text:
    SUNSET POINTE AT SILVER LAKES ASSOCIATES, LTD., Appellant, v. Oscar A. VARGAS and Silvia M. Vargas, Appellees.
    No. 4D03-904.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Rehearing Denied Aug. 30, 2004.
    Peter M. Hodkin of Peter M. Hodkin, P.A., Fort Lauderdale, for appellant.

      Alan H. Ramer, Coral Gables, for appel-lees. i
   KLEIN, J.

After making a deposit on a home to be constructed by the seller, the buyers did not go through with the purchase and brought this suit for a return of their deposit. They recovered based on oral statements, made by the salesman, which contradicted the contract. We reverse because the parol evidence rule bars this type of testimony.

The agreement contained a form addendum making the purchase subject to the buyers qualifying for a mortgage with an institutional lender. The addendum went on to state:

If Purchaser is credit approved, Purchaser shall be deemed approved and qualified regardless of the conditions imposed in such approval relating to matters outside this transaction, including, without limitation, the sale or leasing property presently owned by Purchaser.

The buyers owned a home but did not intend to sell it because of other family members who were living there. They were approved for a mortgage, but the approval was contingent on their netting $96,000 from the sale of their current home. This put the buyers in the position of having qualified for financing under the contract with the seller, but they were required to sell their home which they did not wish to do.

The buyers subsequently sued for the return of their deposit, and relied on oral statements made by the salesman for the seller in order to get around the mortgage approval provision. They testified at trial that the salesman referred them to a lender and promised them that they would be approved for financing without having to sell their home. The seller objected to the oral representations by the salesman as parol evidence; however, the trial court admitted it and the jury found in favor of the buyers. Without that evidence the seller would have been entitled to a directed verdict.

'The buyers argüe- that the trial court properly allowed parol evidence because the written contract was ambiguous. V & M Erectors, Inc. v. Middlesex Corp., 867 So.2d 1252 (Fla. 4th DCA 2004). In order to establish the necessary ambiguity, the buyers rely on a paragraph of the sales contract entitled “Mortgage Financing,” which provided that performance of the contract is not conditioned on the buyers obtaining financing. They claim that paragraph conflicts with the addendum. It is undisputed, however, that “N/A” had been written over this paragraph, indicating it was not applicable, and that the parties agreed it did not apply. This could not have created an ambiguity.

The buyers also argue that parol evidence is admissible to establish a contemporaneous oral agreement which induces the execution of a written contract. Mallard v. Ewing, 121 Fla. 654, 164 So. 674 (1935). The inducement exception, however, does not apply where the oral statement directly contradicts the written agreement. E.J. Sparks Enters, v. Christman, 95 Fla. 928, 117 So. 388 (1928) (oral representation of mortgage lender that it would not hold the borrower personally liable on the promissory note, and look only to the land, inadmissible as, parol evidence because it contradicted the terms of the unambiguous written contract). Linear Corp. v. Standard Hardware Co., 423 So.2d 966 (Fla. 1st DCA 1982); Unger-leider v. Gordon, 214 F.3d 1279 (11th Cir.2000) (containing a comprehensive discussion of Florida law and concluding that the inducement exception to the parol evidence rule does not permit oral evidence which directly contradicts the written agreement) .

In the present case, the oral representations by the salesman directly contradicted the financing contingency provision in the written agreement and were accordingly not admissible under the inducement exception to the parol evidence rule. The trial court should have excluded the evidence and granted the seller’s motion for directed verdict. Reversed.

WARNER and HAZOURI, JJ., concur.

      . The buyers cite Lou Bachrodt Chevrolet, Inc. v. Savage, 570 So.2d 306 (Fla. 4th DCA 1990), in which a used car was sold with a written "as is” warranty disclaimer, but this court allowed recovery for fraud based on oral representations made by the seller. This court concluded that the parol evidence rule contains an exception for fraudulent inducement without recognizing the distinction between oral representations which do not contradict the written contract and those which do. Judge Anstead dissented citing Faulk v. Weller K-F Cars, Inc., 70 So.2d 578 (Fla.1954), in which the Florida Supreme Court affirmed a directed verdict against the purchaser of a used car sold under a written contract which said “as is,” where the purchaser relied on oral fraudulent misrepresentations. Savage cannot be reconciled with Faulk or EJ. Sparks, which, as supreme court decisions, control. See also Hillcrest Pac. Corp. v. Yamamura, 127 So.2d 1053 (Fla. 4th DCA 1999) (no recovery allowed for fraud for oral misrepresentations which are expressly contradicted in written contract); Peebles v. Sheridan Healthcare, Inc., 853 So.2d 559 (Fla. 4th DCA 2003) (same).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frank CLEMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2034.
    District Court of Appeal of Florida, First District.
    July 8, 2004.
    Rehearing Denied Sept. 8, 2004.
    Frank Clemons, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BOOTH, BARFIELD and ALLEN, JJ., concur.


author: FARMER, C.J.

text:
    Jay Junior SIGLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4799.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.
    Rehearing Denied Sept. 17, 2004.

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

This is the aftermath to our decision in Sigler v. State, 805 So.2d 32 (Fla. 4th DCA 2001), review denied, 823 So.2d 126 (Fla.2002). Because the outcome in this appeal involves what we did and said in that decision, we summarize the material aspects of it. .

Defendant was indicted and tried for the crime of first degree felony murder, the state charging that the murder was committed while he was involved in an escape from prison. Briefly, the incident that is the basis for the crime charged took place on the day after defendant had escaped from prison with the aid of his friend Michelson. As they were driving from their overnight hotel refuge, they were seen by police who gave chase at high speed. With Michelson driving, the car in which defendant was riding collided with another, killing its driver.

The jury convicted defendant only of the lesser included offense of second degree murder. See § 782.04(2), Fla. Stat. (1997) (“The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree.... ”). On his direct appeal (Sigler I), he argued that the evidence was insufficient to convict him of second degree murder. Because he was not the driver or owner, and was not in control of the vehicle that collided with and killed the victim, there was no evidence that defendant harbored any “ill will, hatred, spite or evil intent” for the victim. See Duckett v. State, 686 So.2d 662, 663 (Fla. 2d DCA 1996) (term “imminently dangerous to another and evincing a'depraved mind regardless of human life” means an act that is done from “ill will, hatred, spite or an evil intent”).

We then proceeded to consider whether defendant could be convicted of third degree felony murder as a permissive lesser included offense to second degree murder. See § 782.04(4), Fla. Stat. (1997) (defining third degree felony murder as the unlawful killing of a human, without any design to kill, by a person engaged in the perpetration of, or attempted perpetration of, any felony other than those specified for first degree felony murder). As we saw it then, the issue was whether defendant could have been found guilty of the underlying felony of harboring an escaped prisoner, namely himself. We concluded that he could have been found so guilty as an aider and abettor in his accomplice’s perpetration of the crime of harboring defendant as an escapee. See § 777.011, Fla. Stat. (1997) (“Whoever ... aids, abets, counsels, hires, or otherwise procures [a criminal offense] to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.”). While defendant argued that such a theory was “absurd”, we were “not prepared to dismiss [it] so lightly.” 805 So.2d at 35. We found the contention — that defendant “was simply along for the ride” — “contrary to both the evidence and common sense.” 805 So.2d at 36. We instructed the trial court upon remand to enter a conviction for third degree felony murder.

On remand, the state sought compliance with our Mandate. Defendant filed a motion for discharge, and the court held a hearing. Defendant argued that he was entitled to a discharge on the grounds that a conviction for third degree felony murder would be illegal because the jury had not found him guilty of an essential element of the offense, namely the underlying offense of harboring an escapee. The trial court did as we instructed in the Mandate, and defendant now appeals.

We are, of course, met at the threshold with the state’s contention on Sigler redux that third degree felony murder is the law of this case. See Greene v. Massey, 384 So.2d 24, 28 (Fla.1980) (“All points of law which have been adjudicated become the law of the case and are, except in exceptional circumstances, no longer open for discussion or consideration in subsequent proceedings in the case.”); Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965) (same). The state argues that this court directly confronted the issue whether a conviction for third degree felony murder was proper in Sigler I and concluded that such a conviction was'proper. That, says the state, is the law of this case. Defendant responds with the equally well known principle that appellate courts have the power to correct significant mistakes in spite of the law of the case doctrine. Zolache v. State, 687 So.2d 298, 299 (Fla. 4th DCA 1997) (appellate court has power to reconsider and correct erroneous rulings, in spite of the fact that such rulings have become law of the case, where reliance on previous decision would result in manifest injustice). Defendant argues that the conviction of a crime that is barred by law is surely a manifest injustice, requiring relaxation of the finality of our previous decision.

We agree with defendant. The circumstances in this case demand as .a matter of grace that we exercise our authority to reconsider our earlier decision. If an illegal conviction is not well within the concept of exceptional circumstances and manifest injustice requiring a relaxation of the law of the case, it is not easy to imagine what would be. See Strazzulla, 177 So.2d at 4 (“[A]n appellate court should [e.s.] reconsider a point of law previously decided on a former appeal only as a matter of grace, and not as a matter of right; and that an exception to the general rule binding the parties to ‘the law of the case’ at the retrial and at all subsequent proceedings should not be made except in unusual circumstances and for the most cogent reasons — and ' always, of course, only where ‘manifest injustice’ will result from a strict and rigid adherence to the rule.”); Zolache, 687 So.2d at 299 (prior ruling should be corrected because it is “fundamentally unfair” for defendant to serve an illegal sentence). We thus proceed to confront his argument that the conviction for-third degree felony murder is illegal.

Defendant argues that not all of the statutory elements of third degree felony murder are subsumed within the greater offense of second degree murder because each crime, has an element that the other lacks. Third degree felony murder requires an underlying felony — in this case, harboring an escaped prisoner— while second degree murder requires that the killing be done with a depraved mind. More important, second degree murder does not require an underlying felony; there is no required predicate offense in the crime of second degree murder. Defendant’s conviction for second degree murder thus did not require the jury to determine beyond a reasonable doubt whether he had committed the predicate offense of harboring an escapee. Defendant places great emphasis, therefore, on the inescapable fact that the jury in his case could not have found him guilty of any underlying felony.

We ourselves now take notice that the jury actually exonerated defendant of the charge of first degree felony murder— which, like third degree felony murder, required proof of an underlying felony. Because the verdict in this case is general, we have no way of ascertaining which element of first degree felony murder was not proved beyond a reasonable doubt. To give the jury determination its appropriate effect, we should necessarily indulge the assumption that the jury could well have based its decision on the failure of the evidence to prove an underlying felony. Hence, a conviction for third degree felony murder may actually conflict with that precise finding by the jury.

Defendant bases his argument that the conviction is illegal on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Franks v. Alford, 820 F.2d 345 (10th Cir.1987). Apprendi requires that every fact necessary for a conviction, other than criminal history, be submitted to a jury and determined by the jury beyond a reasonable doubt. Franks involves the essential reasoning that, he contends, informs the application of Ap-prendi to this case. In Franks, the court explained:

“Apparently [the courts] proceeded on the erroneous assumption that ‘depraved mind’ second degree murder is a lesser included offense of first degree felony murder. However, ‘[t]he elements of a lesser included offense must necessarily be included in the offense charged.’ When a jury convicts a defendant of the offense charged, it thus necessarily finds all the elements of a true lesser included offense. Under those circumstances, a reduction on appeal to the lesser included offense does not run afoul of the Sixth Amendment, because the jury has found all the elements of the lesser offense. In this case, to the contrary, ‘depraved mind’ murder is not a lesser included offense of felony murder because it requires proof of a mental state that felony murder does not.
“As we have noted, Franks’ conviction for felony murder did not require the jury to determine beyond a reasonable doubt whether the act causing the death evinced a depraved mind, as required for the second degree murder conviction imposed by the [state appellate court]. [That] appellate court’s determination of this issue is not a constitutionally acceptable substitute. Because Franks was denied his right under the Sixth and Fourteenth Amendments to have his guilt determined by a jury, his conviction is constitutionally infirm.” [e.o.]

820 F.2d at 347. In other words, our judicial determination in Sigler I that defendant could be convicted of third degree felony murder was erroneous because the jury’s only finding of guilt (on the offense of second degree murder) did not necessarily include all the unique elements of the third degree offense.

We agree with defendant that the Sigler I jury verdict cannot under any theory be understood to have included a determination as to any predicate felony. We also agree that the decision by the Judges of this Court in Sigler I was not a “constitutionally acceptable substitute” for such a jury determination. As defendant aptly puts it in his brief, “this Court may have found sufficient evidence of harboring an escaped prisoner, but no jury has made such a finding.”

Defendant was entitled to have the question of guilt for third degree felony murder submitted to and determined by the jury. Because the jury’s verdict in this case did not include a jury determination beyond a reasonable doubt as to each element of third degree felony murder, defendant cannot be convicted of that offense. Cf. Pratt v. State, 668 So.2d 1007, 1009 (Fla. 1st DCA), approved 682 So.2d 1096 (Fla. 1996) (“Were we to adopt the state’s position and direct entry of judgment for attempted manslaughter (an intent crime) pursuant to section 924.34, we necessarily would be acting as the fact-finder and would have to assume the presence of the requisite intent. Such a result would encroach impermissibly upon the province of the jury. We conclude that the appellant would be effectively denied his constitutional right to trial by a jury if we, sitting in an appellate capacity, were to presume a finding of intent that the jury itself did not have to make.”).

The state’s response to this is to argue only that the law of the case bars any reconsideration of this issue. We have already rejected that argument. The state also argues that section 924.34 authorizes an appellate court to order a conviction on a permissive, lesser included offense. See § 924.34, Fla. Stat. (2003) (“When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.”). We do not think the statute controlling in this instance.

The problem with the state’s contention is that state statutes do not control over United States Supreme Court decisions on matters of federal constitutional law. It is, rather, the other way around. Apprendi’s holding as to the meaning of the Sixth Amendment right to trial by jury in criminal cases is binding on this court. Ap-prendi makes it clear that criminal convictions depend on jury findings as to each element of the crime. While criminal history without a jury finding may be used to affect the range of punishment, in this instance criminal history is not the issue. The element of aiding and abetting the predicate crime of harboring an escapee is the issue, and on no account can the jury’s finding of guilt for second degree murder be deemed to include any finding on that offense.

We note that in Carrin v. State, 875 So.2d 719 (Fla. 1st DCA 2004), the First District recently concluded that the United States Supreme Court has made clear that the Sixth Amendment “require[s] criminal convictions to rest upon a jury determination that a defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Id. The First District recognized, however, that the Florida Supreme Court has construed section 924.34 to authorize appellate judges to make a finding of guilt as to each element of permissive lesser included offenses in place of a jury determination. See I.T. v. State, 694 So.2d 720 (Fla.1997) (statute allowing appellate court which determines that evidence does not prove charged offense, but does support guilt of lesser included offense, to reverse judgment and direct trial court to enter judgment for lesser offense applies to both necessary lesser included offenses and permissive lesser included offenses).

Carrin pointed to United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), and Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), but did not mention Apprendi, which was decided after I.T. As we write this opinion, the Court has also just released Blakely v. Washington, 542 U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Blakely holds that a state trial court’s sentencing of a defendant, who had pleaded guilty to second-degree kidnapping involving the use of a firearm, to more than 3 years above the 53-month statutory maximum of the standard range for his offense, on the basis that he acted with deliberate cruelty, violated defendant’s Sixth Amendment right to trial by jury where the facts supporting the deliberate cruelty finding were neither admitted by defendant nor found by a jury. Blakely thus makes even more apparent the importance of a jury determination as to each element of the crime and “that the judge’s authority to sentence derives wholly from the jury’s verdict.” Id. at 2539.

Carrin certified to the Florida Supreme Court the question whether the holding in I.T. violates decisions of the United States Supreme Court. We decline to certify this issue. The decisions in Apprendi and Blakely both came after the Florida court decided I.T. We think these later decisions make it clear beyond any doubt that section 924.34 as interpreted in I.T. is contrary to the Sixth Amendment when the previous jury determination cannot be deemed to have necessarily found defendant guilty as to every element of the permissive lesser included offense. That means that as for this circumstance we are expressly holding the statute invalid under the United States Constitution. This is an express construction of the Sixth Amendment; the Florida Supreme Court has apparent jurisdiction to review our decision. See Fla. RApp. P. 9.030(a)(2)(A)(ii) (“The discretionary jurisdiction of the supreme court may be sought to review decisions of district courts of appeal that ... (ii) expressly construe a provision of the state or federal constitution.”). Certification would be redundant.

Defendant having specifically prayed for a remand to submit the issue to a jury, we hereby do so.

REVERSED AND REMANDED FOR NEW TRIAL.

KLEIN and HAZOURI, JJ., concur.


author: BERNSTEIN, SCOTT M., Associate Judge.

text:
    Amabile A. CAUSIN, Appellant, v. Sergio Luis LEAL, Appellee.
    No. 4D03-3503.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.
    Rehearing Denied Sept. 17, 2004.

      Kathleen K. Peña, Pembroke Pines, for appellant.
    Walter Strauss, Pompano Beach, for ap-pellee.
   BERNSTEIN, SCOTT M., Associate Judge.

The mother of a ten-year-old child challenges the trial court’s subject matter jurisdiction in this custody dispute and also seeks reversal of an award of custody based on a default. We affirm in part, reverse in part, and remand for further proceedings.

Petitioner and Respondent were married in Miami in 1991, had a child in 1994, moved to Brazil in 1996, and separated in Brazil in 1997. They agreed the child would reside with the mother and the father would have visitation rights. They acquired a temporary order from a Brazilian court affirming this arrangement. The father then moved back to the United States. He claims the mother brought the child to him in May 1998 and left the child in the father’s care. He also claims the mother left no forwarding address and made no contact with the father or the child until February 1999. The mother then called from a hotel wanting to visit the child. The father left the child with the mother for a few hours. When the father returned, the mother and child were gone. The father filed a dissolution petition and attempted to serve the mother at the hotel. He made several attempts to locate the mother, contacting relatives, hiring a private detective, making “missing child” flyers, and searching on the Internet, all to no avail. The mother claims she was a resident of California, although she admitted to having a Florida driver’s license and renewing it with a false Florida address in 1999.

In May 1999, after service by publication, the father obtained a final judgment of dissolution of marriage and sole custody of the child by default. In August 2002, the father obtained a pick-up order after tracing the mother’s call from a Redondo Beach, California pay phone. The pick-up order was executed in May 2003 and the child was returned to the father; she continues to reside with him.

The mother moved to vacate the final judgment and the pick-up order, challenging the trial court’s subject matter jurisdiction. We find the trial court did not abuse its discretion when it exercised subject matter jurisdiction over this case. Section 61.1308, Florida Statutes (2001) allows a Florida court to exercise jurisdiction to make child custody determinations by initial or modification decree if this state is either a) the child’s home state or b) Florida had been the child’s home state within 6 months before commencement of the proceedings, the child is absent from the state because of her removal' by a party claiming custody, and a parent continues to live here. The trial court heard testimony supporting either scenario.

The mother also argues, for the first time on appeal, that the trial court abused its discretion in denying the mother’s motion to vacate the default final judgment. Generally, a decision to deny relief from a default final judgment is within the trial court’s discretion. Armstrong v. Panzarino, 812 So.2d 512, 514 (Fla. 4th DCA 2002). A default should be set aside only where the movant shows excusable neglect, a meritorious defense, and due diligence in seeking to have the default set aside. Sanchez v. Horrell, 660 So.2d 366, 367 (Fla. 4th DCA 1995).

However, these general rules regarding defaults are not sufficient for decisions affecting the custody of children. The court must have information from all sides in order to render a decision in the best interest of a child. This cannot be accomplished if matters are conducted on a default basis with only one side presenting testimony. See Childers v. Riley, 823 So.2d 246, 246-47 (Fla. 4th DCA 2002). A default may be an appropriate mechanism to decide other issues involved in a dissolution of marriage action. However, it simply is not proper to decide custody based on a default. See id.; see also Rose v. Ford, 861 So.2d 490 (Fla. 4th DCA 2003). Therefore, we reverse that part of the trial court’s final judgment granting the father custody based solely on a default and remand to the trial court to conduct such proceedings as are necessary to make findings of fact considering the best interest of the child.

We do not wish to suggest how the trial court should ultimately rule in this matter. Indeed, the trial court may well find on remand it is in the best interest of this child to remain with her father. However, we do require the trial court’s decision to be based on written findings of fact specifying the best interest of this child.

POLEN and MAY, JJ., concur.

      . Effective October 1, 2002, the UCCJA, sections 61.1302-1348, was amended and renamed as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and renumbered as sections 61.501-.542, Florida Statutes (2002).


text:
    Charles PEREZ and Maxon Realty, P.A., Appellants, v. Barbara DOROSKA, et al., Appellee.
    No. 5D03-2381.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2004.
    Rehearing Denied Aug. 31, 2004.
    Mario A. Garcia of Mario A. Garcia, P.A., Orlando, for Appellants.
    Barbara Doroska, Chuluota, pro se.
   PER CURIAM.

Appellee, who was plaintiff below, obtained a judgment against Appellants related to a real estate transaction. The judgment was affirmed on appeal. Doroska v. Aponte, 814 So.2d 1061 (Fla. 5th DCA 2002). After the mandate issued, Appellee filed a motion for the attorney’s fees incurred by her prior to the appeal, which was granted over objection. Appellants challenge the order awarding attorney’s fees to Appellee on numerous grounds. We discuss only one of Appellants’ arguments, however, because it is dispositive of this appeal. Because Appel-lee did not plead entitlement to attorney’s fees in her complaint, it was error to award fees. Stockman v. Downs, 573 So.2d 835 (Fla.1991).

REVERSED.

PETERSON, ORFINGER and TORPY, JJ., concur.


text:
    Steven C. NAUGLE, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D03-3863.
    District Court of Appeal of Florida, First District.
    July 20, 2004.
    Rehearing Denied Sept. 8, 2004.
    Steven Naugle, pro se, appellant.
    No appearance for appellee.
   PER CURIAM.

The order of the circuit court is reversed and remanded on authority of Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004).

On remand, the circuit court shall consider the merits of the petition.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Joseph SLAVIK, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3655.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2004.
    James B. Gibson, Public Defender, and Brynn Newton, 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 State v. Causey, 503 So.2d 321 (Fla.1987).

SAWAYA, C.J., SHARP, W., and MONACO, JJ., concur.


text:
    Michael HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-449.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2004.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, 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 State v. Causey, 503 So.2d 321 (Fla.1987).

SAWAYA, C.J., SHARP, W., and TORPY, JJ., concur.


text:
    Steven CLODFELTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2012.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2004.
    Steven Clodfelter, Gainesville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Render v. State, 802 So.2d 512 (Fla. 3rd DCA 2001) (holding that the right to credit for time served may be waived as part of a plea bargain).

THOMPSON, PLEUS and PALMER, JJ., concur.


text:
    Jessie Lee BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2214.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2004.
    Jessie Lee Baker, Indiantown, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Sanders v. State, 621 So.2d 723 (Fla. 5th DCA 1993).

PLEUS, ORFINGER and MONACO, JJ., concur.


author: WARNER, J.

text:
    J.G., a child, Appellant, v. STATE of Florida Appellee.
    No. 4D03-1469.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.
    Rehearing Denied Aug. 31, 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 Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

J.G. appeals the trial court’s judgment of delinquency based upon his possession of marijuana. He claims the evidence showed only proximity to the drug and not possession. We agree and reverse.

At the adjudicatory hearing, Officer Francis Hoeflinger stated that he stopped a person for riding a bicycle without required lights one evening. While he wa.s interviewing that person, J.G. drove by riding on the handlebars of another bicycle while a boy pedaled. The bicycle had no lights, so they were stopped, as well. J.G. jumped off the front of the bicycle and Hoeflinger observed a white piece of paper fall to the ground underneath where J.G. had been sitting on the bike, about two or three feet from J.G. once he was off the bicycle. Hoeflinger admitted, however, that he was not exactly sure where the paper fell from. He picked up the paper, unfolded it, and found a green leafy substance which was later tested and determined to be marijuana. Both J.G. and his friend appeared to be nervous when the officer picked up the paper. Another officer at the scene saw Hoeflinger walk over and retrieve the paper from the ground, but did not see any individual drop the paper because he was not looking at the bicycle occupants at the time.

J.G. argues the evidence of possession of marijuana was insufficient to sustain the finding of guilt. In reviewing a motion for judgment of acquittal, a de novo standard of review applies. See Pagan v. State, 830 So.2d-792, 803 (Fla.2002) (citing Tibbs v. State, 397 So.2d 1120 (Fla.1981)).

Since J.G. was not in physical control of the marijuana when it was found, the state had to prove constructive possession. When pursuing a theory of constructive possession, the state must prove beyond a reasonable doubt that the accused had (1) dominion and control over the contraband, (2) knowledge that the contraband was within his presence, and (3) knowledge of the illicit nature of the contraband. See Lee v. State, 835 So.2d 1177, 1178 (Fla. 4th DCA 2002) (citing Williams v. State, 573 So.2d 124, 125 (Fla. 4th DCA 1991)). While the question of whether a defendant had dominion or control over contraband is generally a factual question for the jury, a judgment of acquittal is proper where there is no evidence from which dominion or control can be inferred. See Campbell v. State, 577 So.2d 932, 935 (Fla.1991) (citations omitted).

J.G. points out that Hoeflinger saw the paper fall to the ground, but was not sure where the paper fell from, and the other officer did not see the individuals drop anything. The paper was found on the ground underneath where J.G. had been sitting, but mere proximity to contraband does not create probable cause' of constructive possession. See Walker v. State, 741 So.2d 1144, 1146 (Fla. 4th DCA 1999) (citing Rennard v. State, 675 So.2d 1006, 1008 (Fla. 2d DCA 1996)).

Instead, the state suggests that the circumstantial evidence is sufficient to imply possession by J.G. If the state’s evidence, is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187, 188 (Fla.1989) (citations omitted). J.G. contends the marijuana did not belong to him. Here, the state infers that the marijuana fell from J.G. because he had just vacated the handlebars of the bicycle, but it omits the possibility that it could have also been dropped or fallen from the hand of the boy who was steering the bicycle.

The state did not prove actual possession, and there was no evidence of control of the contraband. The circumstantial evidence did not exclude J.G.’s reasonable hypothesis of innocence that he was not in control of the drugs.

We therefore reverse the adjudication of delinquency and sentence.

KLEIN and TAYLOR, JJ., concur.


text:
    Christopher KING, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3366.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2004.
    David Mengers, Ocala, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Sullivan v. State, 801 So.2d 185 (Fla. 5th DCA 2001).

SAWAYA, C.J., PETERSON and PLEUS, JJ., concur.


text:
    J. A., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-4111.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2004.
    James B. Gibson, Public Defender, and Allison Havens, 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. Lynch v. State, 293 So.2d 44 (Fla.1974).

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


text:
    Michael Anthony PERREAULT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-4160.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2004.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Michael Anthony Perreault, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SAWAYA, C.J., SHARP, W., and ORFINGER, JJ., concur.


text:
    Walter POTES, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-390.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2004.
    Walter Potes, Clermont, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. MeCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. Washington v. State, 876 So.2d 1233 (Fla. 5th DCA 2004).

SAWAYA, C.J., PETERSON and PLEUS, JJ., concur.


text:
    Alexander KEARNEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-941.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2004.
    James B. Gibson, Public Defender, and Scott Ragan, 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.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Mark J. ELLIOT, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2195.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2004.
    Mark J. Elliot, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 838 So.2d 504 (Fla.2003); Kronz v. State, 462 So.2d 450 (Fla.1985).

SHARP, W., PETERSON and MONACO, JJ., concur.


text:
    Gabriel GIRALDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2211.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2004.
    Gabriel Giraldo, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Alvarez v. State, 358 So.2d 10, 12 (Fla.1978); Betts v. State, 792 So.2d 589 (Fla. 1st DCA 2001).

GRIFFIN, PALMER and ORFINGER, JJ., concur.


author: BENTON, J. ERVIN, J.,

text:
    Rickie ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0059.
    District Court of Appeal of Florida, First District.
    July 29, 2004.
    Rehearing Denied Sept. 9, 2004.
    James T. Miller, Esquire, Jacksonville, for Appellant.

      Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On direct appeal of convictions for lewd and lascivious conduct and for sexual battery on a ten-year-old, Rickie Robinson contends that the trial court’s error in overruling an objection to the prosecutor’s closing argument made it possible for the jury to convict on less than a unanimous verdict. We agree, reverse the convictions, and remand for a new trial.

The jury returned a verdict of guilty both of sexual battery, in violation of section 794.011(2)(a), Florida Statutes (2001), and of lewd and lascivious conduct, in violation of section 800.04(5)(b), Florida Statutes (2001), alleged in the information to have occurred “on or between the 17th day of February, 2001 and the 5th day of May, 2001.” Evidence was adduced at trial of two distinct episodes, each involving digital and lingual contact with the child’s vagina. Without objection, the trial court instructed the jurors that they could not convict unless the State “prove[d] that the crimes were committed on February 27th, 2001 and/or May 5th of 2001.”

During closing argument, the trial court overruled defense counsel’s timely objection and permitted the prosecutor to misdefíne “a unanimous verdict” in arguing to the jurors:

You can find the defendant guilty whether you believe it happened on February 17th or May 5th. Either one. And if some of you believe it happened on one day and the others believe on the May 5th date and some on the February 17th date, you can still have a unanimous verdict to convict.

The trial court erred in allowing this argument because it created “the potential hazard of [a] non-unanimous verdict[ ].” State v. Dell'Orfano, 651 So.2d 1213, 1215 (Fla. 4th DCA 1995).

As a state constitutional matter, a criminal conviction requires a unanimous verdict in Florida. This has been an “inviolate tenet of Florida jurisprudence since the -State was created.” Bottoson v. Moore, 833 So.2d 693, 714 (Fla.2002). See also DelVOrfano, 651 So.2d at 1215-16 (holding that “[wjhere it is reasonable and possible to distinguish between specific incidents or occurrences [of sexual abuse] ... then each should be contained in a separate count of the accusatory document” to “remove[ ] the potential hazard of [a] non-unanimous verdict[ ]”).

Florida is not alone in requiring unanimous verdicts in criminal cases. See, e.g., Francis v. State, 36 S.W.3d 121, 124-25 (Tex.Crim.App.2000) (reversing where a jury charge—“[i]f you find ... the Defendant ... did ... engage in sexual contact by touching the breast or genitals”—allowed a conviction on less than a unanimous jury verdict, because by charging “[t]he breast-touching and the genital-touching[, which] were two different offenses[,] ... in the disjunctive _it is possible that six members of the jury convicted appellant on the breast-touching offense ... and six members convicted appellant on the genital-touching offense”). See also Cooksey v. State, 359 Md. 1, 752 A.2d 606, 618 (2000); Commw. v. Conefrey, 420 Mass. 508, 650 N.E.2d 1268, 1272 (1995) (reversing because “there exists the distinct possibility that the jury did not agree about which of those numerous incidents actually occurred”); State v. Sandve, 1999 WL 366568, at *4 (Minn.Ct.App. June 8, 1999) (unpublished); State v. Weaver, 290 Mont. 58, 964 P.2d 713, 721 (1998) (“[W]e hold that the District Court should have given an instruction to make it clear to the jury that it was required to reach a unanimous verdict on at least one specific act for each count.”). But cf. Schad v. Arizona, 501 U.S. 624, 630-45, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (plurality opinion) (holding unanimity was not required as to alternative, equally culpable, mental states where a single crime was charged); Commw. v. Thatch, 39 Mass. App.Ct. 904, 653 N.E.2d 1121, 1123 (1995) (“When a single count is charged and where the spatial and temporal separations between acts are short, ... rather than a succession of clearly detached incidents, a specific unanimity instruction is not required.”). As the Fifth Circuit has held, where a single count embraces two or more separate offenses, albeit in violation of the same statute, the jury cannot convict unless its verdict is unanimous as to at least one specific act. United States v. Holley, 942 F.2d 916, 927-29 (5th Cir.1991).

At issue in the present case is the propriety of the prosecutor’s closing argument, not the jury instructions. “The key question in determining proper review of an improper argument is whether or not the court can see from the record that the conduct of the prosecuting attorney did not prejudice the accused, and unless this conclusion be reached, the judgment should be reversed. McCall v. State, 120 Fla. 707, 163 So. 38 (Fla.1935).” Coleman v. State, 420 So.2d 354, 356 (Fla. 5th DCA 1982). From the record in the present case, we cannot “see ... that the conduct of the prosecuting attorney did not prejudice the accused.” McCall, 120 Fla. at 728, 163 So. at 46. See Goodwin v. State, 751 So.2d 537, 544 (Fla.1999); State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The prosecutor’s argument, allowed over defense objection, encouraged the jurors to convict even if they did not reach a unanimous verdict of the kind the cases require.

Reversed and remanded.

LEWIS, J., concurs; ERVIN, J., dissents with opinion.

ERVIN, J.,

dissenting.

Because of the majority’s disposition of the sole issue that it has addressed, it apparently deems it unnecessary to address appellant’s remaining two issues, which are that the trial court abused its discretion in allowing the admission of collateral crime evidence, which was too remote in time to be properly considered similar and relevant, and that the court failed to make sufficient findings regarding the safeguards of reliability to permit the admission of child hearsay statements, as required by section 90.803(23), Florida Statutes (2002). I would summarily affirm as to both, and conclude as to the first, there was no abuse of discretion, and, as to the second, that the findings complied with the statutory standards.

Turning to the first issue, which the majority decides requires reversal of appellant’s convictions, I am unsure whether the majority has concluded that the error the lower court made in overruling the objection to the prosecutor’s misleading argument regarding lack of unanimity in the verdicts to be returned is per se reversible error, making a harmless error analysis unnecessary. See Hannah v. State, 732 So.2d 3 (Fla. 1st DCA 1999). If this is the effect of its decision, I strongly disagree. Florida case law has never applied a per se rule to comments of this sort. Instead, the general rule that the state is required to prove there is no reasonable possibility that the error complained of contributed to the convictions applies to both constitutional errors, such as that now before us, and to non-constitutional errors in criminal trials. See Goodwin v. State, 751 So.2d 537 (Fla.1999). By comparison, a prosecutor’s improper comment on a defendant’s right to remain silent is subject to a harmless error standard. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

In my judgment, the record establishes that the court’s error in not sustaining the objection to the misleading comment was at most only harmless. The court’s instructions to the jury at the conclusion of the case included the statement that the jury’s verdict must be unanimous. Not only were no objections made to the instructions, but the form for each of the two verdicts returned recited the standard language finding the defendant guilty of each of the offenses “charged in the information,” and concluded with the language, “So say we all.” Following the reception of the verdicts, each individual juror was polled, and answered affirmatively that the verdicts returned were his or her own. The jury was thereafter discharged without any objection, and it was only in the motion for new trial that the defense first claimed, notwithstanding record evidence clearly to the contrary, that “it was impossible to tell from the verdict forms whether the jury was unanimous on the crimes charged ... for each date charged.”

In my opinion, any potential jury-confusion that may have resulted from the prosecutor’s misleading arguments was clearly allayed by what transpired later during the trial. In this regard, I find the Florida Supreme Court’s analysis of a somewhat similar issue in Williams v. State, 438 So.2d 781 (Fla.1983), helpful in reaching a correct resolution of the question before us. There, after the jury had inquired whether its verdict must be unanimous as to both degree of the crime and guilt, it withdrew its question and returned a verdict explicitly stating its unanimous agreement that the defendant was guilty of the crime charged. The jury was subsequently polled, with each individual juror accepting responsibility for the verdict. On review, the court decided that, based on these factors, no confusion occurred which could have deprived the defendant to his right to a unanimous verdict as to degree as well as guilt, as guaranteed by both the federal and state constitutions.

Just as the court in Williams concluded that the circumstances surrounding the return of the jury’s verdict “firmly establish the jury’s understanding that its verdict must be unanimous,” id. at 784, so, also, in my judgment, do the circumstances in the case at bar. Because the state satisfied the harmless error test demanded by DiGuilio, I would affirm the convictions.

      . I agree with the majority's tacit conclusion that the error was preserved, despite the failure of defense counsel to seek either a curative instruction or a mistrial, because of the contemporaneous objection, which was overruled. See Holton v. State, 573 So.2d 284 (Fla.1990).


text:
    Jerry E. PORTWOOD, Petitioner, v. Gwendolyn S. FOSKEY, Respondent.
    No. 1D04-2727.
    District Court of Appeal of Florida, First District.
    July 29, 2004.
    Rehearing Denied Sept. 8, 2004.

      Mark D. Rodriguez of Kovach, Kovach & Rodriguez, Inverness, for petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of prohibition is denied. Petitioner has an adequate remedy at law. Therefore, the writ of prohibition is not available. See English v. McCrary, 348 So.2d 293 (Fla.1977).

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


text:
    L.G., the Father of O.G., Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 1D04-2467.
    District Court of Appeal of Florida, First District.
    July 29, 2004.
    Rehearing Denied Sept. 8, 2004.
    L. G., petitioner, pro se.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999).

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


text:
    Ruben GONZALEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-2144.
    District Court of Appeal of Florida, Fifth District.
    July 30, 2004.
    Rehearing Denied Aug. 31, 2004.
    Ruben Gonzalez, Bushnell, pro se.
    No Appearance for Respondent.
   PER CURIAM.

We deny Appellant’s petition for belated appeal. The record reflects that Appellant received the challenged order, which denied his motion for relief pursuant to Florida Rule of Criminal Procedure 3.850, nineteen days before the Notice of Appeal was due to be filed. Instead of filing the Notice of Appeal, however, Appellant, acting pro se, filed an untimely Motion for Rehearing, which did not toll the time period for filing the Notice of Appeal. Appellant’s Notice of Appeal, therefore, which was not filed until after the lower court denied Appellant’s Motion for Rehearing, was untimely. Under these circumstances, Appellant has not demonstrated entitlement to relief under Florida Rule of Appellate Procedure 9.141(c).

PETITION DENIED.

SAWAYA, C.J., ORFINGER and TORPY, JJ., concur.


text:
    Rexford TWEED, Petitioner, v. Toni BOWDEN, et al., James V. Crosby, Secretary, Department of Corrections, Respondents.
    No. 1D04-1788.
    District Court of Appeal of Florida, First District.
    July 30, 2004.
    Rehearing Denied Sept. 8, 2004.
    Rexford Tweed, pro se, petitioner.
    No appearance for respondents.
   PER CURIAM.

The petition for writ of certiorari is dismissed for lack of jurisdiction. The order sought to be reviewed in the petition for writ of certiorari is not appropriately brought in a certiorari proceeding nor is the order a final or an appealable nonfinal order.

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


text:
    David L. FELDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2555.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.
    David L. Felder, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Lawrence v. State, 831 So.2d 121 (Fla.2002).

GUNTHER, KLEIN and GROSS, JJ., concur.


author: KLEIN, J.;

text:
    A. Tom HARB, Harb Design Group, Inc., a Florida corporation, and Harbco Construction, Inc., a Florida corporation, Appellants, v. COMMERCE REALTY GROUP, INC., a Florida corporation, and Commerce Limited Partnership # 9219-II, a Delaware Limited Partnership, Appellees.
    No. 4D03-4892.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.
    Frank A. Hamner and Whitney N. Smith of GráyRobinson, P.A., Orlando, for appellants A. Tom Harb and Harb Design Group, Inc.
    Victor L. Chapman of Barrett, Chapman & Ruta, P.A, Orlando, for appellant Harb-co Construction, Inc.
    Fred O. Goldberg of Berger Singerman, Miami, for appellees.
   KLEIN, J.;

■ The trial court denied defendants’ motion to transfer'venue to Orange County, which'was grounded on the fact that all of the causes of actions arose out of work performed on real estate in Orange County. We reverse.

Plaintiff appellees, whose offices were in Broward County, owned, leased, or had options on commercial real estate in Orange County. Plaintiffs engaged defendants to design and construct improvements to the property, and that work went forward. As a result of defendants’ work on the property, the plaintiffs sued defendants in Broward County for professional malpractice, breach of fiduciary duty, fraud, and tortious interference with a contractual relationship.

Defendants moved to transfer venue to Orange County, arguing that the property involved was located in Orange County, that the cause of action accrued in Orange County, and that the defendants had not set foot in Broward County. The trial court denied the motion without explanation.

For claims such as these, the only county in which a plaintiff may bring an action, if the defendant does not reside in the county, is the county where the cause of action accrued, or the county where the property in litigation is located. § 47.011, Fla. Stat. (2003).

Plaintiffs assert that the cause of action accrued in Broward because defendants submitted false telephone calls, letters and faxes to Broward County. A similar argument was rejected in Price-waterhouseCoopers LLP v. Cedar Resources, Inc., 761 So.2d 1131 (Fla. 2d DCA 1999). For purposes of venue, a tort accrues in the county where the plaintiff first suffers injury. Wincor v. Cedars HealthCare Group, 695 So.2d 924 (Fla. 4th DCA 1997). In this case the injury was in Orange County, and the cause of action accordingly accrued there. There was thus no basis for venue in Broward County. Reversed.

SHAHOOD, J, and EMAS, KEVIN M., Associate Judge, concur.


text:
    Juan LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1545.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Juan Lopez, in proper person.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and GREEN, JJ.
   PER CURIAM.

Affirmed. Alvarez v. State, 358 So.2d 10, 12 (Fla.1978) (“We also reject petitioner’s contention that the statute is unconstitutionally vague and indefinite. Although no person can predict the maximum length of time which can be served by a prisoner under a sentence of life, this in itself does not render a life sentence impermissibly indefinite.”) (Footnote omitted).


text:
    Deontae Lee BARBER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3521.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Pursuant to the Appellee’s agreement to summary reversal as to the trial court’s denial of the Appellant’s rule 3.800(b) Motion to Correct Illegal Sentence, the sentence, rendered May 20, 2003, is reversed and. this -cause is remanded for further proceedings. -

REVERSED and REMANDED.

SAWAYA, C.J., SHARP, W. and GRIFFIN, JJ., concur.'


author: GRIFFIN, J.

text:
    John F. PIWOWARSKI, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-3618.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.
    John F. Piwowarski, Daytona Beach, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Petitioner below, John F. Piwowarski [“Petitioner”], pro se, appeals a final order of the Department of Children and Families [“the Department”] denying food stamp benefits. The stated reasons for denial were that the value of his assets exceeded program eligibility limits, and his income was more than allowed for the program. Nothing in the record supports Petitioner’s claims of error.

Among Petitioner’s arguments is his contention that the Department erroneously failed to deduct from his income $200.00 he pays monthly in voluntary child support. The child support deduction at issue is described by the regulation as “[l]egally obligated child support payments.” See 7 C.F.R. § 273.9(d)(5); 7 C.F.R. § 273.2(f)(xii). The Department argued at the hearing that “legally obligated” meant “court ordered.” No definition of “legally obligated” could be found in this context, but it is well established that parents do have a legal duty to support their minor children. See generally 25 Fla. Jur.2d Family Law § 110 at 156 (1992). We need not decide whether the Department’s interpretation of this regulation is correct because Petitioner failed to offer evidence of a legal obligation of support. In his notice of appeal, Petitioner alleged that the hearing officer “didn’t consider the (checks) $200.00 that I always' send my dislect [dyslexic?] (over 19) daughter while she [is] in school.” Although Petitioner may not have been required to show payment of support pursuant to a court order in order to qualify for the child support deduction, he was required to demonstrate his legal obligation to pay child support.

AFFIRMED.

PETERSON and PALMER, JJ., concur.


author: THOMPSON, J.

text:
    William C. FRISS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1235.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.
    William C. Friss, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Friss filed a 3.800(a) motion requesting that he be given credit for time served in county jail. The trial court denied his motion, but did not attach any documentation conclusively refuting his claim. In Moore v. State, 741 So.2d 577 (Fla. 5th DCA 1999), this court held that where a defendant alleges a prima facie entitlement to additional credit, Rule 3.800(a) is an available remedy. It is not the defendant’s burden to attach portions of the record showing entitlement to relief, but it is the trial court’s responsibility to attach portions conclusively refuting the claim. Id. see also Phillips v. State, 839 So.2d 893 (Fla. 4th DCA 2003) (trial court' was required to review jail records in ruling on motion to correct illegal sentence, where motion was legally sufficient because it indicated jail records would demonstrate his entitlement to relief, and trial court reviewed only pleading and court file); Swanson v. State, 825 So.2d 507 (Fla. 1st DCA 2002) (defendant made a facially sufficient claim for jail credit under rule 3.800 by providing the dates for which he was seeking credit, providing the date of his sentence, and alleging that the jail certificate would show that he is entitled to credit).

Accordingly, we reverse and remand for the purpose of allowing the trial court to attach sufficient portions of the record to refute Friss’ claims for jail-time credit. Should the court conclude the motion cannot be decided on the face of the record, it may deny the motion without prejudice so that Friss may file a Rule 3.850 motion.

REVERSED and REMANDED.

PALMER and ORFINGER, JJ., concur.


text:
    Ronnie L. SHUPE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2162.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2004.
    Ronnie L. Shupe, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm but once again certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

AFFIRMED; CONFLICT CERTIFIED.

THOMPSON, PALMER and TORPY, JJ., concur.


text:
    Kenneth Eugene RICKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2300.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.
    Kenneth Eugene Rickerson, pro se, appellant.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. Ecller v. State, 673 So.2d 970 (Fla. 1st DCA 1996).

BENTON, BROWNING and POLSTON, JJ., concur.


text:
    Johnny M. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1854.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    Nancy. A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant’s written sentence in case number 99-79 is REVERSED and REMANDED to the trial court for issuance of an amended sentence which conforms to the trial court’s oral pronouncement of concurrent five-year prison terms. In all other respects, the challenged orders are AFFIRMED.

BARFIELD, BENTON, and VAN NORTWICK, JJ., concur.


text:
    James CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2246.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    James Clark, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

By petition filed with this court in May 2004, James Clark seeks a belated appeal of a 1999 judgment and sentence imposed upon revocation of probation. Recognizing that he has sought relief well outside of the two year time frame contemplated by Florida Rule of Appellate Procedure 9.141(c)(4)(A), Clark alleges that his trial counsel misadvised him that he could not appeal until certain other pending charges had been resolved. According to the materials filed by Clark and this court’s records, proceedings concerning the other charges were concluded in December 2001 and timely notices of appeal concerning those cases were filed in January 2002. Thus, accepting Clark’s allegations as true, he knew or should have known by no later than January 2002 that a timely notice of appeal had not been filed with respect to the 1999 judgment and sentence. Because more than two years then elapsed before he sought relief, we conclude that Clark’s petition for belated appeal is procedurally barred, and deny it on that basis. Compare Snell v. State, 849 So.2d 1139 (Fla. 1st DCA 2003).

PETITION FOR BELATED APPEAL DENIED.

ERVIN, ALLEN and HAWKES, JJ., concur.


text:
    Jeffrey PATE, Appellant, v. James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Appellee.
    No. 1D04-1127.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    Jeffrey Pate, appellant, pro se.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The order dismissing appellant’s petition for writ of mandamus is reversed and the matter remanded on the authority of Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). On remand, the circuit court shall consider the merits of the petition.

ERVIN, ALLEN and HAWKES, JJ., concur.


text:
    Jeffrey PATE, Appellant, v. James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Appellee.
    No. 1D04-1121.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    Jeffrey Pate, appellant, pro se.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The order dismissing appellant’s petition for writ of mandamus is reversed and the matter remanded on the authority of Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). On remand, the circuit court shall consider the merits of the petition.

ERVIN, ALLEN and HAWKES, JJ., concur.


text:
    Bernard C. LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0948.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Bernard C. Lewis appeals the trial court’s summary denial of his rule 3.800(a) motion to correct illegal sentence. The appellant had timely filed and the trial court granted a voluntary dismissal of the appellant’s motion filed pursuant to Florida Rule of Criminal Procedure 8.800(a). Subsequently, the trial court entered the order on appeal purporting to deny the motion. Because the trial court was without jurisdiction to enter an order on the merits after the case had already been dismissed, we vacate the order denying the appellant’s motion to correct illegal sentence.

ALLEN, VAN NORTWICK and BROWNING, JJ., concur.


author: BROWNING, J.

text:
    Brian Patrick COLETTE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3681.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.

      Jonathan Dingus, Panama City, for Appellant.
    Charlie Crist, Attorney General; and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Brian Patrick Colette (Appellant) challenges the denial of his motion to correct sentencing error. See Fla. R.Crim. P. 3.800(b)(1)(B) (stating that motion to correct sentencing error is deemed summarily denied if no order is filed within 60 days from filing of motion). In pertinent part, he contends that the trial court reversibly erred in refusing to grant his request to allow his parents to present mitigating evidence. Because the trial court refused to “entertain submissions and evidence by the parties that are relevant to the sentence,” contrary to Florida Rule of Criminal Procedure 3.720(b), we reverse and remand for further proceedings. See Petrucelli v. State, 855 So.2d 150 (Fla. 2d DCA 2003); Davenport v. State, 787 So.2d 32 (Fla. 2d DCA 2001); State v. Hohl, 431 So.2d 707, 709 (Fla. 2d DCA 1983). If the State requests an opportunity to do so, it should be allowed to present aggravating evidence. See State v. Munson, 604 So.2d 1270 (Fla. 4th DCA 1992). We instruct the trial court on remand also to correct the apparent clerical error involving the signing and attachment of the wrong scoresheet to the judgment/sentence.

REVERSED and REMANDED for further proceedings, with instructions.

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


text:
    Brian JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2444.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    Brian Johnson, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

We deny the petition seeking belated appeal as time-barred. See Fla. R.App. P. 9.141(c)(4)(A); see also, Finch v. State, 717 So.2d 1070 (Fla. 1st DCA 1998).

ERVIN, ALLEN and HAWKES, JJ., concur.


text:
    Cynthia BOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2810.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.

      Cynthia Bowers, appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for appellee. •
   PER CURIAM.

DISMISSED. Having treated appellant’s “Motion for Belated Appeal” as a petition seeking belated appeal, that petition is denied. See Fla. R.App. P. 9.141(c)(4)(A).

ERVIN, ALLEN and HAWKES, JJ., concur.


text:
    Phillip Dylan HOLLAND, Appellant, v. James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Appellee.
    No. 1D03-5392.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    Phillip Dylan Holland, appellant, pro se.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The order dismissing appellant’s petition for writ of mandamus is reversed and the matter remanded on the authority of Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). On remand, the circuit court shall consider the merits of the petition.

ERVIN, ALLEN and HAWKES, JJ., concur.


text:
    Gerald M. McKIRE, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D04-1373.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    Gerald M. McKire, pro se, appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The order of the circuit court is reversed and remanded on authority of Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). On remand, the circuit court shall consider the merits of the petition for writ of mandamus.

BENTON, BROWNING and POLSTON, JJ., concur.


text:
    Lonnie David SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1068.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order of the trial court dismissing his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), for lack of jurisdiction because the appellant had a pending appeal of an earlier postcon-viction motion.

However, an appeal of a postconviction relief matter will not deprive the trial court of jurisdiction so long as the issues raised in the two cases are unrelated. See Bates v. State, 704 So.2d 562 (Fla. 1st DGA 1997); Kimmel v. State, 629 So.2d 1110 (Fla. 1st DCA 1994). A review of 1D03-2271 reveals that the issues pending appeal are unrelated to the issues raised in the present motion.

We therefore reverse the trial court’s dismissal of the appellant’s motion to correct an illegal sentence and remand for the trial court to address the appellant’s motion on the merits.

REVERSED and REMANDED.

ALLEN, VAN NORTWICK and BROWNING, JJ. concur.


author: STEVENSON, J.

text:
    Robert M. McMAHON, Appellant, v. Janet M. MARSHALL and Florida Department of Revenue, Appellees.
    No. 4D03-1169.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.

      John F. Schütz and Carina M. Leeson of Manoff & Schütz, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for appellee Department of Revenue.
   STEVENSON, J.

We have three final orders for .review: (1) an order denying appellant’s contest to the registration of a foreign support order under the Uniform Interstate Family Support Act, Chapter 88, Florida Statutes; (2) an income deduction order; and (3) an order denying a motion to vacate the first order. Because the order sought to be registered was not a “support” order within the meaning of the statute, we reverse all three orders on appeal.

Robert McMahon and Janet Marshall were married on September 24, 1976. Three children were born of the marriage. On April 7,1989, a divorce decree and final judgment was entered by the trial court in Montgomery County, Pennsylvania. See McMahon v. McMahon, 417 Pa.Super. 592, 612 A.2d 1360 (1992). Prior to entry of the final divorce decree, the parties had separated and entered into a settlement agreement, which provided for. child support payments and alimony. The agreement required McMahon to make weekly payments to the wife in the amount of $791.00, of which fifty, percent would be deemed alimony and fifty percent child support. See id. at 1363. By express stipulation between the parties, the settlement agreement was “incorporated but not merged” into the final divorce decree. Id. at 1362.

The former wife remarried on June 25, 1989, and McMahon petitioned ■ the trial court 'to terminate alimony. The trial court denied McMahon’s petition. He then' appealed to the Pennsylvania Superi- or Court, arguing that he was no longer required to pay alimony due to former wife’s remarriage. The Pennsylvania Superior Court affirmed the lower court’s ruling and found that the parties had willingly stipulated that the property settlement agreement would survive the divorce decree as a separate contract. The agreement directed that both the alimony and the child support payments would end when the “youngest living child reaches the age of twenty-one, is emancipated or finishes college whichever occurs last.” Id. at 1363-64. The Pennsylvania Superi- or Court concluded that McMahon had a “contractual” obligation to pay child support and alimony pursuant to that agreement:

The divorce decree states on its face that the agreement is incorporated by reference but does not merge with it. As such, we cannot interpret this agreement as an order of court, as Husband suggests, but we must respect the agreement as a separate and independent contract which survived the divorce decree. Here, Wife’s right to payment is not based on an award but is instead based on the signature of Husband to a contract. Stanley v. Stanley, 339 Pa.Super. 118, 488 A.2d 338 (1985).

Id. at 1363. Based on this reasoning, the Pennsylvania court concluded that the general rule of law requiring automatic termination of court-ordered alimony upon remarriage of the alimony recipient was not applicable. Id.

After the divorce, McMahon relocated to Florida. On July 17, 2002, a Uniform Interstate Family Support Act (UIFSA) proceeding was initiated in Florida by the filing of transmittal information from Pennsylvania, which referenced a delinquent amount of $399,242.26 due the former wife from McMahon. Based on the documents provided, this arrearage stemmed from McMahon’s failure to comply with the pre-divorce decree agreement between the parties. On December 6, 2002, the Palm Beach County circuit court denied McMahon’s contest to the registration of the foreign support order and entered an income deduction order. The circuit court later denied McMahon’s motion to vacate the order denying his contest to registration of the foreign support order.

We find that the trial court erred in denying McMahon’s contest to the validity or enforcement of the foreign order on review. The UIFSA applies to the application, registration, modification, or enforcement of child or spousal support orders of another state. See § 88.3011, Fla. Stat. (2003). Under UIFSA, a “support order” is defined as “a judgment, decree, or order, whether temporary, final, or subject to modification, for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, or reimbursement, and may include related costs and fees, interest, income withholding, attorney’s fees, and other relief.” § 88.1011(21).

Here, the Pennsylvania Superior Court’s conclusion that McMahon’s payment obligation to the former wife was pursuant to an agreement, and not a court order, precluded the application of the UIFSA to the instant case. See § 88.3011. In the words of the Pennsylvania court, “[ujnder [Pennsylvania] common law, where a property settlement agreement is entered and is thereafter incorporated but not merged into the divorce decree, it remains a contract between the parties, in which the court has no involvement.” McMahon, 612 A.2d at 1365.

Accordingly, we reverse the orders on appeal and remand with directions that the trial court vacate the registration of the purported support order, which accompanied the letter of transmittal in the instant case. See §§ 88.6061, 88.6071, Fla. Stat. (2003). We note that this opinion is without prejudice to the other avenues available for the former wife to enforce the Pennsylvania judgment in Florida.

REVERSED and REMANDED.

GUNTHER and HAZOURI, JJ., concur.

      . In this regard, Pennsylvania courts apparently make no distinction between "property settlement” agreements and "support" agreements. See Jaclcson v. Culp, 400 Pa.Super. 519, 583 A.2d 1236, 1238 (1990).


text:
    Ramel WALTERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-393.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.

      Ramel Walters, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear,. Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Ramel Walters challenges the trial court’s summary denial of his ■ rule 3.850 motion wherein he presented several claims of ineffective assistance of trial counsel. We affirm in part, reverse in part, and remand for further review of two points.

Walters was found guilty of second degree murder and sentenced to life. The first claim subject to this court’s remand concerns Walters’s fourth point. Walters alleges that counsel misled him into believing that he had a legal obligation to testify, and then questioned him beyond their agreed upon scope of questioning. Oisorio v. State, 676 So.2d 1363 (Fla.1996). Our review of the record reveals the trial court’s extensive and thorough inquiry with

Walters about his decision to testify. Nonetheless, Walters’s claim is that counsel advised him of the court’s anticipated questioning, but told Walters to answer all questions favorably regardless of the questions asked. This claim warrants further review. See generally Calderon v. State, 840 So.2d 427 (Fla. 2d DCA 2003). As a result of his testimony, the jury learned that Walters was a drug dealer and that he was known to carry a gun. To the extent this information was otherwise presented to the jury, Walters’s testimony also allowed the jury to hear about his prior criminal record.

The second point to be considered on remand concerns the .use of the word “agency” in the jury instruction associated with second degree murder, and trial counsel’s failure to object. The term “agency” was removed from the standard jury instruction in 1997, but appears in the transcription of the instructions given to Walters’s jury. In re Standard Jury In structions in Criminal Cases (97-1), 697 So.2d 84, 89-90 (Fla.1997).

Though the State has provided an affidavit of the court reporter to demonstrate that the trial judge did not speak the words “or agency,” this is evidence outside the record and should be subject to further inquiry. Further, our review of the portions of the transcript provided reflects that during an in camera interview with the court, a juror expressed concern about whether Walters was the actual perpetrator, but thought that he was “involved.”

Affirmed in part, reversed in part, and remanded.

GUNTHER and HAZOURI, JJ., concur.

MAY, J., dissents without opinion. I would affirm in all respects.


text:
    Stephen N. MARTYAK, Appellant, v. Judith A. MARTYAK, Appellee.
    No. 4D03-4711.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.

      John N. Buso of John N. Buso, P.A., West Palm Beach, for appellant.
    Martin H. Colin of the Law Offices of Martin H. Colin, Lake Worth, for appellee.
   PER CURIAM.

Stephen N. Martyak appeals an order holding him in contempt for failing to pay alimony and attorney’s fees previously ordered, and ordering that he be taken into custody until he pays a purge amount of $54,278.91, the entire arrearage at the time the order was entered. As we found in his prior appeal from a prior contempt order, which was pending when the order on appeal in this case was entered, there was no error in holding him in contempt. However, the order requiring his incarceration must be reversed because it fails to contain a finding of his present ability to pay the purge amount and the basis for such ability. See, Martyak v. Martyak, 873 So.2d 405,. 407 (Fla. 4th DCA 2004); Fla. Fam. L.R.P. 12.615(e). The other issues presented in this appeal were either not raised below and unpreserved or rejected in his prior appeal.

In the present case, the trial court was unable to make a finding of present ability to pay the purge because the former husband did not appear at the contempt hearing. He presented no evidence whatsoever as to his ability to pay. The former wife complains that she did all that she could. If the former husband can escape incarceration simply by not appearing at his contempt hearing, that defeats the holding in Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), which requires the defaulting party to -produce evidence to dispel the presumption of ability to pay.

The applicable Family Law Rule of Procedure provides the rémedy in cases like this one. When a party is served a motion for contempt, the notice of hearing is required to contain the- following language:

FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.

Fla. Fam. L.R.P. 12.615(b). Neither party has supplied this court with a copy of the notice of hearing filed in connection with the instant contempt proceeding, so it is-not clear whether this requirement was met.

At a contempt hearing, once the prior order requiring payment and the ob-ligor’s failure to pay are established — as they were in this case — the trial court proceeds differently depending upon whether or not the alleged contemnor is present for the hearing. If the alleged contemnor is present, the court is to determine whether he or she has the present ability to pay and willfully failed to pay. Fla. Fam. L.R.P. 12.615(c)(2)(A). On the other hand, if the alleged contemnor is not present, then the court is to set a reasonable purge amount and may issue the writ of bodily attachment that was threatened in the notice and “direct that, upon execution of the writ of bodily attachment, the alleged contemnor be brought before the court within 48 hours for a hearing on whether the alleged contemnor has the present ability to pay support and, if so, whether the failure to pay such support is willful.” Fla. Fam. L.R.P. 12.615(c)(2)(B).

In this case, it was error for the trial court to order the former husband’s incarceration until payment of the purge amount without first following this procedure. We therefore reverse the incarceration order.

As to all other issues raised, we affirm without discussion.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

STONE, SHAHOOD and MAY, JJ., concur.

      . The rule provides in pertinent part as" follows:
      If the court orders incarceration, a coercive fine, or any other coercive sanction for failure to comply with a prior support order, the court shall set conditions for purge of the contempt, based on the contemnor’s present ability to comply. The court shall include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.

      (Emphasis added).


text:
    D.K., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3686.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

D.K. appeals the disposition order withholding adjudication and finding that she falsely reported a crime. Because we find that D.K. did not adequately waive counsel, we reverse and remand.

On March 11, 2003, the State filed a Petition for Delinquency alleging that D.K. falsely reported a crime. At trial, D.K. was represented by a certified law student. A Consent For Appearance relating to the representation by the law student was filed in court on the day of trial. The consent form does not state the name of the certified law student representing D.K. The form states “I acknowledge that I have been advised and understand that [sic] is a certified law student and has complied with Chapter 11 of the Rules of the Supreme Court regulating the Florida Bar.” The trial court found D.K. did falsely report a crime and placed her on probation, withholding adjudication. D.K. now appeals.

“A juvenile has a constitutional right to assistance of counsel at the critical stages of delinquency proceedings, and the denial of the right is fundamental error.” AD. v. State, 740 So.2d 565, 565 (Fla. 5th DCA 1999) (citing J.R.V. v. State, 715 So.2d 1135 (Fla. 5th DCA 1998)). A waiver of this right to the assistance of counsel must be both knowing and intelligent. See T.S. v. State, 773 So.2d 635, 636 (Fla. 5th DCA 2000) (“The trial court’s failure to advise T.S. of her right to counsel at the plea hearing, and to obtain a knowing and intelligent waiver of that right or to make a record which demonstrates these requirements were satisfied, is fundamental error.”). Where a defendant waives counsel and consents to the appearance of a legal intern or law student, we have previously stated that:

Rule ll-1.2(b) of the Rules Regulating the Florida Bar requires that a client indicate “in writing” the approval of a student’s appearance on the client’s behalf. Rule ll-1.2(e) requires that the written “consent and approval” be filed in the record of the case and brought to the attention of the presiding judge. Our reading of the rules is that the consent must refer by name to the student who actually handles the case.

L.R. v. State, 698 So.2d 915, 916 (Fla. 4th DCA 1997) (emphasis added). Thus, in L.R. where the waiver form in the record indicated the defendant was consenting to the representation of one law student, but L.R. was actually represented by another law student, this court found reversible error. Id. Here, D.K.’s written waiver of counsel, like L.R.’s waiver, was inadequate because the consent form did not state the name of the certified law student who was representing her.

We find the State’s argument that Duval v. State, 744 So.2d 523 (Fla. 2d DCA 1999) is controlling in this situation to be without merit. In Duval, the court approved the denial of Duval’s 3.850 motion which he filed alleging that he had been “denied his Sixth Amendment right to the assistance of counsel because he was represented in part by a certified legal intern without his knowledge and consent.” 744 So.2d at 523-24. The certified legal intern cross-examined what the trial court termed a “relatively insignificant” witness at his trial. Id. at 524. It was undisputed in Duval that the certified legal intern acted “under the direct supervision of ... [an] assistant public defender” who was present at all “critical stages of the proceedings,” including when the certified legal intern was cross-examining the witness. Id. It was also undisputed that no written consent from Duval was obtained for the intern’s participation in the proceedings. Id. After the trial court held an evidentiary hearing, it found that Duval “knew he was being represented in part by an intern and the intern was, in fact properly supervised.” Id. at 525.

On appeal, the second district found “[w]ithout hesitation” that it was error for Duval’s written consent to not have been obtained. Id. However, the court found that as there was no allegation of prejudice from the representation by the legal intern there could only be reversible error where counsel was “ ‘totally absent, or prevented from assisting the accused during a critical stage of the proceeding.’ ” Id. (quoting United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). The court concluded that because the assistant public defender was present during the cross-examination at issue and the legal intern’s “limited participation did not constitute ineffective assistance of counsel,” under the facts of the case, the participation of the non-lawyer without Duval’s written consent was not per se reversible error. Id. at 526.

Unlike the situation in Duval, in this case, the law student represented D.K. throughout the entire trial rather than just during one cross-examination of a “relatively insignificant” witness. Furthermore, while the transcript demonstrates that the assistant public defender was certainly present at the beginning of the trial, shortly before the last witness testified, and at the end of the trial, it is not clear that the assistant public defender was present throughout the entire trial. Whereas, Duval considered a 3.850 motion after an evidentiary hearing where it was definitively established that trial counsel was present during the legal intern’s cross-examination and that Duval knew he was being represented by the legal intern, this court considers this issue on direct appeal where the only clear evidence in the record is the waiver.

On this record, because the name of the certified legal intern representing D.K. is not listed on the waiver form, it cannot be said that D.K. made a knowing and intelligent waiver of her right to legal representation. See In the Interest of J.H., 580 So.2d 162, 163 (Fla. 4th DCA 1991) (finding that where a form failed to state that the appellant had a right to have a “ ‘supervising attorney personally present when required by the trial judge’ ” and where the appellant was not advised of this right when she entered her plea, the “appellant could not have intelligently waived her right to be represented by a lawyer”) approved, 596 So.2d 453 (Fla.1992). Accordingly, we reverse and remand for a new adjudicatory hearing.

REVERSED and REMANDED.

GUNTHER, STEVENSON and HAZOURI, JJ., concur.


author: POLEN, J.

text:
    Edward Charles HINES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3431.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Edward Charles Hines, has timely appealed a final judgment of conviction for failure to report in person at a driver’s license office within forty-eight hours after a change in permanent or temporary residence and for failure to secure an identification card or driver’s license while being a sex offender, in violation of section 943.0435(4), Florida Statutes. Specifically, Hines challenges the trial court’s denial of his motion for judgment of acquittal based on his contention that the evidence was insufficient to prove that appellant changed his residence, temporarily or permanently. “A motion for judgment of acquittal is reviewed under a de novo standard of review.” Jones v. State, 869 So.2d 1240, 1242 (Fla. 4th DCA 2004). We reverse Hines’ conviction and remand for discharge due to the lack of a prima facie case.

Hines was convicted of violating section 943.0435(4), which states that “within 48 hours after any change in the [sexual] offender’s permanent or temporary residence ..., the offender shall report in person to a driver’s license office.” Section 943.035(l)(c) states that “[pjermanent residence” and “temporary residence” have the same meaning ascribed in section 775.21. Accordingly, permanent residence means a place where the person abides, lodges, or resides for 14 or more consecutive days. § 775.21(f), Fla. Stat. Temporary residence means a place where the person abides, lodges, or resides for a period of 14 or more days in the aggregate during any calendar year and which is not the person’s permanent address. § 775.21(g).

At trial, the State and defense stipulated that appellant was a sexual offender as defined by Florida law. The evidence admitted at trial was that Maria Lawson, Hines’ probation officer, visited Hines at his registered residence on June 25, 2002. However, Hines was later unable to be located at his residence after five attempts in an approximate thirty-six hour period between 5:00 a.m. on June 27, 2002 and late in the afternoon on June 28, 2002. No evidence was presented to the jury concerning where and when Hines was eventually located. After the close of the State’s case, Hines moved for a judgment of acquittal, arguing that there was no evidence to support a permanent or temporary change in his residence. The trial court denied the motion, ruling that in the light most favorable to the State, a prima facie case has been made. The jury returned a verdict of guilty as charged and Hines was sentenced to three years imprisonment and $1,140 in fees and costs.

On appeal, the State concedes that the evidence was insufficient' to support a conviction. We agree and find that this evidence is insufficient to prove that Hines permanently or temporarily changed his residence as defined by the statute. Consequently, Hines’ conviction is reversed and the case is remanded for discharge.

REVERSED.

STONE and SHAHOOD, JJ., concur.