author: ALTENBERND, Chief Judge.

text:
    Ronald McLEAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1322.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2003.

      James Marion Moorman, Public Defender, and James C. Banks, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Chief Judge.

Ronald McLean appeals his judgment and sentence for lewd molestation. We affirm, holding that section 90.404(2)(b), Florida Statutes (2001), which expands the use of Williams rule evidence in child molestation cases, does not violate due process, at least in cases where the identity of the accused perpetrator is not an issue. We also hold that the trial court’s rebanee upon this rule of evidence did not result in an ex post facto application of a statute and that the trial court did not abuse its discretion in admitting certain Williams rule evidence pursuant to this statute. Finally, we certify a question concerning the constitutionality of this new statute to the Supreme Court of Florida.

I. A STATEMENT OF THE CASE

Mr. McLean was charged with capital sexual battery and lewd molestation for events occurring on October 19, 2000. On that evening, Mr. McLean was visiting his brother, Gerald McLean. Gerald McLean’s grandson, J.N., was also visiting that night. J.N. was eight years old at the time and lived near his grandparents. J.N. and his grandfather regularly watched wrestling on television on Thursday nights and J.N. would stay over at his grandparents’ home. On October 19, J.N.’s grandmother put him to bed around 9 p.m. Shortly thereafter, both grandparents went to bed.

At approximately 11 p.m., J.N. awoke his grandmother and announced that he wanted to go home. He was fully dressed and had his knapsack packed. He seemed nervous, but he did not say anything to his grandmother. She drove J.N. home about 11:15 p.m.

J.N.’s mother worked an early morning shift. When she returned from work in the early afternoon, she asked him why he had decided to come home the previous night. She was not permitted to provide hearsay testimony concerning this conversation but explained that the conversation caused her to report the matter to law enforcement.

On the Monday following these events, Amy Wilkins, a case coordinator for the Children’s Home Society, interviewed J.N. She had prior training and experience in interviewing children who report sexual abuse. J.N. told her that he woke up during the night at his grandparents’ house. His “Uncle Ron” was rubbing J.N.’s bottom. J.N. explained that Mr. McLean inserted his finger into J.N.’s bottom, but he did not specify that Mr. McLean inserted his finger into J.N.’s anus. J.N. claimed that his uncle told him not to report this incident to anyone. A medical examination performed at the time of this investigation did not reveal any physical evidence of sexual abuse.

J.N. was nine years old at the time of trial. After a lengthy examination to determine his competency, the trial court allowed J.N. to testify. His testimony was consistent with the information he had previously provided to Ms. Wilkins.

Mr. McLean made no incriminating statements, and he did not testify at trial. Thus, the statements made by J.N. at the time of the alleged incident and his testimony at trial were the primary evidence against Mr. McLean.

To strengthen the testimony from J.N., the State sought to introduce Williams rule evidence from a Mr. Chambers. At the time of the pretrial Williams rule hearing, Mr. Chambers was twenty-seven years old and lived out of state. He testified that, when he was younger, Mr. McLean had repeatedly molested him.

When he was a child and lived in Pennsylvania, Mr. McLean worked with Mr. Chambers’ father in a factory. Mr. McLean often spent time with the Chambers’ family. In 1986, when Mr. Chambers was twelve years old, Mr. McLean went on a hunting trip with Mr. Chambers and his father. On the first night of this trip, Mr. Chambers awoke to find Mr. McLean pressing his penis against Mr. Chambers’ back and touching him under his underwear. Mr. McLean also touched Mr. Chambers’ penis. Mr. McLean had been drinking prior to this event. Mr. Chambers pushed him away and went back to sleep. Later that same night, Mr. McLean returned and continued this conduct until Mr. Chambers ejaculated.

Mr. Chambers testified that several months later similar conduct occurred at his family’s “mini-farm.” Again, this conduct occurred after Mr. McLean had been drinking. On this occasion, Mr. McLean attempted to penetrate Mr. Chambers’ anus with his penis. Mr. Chambers did not recall Mr. McLean fondling his bottom. Within a few months, similar conduct occurred when Mr. Chambers was at Mr. McLean’s house.

Finally, on two more occasions, Mr. McLean assaulted Mr. Chambers while he was sleeping in a bedroom in Mr. Chambers’ home. On one of these occasions, Mr. Chambers believed that Mr. McLean’s penis penetrated his anus. On both of these occasions, Mr. McLean was a guest staying overnight in the home. By the final occurrence, Mr. Chambers was fourteen years old.

Mr. Chambers ultimately reported this conduct to his mother. He testified that his mother and father confronted Mr. McLean, who confessed to these crimes. They agreed not to report the matter to the police so long as Mr. McLean sought help from their church’s minister. Mr. Chambers did not see Mr. McLean again until he testified at this trial, did not know the victim in this case, and had never met the victim’s family prior to this trial.

Following this testimony, the trial court considered argument by counsel, as well as its own extensive, independent research. The lawyers relied upon the existing Williams rule case law, as well as section 90.404(2)(b), a new statute addressing Williams rule evidence in child molestation cases. The trial court concluded that in enacting section 90.404(2)(b), the legislature was attempting to overrule or modify the supreme court’s rulings in Saffor v. State, 660 So.2d 668 (Fla.1995), and Heuring v. State, 513 So.2d 122 (Fla.1987). It also concluded that the legislature intended section 90.403, Florida Statutes (2001), to affect the admissibility of evidence under section 90.404(2)(b), so that a trial court must evaluate Williams rule evidence to determine whether its probative value outweighs its prejudicial effect. The trial court expressed its concern that the Williams rule evidence could cause the jury to convict Mr. McLean for the earlier alleged offenses if it had doubt about the charged offense. The discussion among the two lawyers and the trial judge is a model of professionalism; each lawyer advocating a position while assisting the court in its effort to reach a correct decision.

Ultimately, the trial court decided that section 90.404(2)(b) applied in this case and that the statute was constitutional. The trial court determined, however, that pursuant to section 90.403 it would be overly prejudicial to admit all of Mr. Chambers’ testimony. The trial court concluded that the hearsay evidence of Mr. McLean’s confession to Mr. Chambers’ parents and evidence of all events occurring in locations other than Mr, Chambers’ home should be excluded. Following the ruling, the trial court stated: “I’m sure we will find out later what this all means.”

As a result of this ruling, the jury heard the evidence relating to the two incidents occurring in Mr. Chambers’ home, but it did not hear evidence concerning Mr. McLean’s confession, the events at the camp-out, the mini-farm, or at Mr. McLean’s house. Prior to this testimony, the trial court gave the standard limiting and cautionary instruction regarding Williams rule evidence. See Fla. Std. Jury Instr. (Crim.) 2.4. This instruction was repeated as a portion of the final charge. See Fla. Std. Jury Instr. (Crim.) 3.8(a). A full review of the transcript establishes that the State did not make this evidence a central feature of this trial during either the evi-dentiary portion of the trial or closing argument.

The jury convicted Mr. McLean of both attempted capital sexual battery and lewd molestation. Ultimately, the trial court denied a motion for new trial. It entered judgment only on the charge of lewd molestation. Mr. McLean was sentenced to thirty years’ imprisonment and designated a sexual predator.

II. THE NINE-YEAR-OLD VICTIM’S COMPETENCY TO TESTIFY

On appeal, Mr. McLean first argues that the trial court erred in determining that J.N. was competent to testify. Both of the lawyers and the trial judge asked many questions of J.N. during the competency determination. The trial court made findings at the conclusion of this presentation, and Mr. McLean’s counsel did not request more specific findings. We conclude that the trial court complied with the requirements of Lloyd v. State, 524 So.2d 396 (Fla.1988), and Fuller v. State, 669 So.2d 273 (Fla. 2d DCA 1996). Its decision does not constitute an abuse of discretion. See Palazzolo v. State, 754 So.2d 731, 738 (Fla. 2d DCA 2000). It is noteworthy that the transcript of J.N.’s testimony following this determination of competency does not demonstrate any weakness, confusion, or circumstance that would suggest the trial court erred in deciding the issue of competency.

III. CHALLENGES TO SECTION 90.404(2)

Mr. McLean next argues that section 90.404(2)(b) is unconstitutional as a violation of due process. He further argues that application of the rule in his case violates the prohibition against applying laws ex post facto. Finally, he argues that the trial court erred in applying this statute even if it is constitutional. Section 90.404(2)(b) is a relatively new rule of evidence. See ch.2001-221, § 1 at 1938, Laws of Fla. This court has not previously addressed its validity or application. We conclude that the statute is constitutional, at least in a case not involving an issue of identity, and that it was properly applied in this case.

Section 90.404(2)(b)l states:

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

Before the enactment of this statute in July 2001, the admissibility of prior sexual misconduct by a defendant was controlled by a long, and arguably varied, line of cases stemming from the supreme court’s decisions in Saffor, 660 So.2d 668; State v. Rawls, 649 So.2d 1350 (Fla.1994); Heuring, 513 So.2d 122; and Williams, 110 So.2d 654. In order for such prior misconduct to be admissible, the evidence needed to meet a “strict standard” of relevance that required “strikingly similar” misconduct sharing some “unique characteristic.” Heuring, 513 So.2d at 124. When both the charged offense and the prior misconduct occurred within a family setting, the family setting was a shared factor sufficient to allow a larger discrepancy concerning other aspects of the two offenses, but the two events still must have had shared similarities. Saffor, 660 So.2d at 672. If identity was not a disputed issue, then the degree of similarity did not need to be as striking even in a nonfamilial case. Rawls, 649 So.2d at 1353; see also Morman v. State, 811 So.2d 714, 718 (Fla. 2d DCA 2002) (Altenbernd, J., concurring). This line of cases created few, if any, bright lines and was difficult for trial courts to apply with any degree of confidence.

It is not entirely clear to this panel whether the evidence admitted in this case under the new statute could also have been admitted under this earlier line of cases. Although the charged offense was familial, the earlier misconduct involving Mr. Chambers was nonfamilial. Thus, the less rigid requirements for familial cases announced in Heuring would not have applied. See Saffor, 660 So.2d at 672; see also Freeman v. State, 818 So.2d 580 (Fla. 5th DCA 2002). Because identity was not an issue in this case, perhaps the holding in Rawls would have permitted this evidence to be introduced. However, we note that J.N. was eight at the time of this offense, whereas Mr. Chambers had been twelve or older. The misconduct charged by Mr. Chambers occurred ten years earlier and did not include attempted digital penetration of the anus, which was the primary claim in this case. We decline to issue a hypothetical ruling that it would have been error to admit Mr. Chambers’ testimony under the old case law, but the trial judge certainly could have exercised his discretion to exclude this testimony because it lacked the required similarity.

There is no question that the legislature was attempting to alter or overrule the application of existing case law and to simplify the rules of admissibility in child molestation cases when it enacted section 90.404(2)(b). As stated in the senate staff analysis to committee substitute for senate bill 2012:

The effect of this change is to substantially relax the Williams rule as it applies to criminal cases involving child molestation. Although the Florida Supreme Court relaxed the Williams rule for child sexual abuse cases occurring in the familial context in Heuring, and relaxed it even further in Rawls when it extended Heuring to a non-familial, custodial setting, the bill would relax the Williams rule for all child molestation cases, regardless of the presence of a custodial or familial setting. Under the bill, any evidence of prior or subsequent acts of child molestation would be admissible regardless of how similar or dissimilar the other acts are compared to the charged crime. However, the evidence would still be subject to the s. 90.403, F.S., scrutiny of weighing its probative value against its prejudicial effect. This relaxed standard is similar to the one contained in Rule 414 of the Federal Rules of Evidence.

Staff Analysis and Economic Impact Statement of the Judiciary Comm, for C.S.S.B. 2012,17th Leg., Reg. Sess., Character Evidence/Child Molestation (Fla.2001).

Because it is clear the legislature intended to alter the tests for admissibility of such evidence and the trial court followed the new rules in this case, the primary question today is whether the new statute passes constitutional muster.

A. DUE PROCESS

We recognize that propensity evidence is fraught with risks and that serious legal thinkers have questioned whether it should ever be admissible. See Richard J. Sanders, “A Dangerous Bend in an Ancient Road": The Use of Similar Fact Evidence for Corroboration, 74 Fla. B.J. 40, 46 (Feb.2000). Despite limiting instructions from the trial court, juries may inevitably use evidence admitted under section 90.404(2)(b) to determine whether a defendant has a propensity to commit crimes like the charged offense. Nevertheless, the new Florida statute is virtually identical to Federal Rule of Evidence 414, which has withstood constitutional attack. See United States v. LeMay, 260 F.3d 1018 (9th Cir.2001); United States v. Mound, 149 F.3d 799 (8th Cir.1998); United States v. Enjady, 134 F.3d 1427 (10th Cir.1998). Moreover, the new statute does not simply open the courthouse to all propensity evidence. As demonstrated in this case, section 90.403 still requires the trial court judge to act as a gatekeeper, weighing the probative value and the prejudicial effect of the proffered testimony. The testimony is introduced with a cautionary instruction to the jury, which is repeated in the final charge. The case law still requires that such testimony not become a central feature of the trial. See Ashley v. State, 265 So.2d 685 (Fla.1972); Sutherland v. State, 849 So.2d 1107 (Fla. 4th DCA 2003). Under these circumstances, when an issue of identity is not in dispute, we cannot conclude that this new rule of evidence violates the fundamental fairness required by due process.

We have repeatedly emphasized that the Williams rule evidence admitted in this case was not introduced for the purpose of establishing identity. Identity has always been the most troublesome issue confronted by the Williams rule. See generally Rawls, 649 So.2d at 1353; Morman, 811 So.2d at 718 (Altenbernd, J., concurring). Whether section 90.403 is sufficient to monitor Williams rule evidence in cases involving identity, or whether due process requires a special rule of “striking similarity” and shared unique characteristics in cases of disputed identity remains an open question in our minds. Accordingly, we conclude that the constitutionality of this statute when addressing the issue of identity should be reviewed in another case where identity is a disputed issue.

B. EX POST FACTO

Mr. McLean was charged with an offense that occurred on October 19, 2000. At that time, section 90.404 did not include this special rule permitting expanded use of Williams rule evidence in cases involving child molestation. The legislature amended section 90.404 during the 2001 legislative session, and the rule became effective July 1, 2001. See ch.2001-221, § 1 at 1938, Laws of Fla. Mr. McLean’s trial occurred in November 2001. By a four-to-three vote on July 11, 2002, effective July 1, 2001, the supreme court adopted this rule without ruling on many objections to the rule. See In re Amendments to the Florida Evidence Code, 825 So.2d 339, 341 (Fla.2002). Mr. McLean argues that application of this rule of evidence in his case violates the prohibition against applying laws ex post facto.

There are four very general categories of ex post facto laws proscribed by both the Florida and United States Constitutions: (1) laws that make conduct criminal that was not previously criminal, (2) laws that elevate the level of a criminal offense, (3) laws that increase the punishment for an offense, and (4) laws that alter the rules of evidence in a manner that permits a conviction with less or different testimony. See Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000); Glendening v. State, 536 So.2d 212 (Fla.1988). No ex post facto violation occurs if a change is merely procedural and does not alter substantial personal rights. See Glendening, 536 So.2d at 215 (citing Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)).

In this case, Mr. McLean can argue only that the law altered the rules of evidence in a manner that permitted a conviction with less or different testimony. We reject this argument because a prima facie case of lewd molestation could be established by the testimony of the victim both before and after this amendment to the rule of evidence. This rule permits additional testimony that may cause a jury to be more likely to believe the victim, but this is a qualitative change in the law that does not alter substantial personal rights. Our decision is based largely on the legal reasoning in Glendening, 536 So.2d at 214, which rejected a similar ex post facto challenge to the hearsay exception for certain statements of child victims in section 90.803(23), Florida Statutes (1985).

C. IMPROPER APPLICATION OF STATUTE

Finally, Mr. McLean argues that the trial court erred in admitting Mr. Chambers’ testimony even if the statute is constitutional. In essence, he argues that the trial court abused its discretion in determining that the probative value of the evidence admitted was not outweighed by its prejudicial effect. See Harris v. State, 843 So.2d 856 (Fla.2003); Anderson v. State, 841 So.2d 390 (Fla.2003). As we have discussed earlier, it is a close call whether this evidence would have been admissible under the controlling case law prior to the amendment of section 90.404. However, we cannot hold that the trial court abused its discretion when it admitted only those portions of Mr. Chambers’ testimony that related to incidents occurring inside a family residence where Mr. McLean was an overnight guest.

IV. CERTIFIED QUESTION

Because this rule of evidence was approved by the supreme court in a divided opinion that did not address constitutional issues, and because this rule may apply in many serious felony trials throughout the state, we certify the following question of great public importance:

DOES SECTION 90.404(2)(b), FLORIDA STATUTES (2001), VIOLATE DUE PROCESS WHEN APPLIED IN A CASE IN WHICH IDENTITY IS NOT AN ISSUE?

Affirmed.

SALCINES and COVINGTON, JJ., concur.

      . See Williams v. State, 110 So.2d 654 (Fla.1959).

      . § 794.01 l(2)(a), Fla. Stat. (2000).

      . § 800.04(5), Fla. Stat. (2000).

      . The transcript of the sentencing hearing is not in the record, and the reason for the single judgment is not explained. Presumably, the trial court concluded that the two offenses arose from a single act that could not support dual convictions. The State has not challenged this ruling on appeal.

      . We address this matter because the constitutionality of the statute might be an issue we could avoid if the evidence would have been admissible under the earlier line of cases.

      . To assure that the probative value of the evidence always outweighs its prejudicial effect, it may be that a proper legal analysis under section 90.403 should simply incorporate a "striking similarity” test within that rule when addressing an issue of identity.

      . We note that the supreme court adopted this rule and other rules in July 2002 but indicated that they became effective “on the dates they became law.” In re Amendments to the Florida Evidence Code, 825 So.2d at 341. Mr. McLean has not argued that, as a rule of procedure, the trial court should not have utilized the rule until adopted by the supreme court. Apparently, the supreme court intends to allow trial courts to utilize a rule of evidence during the period between its legislative enactment and its adoption by the supreme court if the trial court determines that the new rule of evidence is procedural and does not violate the prohibition against ex post facto application. Obviously, the trial court uses the new rule at the risk that it may later be disapproved by the supreme court. See, e.g., Jones v. R.J. Reynolds Tobacco Co., 830 So.2d 854 (Fla. 2d DCA 2002).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anthony Robert LIBRETTI, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2878.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2003.
    Lisa Paulette Kirby of Law Offices of Lisa Paulette Kirby, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Anthony Libretti appeals the trial court’s order denying his motion for appointment of appellate counsel. In its order, the trial court denied Libretti’s motion for appointment of counsel, citing Rowe v. State, 777 So.2d 1088 (Fla. 2d DCA 2001). However, Rowe addressed the right to appellate counsel in postcon-viction appeals; Libretti is appealing his resentencing, not a postconviction motion. An absolute right to counsel attaches for the appeal of a judgment and sentence. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). We therefore reverse the order of the trial court. Because Libretti was found indigent by the trial court on June 12, 2003, we remand for the appointment of appellate counsel.

Reversed and remanded.

CASANUEVA, DAVIS, and SILBERMAN, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Severino RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1709.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2003.

      James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Following the hearing at which the circuit court accepted Severino Ramos’s open plea of no contest to three criminal charges, Ramos timely filed pro se motions to withdraw his plea and to dismiss his court-appointed counsel. At the hearing on the motions, Ramos’s counsel did not advance Ramos’s position. Rather, in open court he disputed the factual allegations on which the motion to withdraw the plea was founded. The court denied the motion, explaining that it could not permit Ramos to withdraw his plea unless there had been an irregularity in the plea hearing. The court did not rule on Ramos’s motion to dismiss his counsel at that time, but it later permitted the attorney to withdraw and appointed new counsel for sentencing. Ramos was eventually sentenced to three twelve-year prison terms as a habitual felony offender, to be served concurrently.

We reverse with directions to hold an evidentiary hearing on Ramos’s motion to withdraw his plea, for the purposes of which Ramos shall be appointed conflict-free counsel. See Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003); Brown v. State, 835 So.2d 402, 403 (Fla. 2d DCA 2003).

For purposes of the proceedings on remand, we note that the circuit court was mistaken in its belief that it could not allow Ramos to withdraw his plea in the absence of some irregularity in the plea colloquy. To the contrary, a defendant should be permitted to withdraw a plea if he files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting his rights. Soto v. State, 780 So.2d 168 (Fla. 2d DCA 2001).

Reversed and remanded for further proceedings.

STRINGER and KELLY, JJ., concur.


author: SALCINES, Judge.

text:
    Carlos E. RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5577.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2003.

      James Marion Moorman, Public Defender, and Jeffrey M. Pearlman, Assistant Public Defender, Bartow, for Appellant.
    Carlos E. Ramirez a/k/a Carlos Rivas a/k/a Carlos Rivera, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

The public defender brings this Anders appeal on behalf of Carlos E. Ramirez a/k/a Carlos Rivas a/k/a Carlos Rivera on the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In a pro se brief, Ramirez additionally argued that the trial court erred when it refused to consider his pro se amended motion for postcon-viction relief filed by counsel in open court at the beginning of the evidentiary hearing on his original motion for postconviction relief. We affirm the denial of the original motion for postconviction relief without further comment but remand for the trial court to consider Ramirez’s amended motion for postconviction relief.

Ramirez’s original motion raised a total of three grounds of error. In an order rendered on August 9, 2001, the trial court denied two of the three grounds and ordered the State to file a response to the final ground of error. A hearing to entertain the final ground of error was conducted on December 14, 2001. At the hearing, Ramirez’s court-appointed counsel tendered the amended motion for postconviction relief in which Ramirez added the claim that he had not been “specifically advised of the consequences of potential deportation [if he entered into a] plea.” The trial court considered the amended motion to be successive because there had already been a preliminary ruling on Ramirez’s motion. The court refused to consider the motion.

In Gaskin v. State, 737 So.2d 509, 517-18 (Fla.1999), the supreme court stated that when an amendment to a rule 3.850 motion was filed before the termination of the statutory time limit and before the trial court had ruled on the original motion, it was error for the trial court not to consider the merits of the new allegations. See Beard v. State, 827 So.2d 1021, 1021 (Fla. 2d DCA 2002); Lang v. State, 826 So.2d 433, 435 (Fla. 2d DCA 2002). The present case is governed by Gaskins because, although an order had been entered denying Ramirez’s motion in part, the trial court had not made a final determination about the merits of the remaining claim upon which the evidentiary hearing was to be conducted and it had not entered a final order disposing of the motion. See Lang, 826 So.2d at 485. Additionally, the supplemental motion was filed within the two-year statutory time limit. Accordingly, the trial court’s decision not to consider the amended motion was erroneous. We remand with directions for the trial court to consider the merits of the new claim contained in Ramirez’s amended motion for postconviction relief.

Reversed and remanded.

COVINGTON and KELLY, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Anders Briefs, 581 So.2d 149 (Fla.1991).


text:
    Sean Michael RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-32.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2003.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charles J. Crist, Jr., Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

By information dated June 10, 2002, Appellant was charged with one count of grand theft and two counts of fraudulent use of a credit card. These crimes occurred on May 18, 2002.

Appellant pled no contest to all counts in exchange for no particular sentence. On November 26, 2002, the trial court sentenced Appellant to concurrent two year state prison sentences on all counts, with credit for one day served, followed by three years’ probation. We reverse and remand for resentencing.

As in this case, in Ross v. State, 760 So.2d 214 (Fla. 2d DCA 2000), the defendant was sentenced to fraudulent use of a credit card and grand theft. In Ross, the Second District ruled:

According to the trial court’s order denying relief, Ross’s convictions for fraudulent use of a credit card, in violation of section 817.61, Florida Statutes (1991), and grand theft, in violation of section 812.014(2)(c)(l), Florida Statutes (1991), arose out a single transaction. Because section 817.61 contains a monetary element, this case is controlled by State v. McDonald, 690 So.2d 1317 (Fla. 2d DCA 1997), in which this court affirmed a trial court order dismissing a grand theft charge.

See § 775.021(4), Fla. Stat. (2002).

Because illegally obtaining property through the use of a forged credit card and grand theft are degrees of the same offense, this case is remanded for the trial court to vacate Appellant’s conviction for grand theft, while maintaining Appellant’s sentence on one count of fraudulent use of a credit card.

REVERSED and REMANDED for re-sentencing.

BOOTH, DAVIS and PADOVANO, JJ., Concur.


text:
    Alan GRANT, Petitioner, v. STATE of Florida and Florida Department Of Corrections, Respondents.
    No. 1D03-2498.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Alan Grant, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondents.
   PER CURIAM.

DENIED. Powell v. Florida Dep’t of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Vincent JOHNSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D03-2925.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Vincent Johnson, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. Powell v. Florida Dep’t of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Marie Elena LaFLAM, Appellant, v. Kevin P. LaFLAM, Appellee.
    No. 2D02-3120.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2003.
    Andrew J. Rodnite, Jr., of Reeser, Rod-nite, & Zdravko, P.A., Palm Harbor, for Appellant.
    M. Katherine Ramers of M. Katherine Ramers, P.A., Dunedin, for Appellee.
   NORTHCUTT, Judge.

In this dissolution of marriage action, the parties amicably resolved all issues except alimony. The circuit court denied Mrs. LaFlam’s request for permanent, rehabilitative, and bridge-the-gap alimony. We reverse for further proceedings because the court determined the alimony issue after improperly imputing income to Mrs. LaFlam.

The LaFlams were married in December 1988. At that time, Mr. LaFlam was in the military and Mrs. LaFlam was working for an international banking organization in Washington, D.C. Shortly before the wedding, he was seriously injured in a car accident and became a quadriplegic. In May 1989, Mrs. LaFlam left her employment to provide her husband with full-time nursing care. She obtained training at a hospital so that she could supply the level of care Mr. LaFlam needed. Mrs. LaFlam continued to provide this care until mid-1996, when the Veteran’s Administration began giving Mr. LaFlam skilled nursing care at no charge.

Neither of the LaFlams held any significant employment during their marriage. They lived on Mr. LaFlam’s Veteran’s Administration and Social Security benefits, which, at the time of the final hearing, were about $7000 per month. Mr. LaFlam attended college and obtained a bachelor’s degree. After the Veteran’s Administration began providing a skilled nurse for Mr. LaFlam, Mrs. LaFlam returned to college and earned a master’s degree in linguistics. She testified that she did so because she enjoyed that field of study. She never intended to support herself with her degree because the couple’s needs were met by Mr. LaFlam’s benefits.

In its detailed order denying alimony, the circuit court addressed the factors enumerated in section 61.08(2)(a)-(g), Florida Statutes (2000). When rejecting Mrs. LaFlam’s request for alimony, the court imputed $4000 per month income to her. The court apparently based the amount on her 1988 salary at the international banking concern in Washington, D.C. At that time, she earned $3600 per month. Her income was not taxed because she was a Peruvian citizen.

A court may impute income to a spouse who is earning less than she could with the use of her best efforts. Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997). However, there must be competent, substantial evidence supporting the conclusion that the spouse could earn the imputed amount. See Hinton v. Smith, 725 So.2d 1154, 1156 (Fla. 2d DCA 1998) (explaining that the standard of review of a court’s decision to impute income is whether competent, substantial evidence supports its conclusion).

Nothing in this record established that Mrs. LaFlam, now aged forty-five, was capable of earning the salary she gave up some thirteen years earlier in order to care for her husband. In fact, there was no record evidence whatsoever about the nature of her position in Washington, what skills were required, whether these skills were current, whether they could presently be applied in any other position, or what that position might pay. Moreover, Mrs. LaFlam testified that she had sought a position with her former employer, but that none was available. She also testified that there were no similar jobs in Florida.

The only testimony about Mrs. LaF-lam’s present earning ability came from Mrs. LaFlam herself. She testified that her master’s degree in linguistics would not enable her to earn sufficient money to pay her expenses. If there were teaching opportunities open at the University of South Florida, she could teach three classes per semester at the rate of $2000 per class. She applied to teach at Hills-borough Community College, where she could earn $1590 per quarter, but was not hired. The year before the hearing, while Mrs. LaFlam was pursuing her master’s degree, USF paid her a total of approximately $2000 as a stipend.

We reverse the final judgment because the imputation of $4000 per month income to Mrs. LaFlam was not supported by competent, substantial evidence. Hinton, 725 So.2d at 1156. On remand, the circuit court must redetermine whether she is entitled to any form of alimony. See Borchard v. Borchard, 730 So.2d 748 (Fla. 2d DCA 1999); Zeigler v. Zeigler, 635 So.2d 50 (Fla. 1st DCA 1994); Bailey v. Bailey, 617 So.2d 815 (Fla. 2d DCA 1993); Gregoire v. Gregoire, 615 So.2d 694 (Fla. 2d DCA 1992); Geddes v. Geddes, 530 So.2d 1011 (Fla. 4th DCA 1988). The court may take additional evidence, if needed.

Reversed.

STRINGER and KELLY, JJ., Concur.


text:
    John Kelly AMICK, Appellant, v. Cynthia Lee AMICK, Appellee.
    No. 2D03-156.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2003.
    Stephen H. Artman and Keith P. Merritt of Stephen H. Artman, P.A., Lakeland, for Appellant.
    Jean Marie Henne, Winter Haven, for Appellee.
   PER CURIAM.

John Kelly Amick (the Husband) appeals a final judgment of dissolution of marriage entered after he was appropriately defaulted and failed to appear at a properly noticed final hearing. Despite the Husband’s assertions on appeal, there is no indication in the record that the Husband was incompetent at the time of these proceedings. We reject the Husband’s argument that the trial court failed to make sufficient findings of fact to support the unequal distribution of marital assets, and we see no abuse of discretion in the unequal distribution. We reverse, however, that portion of the final judgment that awarded Cynthia Lea Amick (the Wife) the 1984 Redmon mobile home. In her petition for dissolution of marriage, the Wife alleged that this asset was in the Husband’s possession and specifically requested that the court award it to the Husband. As such, the Husband was entitled to notice and an opportunity to be heard before this asset could be awarded to the Wife in a final hearing. Kitchens v. Kitchens, 162 So.2d 639 (Fla. 3d DCA 1964).

Affirmed in part, reversed in part, and remanded.

ALTENBERND, C.J., and CANADY and WALLACE, JJ., Concur.


text:
    William D. MORROW, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2674.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Appellant, pro se.
    Charlie C. Crist, Attorney General; Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 28, 2003, the Court has determined that the notice of appeal was not timely filed. Thus, the Court lacks jurisdiction to review the order on appeal. Accordingly, the appeal is hereby dismissed.

DISMISSED.

WEBSTER, DAVIS and BROWNING, JJ., Concur.


text:
    Derek H. COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1821.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The trial court failed to attach portions of the record supporting its conclusion that the appellant was not entitled to additional jail credit. However, the appellant is not entitled to relief because he has failed to supply the dates for which he is claiming jail credit. See Thomas v. State, 634 So.2d 175,177 (Fla. 1st DCA 1994).

AFFIRMED.

WOLF, C.J., LEWIS and POLSTON, JJ., Concur.


author: WARNER, J.

text:
    Sal AMATO and Clara Amato, his wife, Appellants, v. Randolph J. INTINDOLA and City of Hallandale, Appellees.
    No. 4D02-3366.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.
    Rehearing Denied Oct. 10, 2003.

      Paul J. Kneski, Miami, for appellants.
    Mark Goldstein, City Attorney, Hallan-dale Beach, for appellees.
   WARNER, J.

In this personal injury action, the trial court dismissed appellant’s complaint after concluding that he perpetrated a fraud on the court. The trial court’s dismissal was based on a videotape taken by an investigator which depicted appellant performing several activities that he testified at his deposition that he was unable to perform. We adopt the analysis of Jacob v. Henderson, 840 So.2d 1167 (Fla. 2d DCA 2003), and reverse, holding that dismissal with prejudice as a sanction was an abuse of discretion.

Appellant, Sal Amato (“Amato”), age 76, was involved in an automobile accident with the city manager of Hallandale. Am-ato sued the City and its manager for negligence and alleged permanent bodily injury. Because of his claim, the City employed a private investigator who surv-eilled appellant and recorded his activity on two days approximately six months apart. On the tape of the first day, appellant is seen working on his truck, crawling partially underneath the vehicle, and changing a tire. On the tape of the second day, shot six months later, Amato is seen working around his home and climbing a ladder to the roof. While standing on the roof, he lifts some sort of electric motor to the roof with a rope and proceeds to clean out his gutters.

At his deposition, taken two days after the second videotape was made, Amato testified that, as a result of the accident, he suffered a recurrence of back problems from an earlier spinal surgery as well as problems with his knee which prevented him from twisting and required him to walk carefully. He claimed he could not go up or down stairs without pain, nor could he lift excessive weight. He also testified that while he had made repairs to his car in the past, since the accident he could only make simple repairs and would be unable to get under the car or change a tire. Amato also claimed that he could not perform home maintenance activities.

Based upon the apparent contradictions between Amato’s deposition testimony and his activities depicted on the videotapes, the City of Hallandale filed a motion to dismiss, alleging that appellant “deceitfully utilize[d] the legal system by misrepresenting the scope and extent of his injuries.” It argued that dismissal with prejudice was proper. The trial court conducted an evidentiary hearing, at which time the judge viewed the tapes but did so on fast forward because of their length.

Amato was then given the opportunity to explain his deposition testimony. He first explained that in his deposition he thought he was being asked whether he could change the oil in a car, which would require him getting entirely under the car. In the activity depicted on the first tape, Amato was not changing the oil, rather he was working with the starter which weighed only eight and a half pounds. Further, Amato said he did not lift the tire when putting it back on the wheel. As to climbing the ladder and cleaning the gutters, he said that he only went up and down the ladder twice, and it caused him pain. He admitted that he hauled a motor onto the rooftop, but he did not say how much it weighed.

Amato’s counsel argued that the videotape did not show intentional fraud. At most it revealed inconsistencies that the City could argue to the jury. He noted that the videotape could not show pain. Although the court viewed most of the videotape in fast forward, the court found the videotape and the deposition testimony to be completely contradictory. The court cited to appellant’s testimony in his deposition that he could not climb stairs or bend, yet the videotapes showed him doing both of those activities. The court also pointed to Amato lifting the electric motor onto the rooftop when he testified that he could not lift excessive weight. The court cited Am-ato’s testimony that he could not get underneath a car, change a tire, or repair a car, and concluded that the videotape of the car repair was in absolute contradiction to his deposition testimony. Concluding that the deposition testimony was nothing short of an attempt to perpetrate fraud on the court, the court dismissed the case with prejudice.

We have examined the videotape at regular speed, and we have read the deposition of the appellant. The videotapes do show the appellant working on his truck and climbing up on the roof. At regular video speed these activities are done relatively slowly. Amato appears to go up the ladder with effort, and it is impossible to tell from the tape the weight of the motor which he hauled to the roof. In the deposition, appellant testified that he could not go up and down stairs or an incline without pain. He did not testify, as the court stated, that he could not go up and down stairs at all.

The car repair on the video required the appellant to go under the left wheel well of the vehicle, but only the upper part of his chest and head are seen under the car. In each videotape he appears to walk with a slight limp. In the deposition he testified that he could not lift excessive weight, but he did not define what excessive weight was, although he denied that twenty pounds was excessive, depending upon how he lifted the weight.

A nearly identical situation occurred in Jacob v. Henderson. At trial, the plaintiff testified that she could not perform a number of tasks as a result of her injuries. The plaintiff obtained a verdict in her favor and both parties moved for a new trial, which was granted. Before the new trial, the defendant obtained surveillance videotape of the plaintiff performing the very same tasks that she testified she could not perform. The court reviewed the trial evidence and videotape and determined that the inconsistencies between the two amounted to fraud on the court. It dismissed the case with prejudice.

In reversing, the second district first relied on a more stringent abuse of discretion standard set forth in Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998):

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). When reviewing a case for fraud, the court should “consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18. Because “dismissal sounds the ‘death knell of the lawsuit/ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. at 1118. The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. .4th DCA 1992). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id.; Bird v. Hardrives of Delray, Inc., 644 So.2d 89, 90 (Fla. 4th DCA 1994).

The court reviewed the facts of the case, including the videotape and the deposition. The court noted that “[tjrial court rulings are given less deference when they are based upon the same cold document record that is before the reviewing court.” Jacob, 840 So.2d at 1170 (citing Hervey v. Alfonso, 650 So.2d 644 (Fla. 2d DCA 1995)). Based upon that review, the court noted:

Mrs. Jacob either knowingly perpetrated a fraud, exaggerated her injuries, or unknowingly provided video evidence that her injuries are far less severe than she may believe. Only the first of these three possibilities would support the dismissal of all claims with prejudice. See Baker v. Myers Tractor Servs., Inc., 765 So.2d 149 (Fla. 1st DCA 2000) (affirming dismissal because plaintiff knowingly, intentionally, and repeatedly concealed prior injuries to gain an unfair advantage in litigation).

Id. at 1169. In that case there was no clear and convincing evidence that Mrs. Jacob had “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Id. (quoting Cox, 706 So.2d at 46). While the videotape could lessen her credibility when compared with her testimony at the first trial, it should be submitted to the jury to determine the truth or falsity of the claims.

This case is a mirror image of Jacob. Here, appellant testified that he could not perform certain tasks or could not perform them without pain. The videotape captured appellant performing some of those tasks, although it cannot show that he performed them without pain. Whether Amato’s claims of the extent of his injuries are accurate is for the trier of fact. Jurors may look at the same evidence and conclude that although appellant may not be injured to the extent he believes, he still has suffered some disability from the accident. The evidence presented through the depositions and the video surveillance does not show a knowing and unconscionable scheme to interfere with the judicial system’s ability to impartially adjudicate a proceeding. Therefore, the court erred in concluding that a fraud on the court occurred and that dismissal with prejudice was appropriate.

Appellee cites to Cox v. Burke in support of its position. However, the false answers given in Cox referred to such past personal information as the plaintiffs names, places of residence, and failure to divulge significant prior injuries, all of which prevented the defendants from conducting their investigation and defending the claim. 706 So.2d at 44-46. Similarly, in Savino v. Florida Drive In Theatre Management, Inc., 697 So.2d 1011, 1012 (Fla. 4th DCA 1997), we held that the trial court properly dismissed a claim where the plaintiff lied in discovery about his educational background, a matter critical to the damages claim. In Morgan v. Campbell, 816 So.2d 251, 253-54 (Fla. 2d DCA 2002), dismissal was appropriate where the plaintiff lied about prior injuries and treatment. See also Distefano v. State Farm Mut. Auto. Ins. Co., 846 So.2d 572 (Fla. 1st DCA 2008). These are examples of knowing deception intended to prevent the defense from discovery essential to defending the claim. The facts of this case are distinguishable.

In most cases of personal injury there is a disparity between what the plaintiff believes are the limitations caused by the injuries and what the defense thinks. Many times surveillance tapes are used to show that the plaintiff can do more than what he or she states are the limitations. The fact that a surveillance tape shows discrepancies usually affects the jury’s view of the case, but in this case it does not merit a dismissal with prejudice to appellant’s case.

Reversed and remanded for further proceedings.

KLEIN and SHAHOOD, JJ„ concur.


author: STONE, J.

text:
    Guadalupe REYES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1897.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm an order of the trial court declaring Reyes a sexual predator. Reyes argues that Florida’s Sexual Predator Act (“Act”) violates his rights to procedural and substantive due process and violates the separation of powers clause of the Florida Constitution. We disagree.

Reyes pled guilty to the first-degree felony of attempted sexual battery on a person less than twelve years old, a lesser-included offense of sexual battery. After Reyes was sentenced, the prosecutor moved for entry of a written finding designating him a sexual predator pursuant to the Act.

Under the Act, the sentencing court must make a written finding at the time of sentencing that a defendant who has been convicted of a capital, life, or first-degree felony violation, or any attempt thereof where the victim is a minor and the defendant is not the victim’s parent, is a sexual predator. §§' 775.21(4)(a)(l) and (5)(a)(l), Fla. Stat. (2001). A person who has been designated a sexual predator must register with the Department of Law Enforcement for the duration of his or h.er life. § 775.21(6), Fla. Stat. (2001).

With respect to procedural due process, Reyes argues that he should have been granted an evidentiary hearing before the court could designate him a sexual predator and urges this court to follow Espindola v. State, 2003 WL 118634 (Fla. 3d DCA 2003). There, the Third District held that the Act violated the defendant’s procedural due process rights because it did not provide for a hearing to determine the risk of his committing future offenses. As he was denied such procedural due process, the Act was struck down by the Third District as unconstitutional. Id.

Subsequently, however, the United States Supreme Court addressed this issue in Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). There, the Supreme Court determined that Connecticut’s version of the sex offender registry, which is similar to ours did not violate procedural due process, concluding that due process did not entitle the offender to a hearing to establish that he was no longer dangerous to society because that fact was irrelevant where registration turns on an offender’s conviction alone. Such is the case in Florida, where section 775.21(3)(d) states:

The designation of a person as a sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.

We can discern no reason not to apply the Connecticut Department of Public Safety reasoning here. See Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003)(citing Connecticut Department of Public Safety as basis for rejecting constitutional due process challenge to the Act).

As to substantive due process, Reyes claims that the registration requirements under the Act violate his right to privacy under Article I, section 23 of the Florida Constitution. Whether a statute violates the right to privacy requires evaluation under a compelling state interest standard. Bd. of County Comm’rs of Palm Beach Cty. v. D.B., 784 So.2d 585 (Fla. 4th DCA 2001). In Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 407 (1995), the Supreme Court of New Jersey held that its version of the Act did not violate an offender’s right to privacy because the information disclosed was public information.

Even assuming, however, that the information disclosed pursuant to the Act is private under the federal or Florida constitutions, the stated and patent public purpose of the Act is a sufficiently compelling state interest justifying such an intrusion on privacy. See Jackson v. State, 833 So.2d 243 (Fla. 4th DCA 2002). Here, the legislature has expressly articulated the purpose of the Act in section 775.21(3), recognizing:

(a) Repeat sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Sexual offenders are extremely likely to use physical violence and to repeat their offenses, and most sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.
(b) The high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
3. Requiring the registration of sexual predators, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public.
4. Providing for community and public notification concerning the presence of sexual predators.
5. Prohibiting sexual predators from working with children, either for compensation or as a volunteer.
(c) The state has a compelling interest in protecting the public from sexual predators and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual predators to register and for requiring community and public notification of the presence of sexual predators.

Here, as the state has a compelling interest in notifying the public of the release of sexual predators into their community, we conclude that the Act does not violate the offender’s right to privacy.

Reyes also argues that the Act violates the separation of powers clause of Article II, section 8 of the Florida Constitution because it makes the sexual predator designation mandatory for all defendants who meet the statutory criteria, thus, removing from the trial court any discretion in making this determination. In Kelly v. State, 795 So.2d 135, 137 (Fla. 5th DCA 2001), the Fifth District rejected this argument as did the Second District in Milks, 848 So.2d at 1169. Cf. State v. Cotton, 769 So.2d 345 (Fla.2000)(holding that Prison Releasee Reoffender Punishment Act, although removing all discretion from trial court and transferring to state attorney, did not violate separation of powers clause); but see State v. Curtin, 764 So.2d 645 (Fla. 1st DCA 2000)(Padovano, J. concurring)(agreeing that Act requires sentencing court to impose sexual predator designation on defendant meeting statutory criteria but noting that by removing the court’s discretion, Act appears to violate separation of powers clause).

We agree with Kelly and Milks and hold that the Act does not facially violate the separation of powers principle. In fact, as the supreme court has made clear, the separation of powers clause itself precludes our review of legislative policy that does not violate constitutional principles:

Where a statute does not violate the federal or state Constitution, the legislative will is supreme, and its policy is not subject to judicial review. The courts have no veto power, and do not assume to regulate state policy; but they recognize and enforce the policy of the law as expressed in valid enactments, and decline to enforce statutes only when to do so would violate organic law.

Sebring Airport Authority v. McIntyre, 783 So.2d 238, 244-45 (Fla.2001).

Therefore, the order is affirmed.

STEVENSON and MAY, JJ., concur.

      . We recognize that the Connecticut statute does not contain the employment restriction placed in Florida's statute. We do not, however, deem this distinction significant.


author: STEVENSON, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. T.L., a Minor Child, Appellee.
    No. 4D03-1624.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori R. Shapiro, Assistant Attorney General, Fort Lauderdale, for appellant.
    Felicia Shaman of the Law Office of Felicia Shaman, P.A., Fort Lauderdale, for appellee.
   STEVENSON, J.

This dependency case concerns whether the trial court erred in placing the minor child, T.L., in the home of a relative without the completion of a home study. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(4). Because the governing statutes and case law required that a home study be completed prior to the trial court placing T.L. with her maternal aunt, we reverse.

T.L. was removed from the custody of her father, G.L., based on allegations that the father physically abused the child by hitting her with a belt, resulting in bruises. The father consented to the petition for dependency and the child was adjudicated dependent. A disposition order was entered, placing the child in the temporary custody of her twenty-year-old sister.

After finding that the original risk had been remedied, the court ordered that the child be returned to her father. The child subsequently ran away after spending just three weeks with the father. This prompted the child’s attorney ad litem to file an emergency motion for change of placement, seeking to place T.L. with her maternal aunt, T.B.

At the March 3, 2003 hearing, the DCF worker testified that the father had substantially complied with the case plan tasks, that the risks to the child had been remedied, and that placement with the father was recommended. The therapist, however, indicated that while the father was “very willing,” the child had “shutdown.”

At the hearing, the court expressed concerns about the child being returned to the father because she might run away again. The father stated that he had done everything under the case plan, and that the child had missed the majority of the school year and had been associating with a boy who had been arrested. The father believed that T.L. did not want to return home because she did not want to abide by his curfew and house rules. The trial court responded:

You’re not seeing the practical side. That’s my concern. My concern is she’s going to — you’re going to have your rules and whatever and she’s going to run. At the present, here’s one problem we’ve got is she thinks that she can go to her aunt and obviously she thinks she can play you. Now, you don’t strike me as someone that would be easily played.
[SJhe’s going to run. She comes back to your house she’s going to run, isn’t she?
If I can at least keep her off the street and in school for a little while, that’s a great thing. And I’ve got more faith in the aunt I guess than you do.

Ultimately, the court placed the child with the aunt over the father’s -and DCF’s objection. DCF specifically objected to the child being placed with the aunt before the background check and home study had been completed.

Section 39.522, Florida Statutes (2002), governs “postdisposition change of custody” and provides in part:

The court may change the temporary legal custody or the conditions of protective supervision at a postdisposition hearing, without the necessity of another adjudicatory hearing.
(1) A child who has been placed in the child’s own home under the protective supervision of an authorized agent of the department ... may be brought before the court by the department or by any other interested person, upon the filing of a petition alleging a need for a change in the conditions of protective supervision or the placement.... The standard for changing custody of the child shall be the best interest of the child. If the child is not placed in foster care, then the new placement for the child must meet the home study criteria and court approval pursuant to this chapter, (emphasis added).

Section 39.521(2)(r) provides the home study criteria required by the chapter:

(r) If the child has been removed from the home and will be remaining with a relative or other adult approved by the court, a home study report concerning the proposed placement shall be included in the predisposition report. Prior to recommending to the court any out-of-home placement for a child other than placement in a licensed shelter or foster home, the department shall conduct a study of the home of the proposed legal custodians, which must include, at a minimum: [factors provided]
The department shall not place the child or continue the placement of the child in a home under shelter or postdisposition placement if the results of the home study are unfavorable, unless the court finds that this placement is in the child’s best interest.

Despite the trial court’s good intentions in this case, the statutory scheme clearly requires that a home study be completed before a child is ordered to any out-of-home placement, other than a licensed shelter or foster home. See § 39.522; Dep’t of Children & Families v. R.G., 821 So.2d 477 (Fla. 4th DCA 2002)(finding that trial court erred in changing legal and physical custody of the child without a home study).

Based on the following language in section 39.521(2)(r), T.L. argues that the trial court has discretion to place the child in a home, prior to having a home study report, if the trial court finds that the placement is in the child’s best interest:

The department shall not place the child or continue the placement of the child in a home under shelter or postdisposition placement if the results of the home study are unfavorable, unless the court finds that this placement is in the child’s best interest, (emphasis added).

As DCF correctly points out, however, this language gives the trial court discretion to make a placement in spite of a negative home study. The statute does not give the trial court the authority to place the child in a home without conducting any home study at all. Indeed, in virtually all instances, a home study would be necessary to enable the trial judge to make a well-informed best interest determination under section 39.521(2)(r). For example, despite a prospective placement being a caring relative with a nice home and good job, a convicted child molester may also reside in the same household; certainly that information would be unearthed in a thorough home study.

Accordingly, we reverse the temporary placement order and remand for further proceedings consistent with this decision.

POLEN and SHAHOOD, JJ., concur.

      . T.L. stayed with T.B. for a time after she ran away from home.


author: HAWKES, J.

text:
    B.B., In re the Adoption of M.E., etc., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-2743/02-2938.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2003.

      Gwendolyn P. Adkins, Coppins & Monroe, P.A., Tallahassee, for Appellant.
    Avron Bernstein, Child Welfare Attorney, Department of Children and Families, Tallahassee, for Appellee.
   HAWKES, J.

In these two consolidated appeals, Appellant appeals from final orders denying her motion to intervene in a dependency action involving her twin grandchildren and her subsequent petition for adoption of those children, without addressing the adoption petition on the merits. We reverse the final order dismissing the petition for adoption, and remand for an evi-dentiary hearing. In light of this ruling, Appellant’s appeal of the final order denying her motion to intervene is rendered moot.

I. Factual Background

Appellant is the paternal grandmother of four-year-old twins. For reasons not connected with this appeal, the Appellee, Department of Children and Families (DCF) sheltered the twins from their parents. While in shelter care, the twins resided in placements other than with Appellant. Subsequently, DCF filed a motion to change custody to Appellant, noting Appellant had been previously approved by the court to supervise the parents’ visitation with the twins, and DCF had approved Appellant as the twins’ relative custodian.

After the twins had resided with Appellant for approximately three months, DCF informed her that the twins’ father could no longer reside in her home if the twins were to remain. DCF gave Appellant 24 hours to have her son move from her home. DCF’s ultimatum was based upon a psychological/psychosexual evaluation of the twins’ father which indicated he posed a threat to all children and should not be allowed access to any child without completing all case plan tasks and recommendations submitted by the evaluating psychologist. When Appellant’s son failed to move within the 24-hour deadline, DCF sheltered the twins from Appellant.

Contrary to the urgency DCF felt in regard to the twins, there was apparently no urgency as to the other children which remained in her care. The record indicates that, at the time DCF removed the twins based on the evaluation which indicated the twins’ father posed a threat to all children and should not be allowed access to any child, DCF left five of Appellant’s minor nieces and nephews in her home, and requested she provide shelter care for an infant sibling of those children.

A. Appellant’s Court-Ordered Opportunity to Adopt

Subsequently, at the termination of parental rights (TPR) trial, held under Chapter 89, the court terminated the parents’ parental rights to the twins. During the trial, the court ordered that a cousin, Ms. Sykes, be considered as suitable to adopt the twins and, if she was unable or unwilling, then DCF was to give Appellant that opportunity. Appellant’s opportunity to adopt her grandchildren was to be premised on two conditions: (1) the parents not having visitation alone with the children, and (2) the parents moving out of the building occupied by Appellant. If those conditions were not met, the trial court stated it would entertain a recommendation for another placement.

At the time of the court’s order, the Guardian Ad Litem (GAL) sought clarification, asking if the court had indicated it would consider Appellant as an adoptive placement. The trial court responded: ‘Tes, only if Ms. Sykes cannot or will not be doing that; and only if [Appellant’s son] moves out into another building and any visitation would have to be approved by y’all, and it would have to be supervised visitation.”

DCF counsel repeated the court’s ruling and made a procedural inquiry about visitation issues. Counsel stated: “In the event that — if it comes to pass that [Appellant] is not willing to comply with what the Court has ordered, regarding restrict any contact and if [Appellant’s son] does not move out of the building. Does the Court then want to reserve a ruling or make a ruling now as to whether or not [Appellant] will have visitation rights as a grandparent?” To which the court replied it would “reserve jurisdiction over that question until we find out what [Appellant’s] reaction is.” The direct appeal of the TPR final order was affirmed. Neither DCF nor the GAL objected at the TPR trial, nor cross-appealed the trial court’s order that Appellant be given the opportunity to adopt her grandchildren.

B. Appellant’s Attempts To Enforce The Order

Ms. Sykes was unable or unwilling to adopt the twins. DCF took no action to permit or assist Appellant in obtaining custody of the twins, and even reduced her visitation rights. Because of these facts, and the court’s order granting Appellant the opportunity to adopt her grandchildren, Appellant filed a “Motion to Intervene and Enforce Court Order” in the Chapter 39 dependency proceeding. A hearing on Appellant’s motion was conducted before a different trial judge than the one who presided over the TPR trial. The new trial judge accepted DCF’s argument that Appellant’s motion was premature. The trial judge held that, due to “the lull period” in Chapter 39 proceedings between TPR and the filing of an adoption petition, there were no proceedings into which Appellant could intervene. The trial court concluded that its jurisdiction could not be invoked until an adoption petition was filed under Chapter 63.

To invoke the trial court’s jurisdiction under Chapter 63, Appellant filed an adoption petition, and a hearing was held before the same trial judge who presided at the hearing on Appellant’s motion to intervene. At the hearing on the adoption petition, Appellant again relied, in part, on the court order that she was to be given an opportunity to adopt her grandchildren.

The trial court denied Appellant’s adoption petition. DCF argued and the trial court held that the court: lacked jurisdiction, because the dependency court [under Chapter 39] has ongoing reviews and jurisdiction until the children are adopted; that DCF had identified another adoptive home for the twins; that DCF did not consent to Appellant’s adoption of the twins and, absent DCF’s consent, an adoption petition must be denied for the reasons discussed in C.S. v. S.H., 671 So.2d 260 (Fla. 4th DCA), rev. denied, 680 So.2d 424 (Fla. 1996); and that Appellant had been denied intervenor status in the dependency case. In so doing, the trial court erred.

II. Discussion

We discuss three aspects of the court’s ruling: (1) its holding that it lacked jurisdiction to consider the adoption petition; (2) its failure to recognize the import of the TPR order granting Appellant an opportunity to adopt her grandchildren; and (3) the deference due DCF’s placement choices.

A. The Trial Court Has Continuing Jurisdiction

First, the trial court erred by concluding it lacked jurisdiction based on DCF’s arguments, which resulted in Appellant getting whipsawed without any forum in which to be heard. The dependency court is not divested of jurisdiction after a TPR trial simply because subsequent adoption proceedings will be conducted pursuant to Chapter 63. See §§ 39.812(4) and 39.813, Fla. Stat. (2001). The dependency court never loses jurisdiction after a TPR trial, and continues to retain exclusive jurisdiction throughout the adoption process. See §§ 39.812(4) and 39.813, Fla. Stat. In fact, “a circuit court has ‘inherent and continuing jurisdiction to entertain matters pertaining to child custody and to enter any order appropriate to a child’s welfare.’ ” Henry & Rilla White Found., Inc. v. Migdal, 720 So.2d 568, 573 (Fla. 4th DCA 1998) (quoting In the Interest of J.M., 499 So.2d 929, 931 (Fla. 1st DCA 1986)) (emphasis added). Thus, at the hearings on both the motion to intervene and petition for adoption, the trial court had jurisdiction to allow Appellant to participate in a meaningful way in proceedings involving the ultimate placement of her grandchildren.

B. The Trial Court’s Order

At the conclusion of the TPR trial, the trial court ordered DCF to give Appellant the opportunity to adopt her grandchildren if a cousin could not or would not adopt them, and if Appellant met certain conditions. Since the cousin chose not to adopt the twins, DCF was required to give Appellant the opportunity to adopt her grandchildren if she met the court’s conditions.

If DCF believed the court order imposed inadequate conditions or was contrary to law at the time it was entered, DCF should have objected. DCF’s failure to do so waives any objection DCF may now have. Compliance with the order is now DCF’s only option.

DCF provided no evidence that they complied with the order. Rather, DCF’s counsel stated he could provide evidence that DCF had considered and rejected Appellant as an adoptive placement. DCF’s rejection was apparently due to concerns that Appellant might permit her son to see the twins. Significantly, the TPR trial court did not order that the twins’ father not have visitation. The order was conditioned upon Appellant not permitting the parents to have unsupervised visitation with the twins, and requiring the parents to move out of the building occupied by Appellant. Thus, even if DCF’s assertions were supported by evidence, its actions would have failed to comply with the trial court’s order.

Appellant clearly had a right to be apprised of the status of the adoption proceedings. In spite of this right, the transcript indicates DCF failed to give Appellant any information as to the status of the adoption proceedings involving her grandchildren, or any indication that she was being given an opportunity to adopt them. Compliance with the court order would have required, at a minimum, that Appellant be apprised of the status of her grandchildren’s adoption proceedings, and the steps DCF was taking to approve her as an adoptive placement.

C. Deference Due DCF

DCF argues, in essence, that because it did not consent to Appellant’s adoption of the twins, and had chosen another adoptive placement, no other factors are relevant and the court must give unqualified deference to its placement decision. DCF misconstrues Florida law. DCF’s authority and discretion are not absolute. ‘ For instance, the court is not precluded from placing conditions on the exercise of DCF’s discretion to place the twins. See Dep’t of Health & Rehab. Servs. v. Brooke, 573 So.2d 363 (Fla. 1st DCA 1991). Nor is the trial court required to grant the adoption petition of the non-relatives to whom DCF has consented. See L.R. v. Dep’t of Children & Families, 822 So.2d 527 (Fla. 4th DCA 2002). The rule is that “a trial court cannot interfere with DCF’s decision to select an adoptive family “where [DCF’s] selection was appropriate, consonant with its policies and made in an expeditious manner.’ ” Dep’t of Children & Families, & M.W. & K.W. v. Adoption of B.G.J., 819 So.2d 984, 986 (Fla. 4th DCA 2002) (quoting C.S., 671 So.2d at 262) (emphasis supplied). Certainly an appropriate selection depends on the facts of a particular case, and must always be consistent with Florida law.

Therefore, it falls to the trial court to ensure that DCF’s selection is appropriate and consonant with DCF’s policy. It is the law of Florida and DCF policy “that relatives must be explored as [adoptive] placement[s]” and “relatives are the placement of choice.” Fla. Admin. Code R. 65C-16.002(2). “[DCF] adoption staff must assure that such explorations were made and that there are, indeed, no available relatives willing to take the child.” Id.

Grandparents are given particular preference, and “[w]hen a child who has lived with a grandparent for at least six months is placed for adoption, the adoption entity shall notify the grandparent of the impending adoption before the petition for adoption is filed.” § 63.0425(1), Fla. Stat. (2001) (emphasis added). “If the grandparent petitions the court to adopt the child, the court shall give first priority for adoption to that grandparent.” Id. (emphasis added). Where grandparents have priority status to adopt, they have standing to file an adoption petition or intervene in the petition filed by non-relatives. See L.R., 822 So.2d at 531. Here, although Appellant’s grandchildren did not live with her for six months, they did live with her for three months. Moreover, Appellant visited with her grandchildren at every opportunity DCF offered, and was clearly interested in providing for their welfare. These are factors properly considered by the trial court when deciding to approve Appellant as a potential adoptive placement.

Since a legal interest sufficient to permit intervention can be created by an out-of-state order granting visitation rights, an enforceable legal interest is also created by a court order approving Appellant as a potential adoptive placement and granting her the opportunity to adopt her grandchildren. Thus, we conclude that, because Appellant was a grandparent, court-approved as a potential adoptive placement, the court order created for her the equivalent of the statutory priority of section 63.0425(1), Florida Statutes.

Clearly, DCF’s choice here of a non-relative adoptive placement was neither appropriate under the facts of this case, nor consonant with its own policy and Florida law that relatives are the placement of choice. Thus, by failing to comply with the court order to give Appellant an opportunity to adopt her grandchildren, and by failing to make an appropriate placement choice consonant with their own policies, DCF failed to meet the requirements necessary to qualify for the deference they seek.

IV. Disposition

Because the trial court erred in dismissing Appellant’s adoption petition, we REVERSE and REMAND. On remand, an evidentiary hearing shall be conducted to determine whether Appellant would comply with the conditions for adoption imposed by the original trial court (i.e., whether Appellant would permit only supervised visitation with the biological parents, and whether the biological parents have moved, or will move, from Appellant’s home). The original court stated it would consider another adoptive placement if these conditions were not met. Thus, if these conditions are met, Appellant should be permitted to adopt her grandchildren unless DCF can offer clear and convincing evidence that the twins would be at risk of being.abandoned, abused or neglected under Appellant’s care. REVERSED and REMANDED for proceedings consistent with this opinion.

DAVIS and LEWIS, JJ., concur.

      . This order was entered in open court, but not reduced to writing.

      . DCF's position that Appellant is an inappropriate adoptive placement for her grandchildren is inconsistent with DCF’s actions of previously sheltering the twins with her, leaving five of Appellant’s nieces and nephews in her home, and subsequently requesting she also shelter the children's infant sibling.

      . In re Adoption of a Minor Child, 593 So.2d 185 (Fla.1991) (holding grandparents granted visitation rights by an out-of-state visitation order have standing to intervene in adoption proceedings).


text:
    Everett BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2689.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.
    Everett Baker, Lake Butler, pro se.
    No appearance for Appellee.
   PER CURIAM.

Everett Baker appeals the summary denial of his rule 3.850 motion and his amended motion. We affirm.

Mr. Everett was tried and convicted of solicitation to deliver cocaine and tampering with physical evidence. He asserts that his trial counsel was ineffective in his representation in four different ways. Without detailing each of the claims, what is quite clear is that in each instance Mr. Everett has failed to allege specific facts that are not conclusively rebutted by the record, and which demonstrate a deficiency in performance that prejudiced the defense. See Jones v. State, 845 So.2d 55, 65 (Fla.2003).

AFFIRMED.

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    Edward L. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2172.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.
    Edward Lyne Washington, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Faretta v. California, 422 U.S. 806, 834 n. 46, 95. S.Ct. 2525, 45 L.Ed.2d 562 (1975) (“a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to denial of ‘effective assistance of counsel’ ”).

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


author: ORFINGER, J.

text:
    ARGUS FIRE & CASUALTY INSURANCE CO., etc., Petitioner, v. Kirtley WINN, II and Judith Winn, Respondent.
    No. 5D03-1696.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.
    Reginald Morris, Jr. of Groelle & Salmon, P. A., Lake Worth, for Petitioner.
    Ronald S. Haynes of Richard H. Wilson, P. A., Tampa, for Respondent.
   ORFINGER, J.

Argus Fire & Casualty Insurance Co. seeks certiorari review of a trial court order, which granted, in part, a motion to compel discovery filed by Kirtley and Judith Winn, the plaintiffs below. In their response, the Winns have confessed error with respect to interrogatory 11, and have agreed to withdraw it. Accordingly, we need not consider that matter further.

As to the remaining matters in dispute, while we agree with Argus that discovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence, Brooks v. Owens, 97 So.2d 693 (Fla.1957), certiorari is only appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Not every erroneous discovery order creates certiorari jurisdiction. Id.

The information the Winns seek in interrogatories 12, 13 and 15 and their request to admit 28, appears to us to be largely irrelevant to the resolution of their dispute with Argus. However, we do not believe that discovery of the requested material causes Argus irreparable harm. Accordingly, we deny certiorari. In doing so, we express no opinion on the admissibility of the disputed material at trial.

CERTIORARI DENIED.

THOMPSON and GRIFFIN, JJ., concur.

      . It is difficult to ascertain that Argus will be harmed in any way by responding to the requested discovery except for the inconvenience normally associated with responding to any discovery dispute.


author: PLEUS, J.

text:
    James Thomas KINSEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1546.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.
    James Thomas Kinsey, Bushnell, pro se.
    No appearance for Appellee.
   PLEUS, J.

In 1990, Kinsey was tried and convicted of the first-degree murder of his aunt. He was sentenced to life in prison with a minimum mandatory term of 25 years. His conviction and sentence were affirmed by this court. Kinsey v. State, 595 So.2d 58 (Fla. 5th DCA 1992). He thereafter made a number of collateral attacks upon that conviction and sentence.

We have now received Kinsey’s response to our show cause order issued pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), which stands for the proposition that a court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond. Because we find no merit to the response, and because Kinsey has repeatedly abused the judicial system in this regard, we find he qualifies for this court’s “enough is enough” rule. See, e.g., Carlisle v. State, 849 So.2d 1146 (Fla. 5th DCA 2003); Werts v. State, 722 So.2d 982 (Fla. 5th DCA 1999); Davis v. State, 705 So.2d 133, 135 (Fla. 5th DCA 1998); Isley v. State, 652 So.2d 409, 410-11 (Fla. 5th DCA 1995).

Therefore, in accordance with the Criminal Appeal Reform Act of 1996, and in order to conserve judicial resources, we prohibit Kinsey from filing any additional pro se appeals, pleadings, motions and petitions relating to his 1990 conviction and sentence. Any further pleadings filed in this court relating to his judgment and sentence in that case must be reviewed and signed by an attorney, licensed to practice law in this state. The clerk of the court of the Fifth District Court of Appeal is directed not to accept any further pro se filings or pleadings from Kinsey related to Ninth Judicial Circuit Court No. 89-CF-3364.

AFFIRMED.

PALMER and MONACO, JJ., concur.

      . Kinsey filed a Rule 3.850 motion for post-conviction relief which was denied by the trial court on November 13, 1992, which he did not appeal. He filed a second Rule 3.850 motion which the trial court denied and this court affirmed. Kinsey v. State, 632 So.2d 1044 (Fla. 5th DCA 1994). He sought a writ of habeas corpus to obtain a belated appeal but his petition was denied. Kinsey v. State, No. 94-1288 (Fla. 5th DCA June 13, 1994). He then switched to federal court, petitioning the Middle District for a writ of habeas corpus under 28 USC § 2254. It was denied on October 3, 1995. He filed an unsuccessful motion for relief from judgment with the United States District Court in June 1996. He again sought a writ of habeas corpus in this court to obtain a belated appeal, but his petition was denied. Kinsey v. State, No. 97-2557 (Fla. 5th DCA Sept. 25, 1997). He petitioned the Florida Supreme Court for habeas corpus; that court also denied relief. Kinsey v. State, 705 So.2d 570 (Fla.1998). He filed yet another petition for writ of habeas corpus in this court; it was denied. Kinsey v. State, No. 00-902 (Fla. 5th DCA Apr. 10, 2000). He again petitioned the Florida Supreme Court for habeas corpus. They again denied relief. Kinsey v. State, 776 So.2d 276 (Fla.2000). This time, Kinsey is appealing the denial of his third 3.850 motion on the basis of "new evidence” which he does not have.


text:
    D.M., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-22.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

D.M., a juvenile, appeals a juvenile disposition order in circuit court case no. 02-420, which involved a first degree misdemeanor. In the disposition order, for this misdemeanor offense and various unrelated felony offenses, the court committed D.M. “to the Department of Juvenile Justice for placement in [a] High Risk (Level 8) program for an indeterminate period, but no longer than the maximum sentence allowable by law ... or [his] 21st birthday, whichever occurs first....” D.M. contends, and the State concedes, that his misdemeanor sentence must be limited to the maximum term that could be imposed on an adult for the same offense. I.B. v. State, 816 So.2d 280, 232 (Fla. 5th DCA 2002).

We affirm D.M.’s conviction, but, on remand, the circuit court shall clarify the commitment order in circuit court case no. 02-420 to make it clear that D.M.’s commitment is for a period of one year, but not to exceed his 19th birthday. D.M. need not be present for resentencing.

AFFIRMED AND REMANDED FOR CORRECTION OF SENTENCE.

THOMPSON, PLEUS and ORFINGER, JJ., concur.


text:
    Joanna M. LOCKLEAR, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-14.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.
    Joanna M. Locklear, Georgetown, pro se.
    John D. Maher, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Joanna M. Locklear seeks review of an Unemployment Appeals Commission order denying her claim for unemployment compensation benefits. As is often the case, the record reveals a conflict in the evidence regarding the reason Ms. Locklear’s employment with Marcus M. Cornelius, III & Associates, P.A., ended.

Our review of the record reveals that the Commission’s determination that Ms. Locklear voluntarily left her employment, and is therefore not entitled to benefits is supported by competent, substantial evidence. De Groot v. Sheffield, 95 So.2d 912 (Fla.1957). Accordingly, the Commission’s order is affirmed.

AFFIRMED.

THOMPSON, PLEUS and ORFINGER, JJ., concur.


author: PALMER, J.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Fabian Altamonte MOORE, Appellee/Cross-Appellant.
    No. 5D02-3727.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    James B. Gibson, Public Defender and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellee/Cross-Appel-lant.
   PALMER, J.

The State files this appeal, arguing that the trial court erred in refusing to impose a three-year minimum mandatory sentence on defendant Fabian Moore conviction for possession of a firearm by a convicted felon. Because Moore entered a plea of nolo contendere to the charge and the information specifically alleged that he had actual possession of a firearm, imposition of a three-year minimum sentence was mandatory. Accordingly, we vacate the sentence entered by the trial court on the defendant’s plea. However, finding that the face of the record shows that the plea was entered by the defendant with the express understanding that the three-year minimum mandatory sentence would not be imposed, we remand this matter to the trial court so that the defendant can have an opportunity to move to withdraw his plea.

The defendant was charged with, and convicted of, violating section 775.087(2)(a)l of the Florida Statutes (2001). The amended information, to which the defendant pled, specifically charged the defendant with “actually possess[ing] a firearm, to-wit: a handgun.” (Emphasis added). In accepting the defendant’s plea, the trial court stated that the factual basis for the plea was set forth by the evidence presented by the State at a previously conducted suppression hearing. Our review of the transcript of that suppression hearing reveals that, in denying the defendant’s suppression motion, the trial court noted that the evidence indicated that the defendant was in constructive, not actual, possession of the firearm, but the court did not issue a formal ruling in that regard. At the subsequent plea hearing, defense counsel specifically noted that the defendant was agreeing to enter a plea with the understanding that the court had already indicated that the minimum mandatory sentence was not applicable. The State meanwhile argued that imposition of the statutory three-year minimum mandatory sentence was required because the defendant had admitted to being in actual possession of the firearm. The court accepted the defendant’s plea and subsequently sentenced the defendant without imposing the three-year minimum mandatory sentence.

We agree with the State that the trial court committed reversible error by refusing to impose a minimum mandatory three-year term of imprisonment on the defendant’s firearm conviction since section 775.087 of the Florida Statutes provides that any person who is convicted of possession of a firearm by a convicted felon and actually possesses the firearm is subject to such mandatory sentencing. Our courts have construed section 775.087 as meaning that, in order to obtain the sentencing enhancement provided for in the statute, the State must prove that the defendant was in actual possession of the firearm. See Lopez v. State, 833 So.2d 283 (Fla. 5th DCA 2002). Here, imposition of the minimum mandatory three-year sentence was required because the defendant pled nolo contendere to the charges as filed and the amended information specifically charged the defendant with “actually” possessing a firearm. By entering his plea, the defendant admitted that he was in actual possession of the firearm at the time of his arrest. See Vemold v. State, 376 So.2d 1166 (Fla.l979)(holding that plea of nolo contendere admits the facts alleged in the information).

In closing, we note that since the record on its face shows that the defendant entered his plea based upon the express understanding that a minimum mandatory sentence would not be imposed, upon remand, the defendant must be given the opportunity to withdraw his plea, if he so chooses.

Sentence VACATED and cause REMANDED.

SHARP, W. and PLEUS, JJ., concur.

      . See §§ 790.23, 775.087(2)(a)l. Fla. Stat. (2001).


text:
    Steven Anthony INDELICATO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3570.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.
    Christopher J. Dale, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Stephen Anthony Indelicato appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule Criminal Procedure 3.850. Having carefully reviewed the record, we find that the trial judge’s conclusions are supported by competent, substantial evidence. Stephens v. State, 748 So.2d 1028 (Fla.1999). There is adequate record support for the trial judge’s conclusion that trial counsel’s performance did not fall below the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

AFFIRMED.

THOMPSON, PLEUS and ORFINGER, JJ., concur.