text:
    William K. FOLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1935.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2003.
    Rehearing Denied Oct. 22, 2003.
   STRINGER, Judge.

William K. Foley challenges the summary denial of his motion to correct illegal sentence. Foley alleged that he was entitled to 274 more days of jail credit, stemming from three separate claims of error. We affirm the order of the trial court with regard to the time Foley spent in Indian River County jail from May 10, 2001, to December 5, 2001. See Gethers v. State, 838 So.2d 504 (Fla.2003). Because the trial court failed to address one claim and failed to attach documentation refuting another, we reverse.

On November 4, 1999, Foley was arrested for forgery, grand theft, resisting/obstructing an officer, and giving a false name. Thirty-three days later, Foley was released on his own recognizance, pursuant to Florida Rule of Criminal Procedure 3.134(1), because no formal charges had been filed. On August 28, 2000, an information was filed for these charges, and Foley was arrested on September 12, 2000. Foley claimed in his motion that he was not released on bond until September 28, 2000. The trial court, in its order, stated that Foley was released on the same day as his arrest, September 12. However, the trial court did not attach any documentation to refute Foley’s claim that he was held until September 28. Because the trial court failed to attach documentation to its order refuting Foley’s claim, we reverse.

Foley also alleged that he did not receive credit for the thirty-three days he spent in jail in 1999 before formal charges were filed. It appears from the record that he is correct. Because the trial court failed to address this claim in its order, we reverse. On remand, if the trial court finds that Foley is not entitled to credit, it must attach documentation to its order which refutes his claims.

Reversed and remanded.

COVINGTON and WALLACE, JJ„ Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WELOGA FINANCIAL CORPORATION, Appellant, v. Michael F. KASHTAN, Appellee.
    No. 3D02-1829.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Kluger, Peretz, Kaplan & Berlin and Steve I. Silverman, for appellant.
    Marshall, Dennehery, Warner, Coleman & Goggin and Dale T. Golden, for appel-lees.
    Before COPE and LEVY, JJ„ NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. Pickard v. Maritime Holdings Corp., 161 So.2d 239 (Fla. 3d DCA 1964).


author: GREEN, J.

text:
    Carlos FAYAD and Dora Fayad, Appellants, v. CLARENDON NATIONAL INSURANCE COMPANY, Appellee.
    No. 3D02-2477.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.

      Harold B. Elite Truppman; Lauri Wald-man Ross, Miami, for appellant.
    Groelle & Salmon, P.A. and Nanci I. Stein-McCarthy (Lake Worth), for appel-lee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   GREEN, J.

Carlos and Dora Fayad appeal an adverse final summary judgment entered in favor of their homeowner’s insurer, Clarendon National Insurance Company (“Clarendon”), which denied coverage for structural damage to their home and personal property loss pursuant to the earth movement exclusion provision of the policy. We affirm.

Clarendon insured the Fayads’ home and certain personal property through an “all risk policy.” During the policy period, the Fayads reported to Clarendon that nearby blasting activities had caused structural damage to their home and personal property. Clarendon, in a letter, denied coverage for the structural damage and stated that its investigation revealed that the damages to the home were the result of “settlement, shrinkage and thermal ef-feets[,]” which its policy specifically excluded. Clarendon’s letter did not address the Fayads’ claimed loss of personal property.

After receiving Clarendon’s denial of coverage, the Fayads demanded appraisal pursuant to the terms of the policy. Clarendon filed this declaratory action seeking to relieve itself of any appraisal obligation and for a declaration of “no coverage.” Clarendon subsequently moved for summary judgment on the grounds that coverage was precluded for the Fayads’ damages by virtue of the “earth movement” exclusion provision in its policy.

Clarendon’s earth movement exclusion and its lead-in provision provide:

SECTION I — EXCLUSIONS
1. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.
b. Earth Movement, meaning earthquake, including land shock waves or tremors before, during or after a volcanic eruption; landslide; mine subsidence; mudflow; earth sinking, rising or shifting; unless direct loss by:
(1) Fire; [or]
(2) Explosion ...
ensues and then we will pay only for the ensuing loss, (emphasis added).

At the hearing on the motion for summary judgment, Clarendon relied upon our decision in State Farm Fire & Casualty Company v. Castillo, 829 So.2d 242 (Fla. 3d DCA 2002) and argued that even assuming arguendo that blasting was the cause of the structural damage to the Fay-ads’ home, coverage was still excluded under the earth movement exclusion. Clarendon claimed that our holding regarding the lead-in provision in Castillo was directly on point here and therefore, blasting activity, as well as the natural phenomena specifically listed in its policy, are excluded under Clarendon’s earth movement exclusion. The Fayads responded that the holding in Castillo was limited to the unique language contained in State Farm’s lead-in provision, and was not applicable to the language in Clarendon’s policy. The trial court granted Clarendon’s motion for summary judgment and this appeal followed.

At the outset, we note and agree with the Fayads that State Farm’s policy language and Clarendon’s policy language, as to the earth movement exclusion, are different. The exclusion contained in State Farm’s policy appears to us to be much broader in scope than Clarendon’s exclusion. Nevertheless, we conclude as a matter of law, accepting the Fayads’ blasting theory as true, that under the plain language of Clarendon’s earth movement exclusion provision, there is no coverage for the claimed losses in this case. See Liberty Mut. Ins. Co. v. Weiss, 790 So.2d 475, 476 (Fla. 3d DCA 2001)(holding that whether particular risk is covered by insurance policy is question of law when facts are undisputed); Cent. Cold Storage, Inc. v. Lexington Ins. Co., 452 So.2d 1014, 1015 (Fla. 3d DCA 1984)(same).

According to the plain language in the Clarendon policy, there is no coverage for losses caused by earth movement. Reading the plain language of the policy and applying the legal maxim “expressio unius est exclusio alterius,” (i.e. “the enumeration of particular covered acts should be construed to exclude all of those not expressly mentioned.”), we conclude that there is no coverage for damages resulting from earth movement caused by the policy’s enumerated natural disasters or perils. Under Clarendon’s policy, however, there would be coverage for damages from a fire or explosion which ensued or followed these enumerated natural disasters or perils. That is, in order for the policy to cover damages caused by explosion, the explosion must “ensue” or follow one of the previously mentioned natural events. If it does not, there is no coverage.

In this case, the Fayads themselves averred in their affidavit that the damage to their home was caused by nearby “man-made blasting/explosions.” Their expert gave the same opinion in his affidavit. Accepting these averments as true, as we must, we conclude that there is no coverage because the blasting or explosion did not follow one of the enumerated natural events cited in Clarendon’s earth movement exclusion. We therefore find that the trial court correctly entered summary judgment in favor of Clarendon on the Fayads’ claim for structural damages, and affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (holding that conclusion of trial court will be affirmed if evidence or alternative theory supports it).

We now turn to the Fayads’ next argument, that the trial court erred in entering summary judgment on their claim for loss of personal property. The Fayads assert that personal property loss caused by explosion is a covered risk under their Clarendon policy. The personal property provision reads:

COVERAGE C — PERSONAL PROPERTY
We insure for direct physical loss to the property described in Coverage C caused by a peril listed below unless the loss is excluded in SECTION I — EXCLUSIONS.

3. Explosion (emphasis added).

The Fayads claim that the policy provides coverage under the personal property section and then takes it away under the earth movement exclusion. Although “explosion” is a listed peril with regard to personal property as the Fayads claim, it is nevertheless expressly limited by the policy’s exclusions. “[W]here one or more provisions of a contract appear to be in conflict, those provisions should be harmonized and reconciled if it is possible to do so.” Gilman Yacht Sales, Inc. v. FMB Invs., Inc., 766 So.2d 294, 296 (Fla. 4th DCA 2000). We find that the earth movement exclusion still acts to deny coverage for explosions except for those following one of the enumerated natural phenomena. Any conclusion to the contrary would result in interpreting the two policy provisions in an inconsistent manner. Therefore, the trial court was correct in granting summary judgment as to the Fayads’ claim for personal property and losses as well, and we affirm.

Affirmed.

      . Clarendon relied on the following policy provisions to deny coverage of the Fayads' claim:

        SECTION I — PERILS INSURED AGAINST

        COVERAGE A — DWELLING and COVERAGE B — OTHER STRUCTURES
      We insure against risk of direct loss to property described in Coverages A and B only if that loss is a physical loss to property. We do not insure, however, for loss:

      2. Caused by:

      e. Any of the following:
      (1) Wear and tear, marring, deterioration;

      (6) Settling, shrinking, bulging or expansion, including resultant cracking, of pavements, patios, foundations, walls, floors, roofs or ceilings....

      . In Castillo, another blasting case, we found that the lead-in provision in State Farm’s policy, when read in conjunction with the policy’s earth movement exclusion, excluded coverage for any loss resulting from earth movement, regardless of whether the cause of the earth movement was natural or man-made. Id. at 245.

        . Specifically, as provided in Castillo, the State Farm policy language is as follows:
      SECTION I — LOSSES INSURED

        COVERAGE A-DWELLING
      We insure for accidental direct physical loss to the property described in Coverage A [the residence premises] except as provided in SECTION I — LOSSES NOT INSURED.
      ‡ $ $ $
      SECTION I — LOSSES NOT INSURED
      1. We do not insure for any loss to the property described in Coverage A [the residence premises] which consists of, or is directly and immediately caused by, one or more of the perils listed in items a through m below, regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these:

      1. settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs, or ceilings [.]
      2. We do not insure under any coverage for any loss which would not have occurred in the absence of one or more of the following excluded events. We do not insure for such loss regardless of: (a) the cause of the excluded event; or (b) other causes of the loss; or (c) whether other causes acted concurrently or in any sequence with the excluded event to produce the loss; or (d) whether the event occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combination of these.

        b. Earth movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, mudflow, sinkhole, subsidence and erosion. Earth movement also includes volcanic explosion or lava flow, except as specifically provided in SECTION I — ADDITIONAL COVERAGES, Volcanic Action.

        We do insure for any direct loss by fire, explosion other than explosion of a volcano, theft, or breakage of glass or safety glazing materials which are part of the dwelling resulting from earth movement, provided the resulting loss is itself a Loss Insured.

        Castillo, 829 So.2d at 243-44.

      . Mason v. Fla. Sheriff’s Self-Ins. Fund, 699 So.2d 268, 270 (Fla. 5th DCA 1997). See also United States v. First Nat'l Bank of Crestview, 513 So.2d 179, 181 (Fla. 1st DCA 1987) ("The maxim ‘expressio unius est exclusio alterius' applies to contracts as well as statutes!.]” (citation omitted).).

      . The dictionary definition of "ensue” is "to follow immediately afterward; take place subsequently” or "to follow as a consequence; result.” The American Heritage Dictionary of the English Language 435 (New College Ed. 1976).

        . Specifically, pursuant to the policy;
      Earth Movement, meaning earthquake, including land shock waves or tremors before, during or after a volcanic eruption; landslide; mine subsidence; mudflow; earth sinking, rising or shifting; unless direct loss by:
      (1) Fire;
      (2) Explosion; ...

        ensues and then we will pay only for the ensuing loss, (emphasis added)

      . We reject Clarendon’s assertion that the Fayads failed to preserve this issue for appeal. The record conclusively refutes this claim, as counsel for the Fayads adequately raised the issue at the summary judgment hearing.


text:
    Kyle WILLIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-166.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Rehearing Denied Oct. 17, 2003.

      Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE, J., and NESBITT, Senior Judge.
   PER CURIAM.

Kyle Willis appeals his conviction for forgery and uttering a forged instrument. We affirm.

Defendant-appellant was employed by a business in Key West. The business owner had left a check for another employee to pick up. The check was signed and filled out for $290 which the owner owed the employee, but the payee line was left blank.

The defendant stole the check, filled in his name on the payee line, and cashed the check at a local liquor store. He was convicted of theft, forgery, and uttering a forged instrument. He does not challenge the conviction for theft.

On this appeal the defendant contends that his conduct does not qualify as forgery under section 831.01, Florida Statutes (2001), which provides in relevant part that “[w]hoever falsely makes, alters, forges or counterfeits .... an order ... for money ... with intent to injure or defraud any person, shall be guilty of a felony of the third degree.... ”

We conclude that the defendant’s conduct qualifies as the crime of forgery. He falsely made or altered the check by inserting his name as payee, with the intent to obtain $290 to which he was not entitled. See Rushing v. State, 684 So.2d 856 (Fla. 5th DCA 1996); Ausburn v. State, 216 So.2d 84 (Fla. 2d DCA 1968).

Affirmed.


text:
    2275 WEST CORPORATION, Appellant, v. AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA, Appellee.
    Nos. 3D03-1362, 3D03-1256.
    District Court of Appeal of Florida, Third District.
    Sept. 24, 2003.
    Keith D. Diamond; Bambi G. Blum, Miami, for appellant.
    Akerman Senterfitt and A. Rodger Traynor, Jr., Miami, for appellee.

      Before COPE, GREEN, and FLETCHER, JJ.
   PER CURIAM.

In this foreclosure action, 2275 West Corporation [West] appeals (1) an order granting American Bankers Life Assurance Company’s emergency motion for sequestration of rents, and (2) a subsequent order denying a motion to vacate the sequestration order. West also seeks a writ of prohibition in connection with the denial of its motion for disqualification of the trial judge.

We find no significant procedural or substantive error in the trial court’s rulings on the motion for sequestration of rents. We, therefore, affirm the orders appealed.

Similarly, because we find no basis for judicial disqualification in this case, we deny the petition for writ of prohibition.


author: PALMER, J.

text:
    Ariel CONCEPCION, Appellant, v. STATE of Florida, Appellee. Danny Robert Cobb, Appellant, v. State of Florida, Appellee. Guillermo Fonseca, Appellant, v. State of Florida, Appellee.
    Nos. 5D02-1185, 5D02-1190, 5D02-1319.
    District Court of Appeal of Florida, Fifth District.
    Oct. 3, 2003.
    Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, for Appellant, Ariel Concepcion.
    James M. Russ of the Law Offices of James M. Russ, P.A., Orlando, for Appellant, Danny Robert Cobb.
    David D. Fussell of Law Offices of Hor-witz & Fussell, P.A., Orlando, for Appellant, Guillermo Fonseca.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Defendants Danny Cobb, Ariel Concepcion, and Guillermo Fonseca appeal their judgments and sentences which were entered by the trial court after a jury found the three men guilty of committing the crimes of trafficking in cocaine in an amount of 400 grams or more, and conspiracy to traffic in cocaine. The charges arose out of an undercover sting operation which was executed by the police with the help of undercover agents, a confidential informant, and electronic wiretaps. Each defendant filed a separate appeal; however, a consolidated opinion is being issued for the three unconsolidated cases.

The defendants have raised numerous claims of error challenging both their judgments and their sentences. Upon review, we conclude that only one claim merits discussion, the claim that the defendants are entitled to receive a new trial because fundamental error was committed by the trial court while issuing its instructions to the jury. We agree that such error did occur during the course of the trial court’s jury instruction; therefore, we reverse the defendants’ judgments and sentences, and remand the cases to the trial court for a new trial.

The First District aptly summarized the analysis which appellate courts must apply when faced with claims of jury instruction error:

Jury instructions are subject to the contemporaneous objection rule, and absent such an objection at the trial, errors in instructions cannot be raised on appeal unless fundamental error occurred. State v. Delva, 575 So.2d 643, 644 (Fla.1991); Castor v. State, 365 So.2d 701 (Fla.1978). A defendant has a .fundamental right to have a court correctly and intelligently instruct the jury on the essential, material elements of the crime charged and required to be proven by competent evidence. Delva, 575 So.2d at 644; Gerds v. State, 64 So.2d 915 (Fla.1953). A defendant cannot be convicted of a crime that was not charged. Dixon, 823 So.2d at 794; O’Bryan v. State, 692 So.2d 290 (Fla. 1st DCA 1997). Fundamental error occurs when the court fails to instruct on an element of the crime that was disputed at trial. Reed, 837 So.2d at 369; Delva, 575 So.2d at 644-45; Simmons v. State, 780 So.2d 263, 266 (Fla. 4th DCA 2001).

Griffis v. State, 848 So.2d 422, 427 (Fla. 1st DCA 2003); see also King v. State, 800 So.2d 734 (Fla. 5th DCA 2001)(holding that when the trial court issues an incomplete or inaccurate jury instruction, fundamental error occurs if the error relates to an element of the crime that is a disputed issue in the case).

Here, the defendants were charged with committing the offense of trafficking in cocaine. The four elements of the offense which must be established beyond a reasonable doubt are as follows: a) that the defendant knowingly purchased or possessed a certain substance, b) the substance was cocaine, c) the quantity was 28 grams or more, and d) the defendant knew the substance was cocaine. § 893.135(1), Fla. Stat. (1999); Chicone v. State, 684 So.2d 736 (Fla.1996). The trial court orally instructed the jury on the charge properly as follows:

Before you can find the defendants guilty of trafficking in cocaine, the State has to prove the following four elements beyond a reasonable doubt. One is that Danny Cobb, Ariel Concepcion and Guillermo Fonseca knowingly purchased, delivered or possessed a certain substance. Two, the substance was cocaine or a mixture containing cocaine. Three, the quality — the quantity of the substance involved was 400 grams or more, but less than 150 grams. And four, that Danny Cobb, Ariel Concepcion and Guillermo Fonseca intended to purchase, deliver or possess marijuana, but actually purchased, delivered or possessed cocaine or a mixture containing cocaine.

(Emphasis added). However, the written instructions which were submitted by the court to the jury for review during deliberations erroneously used the conjunction “or” in place of the “and” in element four. While no objection was raised at trial, on appeal the defendants argue that the trial court’s improper use of the conjunction “or” in the written instruction constituted fundamental error because, under the language used, the jury could have convicted each one of the defendants based solely upon the conclusion that any one of the three intended to purchase or possess contraband. They maintain that the instruction deprived them of their right to receive an individualized verdict, citing to Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001).

In Davis, the defendant claimed that reversible error stemmed from the court’s instruction that the jury could find her guilty of trafficking in cocaine and conspiracy to traffic if the jury found that defendant “and/or” her co-defendant husband met each element. The court also used the “and/or” terminology in instructing on the defendant’s defense of entrapment. Although no objection was made at trial to the use of the improper conjunction, the Fourth District found the erroneous instructions were fundamental error because the jury could have been misled into convicting the defendant based solely on her husband’s conduct; but, it concluded that the error was harmless as to the elements of trafficking because, by interposing an entrapment defense, the defendant had admitted the elements of the crime. However, the error was reversible as to the entrapment instruction because the instruction “could have misled the jury into concluding that [the defendant] was not entrapped if the jury concluded that only [the husband] had a predisposition to commit the charged offenses.” The court reversed and remanded the case to the trial court for a new trial. Id. at 405.

The defendants also rely on Williams v. State, 774 So.2d 841 (Fla. 4th DCA 2000), wherein two defendants were tried jointly on charges of trafficking in cocaine and possession of drug paraphernalia. When instructing the jury on the elements of the offenses, the court told the jury that it could find defendant guilty if he “or” the co-defendant knowingly possessed a certain substance, and if he “or” the co-defendant knew the substance was cocaine. The Fourth District held that the instruction constituted fundamental error:

The failure to give a complete or accurate instruction in a criminal case constitutes fundamental error if it relates to an element of the charged offense. Dowling v. State, 723 So.2d 307, 308 (Fla. 4th DCA 1998). Under the facts of this case, Williams could not be convicted of his charged offenses, trafficking in cocaine and possession of drug paraphernalia, unless the state proved that he possessed the cocaine and the drug paraphernalia. §§ 893.135(l)(b)l., 893.147(1), Fla. Stat. (1997). The trial court, however, instructed Williams’ jury that it could find him guilty of both crimes if either he or Adderly had possession. Because Williams’ jury may have been misled into thinking that it could convict him based solely on Adder-l/s conduct, we hold that the instructions were fundamental error. See Viveros v. State, 699 So.2d 822, 825 (Fla. 4th DCA 1997).

Id. at 843.

Applying the law as expressed in Davis and Williams to the facts presented here, we conclude that the trial court’s submission of an improper written instruction to the jury on the charge of trafficking constitutes fundamental error. Furthermore, such error necessarily impacted the defendants’ conspiracy convictions as well since the jury was required to consider the trafficking instruction in determining the issue of guilt on the conspiracy charge. As such, the convictions on both charges must be reversed. See Bernhardt v. State, 741 So.2d 1230 (Fla. 2d DCA 1999)(holding that allegation that jury received erroneous written instruction could form basis for post-conviction relief even though correct instruction was read to the jury).

Judgments and Sentences REVERSED; causes REMANDED.

SAWAYA, C.J., and COBB, W., Senior Judge, concur.

      . See §§ 893.135(l)(b)l.c„ 893.13(6)(b), 893.147(1), Fla. Stat. (1999).

      . The trial court apparently recognized that the submission of erroneous written instructions has a prejudicial effect upon the jury since the court noted on the record the importance of proper written instructions:
      Nobody decides on what they’ve been told. Nobody pays attention to that jury instruction. They're really for the purposes of allowing the appellate courts to reverse, if they want to, but what — the written instructions is what they’re asking for.


text:
    James W. PIPPIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3495.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2003.
    James W. Pippin, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Simmons v. State, 684 So.2d 860 (Fla. 5th DCA 1996).

WOLF, C.J., BROWNING and HAWKES, JJ., concur.


author: NORTHCUTT, Judge.

text:
    T. Clayton JENKINS, Appellant, v. Sonia JENKINS, Appellee.
    No. 2D02-3310.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2003.

      Thomas C. Saunders of Thomas C. Saunders, P.A., Lakeland (withdrew after briefing); R. Gale Porter, Jr., of R. Gale Porter, Jr., P.A., Tampa (substituted as counsel of record); for Appellant.
    Eileen H. Griffin of Griffin & Associates, P.A., Brandon, for Appellee.
   NORTHCUTT, Judge.

T. Clayton Jenkins challenges the final judgment dissolving his marriage to Sonia Jenkins and an order on her prayer for attorney’s fees and costs incurred in the dissolution proceeding. He contends the circuit court erred in establishing the amounts of his alimony and child support obligations and in directing him to pay a portion of Mrs. Jenkins’s attorney’s fees and costs without determining his income. We agree and reverse.

Case law and statutes provide that when making support and attorney’s fee awards in a dissolution of marriage proceeding, the circuit court must include findings of fact sufficient to permit appellate review of the awards. See, e.g., § 61.08(1), Fla. Stat. (2001); Knorr v. Knorr, 827 So.2d 1017 (Fla. 2d DCA 2002); Segall v. Segall, 708 So.2d 983, 988 (Fla. 4th DCA 1998). Among the more important of these findings is a determination of the parties’ respective incomes. See Segall, 708 So.2d at 988.

In this case, the final judgment fails to include a finding as to Mr. Jenkins’s income at the time of the final hearing. Rather, it simply sets forth his earnings in each of four calendar years ending six months before the final hearing. These figures range from $89,899 to $124,089. Given this wide variation, the findings in the final judgment simply are inadequate to permit appellate review of the alimony, child support, and attorney’s fee awards.

In an effort to expedite matters and to avoid unnecessary expense to the parties, we temporarily relinquished jurisdiction with instructions to file supplemental findings setting forth the incomes the court attributed to each party when making its alimony, child support, and attorney’s fee awards. But the circuit court’s supplemental findings confuse matters further because they do not match the final judgment. For example, whereas the final judgment directs Mr. Jenkins to pay monthly child support of $1140, the court’s supplemental findings assert that Mr. Jenkins’s share of the child support obligation is $1177 per month, and our own calculation based on the income attributed to him in those findings suggests that his share of the child support obligation would be a different amount altogether.

Consequently, we remain unable to review the final judgment. We strike the circuit court’s Written Finding Pursuant to Court’s Relinquishment of Jurisdiction as unresponsive. We reverse the alimony and child support awards contained in the final judgment of dissolution of marriage, reverse the award of attorney’s fees and costs, and remand with directions to revisit these three issues.

Reversed and remanded.

FULMER and STRINGER, JJ., Concur.


text:
    DEREJTOVA, INC., et al., Appellants, v. RAY CORPORATION, INC., Appellee.
    No. 3D02-3356.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Fromberg, Perlow & Kornik, Aventure; Lauri Waldman Ross and Theresa L. Gir-ten, Miami, for appellants.
    Homer & Bonner and Gregory J. Trask, Miami, for appellee.
    Before SCHWARTZ, C.J., and LEVY and GODERICH, JJ.
   PER CURIAM.

Because the appellants, Derejtova, Inc., et al., failed to make a prima facie showing of duress, the trial court properly dismissed the underlying actions with prejudice and enforced the parties’ settlement agreement. See City of Miami v. Kory, 394 So.2d 494 (Fla. 3d DCA), review denied, 407 So.2d 1104 (Fla.1981).

Affirmed.


text:
    Donald GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3063.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.

      Donald Green, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Donald Green appeals the trial court’s order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to Green’s right to file, within sixty days of this court’s mandate, a motion to withdraw his plea pursuant to rule 3.850.

In Green v. State, 777 So.2d 433 (Fla. 2d DCA 2000), this court reversed the trial court’s summary denial of Green’s rule 3.850 motion because his claim of ineffective assistance of counsel was facially sufficient and was not refuted by the record. Specifically, Green alleged that he would not have pleaded guilty to charges of sale and possession of cocaine or admitted violating his probation on a previous cocaine charge but for his counsel’s incorrect advice that he would receive credit for time spent in prison on the previous charge against the sentences imposed on the new charges. Id. at 434-35.

On remand for an evidentiary hearing, Green had the burden of proving his claim of ineffective assistance of counsel. See Schofield v. State, 681 So.2d 736, 738 (Fla. 2d DCA 1996). Green testified in support of his allegation that his counsel’s incorrect advice about the length of his sentence induced him to enter his guilty plea. The State failed to present any evidence to refute Green’s allegation. Green’s competent, substantial, and unre-futed evidence compels the conclusion that Green carried his burden to prove ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial court’s conclusion to the contrary was incorrect. See Stephens v. State, 748 So.2d 1028, 1031-32 (Fla.1999) (explaining the mixed standard of review applicable to a trial court’s findings of fact and legal conclusions in evaluating a claim under Strickland).

Green did not, however, seek to withdraw his plea. When asked repeatedly if he sought to withdraw his plea and proceed to trial, Green insisted on his entitlement to the jail time credit that his prior counsel had incorrectly advised he would receive. However, the only relief available to Green under these circumstances was to be allowed to withdraw his plea. See Trenary v. State, 453 So.2d 1132, 1133-34 (Fla. 2d DCA 1984). Because Green did not seek appropriate relief, the trial court correctly denied his motion. See Rambo v. State, 816 So.2d 191, 192 (Fla. 2d DCA 2002). Accordingly, we affirm the trial court’s order without prejudice to Green’s right to file in the trial court, within sixty days of the date of this court’s mandate, a motion seeking to withdraw his plea pursuant to rule 3.850. If filed within sixty days, the motion should be considered timely, not deemed successive, and granted in accordance with this opinion.

We caution Green that if he decides to withdraw his plea and not be bound by the plea agreement, the State, too, will not be bound by the plea agreement. See Latiif v. State, 787 So.2d 834, 837 (Fla.2001) (citing Sidell v. State, 787 So.2d 139, 140 (Fla. 2d DCA 2001)). If Green withdraws his plea, either side may pursue new plea negotiations or refuse them and proceed to trial. If Green is convicted after a trial, he may be sentenced to a longer term of imprisonment than the sentence he presently serves. Any expectations about his sentence that Green may have derived from his prior counsel’s incorrect advice will be irrelevant if Green withdraws his plea.

Affirmed.

SALCINES, VILLANTI and WALLACE, JJ., concur.


author: SALCINES, Judge.

text:
    Geraldine Leann GERTHE, Appellant, v. Chris Allen GERTHE, Appellee.
    No. 2D01-5737.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.

      Geraldine Leann Gerthe, pro se.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellee.
   SALCINES, Judge.

Geraldine Leann Gerthe, the former wife, appeals the “Order Modifying Final Judgment of Dissolution of Marriage (Child Support and Specified Visitation).” We agree that the trial court erred when it imputed income to the former wife and reverse that portion of the trial court’s ruling. In all other respects we affirm the trial court’s order.

The parties were divorced in 1991. An order was entered in May 2001 which changed the primary residence of the parties’ two minor sons from the former wife to the former husband, Chris Allen Gerthe. In August 2001, the former husband filed a motion in which he requested that the trial court establish a new visitation schedule for the boys and award child support from the former wife.

At the hearing on the former husband’s motion, the trial court properly restricted the testimony presented to only those matters which were then pending before the court. After hearing testimony regarding the extreme difficulties encountered by the parties due to the liberal visitation schedule instituted upon the dissolution of the marriage, the trial court established a rigid schedule.

A trial court has great discretion in creating a visitation schedule. Keitel v. Keitel, 724 So.2d 1255, 1257 (Fla. 4th DCA 1999). We hold that the trial court, in the present case, did not abuse its discretion in setting the visitation schedule and in eliminating the flexibility which created problems for the parties.

With regard to the former wife’s ability to pay child support and the imputation of income, the evidence presented at the hearing demonstrated that she was unemployed at the time of the hearing. She had a high school education but had not been employed since 1994. In February 2000, the former wife was injured when she was struck by a large branch from a tree that was being cut down. She testified that she had difficulty walking, sitting, and standing, and that she had migraine headaches as well. Two letters from doctors were admitted into evidence to support the former wife’s statements concerning her physical condition. The former wife had been prescribed narcotic analgesics which she took regularly to relieve pain. The former wife indicated that she had applied for social security disability insurance (SSDI), but those benefits had been denied. However, she testified that she was continuing to pursue SSDI benefits and was attempting to obtain job training.

The trial court order states that the former wife “may have some physical limitation on her ability to work, however, the Court finds that she is able to be employed on at least a part-time basis.” Based upon that finding, it imputed income of fifty percent of minimum wage.

The issue of the imputation of income to a parent is governed by section 61.30(2)(b), Florida Statutes (2001), which states:

Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found to be voluntary on that parent’s part, absent physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community; however, the court may refuse to impute income to a primary residential parent if the court finds it necessary for the parent to stay home with the child.

The standard of review for a trial court’s imputation of income for purposes of determining a parent’s child support obligation is whether there is competent, substantial evidence to support it. Wendel v. Wendel, 805 So.2d 913, 913 (Fla. 2d DCA 2001); Artuso v. Dick, 843 So.2d 942, 945 (Fla. 4th DCA 2003).

After reviewing the record in the present case, we are unable to find an eviden-tiary basis to support the trial court’s determination. Accordingly, we reverse that portion of the trial court order which directed the former wife to pay the sum of $146.30 per month to the former husband.

We note that the child support issue may be revisited should the former wife’s physical condition improve or should she obtain employment at some time in the future.

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

FULMER and VILLANTI, JJ., concur.


author: STRINGER, Judge.

text:
    Christopher HINOJOSA, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3787.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Christopher Hinojosa seeks review of the final judgment adjudicating him guilty of obstructing a law enforcement officer with violence and assault on a law enforcement officer. We conclude the trial court erred in preventing Hinojosa’s counsel from cross-examining the alleged assault victim, Officer Preyer, on prior complaints and investigations of excessive force lodged against the officer.

The offenses are alleged to have occurred after two officers encountered Hi-nojosa in the street near his home while investigating a disturbance complaint involving Hinojosa and his roommate. Officer Sandel testified that Hinojosa appeared agitated when he first arrived on the scene, but Officer Sandel spoke to Hinojosa and was able to calm him down. As Officer Sandel, Hinojosa, and a neighbor began walking back toward Hinojosa’s house, the scene of the disturbance, Officer Preyer arrived as backup. As the group approached the house, Hinojosa saw his roommate standing outside and again became agitated. The officers testified that they stopped Hinojosa and tried to calm him down, but Hinojosa became belligerent and threatened to strike Officer Preyer. The officers then detained and handcuffed Hinojosa after some struggle. Hinojosa denies the charges, claiming the officers were the aggressors; this defense was supported by the testimony of two eyewitnesses, the neighbor and Hinojosa’s roommate.

A trial court has wide discretion in areas concerning the admissibility of evidence, and such rulings will not be disturbed absent an abuse of discretion. Welty v. State, 402 So.2d 1159, 1162-63 (Fla.1981). A court’s discretion is limited, however, by the rules of evidence. Nar done v. State, 798 So.2d 870 (Fla. 4th DCA 2001). Section 90.608(2), Florida Statutes (2001), provides that “[a]ny party ... may attack the credibility of a witness by ... showing that the witness is biased.” A defendant should be afforded wide latitude to cross-examine in matters relevant to credibility, particularly in the demonstration of bias or possible motive on the part of a witness. Mendez v. State, 412 So.2d 965, 966 (Fla. 2d DCA 1982); Henry v. State, 688 So.2d 963, 966 (Fla. 1st DCA 1997). “The right of full cross-examination is absolute, and the denial of that right may easily constitute reversible error.” Mendez, 412 So.2d at 966.

Where there is an issue of whether or not excessive force was used by a law enforcement officer, prior investigations into the officer’s use of excessive force in other cases are relevant. Mendez, 412 So.2d at 966; Henry, 688 So.2d at 966 (citing Landry v. State, 620 So.2d 1099 (Fla. 4th DCA 1993)). In Mendez, this court reversed a conviction of attempted second-degree murder of a law enforcement officer where the trial court excluded evidence of the officer’s record of numerous internal investigations and a suspension for use of excessive force on a suspect. 412 So.2d 965. In reversing the conviction, we noted that such evidence would have provided the jury with a plausible motive for the officer’s misrepresentation of the facts surrounding the shooting incident in the case. Id. at 966; see also Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981) (holding evidence indicating that an officer had been disciplined or sued for use of excessive force while on duty is relevant to a charge of resisting arrest with violence).

In this case, counsel for Hinojosa was prohibited from cross-examining two law enforcement officers regarding prior complaints and investigations against the officers. The issue was properly preserved only as to Officer Preyer, the alleged assault victim.

Hinojosa’s defense was that Officer Preyer was in fact the aggressor in the assault incident and that he used excessive force on Hinojosa. Two witnesses testified to this version of events. Hinojosa should have been afforded wide latitude in cross-examining Officer Preyer as to prior complaints and investigations. The excluded evidence could have provided the jury with a plausible motive for Officer Preyer’s misrepresentation of the assault incident. Prior investigations into Officer Preyer’s use of excessive force were thus relevant to the case, and the trial court abused its discretion by prohibiting cross-examination on the investigations. Accordingly, Hino-josa’s judgment and sentence is reversed and the cause remanded for a new trial. Our disposition makes it unnecessary for us to reach the second issue raised on appeal concerning statements made at closing.

Reversed and remanded.

WHATLEY and KELLY, JJ„ Concur.


author: WHATLEY, Judge.

text:
    In the Interest of I.A., a minor child. G.A., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-5523.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.

      Alyssa L. Katz of Michael P. Maddux, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

G.A., the father, appeals an order adjudicating his daughter, I.A., dependent. The order was entered after the trial court found G.A. in default for his failure to appear. We reverse.

On October 30, 2002, the Department of Children and Family Services (Department) filed its petition alleging that I.A. was dependent, and the case was set for arraignment on December 3, 2002, at 9:00 a.m. The transcript of the arraignment hearing reflects that the case was the eleventh case set on the docket that morning. When the case was called, it was noted that the mother was present and that G.A. was in the restroom. After hearing from the parties who were present, the trial court ordered that the case be set for a status conference on January 28, 2003, so that an evaluation could be obtained.

Thereafter, the trial court began to call the next case, but then called all of the parties back, finding that G.A. was still not present. It was again noted that G.A. was in the bathroom. Pursuant to a motion by the Department, the trial court entered a default against G.A. for failing to appear. It was then noted that G.A. was walking in the courtroom. The trial court stated, “Well, that’s too late. You can just appeal if you need to. The record reflects it’s 20 minutes to 10:00. This thing was set for 9:00.” G.A. thereafter made a motion to set aside the default which was denied.

We first note that although the trial court used the term “default,” the term “consent” is the proper term to be used when a parent fails to appear at an arraignment hearing. Section 39.506(3), Florida Statutes (2002), provides in part, “Failure of a person served with notice to personally appear at the arraignment hearing constitutes the person’s consent to a dependency adjudication.” Pursuant to the statute, the court is authorized to find that a parent consented to the adjudication of dependency after he or she failed to appear at arraignment after proper notice. In re S.C., 2003 WL 21766512, 857 So.2d 217 (Fla. 2d DCA 2003) (holding that nothing in the statute allows the entry of a default against a parent who fails to appear and that “consent” is the preferable term).

In the present case, we conclude that the trial court abused its discretion in finding that G.A. consented to the adjudication of dependancy. In R.P. v. Department of Children and Families, 835 So.2d 1212 (Fla. 4th DCA 2003), a petition was filed seeking the termination of parental rights and the matter was set for an advisory hearing. At the beginning of the hearing, the father’s attorney noted that, due to the fault of his office, the father was not told, until 5:45 p.m. the previous day, that it was necessary for him to be at the hearing. The attorney further noted that the father lived 200 miles from the court and did not have a vehicle. The attorney requested a brief continuance to allow the father time to appear. When the father had not yet arrived for the afternoon session, the father’s attorney requested another continuance until his client’s arrival, which request was denied. The trial court entered a default, thereby terminating the father’s parental rights. Id. at 1213. The father arrived at the courthouse about one hour subsequent to the end of the hearing. Id.

The Fourth District held that the trial court’s failure to grant a further continuance until the following day was an abuse of discretion. Id. The court noted that the trial court had been advised the father was en route, there was no indication of stalling or disregard by the father, the requested continuance was for a short time, and there was no showing that the continuance would have had adverse consequences to the child. Id. The Fourth District held that “courts should ordinarily refrain from determining a termination of parental rights by default where an absent parent is making reasonable effort to be present at the scheduled hearing and is delayed by forces or circumstances beyond the parent’s control.” Id. at 1214. See A.M. v. Dep’t of Children and Families, 853 So.2d 1084 (Fla. 4th DCA 2003) (holding that trial court erred in refusing to vacate default judgment against parents who were one hour late to hearing because they were mistaken about the public transportation schedule).

In a similar dependency case, A. J. v. Department of Children and Families, 845 So.2d 973 (Fla. 4th DCA 2003), a petition for dependency had been filed against the parents, and the trial on the matter had begun but was continued until May 16, 2002, at 1:40 p.m. When the parents failed to appear, the mother’s counsel noted that the parents took public transportation from Miami to the courthouse in Broward County. At 2:04 p.m., the trial court entered a default against the parents. In its written order, the trial court noted that the father arrived twenty-five minutes late for the trial. The mother arrived shortly thereafter. In reversing the trial court’s order, the Fourth District held that the intent of a default provision is to ascertain that the object of the dependency petition is not defeated by the parents’ disregard of the proceedings. Id. at 976. The court also noted that the purpose of the default provision in section 39.506(3), is “not to inject ‘gotcha’ practices into the dependency process.” Id.

In the present case, the trial court was informed that G.A. was in the restroom, and there is no indication in the record that this was not true. Further, G.A. appeared in the courtroom immediately after the trial court entered the default. There was no showing that a short continuance of the proceeding would have had adverse consequences to the child. In fact, the record reflects that the mother’s case has been since set for several status conferences, the last one noted in our record was set for April 29, 2003. As found by the court in R.P., “there was not a single valid reason to refuse the continuance, but several good ones to grant it.” 835 So.2d at 1213. See J.B. v. Dep’t of Children and Family Servs., 768 So.2d 1060, 1064 (Fla.2000) (“The significance of the rights at issue here cannot be overstated.”).

Accordingly, we reverse and remand this case for proceedings consistent with this opinion.

SALCINES and COVINGTON, JJ., Concur.

      . The record does not reflect the time the hearing actually began.

      . The order states, "Default after service of notice and non-appearance.”


author: DAVIS, Judge.

text:
    AMERICAN NETWORK TRANSPORTATION MANAGEMENT, INC., Appellant, v. A SUPER-LIMO COMPANY, INC., Appellee.
    No. 2D03-1691.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.

      Kimberly J. Haikara, Largo, for Appellant.
    Edward J. Aiosa, Largo, for Appellee.
   DAVIS, Judge.

A Super-Limo Company, Inc., filed an action on open account against American Network Transportation Management (ANTM). ANTM’s failure to file a timely answer ultimately led to the entry of a default by the clerk of court and a final judgment against ANTM. ANTM challenges the trial court order that denied its motion to vacate the final judgment. Because we conclude that the trial court erred in denying the motion to vacate, we reverse.

The pertinent events occurred as follows:

October 23, 2002 Complaint filed (A Super-Limo v. ANTM).
October 28, 2002 ANTM served with complaint.
November 5, 2002 ANTM president Norman Pfundt admitted to emergency room with kidney stone.
November 8, 2002 ANTM president readmitted to hospital.
November 19, 2002 A Super-Limo files motion for default; clerk enters default.
November 22, 2002 ANTM files answer/affirmative defenses raising laches, failure to state cause of action, and statute of limitations.
November 26, 2002 A Super-Limo files motion for final judgment.
November 26, 2002 Trial court enters final judgment of default in favor of A Super-Limo for $34,945.51 plus interest.
December 2, 2002 Pfundt released from hospital; ANTM files Florida Rule of Civil Procedure 1.540(b) motion to set aside/vaeate final judgment and attaches affidavit of Pfundt.
March 7, 2003 Court enters order denying motion to set aside final judgment.

Pursuant to Florida Rule of Civil Procedure 1.140, the answer to a complaint must be served within twenty days of the original service of process. In this case, because ANTM was served with the complaint on October 28, 2002, ANTM’s answer was due on November 18, 2002, the Monday following the Sunday on which the twentieth day fell. Thus, A Super-Limo’s motion for default, filed on the next day, November 19, 2002, was proper.

However, we believe that pursuant to rule 1.540(b), ANTM established a basis for the trial court to reopen the final judgment that was entered based on the default. In order to succeed on a rule 1.540(b) motion to vacate, the movant must demonstrate that the final judgment was the result of excusable neglect, that the movant exhibited due diligence in seeking to have the final judgment reopened, and that a meritorious defense exists. Coquina Beach Club Condo. Ass’n v. Wagner, 813 So.2d 1061 (Fla. 2d DCA 2002).

The affidavit of Norman Pfundt, ANTM’s president, established that he was the “sole individual responsible for making decisions concerning all lawsuits filed against ANTM” and that his ability to respond to the lawsuit was limited by his medical condition involving kidney stones. It also established that from the time the complaint was served on ANTM on October 28, 2002, until Pfundt was first admitted to the hospital, he had a total of only five work days in which to meet with his counsel and formulate an answer. Given the general principle of liberality, see Coquina Beach Club, 813 So.2d at 1063, in addition to the unpredictability of Pfundt’s kidney stones, we believe that ANTM demonstrated excusable neglect.

We also believe that ANTM met the second requirement of rule 1.540(b) because it demonstrated due diligence by filing its answer within four days of the date that it was due. Id. at 1064 (finding that filing within two weeks demonstrated due diligence).

Finally, we conclude that ANTM sufficiently alleged a meritorious defense, the third prong of the test, because it alleged that A Super-Limo failed to state a cause of action and that both the statute of limitations and laches applied. Where the movant is alleging a legal defense, a meritorious defense may be shown by either an unverified pleading or an affidavit. Coquina Beach Club, 813 So.2d at 1064; Collins v. Collins, 519 So.2d 729 (Fla. 2d DCA 1988); Westinghouse Elevator Co. v. DFS Constr. Co., 438 So.2d 125, 126 (Fla. 2d DCA 1983) (“An unverified answer may be sufficient if the issue involved is a matter of law, not a matter of proof, i.e., an answer alleging that the statute of limitations precludes the action”).

Having concluded that ANTM met the requirements for setting aside the final judgment, in view of the principle of liberality in allowing same, we reverse the final judgment entered on the clerk’s default.

Reversed.

NORTHCUTT and COVINGTON, JJ., concur.


text:
    Magdalena SANTOS, Appellant, v. TAMPA MEDICAL SUPPLY, Appellee.
    No. 2D02-5745.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.

      Michael Vincent Laurato of Austin & Laurato, Tampa, for Appellant.
    Daniel F. Pilka of Pilka & Associates, P.A., Brandon, for Appellee.
   STRINGER, Judge.

Magdalena Santos seeks review of the nonfinal order granting Tampa Medical Supply’s (“TMS”) motion for temporary injunction restraining former employee Santos from competing against TMS in violation of a noncompete confidentiality agreement. We affirm the entry of the temporary injunction but remand to the trial court for entry of an order which sets forth the necessary findings of fact. On remand, the court shall set a bond after an evidentiary hearing as to the appropriate amount.

Santos did not move to dissolve the temporary injunction prior to this appeal; thus, we confine our review to the legal sufficiency of the order, complaint, and supporting documents. See High Sch. Activities Ass’n, Inc. v. Marsonek, 805 So.2d 868, 869 (Fla. 2d DCA 2001). Based on the order, complaint, and supporting documents in this case, we affirm the entry of the injunction as legally sufficient. However, we find merit in two of Santos’s five points on appeal.

First, the trial court failed to set forth in its order sufficient factual findings in support of the temporary injunction, as required by Florida Rule of Civil Procedure 1.610(c). The four findings necessary to support injunctive relief are “(1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) considerations of the public interest.” Snibbe v. Napoleonic Soc’y of Am., Inc., 682 So.2d 568, 570 (Fla. 2d DCA 1996) (quoting Richard v. Behavioral Healthcare Options, Inc., 647 So.2d 976, 978 (Fla. 2d DCA 1994)). The findings must do more than parrot each tine of the four-prong test. Id. In this case, the trial court’s order summarily addresses the element of irreparable harm and fails to address the remaining three elements.

Santos is also correct in arguing that the trial court erred by failing to require the movant, TMS, to post a bond. See East v. Aqua Gaming, Inc., 805 So.2d 932 (Fla. 2d DCA 2001); Fla. R. Civ. P. 1.610(b). Pursuant to rule 1.610(b), “[n]o temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper.... ” The only exceptions to the bond requirement are not applicable in this case. Fla. R. Civ. P. 1.610(b).

Accordingly, we affirm the trial court’s entry of temporary injunction but remand this cause to the trial court for entry of an order which sets forth the necessary factual findings and for the trial court to set a bond after providing both parties the opportunity to present evidence regarding the appropriate amount. See Bellach v. Huggs of Naples, Inc., 704 So.2d 679 (Fla. 2d DCA 1997).

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

WHATLEY and KELLY, JJ., Concur.


text:
    Timmy Terrell HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3828.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

Timmy Terrell Harris seeks review of the final judgment adjudicating Harris guilty of uttering a forged instrument and petit theft, following a jury trial. Harris correctly argues that the trial court erred in permitting in evidence an impermissibly suggestive photo lineup. Accordingly, we reverse and remand this cause for a new trial.

On April 22, 2002, Ahmad Abdel-Aziz was working at Star Food Market when a man came into the store with a check belonging to Willie Mason and asked if the check could be cashed. Abdel-Aziz called Mason’s company and was informed that the check was stolen. Abdel-Aziz told the man he could not cash the check, and the man left the store. Abdel-Aziz called Saad Saad, the owner who was working in another store, and informed him of the incident. Abdel-Aziz was unable to identify the man.

Saad testified that later that day, while he was working at the other store, a man came in wanting to cash another check belonging to Willie Mason. Saad requested identification, and the man gave Saad a Florida identification card. Saad believed the check to be stolen based on his prior conversation with Abdel-Aziz and called the police. The man who attempted to cash the check ran away, and Saad held onto the identification card until the police arrived that day. Seven days later, Saad identified Harris’s photo from a photo lineup. The lineup contained the same photo of Harris that was on the identification card presented to Saad by the suspect.

Harris denied attempting to cash a check at the store and denied any knowledge of the checks belonging to Willie Mason. Harris testified that his identification card was either lost or stolen in February 2002, and he obtained a new identification card later that month. Harris does not contest that the identification card presented at the store was his; rather, Harris asserts that his lost or stolen card was the one presented at the store.

Prior to trial, Harris moved to suppress any testimony concerning the photo lineup. Counsel for Harris argued that the photo lineup was impermissibly suggestive, citing three aspects that distinguished Harris’s photo from the other five photos in the lineup: first, Harris’s photo had a white background while all of the other photos had a dark background; second, Harris was the only one with no facial hair; and third, Harris’s face was noticeably larger or heavier than the men in the other photos.

The two-part test to determine whether an out-of-court identification of a defendant may be admitted is “[f]irst, whether police used an unnecessarily suggestive procedure to obtain an out-of-court identification, and, second, if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidenti-fication.” Green v. State, 641 So.2d 391, 894 (Fla.1994) (citing Grant v. State, 390 So.2d 341, 343 (Fla.1980)).

In ruling on the motion, the trial court agreed with Harris as to the first part of the test that the lineup was unnecessarily suggestive. However, in applying the second part of the test for admissibility, the trial court found that the unduly suggestive photo would not result in a “substantial likelihood of irreparable mis-identification.” In determining whether a suggestive procedure gave rise to a substantial likelihood of irreparable misidenti-fication, the court should consider:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Grant, 390 So.2d at 343 (citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). These factors should be weighed against the corrupting effect of the suggestive identification. Tumblin v. State, 747 So.2d 442, 444 (Fla. 4th DCA 1999).

In this case, Saad viewed the suspect only one time, while he presented the forged check and identification card, at which time Saad turned his attention to calling the police. As to the accuracy of the witness’s prior description, there was no testimony, either in the suppression hearing or in the trial, regarding any prior description by Saad.

It is significant, considering the totality of the circumstances in this case, that the photo of Harris used in the lineup was the same as the photo on Harris’s identification card that was confiscated by Saad at the store. Saad had substantially more time to view the photo on the identification card than he had to view the suspect. Hence, the level of certainty demonstrated by Saad in making the identification can easily be attributed to the fact that Saad had ample time to view the photo of Harris on the identification card and recognized that same photo in the lineup.

The only factor mentioned in the trial court’s finding as to part two of the test is Saad’s testimony regarding what led him to select the photo of Harris. The trial court asked Saad if there was anything about the photo that made him choose it as opposed to the others, and Saad referenced an indentation in Harris’s forehead. The trial court stated that an indentation was not visible in the photograph; though, upon observing Harris in the courtroom, the court stated, “I see what he’s talking about.” The factor relied on by the court, however, could not have contributed to Saad’s selection of Harris’s photo in the lineup, as the dent is not visible in the photograph. Because this is the only factor put forth in the court’s ruling, and as the length of time between the crime and the confrontation is the only other factor that clearly weighs in favor of admission, it cannot be said that, under the totality of the circumstances, the suggestive lineup did not give rise to a substantial likelihood of irreparable misidentification. The trial court erred in denying Harris’s motion to suppress the photo lineup. Accordingly, we reverse the conviction and remand for a new trial.

Reversed and remanded.

WHATLEY and KELLY, JJ., Concur.


author: WALLACE, Judge.

text:
    STATE of Florida, Appellant, v. Kelly FAGAN, Appellee.
    No. 2D02-4794.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Henry E. Lee of Henry E. Lee, P.A., Sarasota, for Appellee.
   WALLACE, Judge.

The State appeals the trial court’s order granting Kelly Fagan’s motion for a judgment of acquittal after a jury found her guilty of one count of identity theft pursuant to subsections (l)(f) and (2) of section 817.568, Florida Statutes (2000), and three counts of credit card fraud pursuant to subsections (1) and (3)(a) of section 817.481. Because the State’s evidence created a prima facie inconsistency with the defense theory of innocence, we reverse and remand for reinstatement of the jury verdict.

Fagan worked at a health spa and weight-loss center. The State alleged that Fagan used the personal information of one of the spa’s clients to procure fraudulent credit cards, which she used to make purchases and obtain funds. To prove Fa-gan’s guilt, the State offered the following evidence: (1) she had access to the victim’s personal information contained in the spa’s client records; (2) three fraudulent credit card applications listed the spa as the victim’s address; (3) notifications to the credit card companies changed the mailing address for the accounts to Fa-gan’s residence; (4) two such notifications originated from the telephone at her residence; (5) one fraudulent credit card was delivered via United Parcel Service to Fa-gan’s residence and signed for in the victim’s name; (6) purchases using the credit cards were made in the vicinity of Fagan’s residence; (7) after Fagan changed residences, notifications to the credit card companies changed the mailing address for the accounts to Fagan’s new residence; (8) fraudulent credit card balance transfer checks drawn on two of the accounts were delivered to Fagan’s new residence; and (9) one balance transfer check was deposited into an account owned by Fagan’s father under circumstances strongly indicative of Fagan’s direct involvement. Through cross-examination, Fagan elicited testimony in support of a theory that another person had committed the crimes. Fagan did not testify in her own defense. Fagan moved for a judgment of acquittal at the close of the State’s case and at the conclusion of all the evidence. The trial court reserved ruling. After the jury returned a verdict finding Fagan guilty as charged on all four counts, the trial court granted the defense motion and entered a judgment acquitting Fagan on all four counts. The trial court’s order found “the quality of proof insufficient as a matter of law to sustain a verdict of guilty beyond a reasonable doubt.”

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Pagan v. State, 830 So.2d 792, 803 (Fla.2002), cert. denied, — U.S. -, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003). In this case, the State concedes that its evidence against Fagan was wholly circumstantial. No matter how strongly circumstantial evidence may suggest guilt, a motion for judgment of acquittal should be granted if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt, viewing the evidence in the light most favorable to the State. State v. Law, 559 So.2d 187, 188-89 (Fla.1989); S.R.G. v. State, 852 So.2d 879, 28 Fla. L. Weekly D1808 (Fla. 2d DCA Aug.1, 2003). The State is not required to rebut conclusively every possible variation of events that could be inferred from the evidence but only to introduce competent evidence that is inconsistent with the defendant’s theory of events. Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. Orme v. State, 677 So.2d 258, 262 (Fla.1996). The Orme court explained the function of the trial court:

[T]he sole function of the trial court on motion for directed verdict in a eircum-stantial-evidence case is to determine whether there is prima facie inconsistency between (a) the evidence, viewed in the light most favorable to the State and (b) the defense theory or theories. If there is such inconsistency, then the question is for the finder of fact to resolve.

Id. On appeal, the trial court’s finding in this regard will be reversed only when unsupported by competent, substantial evidence. Id.

In this case, the defense theory was that another person, to whom we shall refer as N.A., was the real identity thief and perpetrator of credit card fraud against the victim. In support of this theory, Fagan elicited testimony that N.A., a convicted felon, was under investigation for a similar crime against another victim who was a client at the spa where both Fagan and N.A. worked. Further, N.A. had equal access to the victim’s personal information, had lived at Fagan’s residence for a time, and had received mail there. N.A. had testified as a witness for the State and denied any involvement in the alleged offenses. The State countered the defense theory with evidence that a credit card balance transfer check, fraudulently endorsed with the victim’s name to Fa-gan’s father and signed by him, was deposited into his account at the same time a check issued to Fagan was endorsed to him and deposited into his account. Viewed in the light most favorable to the State, these facts were competent evidence that Fagan, not N.A., engaged in the alleged fraudulent activity. These facts created a prima facie inconsistency with the defense theory; it then became the jury’s duty to determine whether the evidence was sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. See Carpenter v. State, 785 So.2d 1182, 1193-95 (Fla.2001) (affirming denial of judgment of acquittal in a murder case when the defense theory was that another person at the scene committed the murder, but competent evidence did not exclude the defendant’s culpability).

Fagan cites McKinney v. State, 796 So.2d 579 (Fla. 2d DCA 2001), but the case is not to the contrary. In McKinney, the defendant was convicted of armed burglary based on circumstantial evidence that the defendant entered a house while unarmed, stole a shotgun from within the house, and possessed it during the burglary. There was also evidence that others had attempted to burgle the home during the homeowner’s five-day absence. Id. at 580. This court reversed the conviction for armed burglary and directed the trial court to adjudicate the defendant guilty of simple burglary. Although the defendant conceded that the evidence established simple burglary, the inference from the State’s evidence that the defendant was armed with the shotgun did not directly rebut the defense theory that another person entered the house and stole the shotgun at some point during the homeowner’s five-day absence. Id. In this case, by contrast, the State presented competent evidence involving the deposits into the account owned by Fagan’s father that directly rebutted Fa-gan’s theory that N.A. was the real perpetrator. Because of this prima facie inconsistency with the defense theory, the question of whether the State proved Fa-gan’s guilt beyond a reasonable doubt was properly for the jury to determine. Accordingly, we reverse the judgment of acquittal and remand to the trial court to reinstate the jury verdict.

Reversed and remanded.

SALCINES and VILLANTI, JJ., concur.


author: VILLANTI, Judge.

text:
    Mark A. VONADOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2143.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.
   VILLANTI, Judge.

Mark A. Vonador challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Vonador presented a facially sufficient claim that his habitual offender sentence is illegal, which claim was not refuted by the trial court’s order, we reverse and remand for further proceedings.

According to Vonador’s motion, he was convicted of armed robbery with a firearm for an offense committed in May 1992 and was sentenced as a habitual offender to thirty years in prison with a three-year minimum mandatory term. Vonador alleged that the habitual offender sentence was illegally imposed because the trial court used his prior adjudications of delinquency as predicate convictions. “[C]hallenges questioning whether a predicate offense giving rise to habitualization is properly qualifying can be raised by rule 3.800(a) motion,” Baxter v. State, 769 So.2d 1097, 1097 (Fla. 2d DCA 2000), “provided the error is apparent from the face of the record.” Bover v. State, 797 So.2d 1246, 1248-49 (Fla.2001). In the present case, Vonador alleged that his claim of improper habitualization predicate could be resolved based on the face of the trial court record. Thus, he has presented a facially sufficient claim.

As to the merits of Vonador’s claim, the First District in Shook v. State, 603 So.2d 617 (Fla. 1st DCA 1992), and Gahley v. State, 605 So.2d 1309 (Fla. 1st DCA 1992), held that juvenile adjudications cannot be used as predicate convictions for purposes of sentencing a defendant as a habitual offender. Shook and Gahley were cited with approval in State v. J.M., 824 So.2d 105 (Fla.2002). Shook held:

Section 39.10(4), Florida Statutes (1989), provides that, except for use in subsequent proceedings under chapter 39, an adjudication of delinquency “shall not be deemed a conviction.” Because section 775.084, Florida Statutes (1989), requires prior felony “convictions” without specifically including juvenile adjudications, habitualization cannot be based on juvenile adjudications.

603 So.2d at 617 (footnote omitted). The provision of section 39.10(4), Florida Statutes (1989), which prohibits the use of juvenile adjudications as convictions, is found in section 39.053(4), Florida Statutes (1991).

The trial court denied Vonador’s motion, citing the provision of section 921.0021(5), Florida Statutes (2001-2003), which states that “[j]uvenile dispositions of offenses committed by the offender within 5 years before the primary offense are included in the offender’s prior record when the offense would have been a crime had the offender been an adult rather than a juvenile.” However, this section governs the scoring of prior record under the sentencing guidelines and has no relevance to the determination of what constitutes a predicate conviction under the habitual offender statute. Furthermore, the trial court, in its order, failed to indicate to which version of section 921.0021(5) it was citing. The statute was amended in 2001 to allow the scoring of juvenile adjudications as prior record if they were committed up to five years, rather than three years, before the offense for which the defendant is being sentenced. See Amendments to Florida Rules of Criminal Procedure 3.70i & 3.992 (Criminal Punishment Code), 810 So.2d 826, 826 (Fla.2001). In denying Vonador’s claim that he was illegally sentenced as a habitual offender for a 1992 offense, the trial court apparently relied on a 2001 sentencing guidelines statute. This was clearly error since it is axiomatic that a criminal sentence is governed by the laws in effect at the time of the offense. See Larkins v. State, 739 So.2d 90, 96 n. 1 (Fla.1999). The trial court then found that Vonador’s claim could not be resolved without an evidentiary hearing. This was based on the trial court’s erroneous conclusion that the 2001 version of section 921.0021(5) controlled in this case. Finally, the trial court provided no explanation for its conclusion that the illegal sentence claim could not be resolved from the face of the record.

Accordingly, we reverse the order of the trial court and remand for the trial court to further consider Vonador’s claim in light of this opinion. If the trial court again denies the claim, it should attach to its order the record documents used to justify its ruling. See Baxter, 769 So.2d at 1097.

Reversed and remanded.

STRINGER and SILBERMAN, JJ., Concur.

      . The minimum mandatory was presumably imposed pursuant to section 775.087(2), Florida Statutes (1991), for possession of a firearm during the commission’of an enumerated felony.


text:
    Patrick G. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2780.
    District Court of Appeal of Florida, Fifth District.
    Rehearing Denied Oct. 13, 2003.
    Sept. 9, 2003.
    Patrick G. Taylor, Bowling Green, Pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Jackson v. State, 847 So.2d 1038 (Fla. 5th DCA 2003). We disagree with Green v. State, 839 So.2d 748 (Fla. 2nd DCA 2003), and certify conflict.

PETERSON, THOMPSON and TORPY, JJ., concur.


text:
    Sylvester O’Neil LEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3576.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s September 2, 2003 order, this appeal is hereby DISMISSED. See Ashley v. Moore, 742 So.2d 533 (Fla. 1st DCA 1999).

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Robert E. TACKETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-177.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 2003.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya Henry, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Buchanan v. State, 781 So.2d 449 (Fla. 5th DCA 2001).

THOMPSON, PLEUS and MONACO, JJ., concur.


text:
    J.H., Mother of L.H. and B. H., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-939.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 2003.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Edwards v. Edwards, 730 So.2d 711 (Fla. 4th DCA 1999).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


author: CANADY, Judge. VILLANTI, Judge,

text:
    Beresford W. POWELL and Albennie Powell, Petitioners, v. CITY OF SARASOTA, Respondent.
    No. 2D03-33.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2003.

      Mark A. Gruwell of Law Offices of Mark A. Gruwell, Sarasota, for Petitioners.
    James C. Siegfreid of Taylor, Lawless and Singer, P.A., Sarasota, for Respondent.
   CANADY, Judge.

The petitioners, Beresford and Albennie Powell, seek certiorari review of a circuit court order denying them relief from an order of the Nuisance Abatement Board of the City of Sarasota. Because the circuit court failed to follow the established legal principle that the nuisance board was required to afford an adequate opportunity to abate the nuisance prior to imposing sanctions, we grant the petition.

The petitioners are owners of a residential rental property located in the city of Sarasota. On April 10, August 7, and August 8, 2001, the Sarasota Police Department, using a confidential informant, covertly conducted “controlled buys” of narcotics on this property from a tenant. The record reflects that the police served a search warrant at the property on August 16, 2001, but were unsuccessful in their effort to obtain evidence because at the time the warrant was served the tenant was in the process of moving out. The tenant was never arrested or prosecuted. On November 1, 2001, the city of Sarasota brought a nuisance abatement action against the petitioners pursuant to section 893.138, Florida Statutes (2001). The commencement of this action was the first notice afforded to the petitioners by the city about the criminal activity at the property, since the police investigation had not been previously revealed to them.

The nuisance board held a hearing on the nuisance abatement action. At this hearing, a police officer testified about the three controlled purchases of narcotics, which formed a predicate for the nuisance board’s jurisdiction under section 893.138 and the Sarasota City Code provisions enacted pursuant to it. The petitioners, through the arguments of their attorney, disputed whether the drag sales had actually occurred and attacked evidentiary procedures used by the nuisance board. The petitioners also adduced testimony from the city’s witnesses establishing that the commencement of the nuisance abatement action actually followed the abatement of the nuisance, namely the departure of the offending tenant. Following the presentation of argument and testimony, the nuisance board ruled that a nuisance existed but declined to impose a fine. Instead, the nuisance board assessed the city’s investigatory and administrative costs against the petitioners and entered an order maintaining continuing jurisdiction over the petitioner’s property.

The petitioners timely petitioned for a writ of certiorari from the circuit court. On December 6, 2002, the circuit court denied the petition, finding that there was substantial, competent evidence to support the decision of the nuisance board and no departure from the essential requirements of the law. Following this decision, the petitioner timely petitioned this court for review.

The circuit court, sitting in an appellate capacity, erred by failing to follow Maple Manor, Inc. v. City of Sarasota, 813 So.2d 204 (Fla. 2d DCA 2002), binding precedent of this court, when reaching its decision. In Maple Manor, this court found that “an adequate opportunity to voluntarily abate [a] nuisance” had to be afforded to a property owner before penalties are imposed against that property owner pursuant to city ordinances promulgated under section 893.138. Id. at 207. An adequate opportunity to abate a nuisance necessarily includes notice that criminal activity that might constitute a nuisance is occurring, coupled with a reasonable amount of time to end the criminal activity. While a municipality could show that a property owner had an adequate opportunity to abate a nuisance if it were proven that the owner had knowledge of the criminal activity that constituted the nuisance for a substantial period of time without making efforts to abate the nuisance, no such showing was made in this case. In the instant case, the city’s own witnesses admitted that the petitioners were first notified by the city about the nuisance on their property after the nuisance had already been abated through the departure of the offending tenant. Further, there was no evidence adduced at the hearing before the nuisance board that the petitioners knew of the drug sales on their property when they were occurring or that those sales were so obvious that the petitioners reasonably should have known about them. In short, no court could reasonably find, based upon the evidence presented at the hearing before the nuisance board, that the city had proven that the petitioners had been afforded any opportunity to abate the nuisance.

We grant the petition, quash the order of the circuit court, and remand for proceedings consistent with this opinion.

COVINGTON, J., concurs.

VILLANTI, J., concurs specially.

VILLANTI, Judge,

Specially concurring.

I concur in the majority’s opinion but write to note that the nuisance board was not required to declare the petitioners’ property a nuisance; it could have exercised its discretion to decline to do so after the hearing. See § 893.138(3), Fla. Stat. (2001) (permitting, but not requiring, a nuisance abatement board to declare premises a nuisance after an evidentiary hearing).

The intent of section 893.138 is to “promote, protect, and improve the health, safety, and welfare of the citizens” by abating drug-related public nuisances. § 893.138(1). In this case, the alleged “public nuisance” was created when law enforcement chose to conduct covert induced controlled drug buys with the tenant without the petitioners’ knowledge or consent. There is absolutely no evidence in the record that the petitioners’ property was a “public nuisance” prior to law enforcement’s actions.

In fairness to innocent property owners, such law enforcement operations are best conducted in public places. Private residences should be used only when that forum is necessary to halt criminal activity. When a nuisance action is brought based on law enforcement’s decision to use a private residence for repeated controlled drug buys, a nuisance board should carefully consider the innocence of the property owner before declaring the property a public nuisance and imposing sanctions under section 893.138.


text:
    Duane F. STAHLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-400.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2003.

      Elliott C. Metcalfe, Jr., Public Defender, and Christopher E. Cosden, Assistant Public Defender, Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas C. Mielke, Assistant Attorney General, Miami, for Appel-lee.
   PER CURIAM.

Affirmed. See Westerheide v. State, 831 So.2d 93 (Fla.2002); Lee v. State, 854 So.2d 709 (Fla. 2d DCA 2003).

NORTHCUTT, SILBERMAN, and VILLANTI, JJ., concur.


author: SILBERMAN, Judge.

text:
    Daniel Thomas GRUBER, Appellant, v. Norea Gayle GRUBER, Appellee.
    No. 2D02-4066.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2003.
    Jon C. Kieffer of Kieffer & Rahter, P.A., St. Petersburg, for Appellant.
    Norea Gayle Gruber, pro se.
   SILBERMAN, Judge.

Daniel Gruber (the Former Husband) appeals an order entered on his supplemental petition for modification of alimony. Although the trial court reduced the Former Husband’s alimony obligation to Norea Gruber (the Former Wife), he contends that the trial court should have terminated his alimony obligation. Because the trial court improperly imputed income to the Former Husband, we reverse the trial court’s order and remand for further proceedings.

The parties had a long-term marriage of twenty-two years. In the final judgment of dissolution of marriage rendered on March 10, 2000, the trial court ordered the Former Husband to pay $350 per week as permanent periodic alimony.

In May 2001 the Former Husband filed a supplemental petition for modification of alimony, alleging that he had a substantial change of circumstances because he was diagnosed with an abdominal aortic aneurysm and could no longer work. An evi-dentiary hearing was held on the supplemental petition in July 2002.

At the time of the hearing the Former Husband was fifty-nine years old, his education consisted of a GED, and he had previously worked for a lawn maintenance business. The Former Husband submitted a report by Dr. Ralph DeMatteis from April 2001 which states, “In my opinion, I think this patient is totally disabled, particularly as far as manual labor.” In June 2001 Dr. DeMatteis performed surgery to repair the aneurysm. Dr. Riad Doss also treated the Former Husband. In a deposition taken in June 2002, Dr. Doss testified that the Former Husband was unable to do any kind of work, even sedentary work. Dr. Doss explained that because of the surgery, the Former Husband has an artificial aorta tube which limits the flexibility of his circulatory system. Dr. Doss opined that the Former Husband would never be able to work again due to the surgery and the Former Husband’s hypertension, borderline congestive heart failure, and asthmatic bronchitis. The Former Husband also established that the Social Security Administration determined that he was disabled as of April 2001, and it awarded to him disability benefits of $1063 per month. During his testimony, the Former Husband admitted that sometime after the surgery he had been on a riding lawnmower for about five minutes, he made a trip to Ohio by plane for a relative’s birthday, and he drove a car to the hearing that day.

After the conclusion of the testimony, the trial court stated that the Former Husband “is probably capable of doing something to earn some income. Common sense would just indicate that to me. What it is I don’t know.” In its written order, the trial court noted the Former Husband’s testimony as to several activities that he had performed and commented that the Former Husband’s behavior was extremely curious for someone described as completely disabled. The trial court then stated as follows:

Notwithstanding the unchallenged deposition testimony of Dr. Doss, this Court doubts that the Former Husband is unable to obtain some form of employment that could accommodate his physical concerns. Granted, he can no longer engage in the type of physical lawn-maintenance employment he was involved with prior to the surgery. Yet, his own testimony admitting to riding a standup, commercial riding lawnmower, and the physical requirements involved in driving to the Tampa Airport, dealing with pre-boarding, and then flying to Ohio and back, indeed suggests that the Former Husband is capable of some type of income activity.

The trial court, citing Cowie v. Cowie, 564 So.2d 533, 535 (Fla. 2d DCA 1990), concluded that the Former Husband had shown “a permanent, unanticipated, substantial change in financial circumstances” to justify modification of alimony, and it reduced the Former Husband’s obligation from $350 per week to $75 per week (approximately $322.50 per month). However, nothing in the record or in the trial court s findings establishes how the trial court arrived at the modified amount of $75 per week.

The evidence was undisputed that the Former Husband’s only source of income was the disability payment of $1063 per month. The record reflects monthly expenses claimed by the Former Husband, although the trial court may have had doubts as to some of those expenses. Even assuming that the trial court believed that certain of the expenses were not legitimate, nothing in the record reflects that the Former Husband is able to pay $322.50 per month in alimony from his limited income. Instead, it appears that the trial court imputed some unspecified amount of income to the Former Husband.

In considering the imputation of income, our standard of review is whether the trial court’s determination is supported by competent, substantial evidence. Hinton v. Smith 725 So.2d 1154, 1156 (Fla. 2d DCA 1998). “A court may impute income if a party is earning less than he could, based on a showing that he has the capability of earning more by the use of his best efforts.” Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997). In Wendel v. Wendel, 852 So.2d 277 (Fla. 2d DCA 2003), the trial court imputed income of $65,000 per year in making a child support award. This court reversed and stated that “while the Former Wife did present evidence of the prevailing earnings level in the community, she did not present any evidence that there were positions available at that earnings level or that the Former Husband was qualified for any available positions.” Id. at 284.

Here, the record contains no competent, substantial evidence supporting the imputation of income to the Former Husband. While the Former Wife suggested that the Former Husband “should be able to sit behind a computer,” the record con-tarns no evidence or testimony that the Former Husband was employable or capable of earning an income. Accordingly, we reverse and remand for the trial court (1) to determine whether the Former Husband has the continued ability to pay any alimony based on the evidence that was presented, without imputing income to the Former Husband, and (2) to enter an order, consistent with the evidence, either reducing or terminating the Former Husband’s original alimony obligation.

Reversed and remanded.

VILLANTI and WALLACE, JJ„ concur.