dispute that this case presents or are privileged work product. See State Farm Fire & Casualty Co. v. Valido, 662 So.2d 1012 (Fla. 3d DCA 1995), and cases cited therein.

Certiorari granted.

FULMER and KELLY, JJ., Concur.


author: FULMER, Judge.

text:
    Cal HENDERSON, as Sheriff of Hillsborough County, Florida, Petitioner, v. Gustavo PEREZ, Respondent.
    No. 2D01-3468.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.

      Thea L. Graber, Tampa, for Petitioner.
    Michael Vincent Laurato of Austin & Laurato, Tampa, for Respondent.
   FULMER, Judge.

Cal Henderson, as Sheriff of Hillsbor-ough County, petitions this court for a writ of certiorari to quash that portion of a discovery order of the trial court which compels the sheriffs office to produce the home addresses and photographs of ten active law enforcement officers in a civil lawsuit filed by the respondent, Gustavo Perez. Because Perez did not make the showing of exceptional necessity . or extraordinary circumstances that is required in order to obtain information exempted from disclosure by chapter 119, Florida Statutes (2001), we grant the’petition, issue the writ, and quash that portion of the order which is the basis of the petition.

Perez filed a three-count complaint against the Sheriff alleging false imprisonment, malicious prosecution, and battery. His claims arose from an incident in which he was arrested for offenses that he did not commit. During the course of the litigation, Perez sought the personnel files of all of the Sheriffs employees who had any connection to his arrest. After redacting specific information, such as the employees’ social security numbers, their children’s day care facilities, their home addresses, and their photographs, the Sheriff made available the files of these employees, all of whom are active law enforcement officers. Perez filed a motion to compel the Sheriff to provide the redacted information, and the petitioner filed a response to the motion to compel and a motion for a protective order alleging that the redacted information is specifically exempted from disclosure under section 119.07(3)ffi(l). The trial court, after a hearing on the motions, ordered the Sheriff to provide the law enforcement officers’ home addresses and photographs.

An order of the trial court in a civil case which requires a governmental or law enforcement agency to provide information that is exempt from disclosure under chapter 119 is renewable pursuant to a petition for writ of certiorari. See Dep’t of Highway Safety & Motor Vehicles v. Krejci Co., 570 So.2d 1322 (Fla. 2d DCA 1990). Such material may be discovered upon a showing of “exceptional necessity” or “extraordinary circumstances.” Id. at 1324. In Krejci, the Krejci Company was sued by a plaintiff who had sustained injuries in an accident after leaving a bar owned by the company where she had been served alcoholic beverages while still a minor. The defense of the Krejci Company was that the plaintiff had used her sister’s driver’s license to purchase the alcoholic beverages. The only record of the sister’s license and photograph as it was at the time of the accident was in the possession of the Department of Highway Safety and Motor Vehicles. The trial court ordered the Department to produce the driver’s license photographic records of the plaintiff and her sister, and the Department sought certiorari review of the trial court’s order. This court, in denying the petition for writ of certiorari, held that the materials sought were exempt from inspection under chapter 119 but that the Krejci Company had shown the exceptional necessity or extraordinary circumstances sufficient to require production of the documents.

In the present case, Perez asserted below that the requested materials were “essential to the plaintiff’ without making any showing of necessity. In his response to the petition, he argues that without the home addresses and photographs of the ten law enforcement officers, he will be unable to effectively investigate them and attack their credibility should they be witnesses. In Krejci the information sought was shown to be essential to the Krejci Company’s defense, whereas, in the present case, Perez has not shown that the photographs and home addresses of the law enforcement officers are essential to the prosecution of his suit.

Accordingly, because Perez made no showing of exceptional necessity or extraordinary circumstances, we grant the petition, issue the writ, and quash that portion of the order of the trial court requiring the disclosure of materials exempted from disclosure by section 119.07(3)©(1).

Petition granted.

BLUE, C.J., and DAVIS, J., Concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Gralen A. BELL, a/k/a Gralin A. Bell, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4386.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2003.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appellee.
   THREADGILL, EDWARD F., Senior Judge.

Gralen Bell appeals an order withholding adjudication and imposing probation for tampering with physical evidence. We reverse because the undisputed facts do not establish a prima facie case; thus, the trial court erred in denying Bell’s motion to dismiss the charge.

Bell filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), maintaining that the undisputed facts did not establish a prima facie case of tampering with physical evidence. The State filed a demurrer in which it admitted all of the material facts but disputed two minor facts which it considered inconsequential. Following the denial of his motion to dismiss, Bell entered a plea of no contest in exchange for the trial court withholding adjudication and imposing probation. Bell specifically reserved the right to appeal the denial of his motion to dismiss.

When the State does not file a traverse contesting the facts alleged in a motion to dismiss, the facts as alleged are deemed admitted. See State v. Jennings, 666 So.2d 131 (Fla.1995); Fla. R.Crim. P. 3.190(d). “The purpose of a motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in dispute.” State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002). In considering the motion, “the State is entitled to the most favorable construction of the evidence, and all inferences should be resolved against the defendant.” Id. The standard of review for a trial court order regarding a motion to dismiss is de novo. Id.

Section 918.13, Florida Statutes (2000), states in pertinent part:

(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation!)]

Bell contends that the facts do not show that he altered, destroyed, concealed or removed any “thing.” The undisputed facts were that Officer Weiss saw Bell and an unknown black male engage in a hand-to-hand transaction in the parking lot of an apartment building. Bell was in a car, and he exchanged currency for something in return from the black male. The officer saw the black male place something in his left front pocket. The surrounding circumstances indicated to Officer Weiss that he had seen a hand-to-hand drug transaction. The three officers who stopped Bell in his car moments later claimed that they saw visible cocaine residue on Bell’s left hand. One of the officers field tested Bell’s left hand with a tissue. Officer Es-tevez stated that the substance field tested positive for cocaine. The tissue paper was submitted to the Florida Department of Law Enforcement (FDLE), but the FDLE found no drug residue on the tissue.

In State v. Jennings, 666 So.2d 131 (Fla.1995), the court reversed an order granting a motion to dismiss a tampering with physical evidence charge. There, however, law enforcement saw the defendant toss alleged cocaine rocks into his mouth and swallow them after the officer shouted “police.” Here, the undisputed facts in the motion to dismiss and demurrer do not indicate that Bell altered, destroyed, concealed, or removed anything. At the hearing on the motion to dismiss, the State argued that the officer saw Bell put something towards his mouth. However, that allegation is not contained in the motion to dismiss.

Based on the facts presented in the motion and demurrer, we conclude that the State did not present a prima facie case of tampering with physical evidence. Thus, we reverse and remand with directions to dismiss the charge.

Reversed and remanded.

CASANUEVA and SALCINES, JJ., concur.