author: POLEN, J. WARNER, J.,

text:
    C.B., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D03-4395.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Rehearing Denied July 8, 2004.

      Karen Martin of Karen Martin, P.A., West Palm Beach, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises from a final order terminating the parental rights of C.B., mother of T.N.B. C.B. raises several arguments on appeal. For the reasons discussed in detail below, we reverse the termination order and remand the case for further proceedings consistent with this opinion.

The child, T.N.B., was four days old when a verified petition for dependency was filed. T.N.B. has not actually met her mother. T.N.B. was born while her mother was serving a prison sentence. When the mother was incarcerated, her first child was adjudicated dependent and placed with the father. Thereafter, the mother was given a case plan as to her first child. The mother was incarcerated for the entire length of that case plan. No case plan was offered for T.N.B.

The mother was furloughed from jail for medical reasons in December of 2001. During this time, she became pregnant with T.N.B. She returned to jail and was continuously incarcerated from August 3, 2000. She was released on December 23, 2003.

After a hearing, the trial court concluded that DCF established abandonment, as defined in section 39.01(1), Florida Statutes (1999). The trial court also found that DCF established that the mother’s continuing involvement with the child threatens the child’s well being and would be harmful to the child, that the mother engaged in egregious conduct, and that the manifest best interests of the child are served by terminating the mother’s parental rights. A final order terminating the rights of the mother was entered on October 10, 2003.

I. Abandonment

Initially the mother contends the trial court erred in terminating her parental rights because the record did not support the conclusion that she abandoned her child. We agree.

“A finding that evidence is clear and convincing to support termination of parental rights enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support.” J.F. v. Dep’t of Children and Families, 866 So.2d 81, 2004 WL 32673 (Fla. 4th DCA 2004). “ ‘Clear and convincing’ is an intermediate level of proof; the evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.” In re Davey, 645 So.2d 398, 404 (Fla.1994).

Section 39.01, Florida Statutes, defines “abandoned” as follows:

a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver responsible for the child’s welfare, while being able, makes no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. If the efforts of such parent or legal custodian, or caregiver primarily responsible for the child’s welfare, to support and communicate with the child are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.

A parent’s incarceration can be a factor the court considers for terminating parental rights based on abandonment, but incarceration alone is insufficient. In re T.B., 819 So.2d 270 (Fla. 2d DCA 2002).

Florida Statutes Section 39.806(l)(d), states that parental rights may be terminated on the basis that a parent of the child is incarcerated in a state or federal correctional institution, and either (a) the period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of eighteen years, (b) the incarcerated parent has been determined by the court to be a violent career criminal, a habitual violent felony offender, a habitual felony offender, a sexual predator, or has been convicted of first or second degree murder, or a sexual battery that constitutes a capital life, or first degree felony, or has been convicted of a substantially similar offense in another jurisdiction, or (c) the court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child.

Id. at 273.

This court has previously affirmed the termination of a mother’s parental rights when the mother spent the majority of the young child’s life incarcerated and made no effort to provide for the child during the brief times she was not incarcerated. See C.A.H. v. Dep’t of Children & Families, 830 So.2d 939 (Fla. 4th DCA 2002). In C.A.H., this court specifically noted that there were times the mother was able to provide for her children, but did not. That is not true of the case at bar. C.B. has been incarcerated since the birth of her daughter, T.N.B. At no time has she been able to provide for the child but elected not to.

Both parties cite to T.C.S. v. Department of Health & Rehabilitative Services, 647 So.2d 1025 (Fla. 4th DCA 1994). In T.C.S., this court reversed the termination of a father’s parental rights based on his incarceration and his failure to substantially complete his case plan. The child in T.C.S. was removed from his mother’s custody the day after he was born because cocaine was found in the baby’s system. That baby was placed with the maternal grandmother. The dependency petition alleged both parents had substance abuse problems and the father failed to protect the minor child in that he allowed his wife to ingest cocaine during her pregnancy. A case plan, with a goal of reunification, was initially given to the father.

This court held that the trial court erred in terminating the father’s rights due to his failure to substantially comply with his case plan since the father did everything that was available to him while he was incarcerated. Further, the father received no assistance from HRS and his letters to HRS went unanswered. This court also held that termination on abandonment grounds was improper. Although futile, since the father’s attempts to communicate with the grandparents and HRS went unanswered, the father did attempt to communicate. As a result, this court concluded that the father had not abandoned the child. Id.

The case at bar is analogous to T.C.S. In this case, the mother, the aunt, and the social worker all testified that the mother kept in touch with the aunt, the aunt kept in touch with DCF and the mother was constantly asking about her child through the aunt. The child’s aunt sent the mother pictures of the child and kept the mother informed of the child. In fact, the aunt testified that the mother asked about her children “all the time.”

Although, unlike T.C.S., there is no indication the mother attempted to contact DCF, DCF admitted it had never met the mother. DCF attempts to distinguish this case from T.C.S. on that basis. It contends that the mother never contacted the child’s custodian, only her sister. This distinction is unpersuasive. The T.C.S. opinion does not emphasize whom the father was trying to contact regarding his son, only that he had made efforts to contact his son.

Section 39.01, Florida Statutes, defines abandonment. The statute includes a situation where a parent “makes no provision for the child’s support and makes no effort to communicate with the child.” The language of the statute does not specify that the parent must attempt to communicate with any particular person. Further, the record makes clear that the mother’s communication with her sister was ongoing.

[I]t is plain beyond the need for multiple citation that a natural parent’s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right.... A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.

Perlow v. Berg-Perlow, 2004 WL 583130, — So.2d -(Fla. Mar.25, 2004) (internal quotations omitted) (quoting Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599, (1982)).

Although we recognize the deference given to the trial court in this situation, as well as the concerns surrounding this child, there is no evidentiary support in the record for the conclusion that the mother abandoned the child under the language of the statute. Her incarceration alone is insufficient to justify the termination. As a result, we reverse the termination order inasmuch as it is based on a finding of abandonment.

II. Least restrictive means of protecting the child

C.B. next contends the trial court erred in finding that any continued involvement between her and her child would threaten the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of services. DCF must prove the allegations supporting the termination of parental rights by clear and convincing evidence and must establish that termination of those rights is the least restrictive means of protecting the child from harm. Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). Section 39.806(1)(e), Florida Statutes, allows for parental rights to be terminated when:

the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.

In R.W.W. v. Department of Children & Families, 788 So.2d 1020(Fla. 2d DCA 2001), the child was born prematurely and had cocaine in its body. Within a week after having the baby, the mother was arrested for possession of cocaine. She had been on probation from an earlier cocaine charge. When the child was two months old and the mother was still incarcerated, DCF filed a petition for dependency and an order for termination. Like the case at bar, DCF did not offer the mother a case plan. The mother admitted to a five-year history of cocaine abuse and admitted to smoking marijuana on occasion. The mother also admitted to using cocaine and marijuana during the two weeks preceding the child’s birth, including the use of cocaine the night before the child was born. She sought an opportunity to have a case plan with a goal of reunification. DCF contended that the mother’s past refusal of drug counseling established she was not amenable to services and therefore no case plan was appropriate. Id.

In R.W.W. “[t]he trial court found that the Mother had tested positive for cocaine and that the cocaine may have contributed to the child’s premature birth. The trial court also found that the Mother had a chronic substance abuse problem and lacked stable employment, stable income, and a stable residence at the time of the pregnancy and birth.” Id. at 1022. However, in reversing the termination, the second district noted that the trial court did not comment on the mother’s ability to comply with a case plan or whether a case plan with a goal of reunification should have been offered. This was error. The second district concluded “that the trial court’s order is not based on record evidence, but rather is based on the trial court’s speculation that the Mother would fail in any attempt to comply with a case plan with a goal of reunification. Such speculation is not a valid basis for terminating parental rights.” Id.

DCF tries to distinguish the case at bar from R.W.W. on the basis that the mother in R.W.W. “[ajppeared to be amenable to fundamental change for the better,” while the mother in this case is “merely going through the motions.” In support of this argument, DCF points to notes from the mother’s parenting program. There are numerous weekly reports in the record taken during the mother’s parenting course. Although DCF points to a few reports that were not positive, there are numerous positive notes regarding the mother’s participation. There are notes from the counselor that report the mother was learning and notes complimenting the mother’s involvement in the group.

The case at bar is akin to R.W.W. in that the trial court’s finding that the mother was not amenable to services was based only on speculation. The final order of termination provides in relevant part as follows:

[T]he petition alleges that the mother was offered and did enter into a case plan for her older child, [R.B.], with which she failed to comply. It further alleged that she led a criminal lifestyle thereby rendering herself unable to care for [R.B.] or [T.B.] and that she has a history of substance abuse which interferes with her ability to parent. Petitioners proved that the mother did have a prior caseplan and failed to comply with it. They also proved that her decision to live a criminal lifestyle while pregnant with her first child has resulted in her inability to care for either child today or to complete a case plan in any meaningful or timely manner. As such, her continuing involvement in the parent child relationship threatened the well-being and the physical, mental, and emotional health of the child because there are no services which could be offered to ameliorate the situation which the mother’s actions have created.

The final order makes clear that the trial court did not specify why it felt the mother was not amenable to services. In fact the order states that the mother’s lifestyle has made her unable to care for her children today. Although the court also found that she would not be able to complete a case plan in any meaningful and timely manner, there is no explanation of why the court concluded as such. Many cases that come before this court involve parents who are incarcerated. This court has specifically recognized the difficulty an incarcerated parent has in completing certain tasks while incarcerated but has held that the parent’s efforts must be considered in light of the opportunities available to that parent while incarcerated. T.C.S., 647 So.2d 1025.

In E.E.A. v. Department of Children & Families, 846 So.2d 1250 (Fla. 2d DCA 2003), the second district reversed a termination order where the court found there was no threat of harm where “[t]he only apparent threat of harm these children have suffered results from the instability of their placement, which, in turn, is the direct result of the Department’s placement of the children with several foster care providers....” Id. at 1252.

In E.E.A., the second district noted that the only harm the children had faced was due to their constant moving around. As a result, the court found there was no threat of harm from a continued relationship between the mother and the children. The court’s analysis did not focus on the nature of the current relationship between the mother and the children. Further, there is testimony from the social worker in this case that T.N.B. is capable of forming a bond with someone she has never met.

This case is identical to E.E.A., in that the only harm alleged is harm based on T.N-B.’s instability. In addition, also like E.E.A., DCF is at least partially responsible for the instability. In E.E.A, the children were moved numerous times. In this case, T.N.B. remained at a shelter under the care of various people for the first nine months of her life.

The mother was released from prison on December 28, 2003. She has a sister who is willing to help her get back on her feet. There are positive comments in her file from counselors indicating she has made some progress. DCF has never met with this mother, nor has it offered her a case plan. The child is capable of forming a bond with someone she has never met before. The record is devoid of any evidence that the mother would not be amenable to services. The trial court’s conclusion to the contrary appears to be improperly based on speculation. As a result, terminating the mother’s parental rights was not the least restrictive means of protecting the child and we reverse the order of the trial court so that a case plan, with a goal of reunification, can be established.

III. Section 39.806(l)(d)3, Florida Statutes, Best Interests of Child

The mother also contends the trial court erred in terminating her parental rights under Florida Statute section 39.806(l)(d)3. Section 39.806(l)(d)3 permits the termination of an incarcerated parents rights when “[t]he court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason, that termination of the parental rights of the incarcerated parent is in the best interest of the child.”

The final order of termination provided that there was ample evidence to support termination on these grounds. The order provides in relevant part as follows:

Were the parent child relationship to continue, the child would have to wait for at least another year before she could achieve a permanent home. There is no guarantee that the mother would rehabilitate. After carefully considering the evidence and weighing the testimony of the witnesses, the Court determines that this mother’s chances of rehabilitation is virtually non existent. She dismisses her first criminal charge of possession of cocaine with the intent to sell and states that she has no problem with drugs. She does not appear to understand the harm she has visited on her children by dealing in drugs. Nor does she exhibit any remorse over her multiple criminal thefts, other than perhaps feeling sorry for herself. Her own sister, who promised to be her sole support system when the mother is released from prison, seems woefully unaware of the mother’s extensive drug and criminal history and seems to think this current incarceration is the result of the mother making one mistake. Since the mother is the sister’s source of information, it appears that the mother also fails to appreciate the gravity of her deeds and the consequences they have wrought on her young children.

DCF points to R.M. v. Department of Children & Families, 847 So.2d 1103(Fla. 4th DCA 2003). In R.M., this court affirmed the termination of a father’s rights. This court held that the statute does not require proof that actual contact is detrimental. In R.M., “DCF relied upon the testimony of the children’s therapists to meet its burden in proving the father’s continuing relationship was detrimental to the children. Each testified to the children’s mental state, their present lack of a relationship with their father, and their need for permanency. They each stressed that the possibility of the father reclaiming his children after his incarceration would be extremely detrimental to the children’s mental health.” Id.

In the case at bar, the only medical testimony is from Dr. Robertson. Robertson acknowledged that he had not thoroughly examined T.N.B. He also described any problems he saw with T.N.B. as “fairly mild,” and thought she could have an attachment issue. Although he testified on future harm to people with attachment problems, his testimony was regarding attachment problems in general, not specifically those of T.N.B. Further, the guardian ad litem testified that T.N.B. was doing very well. She was crawling and engaging. As a result, this case is distinguishable from R.M.

DCF “carries the burden not only to establish a ground for termination but the continuing substantial risk of harm to the current child.” F.L. v. Dep’t of Children and Families, 849 So.2d 1114 (Fla. 4th DCA 2003)(citing Padgett, 577 So.2d 565, 571 (Fla.1991)). “This means that [DCF] ordinarily must show that it has made a good faith effort to rehabilitate the parent and reunite the family, such as through a current performance agreement or other such plan for the present child.” Id. at 1121.

In the case at bar, DCF did not make any effort to rehabilitate the mother and reunite the family. Based on the record before us, we do not find that DCF satisfied its burden to demonstrate that termination was the least restrictive way to protect this child. Nor did DCF establish by clear and convincing evidence that continuing the parental relationship with the mother would be harmful to the child.

IV. Egregious conduct

The mother also contends termination was improper based on alleged egregious conduct. Florida Statute section 39.806(l)(f) allows for parental rights to be terminated when: “the parent or parents engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child’s sibling.”

“[E]gregious conduct” means abuse, abandonment, neglect, or any other conduct of the parent or parents that is deplorable, flagrant, or outrageous by a normal standard of conduct. Egregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child.

§ 39.806(f)(2), Fla. Stat. (2000).

The final order of termination found that termination, based on egregious abuse, was proper. The final order provides that “[i]t is outrageous for this woman who was medically furloughed only once in the past 2 years to get pregnant during that short furlough with another child she cannot possibly care for. The mother is repeating the behavior she exhibited only a year earlier with [R.B.].”

DCF reiterates that termination was proper because the mother abandoned the child. As discussed at length above, we disagree. The mother’s incarceration does not justify a finding of abandonment. Nor does this record support an order terminating the mother’s parental rights on that basis.

Further, there must be a nexus between the conduct and the abuse, neglect, or specific harm to the child in order to properly terminate parental rights based on a finding of egregious conduct. P.S. v. Dep’t of Children & Family Servs., 863 So.2d 392 (Fla. 3d DCA 2003). In P.S., the second district reversed a termination order that was based on, inter alia, egregious conduct. The purported egregious conduct was the mother having been arrested in front of the child at the airport for attempting to smuggle cocaine into the country. In reversing the termination, the second district concluded that “[without connecting the arrest to any abuse, neglect or specific harm to the child that was present at the arrest or to her other children, this conduct alone cannot be the basis for a termination of parental rights.” Id. at 394.

Similarly, this court has clarified that when termination is based on prospective abuse DCF must prove a nexus between the prior act of abuse and any prospective abuse. J.F. v. Dep’t of Children & Families, 866 So.2d 81 (Fla. 4th DCA 2004).

In the case at bar, the conduct on which the trial court focused was the mother’s conception of the child when she knew she was being sent back to prison. The injury to the child primarily is her attachment problems. As discussed above, the testimony regarding T.N.B.’s conditions are that they are fairly mild. Further, T.N.B.’s attachment problems are arguably more closely linked to DCF’s placement of the child rather than the timing of T.N.B.’s conception.

It is axiomatic that this court defers to the trial court when evaluating the credibility of witnesses. This opinion does not challenge the trial court’s superior vantage point in that regard. Nor does this opinion dispute the conclusions of fact made by the trial court. This court’s reversal is based exclusively on the legal conclusions reached by the trial court based on the set of facts before us. Upon our review of the record, as a whole, we see a mother making an effort and demonstrating an overall intent to carry out a parent-child relationship. The mother expressed, and her sister confirmed, an awakening in this mother upon her having children. She has been released from prison, she has made some effort to be a parent and under the law is entitled to a reasonable opportunity to satisfy a case plan.

DCF failed to establish by clear and convincing evidence that the mother engaged in conduct which threatened the life, safety, or physical, mental, or emotional health of the child. In addition, the record does not show a connection between the conduct and the injury to the child.

For these reasons we reverse the order of the trial court and remand for proceedings consistent with this opinion.

MAY, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I would affirm because the evidence supported termination based upon the court’s determination that the incarcerated mother’s continuing involvement with the child threatened her well-being and would be harmful to the child. There was evidence that C.B. had failed to complete a case plan with a prior child, and that she was still in prison and would need at least another year on a case plan before reunification with T.N.B. could be considered, leaving the child in foster care for at least two years. As the psychologist testified, that is a crucial time in a child’s life, and the failure to bond with a permanent caregiver during that period would have lasting effects on the child.

In R.W.W. v. Department of Children & Families, 788 So.2d 1020 (Fla. 2d DCA 2001), relied on by the majority, the appellate court concluded that the trial court’s determination that the mother was not amenable to services was simply speculation. This was because the mother herself testified to drug treatment she had completed in prison, and that she had been employed in the past and expected to be employed in a similar position upon release from prison, which supported her amenability to treatment.

In this case, there was more than speculation that the mother was not amenable to services. The mother does not have an employment history, has only a ninth grade education, and has a history of supporting herself by stealing and dealing drugs. While her sister said that she would help the mother upon release from prison, DCF had already investigated the sister and found that, because of juvenile charges against her son of a sexual nature, placement of T.N.B. with her would be inappropriate. Furthermore, C.B. had failed to complete a case plan for her older child while in prison. While she had taken some classes on parenting and anger management, a psychologist who reviewed her records testified that her deficit in skills and abilities together with her criminal background “would be pretty devastating to the probability that she can establish a secure, stable environment for herself and then include her child.” The psychologist also explained that T.N.B. had developmental delays that he attributed to a lack of attachment due to the sheltered care setting. While rehabilitation of C.B. might occur, given the year delay already, the additional fifteen months would cause a whole host of problems for T.N.B. in physical, cognitive, and emotional development if she were unable to develop a solid bond with a caregiver.

Particularly considering the psychologist’s testimony, I think the evidence was competent, substantial, and sufficient to support the trial court’s ruling terminating C.B.’s parental rights, given the effect the additional delay required for C.B. to rehabilitate herself after prison will have upon the child.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Lloyd MAGUIRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2030.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Raford v. State, 792 So.2d 476 (Fla. 4th DCA 2001).

WARNER, KLEIN and TAYLOR, JJ., concur.


text:
    Eric PLAIN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 4D03-2700.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Eric L. Plain, Hollywood, pro se.
    John D. Maher, Tallahassee, for appel-lee.
   PER CURIAM.

Affirmed. See Riegler v. Unemployment Appeals Com’n, 633 So.2d 1182 (Fla. 4th DCA 1994).

WARNER, KLEIN and TAYLOR, JJ., concur.


author: POLEN, J.

text:
    Charles L. RUSSELL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D03-571.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises from a jury verdict finding Charles Russell guilty of False Imprisonment, Robbery with a Deadly Weapon, and Trespass. For the reasons outlined below, we reverse the false imprisonment conviction and instruct the trial court, on remand, to resentenee Russell and enter an order in compliance with this opinion.

On August 7, 2001, around 7:00 in the morning, a drive-through convenience store clerk was working in his store. He went outside to check on an ice machine. As he began heading back inside through the western door, he saw two men with masks running toward the eastern door. One man was holding a shovel handle and the other man was holding a machete. They were yelling at the clerk to open the safe. The clerk started to back up, but he fell. The masked men grabbed him by his shoulders and pulled him inside the store to the safe. The clerk opened the safe, then the cash drawer, and the two men put the money in a brown paper bag. One of the men was later identified as Charles Russell.

Russell was charged with kidnaping, robbery with a deadly weapon, and burglary with a dangerous weapon. After a jury trial, Russell was found guilty of false imprisonment, a lesser included offense of the kidnaping charge, robbery with a deadly weapon, and trespass, a lesser included offense of burglary. On appeal Russell contends the trial court erred in denying his motion for judgment of acquittal on the kidnaping charges. We agree.

“A motion for judgment of acquittal is reviewed under a de novo standard of review.” Jones v. State, 869 So.2d 1240 (Fla. 4th DCA 2004) (citing Mohansingh v. State, 824 So.2d 1053 (Fla. 5th DCA 2002)). If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime, beyond a reasonable doubt there is sufficient evidence to sustain a conviction. Banks v. State, 732 So.2d 1065 (Fla.1999).

For a kidnaping conviction to stand, the resulting movement or confinement: (1) must not be slight, inconsequential, and merely incidental to the other offense; (2) must not be of the kind inherent in the nature of the other offense; and (3) must have some significance independent of the other offense in that it makes the other offense substantially easier to commit or substantially lessens the risk of detection.

Brown v. State, 719 So.2d 955 (Fla. 4th DCA 1998) (citing Faison v. State, 426 So.2d 963 (Fla.1983)).

The first prong of the Faison test requires that the movement or confinement not be slight, inconsequential, and merely incidental to the other offense. The movement and confinement of a victim is slight and inconsequential insofar as the movement and confinement is necessary and/or incidental to commission of the robbery. See, e.g., Walker v. State, 604 So.2d 475 (Fla.1992) (reversing kidnaping conviction where limited movement and confinement of the four occupants within the interior of the store were not significant); Formor v. State, 676 So.2d 1013 (Fla. 5th DCA 1996) (reversing kidnaping convictions where defendants, after robbing the victims, ordered them into the bathroom and told them not to come out or they might be killed); Jones v. State, 652 So.2d 967 (Fla. 3d DCA 1995) (reversing kidnap-ing conviction where robber forced one victim to the back office and directed her to open safe, and ordered other two victims to stay put and quiet while he committed the robbery).

We are unpersuaded by the state’s contention that the movement in this case was not slight or inconsequential because the victim was outside of the store and dragged in. We find no logical distinction, in terms of evaluating the nature of the movement under Faison, between a case where the defendant moves the victim from one room to another within a building to effectuate a crime and the situation presented in this case.

In McCutcheon v. State, 711 So.2d 1286 (Fla. 4th DCA 1998), this court reversed a trial court’s denial of a motion for judgment of acquittal on kidnaping charges under even more egregious circumstances. In McCutcheon, the victim was working at a store when the defendant came in. He pushed the victim into a stockroom where the safe was located and closed the stockroom door. The defendant hit the victim in the face with a gun and began choking her. The victim attempted to run, and the defendant pulled her back into the stockroom and pinned her to the ground. A struggle continued between the victim and the defendant until the victim agreed to open the safe. Id. at 1289.

In concluding that the defendant’s kid-naping conviction in McCutcheon could not stand, a majority of this court noted that the victim was never tied up in any way or confined any longer than the duration of the robbery. As a result this court held that the “confinement was the sort of confinement likely to naturally accompany the underlying felony.” Id.

In the case at bar, the victim was outside of a small drive-thru store, when the men approached. The victim testified that he was heading back into the store when he noticed the men and was “stepping into the store” at the time they came at him. He tried to back away from the men, but he fell. Both men pulled him up by his shoulders. At that time, he estimated that he was six feet away from the store. He also explained that he was dragged into the store, to the safe specifically, and forced to open the safe. He was not confined any longer than the robbery. In short, the confinement was the sort of confinement likely to naturally accompany the underlying crime.

The state was unable to satisfy the test enunciated in Faison and the trial court erred in denying the motion for judgment of acquittal on the kidnaping charge. For these reasons we reverse Russell’s conviction for false imprisonment and instruct the court to enter an order consistent with this opinion.

REVERSED.

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


text:
    Torrence W. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1105.
    District Court of Appeal of Florida, First District.
    June 10, 2004.
    Torrence W. Alen, pro se, appellant.
    Charlie Crist, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for appellee.
   ORDER IMPOSING SANCTION

PER CURIAM.

Torrence Windell Alen is currently serving a prison term which was imposed after his conviction of a felony in Duval County case number 16-1998-CF-14680. The instant appeal seeks review of a circuit court order which denied Alen’s motion for relief from judgment in that case.

Appellee, the State of Florida, moves to dismiss this appeal and for this court to impose sanctions against Alen for his abuse of the judicial system of this state. According to the motion, Alen has initiated 29 eases in this court since his conviction in January of 1999. These include several mandamus petitions and other civil suits, but at least 12 of those cases are attempts to collaterally attack his conviction, either by appealing unsuccessful circuit court petitions or postconviction motions, or by petitions filed directly with this court. None of these cases has resulted in the granting of any relief to Alen.

This court issued an order to show cause and has now considered Alen’s three filings which are apparently intended to serve collectively as his response. We find that these filings not only do not demonstrate why a sanction should not be imposed, but also show that Alen holds the misconception that he is entitled to pursue these attacks on his conviction indefinitely. This, of course, is not true. See Baker v. State, 29 Fla. L. Weekly S105, — So.2d -, 2004 WL 439879 (Fla. March 11, 2004); see also Jones v. State, 858 So.2d 1263 (Fla. 1st DCA 2003).

Based on the above, we find it is appropriate to grant the state’s motion and impose the following sanction. Appellant Torrence Windell Alen shall retain the services of a member in good standing of the Florida Bar who shall file a notice of appearance in this and any other active case in which Alen appears as appellant or petitioner, where relief is sought from the conviction and/or sentence in Duval County case number 16-1998-CF-14680, within twenty days of date of this order, failing which the cases are subject to dismissal without further opportunity to be heard. Further, no pro se papers from Allen collaterally attacking the conviction in Duval County case number 16-1998-CF-14680, regardless of whether by appeal or petition for extraordinary writ, will be accepted for filing by the clerk of this court.

IT IS SO ORDERED.

WOLF, C.J., ERVIN and VAN NORTWICK, JJ„ concur.


text:
    Charles E. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1006.
    District Court of Appeal of Florida, First District.
    June 10, 2004.
    Charles E. Smith, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Charles E. Smith petitions this court for a writ of mandamus, arguing that his conviction is invalid because the jury was allowed to consider certain evidence which should have been excluded under the test set forth in Frye v. United States, 298 F. 1013 (D.C.Cir.1923). Petitioner candidly admits that this claim has previously been considered by this court and rejected. We again deny relief, finding that the petition is procedurally barred.

This court’s records reflect that this is Smith’s sixth collateral attack on his conviction. We accordingly warn Smith that if he continues to proceed in this manner, sanctions may be imposed. See Jones v. State, 858 So.2d 1263 (Fla. 1st DCA 2003).

PETITION DENIED.

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

      . Smith v. State, 806 So.2d 471 (Fla. 1st DCA 2001) (habeas corpus denied); Smith v. State, 816 So.2d 614 (Fla. 1st DCA 2002) (affir-mance of denial of motion for postconviction relief); Smith v. State, case number 1D02-3940 (appeal from denial of a rule 3.853 motion dismissed by unpublished order for failure to comply with orders of this court); Smith v. State, 865 So.2d 487 (Fla. 1st DCA 2003) (affirmance of denial of a rule 3.853 motion); Smith v. State, 866 So.2d 766 (Fla. 1st DCA 2004) (mandamus denied).


text:
    Michael L. NORTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1417.
    District Court of Appeal of Florida, First District.
    June 10, 2004.

      Herman D. Laramore, Public Defender, Fourteenth Judicial Circuit, and Walter B. Smith, Assistant Public Defender, Panama City, for petitioner.
    Charlie Crist, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. State v. Naveira, 873 So.2d 300 (Fla.2004).

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


text:
    Nicholas Alexander HOLLAND, Petitioner, v. CIRCUIT COURT OF the THIRD JUDICIAL CIRCUIT, Respondent.
    No. 1D04-1919.
    District Court of Appeal of Florida, First District.
    June 10, 2004.
    Nicholas Alexander Holland, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. See Brown v. Florida Parole Comm’n, 763 So.2d 1262 (Fla. 1st DCA 2000); Powell v. Florida Dep’t of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

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


text:
    Robert DURGIN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1276.
    District Court of Appeal of Florida, First District.
    June 10, 2004.
    Robert Durgin, Jr., pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for all writs jurisdiction is denied as procedurally barred. See Baker v. State, 29 Fla. L. Weekly S105, — So.2d -, 2004 WL 439879 (Fla. Mar. 11, 2004).

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


text:
    Dennis James MOORE, Petitioner, v. Gonzalo ANDUX, Respondent.
    No. 1D04-1273.
    District Court of Appeal of Florida, First District.
    June 10, 2004.
    Dennis James Moore, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. See Moore v. Correctional Medical Services, 817 So.2d 963 (Fla. 1st DCA 2002); Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

WOLF, C.J., ERVIN and VAN NORTWICK, JJ„ concur.


text:
    Robert ABBOTT, Manuel D. Flores, and Lewis E. Wilkinson, Petitioners, v. STATE of Florida and James V. Crosby, Jr., Secretary, Department of Corrections, Respondents.
    No. 1D04-0260.
    District Court of Appeal of Florida, First District.
    June 10, 2004.
    Robert Abbott, Manuel D. Flores and Lewis E. Wilkinson, pro se, petitioners.
    Charlie Crist, Attorney General, Tallahassee, for respondents.
   PER CURIAM.

DENIED. Denhart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

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


text:
    Leaurenza EDWARDS, Petitioner, v. James V. CROSBY, Florida Department of Corrections, Respondent.
    No. 1D03-4610.
    District Court of Appeal of Florida, First District.
    June 10, 2004.
    Leaurenza Edwards, pro se, petitioner.
    Rosa Carson, Acting General Counsel, and Connie L. Beach, Assistant General Counsel, Department of Corrections, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. Petitioner’s motion for oral argument is denied.

BOOTH, BARFIELD and ALLEN, JJ., concur.


author: MONACO, J.

text:
    Tony Edward NOVA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2268.
    District Court of Appeal of Florida, Fifth District.
    June 11, 2004.

      J. Melanie Slaughter, Ocala, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Tony Edward Nova appeals the judgment and sentence imposed upon him after he was convicted of robbery with a firearm. Although Mr. Nova brings a number of issues to our attention, we find that they are without merit and affirm. However, one set of issues concerning limitations placed on defense cross-examination, and the issue of the constitutionality of the prison releasee reoffender statute, deserves further comment.

Mr. Nova was convicted of robbing a convenience store while armed with a handgun. The clerk at the store identified Mr. Nova in a photographic lineup, and later identified him as the perpetrator in court. The clerk no longer worked at the convenience store. She testified that she quit because she did not want to face the risks inherent in that position. Mr. Nova, on the other hand, asserted that she had been fired because of cash shortages. He further claimed that she had been a drug abuser, and that she had lied on her employment application with the convenience store concerning her past criminal record. He argued to the trial court that he was entitled to attack her credibility by showing that she was biased in accordance with section 90.608(2), Florida Statutes (2003), which reads succinctly:

Any party, including the party calling the witness, may attack the credibility of a witness by:
(2) Showing that the witness is biased.

The clerk testified during a defense proffer that on a few occasions her cash drawer had in fact been short, but that she had voluntarily left her employment and had not been fired. She also admitted to having abused drugs in the past, but indicated that she had not used drugs for two years because she was on probation, and was regularly drug tested. She testified, as well, that her past drug abuse did not impair her memory. Finally, she admitted that she lied on her employment application about her past criminal record.

The trial judge allowed Mr. Nova to present evidence concerning the falsification of the clerk’s employment application, and concerning her prior convictions. He would not let the defense discuss the specific nature of the clerk’s prior convictions (uttering a forged instrument and petty theft of checks), unless she denied them, or falsely testified about them. The judge also agreed to allow her supervisor to testify regarding the cash shortages, provided the supervisor acknowledged that she had been terminated for that reason. The supervisor, as it turns out, could not recall whether she was fired or quit, and was not called to testify before the jury. In addition, the court ruled that Mr. Nova could elicit testimony from the clerk concerning whether she had used illegal drugs at the time of the robbery. He declined, however, to allow the defense to cross-examine the clerk on the fact that at one time while on probation she tested positive for cocaine and marijuana, and had spent six months in a drug rehabilitation center, because those events were remote in time, and there was no evidence that her ability to recall events was impaired. We think the trial judge was correct on each evidentiary issue.

The evidence of the clerk’s prior convictions is governed by section 90.610, Florida Statutes (2003), which permits impeachment by evidence “that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year ... or if the crime involved dishonesty or a false statement regardless of the punishment.” As the trial judge correctly ruled, impeachment evidence beyond this (with certain statutory exceptions), may only be elicited if the witness denies or falsely testifies about the convictions. See Perez v. State, 648 So.2d 715 (Fla.1995); Pryor v. State, 855 So.2d 134 (Fla. 1st DCA 2003).

The limitation imposed by the trial court on defense cross-examination concerning the alleged cash shortages is equally without avail. During a defense proffer the clerk admitted that her cash drawer came up short by $20 to $30 on a couple of occasions, but she insisted that she had resigned her position, and had not been fired. Her supervisor would not testify that she had been fired. There was not a whole lot here except speculation. More important, as the State accurately pointed out, Mr. Nova never developed how the clerk’s cash drawer shortages would cause her to be biased under section 90.608(2). Thus, the matter of cash shortages devolved into a collateral matter that was not germane to the issue of witness bias. The Florida Supreme Court commented in this connection in Breedlove v. State, 580 So.2d 605, 609 (Fla.1991), that:

Bias on the part of a prosecution witness is a valid point of inquiry in cross-examination, but the prospect of bias does not open the door to every question that might possibly develop the subject.... Evidence of bias may be inadmissible if it unfairly prejudices the trier of fact against the witness or misleads the trier of fact. Therefore, inquiry into collateral matters, if such matters will not promote the interests of justice, should not be permitted if it is unjust to the witness and uncalled for by the circumstances.

See also Nelson v. State, 704 So.2d 752 (Fla. 5th DCA 1998).

Finally, there is the matter of past drug use. In Edwards v. State, 548 So.2d 656 (Fla.1989), the Florida Supreme Court held that evidence of drug use by a witness for purposes of impeachment would be excluded unless: (a) it could be shown that the witness had been using drugs at or about the time of the incident that was the subject of the testimony of the witness; (b) it could be shown that the witness was using drugs at or about the time of the testimony itself; or (c) it was expressly shown by other relevant evidence that the prior drug use affected the witnesses ability to observe, remember, and recount. See also Trease v. State, 768 So.2d 1050, 1053 (Fla.2000); Johnson v. State, 565 So.2d 879 (Fla. 5th DCA 1990); Richardson v. State, 561 So.2d 18 (Fla. 5th DCA 1990). Here, the testimony sought to be presented to the jury met none of the exceptions.

As a final matter, Mr. Nova attacks his sentence as a prison releasee reoffender on constitutional grounds. He acknowledges that we have previously held that section 775.082(9)(d), Florida Statutes (2003), is not constitutionally infirm. See Gould v. State, 860 So.2d 1056 (Fla. 5th DCA 2003); cf., State v. Cotton, 769 So.2d 345 (Fla.2000). He asks that we reconsider our position. We decline to do so.

AFFIRMED.

SHARP, W., and THOMPSON, JJ„ concur.


text:
    Charles Edward EUBANKS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2278.
    District Court of Appeal of Florida, Fifth District.
    June 11, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Windom v. State, 29 Fla. L. Weekly S191, — So.2d -, 2004 WL 1057640 (Fla. May 6, 2004) (holding that in reviewing an order on a motion for post conviction relief, the trial court’s factual findings are to be given deference); see also Foster v. State, 810 So.2d 910 (Fla.2002) (holding that it is not necessary for a trial court to conduct an evidentiary hearing on claims raised in a post conviction motion that are facially invalid or conclusively refuted by the record).

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    Joel C. McALLISTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2137.
    District Court of Appeal of Florida, Fifth District.
    June 11, 2004.

      James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Joel C. McAllister appeals from the judgment and sentence arising out of his convictions of burglary of a structure, trespassing, molesting or damaging a vending machine, and petit theft. The issues raised in this appeal concern the integrity of the jury verdict, and the purported mi-sinstruction of the jury by the trial judge. Because the inquiry into the jury’s actions invited by Mr. McAllister concerns matters that inhere in the verdict, we find no error in the trial court’s refusal to grant the relief requested. Likewise, because any instructional error was either not preserved, agreed to, or waived by the defense, we find no cause for reversal in this regard, as well.

Juror interviews are not permitted with respect to any matter that inheres to the verdict and relates to jury deliberations. See Aragon v. State, 858 So.2d 584, 587-88 (Fla. 5th DCA 2003); Walters v. State, 786 So.2d 1227 (Fla. 4th DCA 2001). Section 90.607(2)(b), Florida Statutes (2003), says specifically:

Upon an inquiry into the validity of a verdict or indictment, a juror is not competent, to testify as to any matter which essentially inheres in the verdict or indictment.

In the present case the inquiry sought to be made by Mr. McAllister concerning the motives of certain jurors in connection with their vote to convict him of the burglary charge are clearly within the statutory and common law prohibition. Likewise, inquiry into whether or not the jurors understood the court’s instructions is also prohibited. See Reaves v. State, 826 So.2d 932, 943 (Fla.2002). Any jury inquiry is limited to “allegations which involve an overt prejudicial act or external influence.” Id. Mr. McAllister’s assertions do not rise to this level.

Mr. McAllister also asserts that the trial court should have answered a jury question concerning the elements of burglary by doing more than simply reviewing the standard burglary charge. The record is clear, however, that Mr. McAllister objected to every alternative suggested by the trial judge, and insisted that only the burglary charge be reread. This issue is, accordingly, not preserved for review. See Occhicone v. State, 570 So.2d 902, 905 (Fla.1990).

Similarly, Mr. McAllister now complains that the judge should not have sent a dictionary back with the jury. While ordinarily it is a bad idea to give the jury a dictionary, in this instance the defense specifically consented to this action when the jury requested it. The issue was, therefore, waived, and not preserved for our review.

Wfliile a number of permutations of the primary issues are also called to our attention by Mr. McAllister, we find no error with respect to them.

AFFIRMED.

SHARP, W., and THOMPSON, JJ., CONCUR.

      . “No maker of dictionaries should ever be allowed to define legal terms to a jury unless such definitions go through the medium of the trial judge, the only one authorized by law to give definitions and explanations to the jury.” Smith v. State, 95 So.2d 525, 528 (Fla.1957).


author: SHARP, W., J.

text:
    Joseph FUGINA, Appellant, v. Cynthia E. FUGINA, Appellee.
    No. 5D03-3001.
    District Court of Appeal of Florida, Fifth District.
    June 11, 2004.
    Joseph Fugina, Orlando, pro se.

      Thomas H. Yardley, Cocoa, for Appellee.
   SHARP, W., J.

Joseph Fugina files this pro se appeal from a final order, rendered after a final judgment of dissolution, which established child support arrearage in favor of his former wife, Cynthia Hitchcock. Fugina raises two issues on appeal. We find that only one has merit: that the trial court erred when it found that he was in arrears for child support in the sum of $2,195.21, because that amount had been previously set off against him in the final judgment of dissolution.

The Fuginas were divorced in 1998. At the time of the dissolution, the parties owned two residences: the marital residence (Indian River property) and another residence located on South Washington Avenue (the Washington Avenue property). Hitchcock received both properties by way of equitable distribution of the parties’ marital property. The final judgment of dissolution also found that Fugina was in arrears for child support in the sum of $2,195.21.

To equalize the equitable distribution, the final judgment of dissolution required Hitchcock to execute a promissory note and mortgage in favor of Fugina on the Washington Avenue property in the sum of $15,954.79. The 1998 judgment explains:

This sum is the $19,500 difference in equitable distribution minus the child support arrears of $2,195.21 and the un-reimbursed medical bills of $1,350.00. (Emphasis added)

In November of 2002, Hitchcock filed a motion to have Fugina held in contempt for non-payment of child support. Fugina filed a response denying any child support or arrearage was due and unpaid. After an evidentiary hearing on the motion, the trial court entered an order on July 23, 2003 which found:

The payment records also show that he [Fugina] has never made any payment toward the initial arrearage of $2,195.21 found to exist as of November 1, 1998. The court therefore finds that Mr. Fugi-na owes to Ms. Hitchcock both the new arrearage ... and the initial arrearage. (Emphasis added)

Because there is no transcript of the hearing in this contempt proceeding, our review is limited to errors of law that are apparent on the face of the record. See Fortune v. Pantin, 851 So.2d 274 (Fla. 5th DCA 2003); Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990). However, the court’s error in failing to give Fugina credit for the initial child support arrearage appears clear on the face of the record. Casella. See also Bayer v. Global Renaissance Arts, Inc., 869 So.2d 1232 (Fla. 2d DCA 2004); Ballesteros v. Ballesteros, 819 So.2d 902 (Fla. 4th DCA 2002). Fugina is thus entitled to relief.

The other issues Fugina raises concern the amounts and credits he may have been entitled to receive because one of the parties’ children attained the age of 18, and may have become “emancipated.” Pursuant to the final judgment, Fugina was obligated to pay child support while this child was between 18 and 19 years of age, with a reasonable expectation she would graduate from high school before attaining 19 years of age. Without a transcript of the hearing, we cannot review the trial court’s determination that the amounts owed for this child were due, or that they were not paid. See Dept. of Revenue v. Wrobel, 739 So.2d 670 (Fla. 4th DCA 1999); Chaiken v. Suchman, 694 So.2d 115 (Fla. 3d DCA 1997).

Accordingly, we reverse that part of the order which fails to credit Fugina for the $2,195.21 initial child support arrearage, and remand to the trial court to correct the judgment on arrearage. We affirm in all other respects.

AFFIRMED in part; REVERSED in part; REMANDED.

THOMPSON and MONACO, JJ., concur.


text:
    Johnny THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3449.
    District Court of Appeal of Florida, Fifth District.
    June 11, 2004.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Thompson appeals from a judgment and sentences in a criminal case in which he was found guilty of burglary of a structure and grand theft. He pled guilty to the charges without reaching a plea agreement with the state as to his sentences. After a pre-sentence investigation and hearing on sentencing, he received a five-year sentence on each charge, to run concurrently. We affirm.

On appeal, Thompson argues the trial court violated his due process rights by considering impermissible factors — other criminal charges that had been dismissed or thrown out — in sentencing him for these crimes. See Cook v. State, 647 So.2d 1066 (Fla. 3d DCA 1994). He also argues that the trial judge’s comments at sentencing demonstrate prejudice and impropriety and that he should be resentenced by another judge. See Johnson v. State, 679 So.2d 831 (Fla. 1st DCA 1996).

We are unable to reach the merits of these arguments because they were not preserved for appellate review, even if fundamental. Hayden v. State, 833 So.2d 275 (Fla. 5th DCA 2002); Lewis v. State, 827 So.2d 1052 (Fla. 5th DCA 2002). Here Thompson failed to object at the sentencing hearing and he also failed to file a motion under Florida Rule of Criminal Procedure 3.800, raising these issues. Under the strict requirements of the Criminal Appeal Reform Act, with few exceptions, preservation of sentencing issues is a prerequisite to appellate review.

AFFIRMED.

SAWAYA, C.J., and MONACO, J., concur.

      . §§ 810.02; 812.014(1), Fla. Stat

      . § 924.051, Fla. Stat.

        . Henderson v. State, 853 So.2d 603, 603-604 (Fla. 5th DCA 2003) (Sharp, J., concurring); Morgan v. State, 840 So.2d 1151 (Fla. 5th DCA 2003); Suber v. State, 827 So.2d 1043 (Fla. 2d DCA 2002).


text:
    Bryon Jordon WILSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D03-144.
    District Court of Appeal of Florida, First District.
    June 14, 2004.
    Nancy A. Daniels, Public Defender; Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his conviction for attempted burglary of a conveyance, a lesser-included offense of that of burglary of a conveyance with which he had been charged. Because the evidence presented, viewed in a light most favorable to the state, was insufficient as a matter of law to prove that appellant had anything to do with attempting to burglarize the car alleged to have been burglarized, the trial court should have granted appellant’s legally sufficient motion for a judgment of acquittal. Because it did not, we reverse, and remand with directions that the trial court enter an order granting the motion for judgment of acquittal as to the charge of burglary of a conveyance; set aside the judgment of conviction of attempted burglary of a conveyance; and discharge appellant as to that offense.

REVERSED and REMANDED, with directions.

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


text:
    Andrew SCHROCK, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D03-4612.
    District Court of Appeal of Florida, First District.
    June 14, 2004.
    Andrew Schrock, pro se, appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The order dismissing appellant’s petition for writ of mandamus is reversed, and the matter is remanded for further proceedings. See Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004).

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


text:
    David McCREIGHT, Petitioner, v. HERTZ PUMP & COMPRESSOR and Cambridge Integrated Services Group, Inc., Respondents.
    No. 1D03-1562.
    District Court of Appeal of Florida, First District.
    June 14, 2004.
    Daniel DeCiccio, Esquire of DeCiccio & Johnson, Winter Park, for Petitioner.
    Wendell J. Kiser, Esquire and Keef F. Owens, Esquire of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for Respondents.
   PER CURIAM.

Upon consideration of petitioner’s response to the Court’s order of April 30, 2004, in which petitioner “agrees that the Petition for Writ of Prohibition is moot to the extent that the insolvency hearing addressed by the Petition has already occurred,” the Petition is dismissed as moot. See English v. McCrary, 348 So.2d 293, 296-297 (Fla.1977) (“[A writ of prohibition’s] purpose is to prevent the doing of something, not to compel the undoing of something already done. It cannot be used to revoke an order already entered.”); Wetherell v. Thursby, 100 Fla. 108, 129 So. 345, 345-346 (1930) (holding where issues had become moot by the passing of time, the proceeding in prohibition must be dismissed).

DISMISSED.

BARFIELD, DAVIS, and BENTON, JJ., Concur.


text:
    James Lee RUDOLPH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0302.
    District Court of Appeal of Florida, First District.
    June 14, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, James Lee Rudolph, Jr., appeals the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Because the trial court lacked jurisdiction at the time the motion was considered and ruled on, we vacate the trial court’s order without addressing the merits of the motion.

The trial court denied the appellant’s instant motion on December 19, 2003, while an appeal from the denial of the appellant’s previously filed motion to withdraw his plea was pending in this Court. Because the appellant raised similar grounds in both motions, the trial court did not have jurisdiction at the time the instant motion was considered. See Williams v. State, 795 So.2d 975 (Fla. 1st DCA 2001). However, because this Court affirmed the trial court’s denial of the appellant’s previous motion to withdraw his plea on February 24, 2004, jurisdiction has now returned to the trial court.

Accordingly, the trial court’s order is VACATED and the cause REMANDED.

WOLF, C.J., KAHN and LEWIS, JJ., concur.


text:
    Emma HAMILTON, Appellant, v. SELECTIVE HR SOLUTIONS and Continental Casualty Insurance, Appellees.
    No. 1D04-0809.
    District Court of Appeal of Florida, First District.
    June 14, 2004.
    Richard A. Lovesky of Richard Lovesky, P.A., Bradenton, for appellant.
    Cindy R. Galen of Eraclides, Johns, Hall, Gelman, Eikner & Johannessen, Sarasota, for appellees.
   PER CURIAM.

DISMISSED. See Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995); Board of County Commissioners v. Grice, 438 So.2d 392 (Fla.1983); Johnson v. First City Bank, 491 So.2d 1217 (Fla. 1st DCA 1986); Augustin v. Blount, Inc., 573 So.2d 104, 105 n. 1 (Fla. 1st DCA 1991).

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


text:
    WAGNER REHAB AND NURSING CENTER and Constitution State Service Company, Appellants, v. Ernestine ALEXANDER, Appellee.
    No. 1D04-1427.
    District Court of Appeal of Florida, First District.
    June 14, 2004.
    Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, Tallahassee, for appellants.
    Paul M. Anderson of Anderson & Sullivan, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. Zito v. Jeff Harding, Inc., 870 So.2d 964 (Fla. 1st DCA 2004).

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


text:
    Willie McCARR, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1569.
    District Court of Appeal of Florida, Second District.
    June 16, 2004.
   PER CURIAM.

Willie McCarr challenges the summary denial of his motion pursuant to Florida Rules of Criminal Procedure 3.850 and 3.800(a), which was filed in the circuit court on September 15, 2003. The clerk of the circuit court has informed this court that the court file is not able to be located, and the record for this appeal transmitted by the clerk does not include appellant’s motion.

Accordingly, we affirm the order of the circuit court without prejudice to McCarr’s filing the same motion within sixty days from the date of the mandate in this case. Any such motion shall not be considered successive on account of this refiling. See Hunter v. State, 858 So.2d 1095 (Fla. 2d DCA 2003) (allowing a prisoner to refile a rule 3.850 motion without the motion being considered successive because pages were missing from the copy of the motion in the record, rendering the motion unreadable).

Affirmed without prejudice.

WHATLEY, SALCINES, and STRINGER, JJ., Concur.


text:
    John Charles BEARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4517.
    District Court of Appeal of Florida, Second District.
    June 16, 2004.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

We remand for correction of a scrivener’s error in the order of probation, which should reflect that the defendant’s driver’s license is permanently revoked pursuant to section 322.28(2)(e), Florida Statutes (2002), rather than section 322.055(1). In all other respects, the convictions and sentences are affirmed.

Affirmed; remanded for correction of scrivener’s error in probation order.

CASANUEVA, DAVIS, and SILBERMAN, JJ., Concur.


text:
    Anselmo RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-785.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    David B. Pakula, P.A., Ft. Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the denial of appellant’s rule 3.850 motion for an evidentiary hearing. State v. Lindo, 863 So.2d 1237 (Fla. 4th DCA 2003).

WARNER, KLEIN and TAYLOR, JJ., concur.


text:
    Innis Mae WILLIAMS, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, STATE OF FLORIDA, Appellee.
    Nos. 4D03-2845 to 4D03-2847.
    District Court of Appeal of Florida, Fourth District.
    June 16, 2004.
    Innis Mae Williams, Delray Beach, pro se.
    John D. Maher, Tallahassee, for appel-lee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

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


author: GRIFFIN, J.

text:
    Andre APPLEWHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1919.
    District Court of Appeal of Florida, Fifth District.
    June 18, 2004.

      James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Andre Applewhite [“Applewhite”] appeals his judgment and sentence. He contends that the trial court erred in denying his request for a jury instruction on a lesser included offense and in granting the State’s request for a special jury instruction. We affirm.

On July 18, 2002, Applewhite was charged by amended information with escape and battery upon a law enforcement officer. Applewhite was found guilty of escape but was acquitted of battery. Ap-plewhite was sentenced as a habitual felony offender to thirty years’ imprisonment.

Prior to trial, the State filed a request for a special jury instruction on escape. Over Applewhite’s objection, the court granted the motion.

At trial, the events resulting in the charges were developed. Deputy Christopher Stronko [“Stronko”] with the Seminole County Sheriffs Office testified that he had known Applewhite for five or six years, and that he came into contact with Applewhite on that day at 1063 Williams Street in east Altamonte Springs. Stron-ko was assisting Deputy Kirby Hilton [“Hilton”], who was already on the scene when Stronko arrived. They knew that Applewhite was on community control, and Hilton was having a discussion with Apple-white about whether or not he was allowed to be in that location. As Stronko approached the scene, he observed Hilton tell Applewhite to place his hands on the car because he was under arrest, and he overheard a conversation about why he was under arrest. Applewhite then placed his hands on the fender of the car, and Hilton unsnapped his handcuff case to retrieve the restraints. When Hilton went to place the handcuffs on Applewhite, Applewhite attempted to get away. Once Applewhite broke free, he was intercepted by Stronko. Applewhite shoved Stronko, but Stronko was able to restrain Applewhite so that Hilton could handcuff and secure him.

On cross-examination, Stronko testified that he also observed Hilton hand a cell phone to Applewhite, who talked to someone for a minute or so before handing the phone back to Hilton, and then Hilton told Applewhite to put his hands on the car. He also testified that the distance Apple-white ran from Hilton to Stronko was only six or seven feet.

Lorraine Johnson [“Johnson”], Apple-white’s community control officer, testified that on December 4, 2001, Applewhite’s approved residence was 137 Leon Street in Altamonte Springs. Johnson had informed Applewhite two days prior to the offense that if he was away from that residence without permission, he would be arrested for violation of his community control. She stated that she works with the deputy sheriffs in the area — including Hilton and Stronko — and advises them who is on community control in that district — including Applewhite. On the date of the offense, Applewhite was given permission to look for a job from 10 a.m. until 4 p.m., which he was to document in a “job hunt log.” Johnson had explained to him that as a condition of his community control, he was not allowed to stop anywhere else while looking for a job. On the date in question, Johnson received a phone call from Hilton and also spoke with Apple-white at that time. After speaking to both, she instructed Hilton to arrest Ap-plewhite for violating community control because he did not have permission to be at 1063 Williams Street.

Applewhite testified that when he was arrested, he was at 1063 Williams Street to pick up his black tennis shoes that he let somebody borrow. Applewhite stated that when Hilton concluded his conversation with Johnson, he told Applewhite to put his hands on the car. As Hilton unsnapped the handcuffs, he ran but collided with Stronko. On cross-examination, when Applewhite was asked if he had any doubt that when he heard the handcuffs being unsnapped that he was being arrested, he responded, “No, not really.” Apple-white admitted that he had nine prior felony convictions.

On appeal, Applewhite first contends that he was entitled to a jury instruction on resisting arrest without violence as a necessarily lesser included offense of escape because escape cannot be proven without also establishing proof of all of the elements of resisting arrest without violence.

The State responds that resisting arrest without violence is a permissive lesser included offence, and Applewhite was not entitled to an instruction on the permissive lesser offense of resisting without violence because the statutory elements of that crime were not included in the charging document. It notes that resisting an officer without violence is not listed in the schedule of lesser included offenses as either a category one or a category two lesser offense. The State points out that Applewhite has cited no case where an instruction on resisting without violence has been given as a lesser included offense of escape.

Resisting an officer without violence is defined in Section 843.02, Florida Statutes (2001), as:

Whoever shall resist, obstruct, or oppose any officer ... in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree....

The elements of this offense are: (1) defendant resisted, obstructed or opposed the victim; (2) at the time the victim was engaged in the execution of legal process or lawful execution of a legal duty; and (3) at the time the victim was an officer. Fla. Std. Jury Instr. (Crim.) 21.2.

Escape is defined in section 944.40, Florida Statutes (2001) as:

Any prisoner confined in any prison, jail, private correctional facility, road camp, or other penal institution, ... working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement commits a felony of the second degree....

The elements of this offense are: (1) defendant was a prisoner, which is defined as any person who is under arrest and in the lawful custody of a law enforcement official; (2) while a prisoner, defendant was being transported to or from a place of confinement; and (3) defendant escaped or attempted to escape by intending to avoid lawful confinement. Fla. Std. Jury Instr. (Crim.) 27.1. The standard jury instructions do not identify any lesser included offense for escape. Id.

First, we conclude that resisting an officer without violence is not a necessarily lesser included offense because a defendant can commit the crime of escape •without resisting, obstructing or opposing an officer. When a defendant requests an instruction on a permissive lesser included offense, the trial court is required to grant the request only if: (1) the accusatory pleading specifically alleges all of the statutory elements of the lesser offense; and (2) a finding of guilt on the offense would be supported by the evidence submitted at trial. Overway v. State, 718 So.2d 308, 310 (Fla. 5th DCA 1998). This information charged: “[Applewhite], being a prisoner lawfully confined in the custody of a law enforcement official, ... and being transported to or from a place of confinement, did intentionally escape or attempt to escape from said confinement....” Based on the charge in the information, it was not error to refuse Applewhite’s proposed instruction.

Applewhite next contends that when the court read the special instruction on escape requested by the State, it was tantamount to directing a guilty verdict on the escape charge. The State responds that the instruction is an accurate statement of the law as explicated in State v. Ramsey, 475 So.2d 671, 672 (Fla.1985) (defendant, who upon being informed that he was under arrest, ran from scene and was properly charged with escape, notwithstanding that he had not been restrained and arrest procedure had not progressed to point where officer had removed handcuffs from their carrying place). See also Hutchinson v. State, 771 So.2d 1287 (Fla. 4th DCA 2000) (evidence was sufficient to support conviction of escape because defendant was in custody notwithstanding that the deputy had not completed the act of acquiring total physical control at the instant of escape); Sams v. State, 600 So.2d 1297 (Fla. 5th DCA 1992).

The modified instruction read to the jury consisted of the standard instruction with two additions:

Before you can find the defendant guilty of Escape, the State must prove the following three elements beyond a reasonable doubt:
1. The defendant was under arrest and in the lawful custody of a law enforcement official.
2. While a prisoner, the defendant was being transported to a place of confinement.
3. The defendant escaped or attempted to escape by intending to avoid lawful confinement.
It is not necessary for you to find or for the State of Florida to 'prove the law enforcement official had completed the act of acquiring total physical control of the defendant in the instant of escape or attempted escape so long as it is proven the law enforcement official had 1) a right to legal custody of the defendant and 2) there was a conscious and intentional act of the defendant in leaving or attempting to leave the established area of such custody.
“Transportation to a place of confinement” begins at the time an individual is placed under arrest.

(Emphasis supplied.) The additional language added to the standard instruction is consistent with Ramsey and, more to the point, is pertinent to the particular facts presented in this case. We find no abuse of discretion in giving the State’s requested instruction. See James v. State, 695 So.2d 1229 (Fla.1997); Carpenter v. State, 785 So.2d 1182 (Fla.2001).

AFFIRMED.

PETERSON and ORFINGER, JJ., concur.

      . § 944.40, Fla. Stat. (2001).

      . § 944.02(6), Fla. Stat. (2001).


text:
    Pedro J. VALENTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3335.
    District Court of Appeal of Florida, Fifth District.
    June 18, 2004.
    Pedro J. Valentin, Daytona Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Pedro J. Valentin appeals his designation as a sexual predator pursuant to section 775.21, Florida Statutes (2002), Florida’s Sexual Predator Act, (“FSPA”). Valentin relies on Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), in support of his allegation that the FSPA violates procedural due process by not providing a hearing before classifying a defendant as a sexual predator.

All of the other district courts have disagreed with Espindola and have certified conflict as we do now in the instant case. See, e.g., Martin v. State, 864 So.2d 589 (Fla. 5th DCA 2004); Frazier v. State, 29 Fla. L. Weekly D369 (Fla. 1st DCA Feb.6, 2004); Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003); Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003), review granted, 859 So.2d 514 (Fla.2003). See also Connecticut Dep’t of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003).

The designation is affirmed.

AFFIRMED; CONFLICT CERTIFIED.

PETERSON, GRIFFIN and ORFINGER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Delwyn L. CHATMAN, Appellee.
    No. 1D02-4690.
    District Court of Appeal of Florida, First District.
    June 18, 2004.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for appellant.
    Nancy A. Daniels, Public Defender; Robert S. Friedman, Assistant Public Defender, Tallahassee, for appellee.
   PER CURIAM.

In light of the decision in State v. Harris, 29 Fla. L. Weekly S230, — So.2d -, 2004 WL 1064790 (Fla. May 13, 2004), we reverse and remand for consideration of the State’s petition to commit appellant as a sexually violent predator. See also Murray v. Regier, 872 So.2d 217 (Fla.2002).

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


text:
    STATE of Florida, Appellant, v. In re The COMMITMENT OF Donald L. GENTES, Appellee.
    No. 1D02-4993.
    District Court of Appeal of Florida, First District.
    June 18, 2004.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for appellant.
    Nancy A. Daniels, Public Defender; Robert S. Friedman, Assistant Public Defender, Tallahassee, for appellee.
   PER CURIAM.

In light of the decision in State v. Harris, 29 Fla. L. Weekly S230, — So.2d -, 2004 WL 1064790 (Fla. May 13, 2004), we reverse and remand for consideration of the State’s petition to commit appellant as a sexually violent predator. See also Murray v. Regier, 872 So.2d 217 (Fla.2002).

WOLF, C.J., ERVIN and PADOVANO, JJ., concur.


text:
    James J. WEAVER, Appellant, v. SCHOOL BOARD OF LEON COUNTY, Florida, Appellee.
    No. 1D03-4265.
    District Court of Appeal of Florida, First District.
    June 18, 2004.
    Appellant, pro se.
    C. Graham Carothers of Ausley & McMullen, Tallahassee, William R. Mabile, III and William D. Horgan of Fuller, Johnson & Farrell, Tallahassee, for Appel-lee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 26, 2004, the Court has determined that the notice of appeal was not timely filed. See Wagner v. Bieley, Wagner & Assocs., Inc., 263 So.2d 1 (Fla.1972). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. All pending motions are denied as moot.

ALLEN, PADOVANO, and LEWIS, JJ., concur.


text:
    Christopher SHERVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0284.
    District Court of Appeal of Florida, First District.
    June 18, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his rule 3.800 motion, in which he alleges that his sentence is illegal. We affirm the trial court’s denial as to the appellant’s claim for postconviction relief, but reverse that part of the order that prohibits the appellant from further pro se filings, because the trial court failed to provide the appellant an opportunity to respond to the allegations levied against him by the trial court. See State v. Spencer, 751 So.2d 47 (Fla.1999).

AFFIRMED IN PART; REVERSED IN PART.

BOOTH, WEBSTER and DAVIS, JJ., concur.