author: LEWIS, J.

text:
    L.B., mother of A.M.S. and B.C.B., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-2592.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    Rehearing Denied Jan. 30, 2003.

      Patricia L. Parker, Esq., Jacksonville, for Appellant.
    Michael Paul Eng, Assistant General Counsel, Jacksonville, for Appellee.
   LEWIS, J.

Appellant, the natural mother of A.M.S. and B.C.B., challenges an order terminating her parental rights to her children. Appellant raises two arguments on appeal. Appellant argues that the trial court’s finding that her continuing involvement with the children threatened their well-being or lives pursuant to section 39.806(l)(c), Florida Statutes (2001), was not supported by the evidence. We agree and hold that the trial court’s finding was not supported by clear and convincing evidence. Appellant also contends that the Department of Children and Families (“Department”) failed to establish that termination of her parental rights was the least restrictive means available to the trial court. Because we also agree with appellant as to this issue, we reverse and remand for further proceedings.

In November 2000, the Department filed Shelter Petitions on the children who are now ages four and two. The Department alleged that the children were victims of threatened harm as their parents had engaged in domestic violence and as appellant had attempted suicide on several occasions. Appellant had also violated the terms of the domestic violence injunction that the trial court had previously granted her husband, the children’s natural father (“father”). Thereafter, the trial court ordered that both children be detained in shelter care. Subsequent to the children’s detention, the Department filed a Petition for Dependency as to both children, alleging that appellant and the father committed willful acts that caused or were likely to cause the children’s physical, mental, or emotional health to be significantly impaired. Appellant, who suffers from epilepsy and depression, later consented to dependency. The children were initially placed with their paternal aunt and uncle and were later placed with shelter parents.

In the initial and updated case plans, both having the goal of reunification, appellant was instructed to: (1) complete a parenting skills class with 100% attendance and provide the Department with a certificate of completion, (2) undergo a psychological evaluation and follow through with all recommendations made by the therapist, (3) undergo an updated psychiatric evaluation and follow through with all recommendations made by the therapist, (4) sign releases of information at all hospitals where she received psychiatric treatment allowing the Department to obtain copies of her records, (5) complete a drug/alcohol evaluation, following all recommendations for treatment, and submit to random drug screens at the Department’s request, (6) complete a Hubbard House evaluation, (7) obtain and maintain stable employment for a period of six months prior to the return of the children, (8) obtain and maintain stable housing for a period of six months prior to the return of the children, (9) pay child support, (10) provide the names, dates of birth and social security numbers of anyone residing in the home or having extended contact with the children, (11) refrain from any other illegal activity, and (12) engage in supervised bi-weekly visitation with the children once the visitation issue with the injunction was clarified. The father’s case plan was essentially identical to appellant’s plan.

Thereafter, on November 23, 2001, appellant struck the father with her automobile, drove away, and was later arrested. The children, who were still in shelter custody, were not present during this incident. Appellant subsequently pled guilty to the lesser offense of leaving the scene of an accident and was placed on two years’ probation.

On February 13, 2002, the Department filed a Petition for Termination of Parental Rights and Permanent Commitment as to both appellant and the father, alleging that both parents were guilty of severe continuing abuse or neglect of the two children, in that they engaged in conduct towards the children that demonstrated that the continuing involvement of the parents in the parent-child relationship threatened both the lives and well-being of the children regardless of the provision of services pursuant to section 39.806(l)(c). The Department also alleged that the children had continued to be neglected or abandoned for the previous twelve months or more. Regarding her case plan, the Department alleged that appellant failed to comply with the recommendations of her psychological evaluation, pay child support, and refrain from illegal activities by getting arrested for leaving the scene of an accident with injuries and for driving with a suspended license. Thus, according to the Department, termination of both parents’ parental rights served the manifest best interests of the children.

During the termination hearing, which occurred on two separate days, Dr. Bloomfield, the father’s psychologist, testified that he believed the children would be in danger with both parents because of the “emotional play” that occurred between them. Dr. Bloomfield described the parents’ relationship as “literally toxic.” Thus, he opined that a high risk of dangerousness existed for the children if they were returned to both parents.

Luanne Edwards, appellant’s marriage and family therapist, testified that appellant had consistently been taking her medicine for epilepsy and depression, had attended her appointments, had recently moved out of the family home, and had enrolled herself in college. Edwards opined, however, that appellant had not progressed to the point that the children could be returned to her because, while appellant was not likely to physically harm the children, the children could be placed in harm’s way by appellant’s negative interaction with someone else. Edwards then testified that appellant could be allowed supervised visitation with her children because appellant could handle herself in such a situation. Edwards did not foresee a problem with such as long as appellant did not enter into a situation where conflict might arise with the father. On cross-examination, Edwards testified that she had noticed some improvement in appellant’s case, in that appellant had reported that there had been times when she had seen the father, and rather than provoke a fight or an argument with him, she would instead leave his presence.

Jean Johnson, a family services counsel- or employed by the Department, testified regarding appellant’s compliance with her case plan. According to Johnson, appellant had completed the parenting skills classes with perfect attendance and had consistently visited with the children. While appellant was still attending counseling sessions, she had completed her psychological evaluation and had signed releases at all hospitals where she had received psychiatric care in order that the Department could monitor her progress. Johnson could not definitively state as to whether appellant had completed an updated psychiatric evaluation. Yet, appellant had completed a drug and alcohol evaluation as well as a Hubbard House evaluation regarding domestic violence. Although appellant had not obtained stable employment at the time of the termination hearing, she did receive disability benefits and she had moved from the family home. While appellant had not paid child support either, she had purchased clothes for the children. At the close of the first day of the hearing, the Department contended that the termination case as to both parents was not an actual abuse case but was rather one where the potential for abuse or neglect existed for the children.

During the second day of the termination hearing, appellant’s mother testified that appellant had separated from the father approximately two and one-half months prior to the hearing. While appellant had initially resided with a friend, she had since moved to her father’s home. Appellant’s father testified that he drove appellant to her medical appointments, as she is not able to drive due to her epilepsy, and that appellant had recently enrolled in a two-year computer program. According to appellant’s father, he also made certain that appellant took her daily medications.

Following the hearing, the trial court entered its Order of Disposition on Termination of Parental Rights, in which the court noted that it had dismissed the termination petition as to the father. Regarding appellant, however, the court found by clear and convincing evidence that appellant was guilty of severe and continuing abuse or neglect of the children, in that she engaged in conduct towards the children, and more particularly their father, that demonstrated that the continuing involvement of the parent-child relationship would threaten the lives or well-being of the children pursuant to section 39.806(l)(c). The court found that appellant had been diagnosed with severe mental illness since she was a small child and had continued to have medication management issues that left her vulnerable to explosive and dangerous outbursts of anger primarily directed towards her husband.

Although the court determined that there were no specific references of any harm that appellant may have caused the children, the court determined that appellant’s continued lack of control in perpetrating domestic violence on the father would threaten the well-being of the children. The court concluded that appellant stalked and deliberately struck the father with her automobile, causing him significant injuries. While the children were not present during this incident, the court found that such action, along with the continued domestic violence, was of such intensity, magnitude, and severity that the children’s lives were endangered. The court also found, pursuant to section 39.806(l)(e), Florida Statutes (2001), that appellant continued to neglect the children, and that she failed to substantially comply with her case plan by not participating in a psychological evaluation and by not following through with all recommendations made by the therapist, by not paying child support, and by not refraining from illegal activity.

Regarding the children’s best interests, the court determined that such interests were served by terminating appellant’s parental rights notwithstanding its dismissal of the termination petition as to the father. The court, in reaffirming the children dependent, concluded that the father continued to focus on his case plan and that he had already taken steps to file for divorce from appellant, which was a listed task in his updated case plan. The court concluded that any potential contact between the mother and the children in the presence of the father would be dangerous to the children’s physical and emotional well-being. This appeal followed.

Appellant contends that the court’s finding that her continued involvement with the children threatened their well-being or lives pursuant to section 39.806(l)(c) is not supported by the evidence. We agree. Pursuant to section 39.806(l)(c), when a parent engages in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child, irrespective of the provisions of services, such conduct constitutes grounds for the termination of that parent’s parental rights. The Department must prove the grounds for termination of parental rights by clear and convincing evidence. § 39.809(1), Fla. Stat. (2001); see also In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995). A trial court’s determination that evidence is clear and convincing will not be overturned unless it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing. C.W. v. Dep’t of Children and Families, 814 So.2d 488, 492 (Fla. 1st DCA 2002).

Here, in its findings in support of termination pursuant to section 39.806(l)(c), the trial court found that, due to appellant’s medication management issues that leave her vulnerable to explosive and dangerous outbursts primarily directed at the father, her continued lack of control in perpetrating domestic violence on the father would threaten the well-being of the children. However, during the termination hearing, Edwards testified that appellant had been consistently taking her medications. While Edwards testified that appellant had not progressed enough in therapy to regain custody of the children, she did testify that she was comfortable with appellant engaging in supervised visitation with the children and did not foresee a problem with such as long as appellant did not enter into a situation where conflict might arise with the father.

Moreover, the testimony given by both Edwards and Dr. Bloomfield emphasized the “toxicity” or “lethal” nature of appellant’s relationship with the father. This emphasis is clearly evident in the termination order as the trial court made multiple references to appellant’s actions towards the father: appellant’s “conduct towards [the] children and more particularly their father,” “appellant’s lack of control in perpetrating domestic violence on the father,” “any potential contact between [appellant] and the children in the presence of the father would be a danger to the physical and emotional well-being of the children.” Yet, Edwards testified that appellant had recently moved from the family home. Appellant’s mother testified that appellant had done so approximately two and one-half months prior to the termination hearing. Furthermore, one of the tasks in the father’s updated case plan involved securing a divorce from appellant.

Thus, based upon the foregoing, we find that the record is devoid of clear and convincing evidence to support the trial court’s termination of appellant’s parental rights pursuant to section 39.806(l)(c). Although appellant struck the father with her automobile, the children were not present during this incident. In addition, the entire basis for the Department’s termination petition and the court’s termination order regarding section 39.806(l)(c) is refuted in the record. "While appellant may have engaged in domestic violence towards the father, she has since taken steps, by moving from the family home and by consistently taking her medications, to avoid similar incidents. Moreover, based upon the father’s updated case plan, the father is to secure a divorce from appellant. In addition, there is no evidence in the record that establishes that appellant harmed the children. Therefore, we hold that the trial court erred in terminating appellant’s parental rights pursuant to section 39.806(l)(c), as the record evidence was neither clear nor convincing.

Furthermore, although the trial court did not explicitly set forth that the children would be in danger of prospective abuse or neglect if returned to appellant, it did determine that the parent-child relationship between appellant and the children would threaten the lives or well-being of the children. During the termination hearing, the Department averred that this was not an actual abuse case but was rather a case where there was a potential for abuse or neglect to the children. The issue in prospective neglect or abuse cases is whether future behavior, which will adversely affect the child, can be clearly and certainly predicted. Palmer v. Dep’t of Health and Rehabilitative Servs., 547 So.2d 981, 984 (Fla. 5th DCA 1989). If the parent is so afflicted that no reasonable basis exists for improvement, then the court may find prospective neglect or abuse. Id. In Palmer, the court affirmed the termination order as no reasonable prospect existed that the father could or ever would be “cured” of, or successfully treated for, pedophilia. Id. In contrast, in In the Interest of G., 592 So.2d 778, 778 (Fla. 4th DCA 1992), the court, in reversing and remanding the termination order, found that, unlike the father in Palmer, the mother’s chances of recovery from substance abuse were good, as the mother had maintained her sobriety, obtained secure employment, and secured a stable residence.

Here, while appellant suffers from both depression and anger management issues, Edwards did not testify that no reasonable basis existed for improvement. On cross-examination, she testified that she had seen some improvement, in that appellant had reported that there had been times when she had seen the father, and rather than provoke a fight or an argument with him, she would instead leave his presence. Thus, based upon this testimony, a reasonable basis did exist to find that appellant’s problems could be improved.

Although the trial court erred in terminating appellant’s parental rights under section 39.806(l)(c), the trial court also based its termination order on section 39.806(l)(e), in finding that appellant failed to substantially comply with her case plan. Section 39.806(l)(e) provides for the termination of parental rights when a child has been adjudicated dependent, a case plan has been filed with the court, and the child continues to be abused, neglected, or abandoned by the parents. Appellant failed to aver on appeal that this determination was incorrect. Instead, appellant argued that she was attempting to comply with her case plan. See K.E. v. Dep’t of Children and Families, 816 So.2d 838, 839 (Fla. 5th DCA 2002) (affirming termination order because the mother failed to specifically argue that the State failed to prove that she had not substantially complied with her case plan and instead argued that she deserved another chance). Therefore, although it is questionable as to whether appellant did, in fact, fail to substantially comply with her ease plan, because the findings of the trial court are clothed with the presumption of correctness and will not be disturbed absent a showing that they are not supported by credible evidence, we must presume that the trial court correctly found that appellant failed to substantially comply with her case plan. See Peacock v. Melvin, 652 So.2d 951, 952 (Fla. 1st DCA 1995).

Notwithstanding the trial court’s presumptively correct findings pursuant to section 39.806(l)(e), the Department also had the burden of demonstrating that the termination of parental rights was the least restrictive means of protecting the children from serious harm, as parental rights constitute a fundamental liberty interest. See Padgett v. Dep’t of Health and Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). Appellant asserts that the Department failed to establish that termination of her parental rights was the least restrictive means available to the court. We agree. The least restrictive means test in the context of the termination of a parent’s parental rights is not intended to preserve the parental bond at the cost of the child’s future. Dep’t of Children and Families v. B.B., 824 So.2d 1000, 1009 (Fla. 5th DCA 2002). Rather, it simply requires that those measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent-child bond. Id.

In the instant case, while the trial court terminated appellant’s parental rights, the trial court dismissed the termination petition as to the father. Therefore, the children, who are still legally dependent, will not be placed for adoption as the father continues to focus on his case plan. Thus, the termination order’s sole effect upon the children, who remain in shelter custody, was to sever their contact with appellant. Appellant, who has taken positive steps in order to change her circumstances, consistently visited with the children under supervision. Moreover, there is no record evidence that this visitation with the children caused or threatened harm to their lives or well-being. Edwards actually testified that appellant was capable of supervised visitation. As such, because the least restrictive means test requires that those measures short of termination be utilized if such can permit the safe reestablishment of the parent-child bond, and because there has been no showing that supervised visitation would harm the children while the father continues to focus on his case plan, we conclude that the termination of appellant’s parental rights was not the least restrictive means available to the trial court. See K.M.B. v. Dep’t of Children and Families, 793 So.2d 39, 40 (Fla. 2d DCA 2001) (reversing and remanding the termination order as the trial court failed to consider the least restrictive means of protecting the children from harm because the children were placed in their father’s custody and, thus, were removed from any danger they may have been in while living with the mother). Accordingly, we reverse and remand for further proceedings.

REVERSED and REMANDED.

KAHN and BENTON, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MIAMI-DADE COUNTY, Appellant, v. Autheria MITCHELL, Appellee.
    No. 1D02-0876.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2002.
    Rehearing Denied Jan. 30, 2003.

      Robert A. Ginsburg, Miami-Dade County Attorney; Marilyn B. Strauss, Assistant County Attorney, Miami, for Appellant.
    Barbara Ellen Schnepper, Esquire, Miami, for Appellee.
   PER CURIAM.

This case has been before this court twice before. See Miami-Dade County v. Mitchell, 754 So.2d 773, 774 (Fla. 1st DCA 2000) (remanding for reconsideration in light of Closet Maid v. Sykes, 763 So.2d 377 (Fla. 1st DCA 2000)(en banc), to determine whether the workplace accident was the major contributing cause of the claimant’s need for future medical treatment)(“Mitchell I”); Mitchell v. Metro Dade, 797 So.2d 10 (Fla. 1st DCA 2001)(re-manding for the Judge of Compensation Claims (“JCC”) to afford claimant an opportunity to testify in person)(“Mitchell II”). In Mitchell II, the claimant appealed the JCC’s denial of her claim for future medical benefits. The JCC’s denial was based on a determination that the workplace accident was not the major contributing cause of the need for future medical treatment.

Just before the hearing on remand after Mitchell II was to begin, the claimant dismissed her claim without prejudice. The claimant alleges this action deprived the JCC of jurisdiction to take any further action on her claim. Appellant argues that claimant’s voluntary dismissal of her petition was untimely. We agree with Appellant and reverse.

A claim or petition may be dismissed by the claimant or petitioner without an order by filing a notice or stipulation of voluntary dismissal at any time before the final hearing begins, or during the final hearing before the claimant rests. Fla. R. Work. Comp. P. 4.075(d). The final hearing began and claimant rested her case when it was tried before Mitchell I. Therefore, claimant’s voluntary dismissal is not timely.

To allow claimant to take a voluntary dismissal after remand, under the circumstances of this case, would allow the claimant the benefit of 20/20 hindsight, a benefit not afforded to other claimants or contemplated by the rule. See Middlebrooks v. St. Johns Water Management District, 529 So.2d 1167, 1169-70 (Fla. 5th DCA 1988)(holding that withdrawal of application for a consumptive use permit was not timely under the voluntary dismissal rule, and would “afford him the advantage of 20/20 hindsight” that no other party under the rule is allowed to have).

Because the claimant’s voluntary dismissal is not timely, and therefore is ineffective, we remand to the JCC to afford the claimant an opportunity to testify in person according to Mitchell II.

REVERSED AND REMANDED.

BARFIELD, MINER and POLSTON, JJ., concur.


author: WOLF, J.

text:
    Lisa Mary BASSETT, Appellant, v. Alfred Lagran SAUNDERS, Appellee.
    No. 1D01-4098.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2002.
    Rehearing Denied Feb. 3, 2003.

      Appellant, pro se.
    Paula L. Walborsky, Mari M. Presley, and Mary A. Kane of Walborsky, Presley and Kane, P.A., Tallahassee, for Appellee.
   WOLF, J.

Appellant, Lisa Mary Bassett, appeals an amended final judgment on an amended petition to determine paternity initiated by Alfred Lagran Saunders. Appellant raises five issues on appeal, three of which we find have merit: (1) retroactive child-support; (2) a discrepancy between the court’s oral and written rulings; and (3) the residency restriction. The remaining issues are affirmed.

The parties entered into a written agreement regarding the raising of their unborn child. Although the mother refers to this agreement as a “sperm donor” agreement, the trial court correctly found that because the father impregnated the mother in the “usual and customary manner” the agreement was invalid and unenforceable under the sperm donor statute. See Budnick v. Silverman, 805 So.2d 1112 (Fla. 4th DCA 2002) (reversing dismissal of petition for paternity and child support by mother finding father who impregnated mother by the “usual and customary manner” did not fall under rubric of sperm donor statute requiring use of “reproductive technology,” and therefore, agreement regarding the father’s responsibilities was not enforceable). The mother is not appealing this decision. Despite the provisions in the agreement allowing the mother, appellant, discretion to give the father, appellee, visitation, the parties could not agree on a visitation schedule. As a result, the father filed an amended petition for paternity seeking various relief including shared parental responsibility and child support.

The trial court ordered the father to pay retroactive child support in a lump-sum amount of $1,630.50, retroactive to the date the court found the parties’ agreement void and unenforceable (March 6, 2001) rather than retroactive to the date of the birth of the child (June 29, 1997), based on the court’s finding that the mother was estopped by her hindrance of the father’s visitation, that the parties to some extent relied upon the agreement which the trial court subsequently found void, and that the retroactive support was not needed:

I find that based on the unreasonable and restricted actions of Bassett [mother] in limiting Saunders’ [father] contact with the child and the fact that the parties, at least to some extent, may have thought that the agreement they had entered into was valid and binding on them, Bassett is estopped from arguing entitlement to child support retroactive to the birth of the Minor Child. This is not a case in which the receiving party (Bassett), an attorney, has ever had the need to receive child support. To the contrary, she testified that she never wanted it which was evidenced by the agreement she entered into with Saunders. While child support is to be paid for the benefit of the child, given the circumstances of this case, I find that child support began to accrue as of the date of my order finding the parties agreement to be invalid and unenforceable, i.e., March 6, 2001.

While we commonly refer to an award of child support prior to the date of the order as “retroactive,” the issue is not so much “legal retroactivity” as “the extent to which the law will enforce, or conversely, excuse the past due obligations” for the obligation owed by both biological parents to their child from the child’s birth. State, Department of Revenue on Behalf of Carbonaro v. Carbonaro, 712 So.2d 1225, 1227 (Fla. 2d DCA 1998). Here, under that guiding principle, we determine the trial court erred in three respects: (1) determining that retroactive child support may be denied based upon unreasonable restrictions on visitation; (2) failing to address all the elements of estoppel and determining that estoppel existed based solely upon the parties reliance on the void agreement; and (3) focusing on the needs of the mother rather than the needs of the child in determining whether to award retroactive support.

The restraint on visitation rights does not excuse a parent from child support obligations. See section 61.13(4)(b), Florida Statutes (2000) (providing that visitation rights and the obligation for child support are unrelated); Gore v. Peck, 800 So.2d 273 (Fla. 2d DCA 2001) (finding it was abuse of discretion not to provide for retroactive support for a period of 24 months prior to the filing of the petition); Department of Health and Rehabilitative Sews. v. Sandidge, 651 So.2d 1261 (Fla. 1st DCA 1995). This case is similar to Richards v. Ryan, 655 So.2d 1184 (Fla. 1st DCA 1995), where this court reversed the trial court’s decision denying retroactive child support in a paternity action based on the following reasoning:

The criteria for determining a child support award, including retroactive child support, are the child’s needs and the ability of each parent to pay. It is commendable that [the father] himself initiated the proceedings and admitted paternity. Furthermore, at the hearing, he acknowledged that the child has financial needs that have existed since birth, and he admitted a duty to support the child.
[The father’s] excuse for not paying further child support was [the mother’s] denial of access to the child. We note that in the different context of court-ordered child support and visitation, the Florida Legislature has declared that visitation privileges and the obligation to provide child support are unrelated matters, even in the context of a custodial parent’s refusal to honor the non-custodial parent’s visitation rights. Accordingly, the inability to exercise visitation rights does not relieve the non-custodial parent from the obligation to pay child support.

Id. at 1185-1186 (quotations and citations omitted). Based on this court’s reasoning in Ryan, the trial court in the instant case erred in denying retroactive support based on the mother’s failure to allow visitation.

The trial court also erred in relying on the agreement as a basis for estopping the mother from seeking child support. In Budnick, the court addressed a situation similar to this case. There, as here, the parties had entered into a “Preconception Agreement” which provided that the parties intended that the father be the biological father of her child, but that he would have no responsibilities. In turn, the agreement provided that the mother would not file a paternity action against the father or “burden him with the responsibilities of being a father in any way.” Id. at 1113. Ten years later, the mother in Bud-nick, filed a Petition for Paternity and Child Support claiming the agreement was against public policy. The father argued that the mother should be equitably barred from seeking child support in part based upon the “Preconception Agreement.” The trial court sided with the father because it found “the delay between the child’s birth and the claim deprived the respondent of his rights because he had relied on the agreement during this time.” Id. at 1114. On a motion for rehearing and rehearing en banc, the appellate court in Budnick reversed, finding that the rights of support and meaningful relationship belong to the child, not the parent; therefore, neither parent can waive those rights, and agreements relieving a parent of the duty to provide support are void as against public policy:

Florida courts have held that agreements relieving a parent of the duty to support are void as against public policy. The rights of support and meaningful relationship belong to the child, not the parent; therefore, neither parent can bargain away those rights ... The total abdication of parental responsibility present in the instant Preconception Agreement cannot be said to protect the best interests of the child.

Id. at 1113 (citing Shinall v. Pergeorelis, 325 So.2d 431 (Fla. 1st DCA 1975), and Walker v. Walker, 266 So.2d 385 (Fla. 1st DCA 1972)).

It is error to deny child support arrears based on estoppel unless all the elements of estoppel are established. See State, Department of Revenue v. Petro, 765 So.2d 792 (Fla. 1st DCA 2000) The elements which are required to establish estoppel are “that a party misrepresented a material fact upon which the party asserting estoppel detrimentally relied.” Id. at 793. The existence of a void agreement by itself is insufficient to meet these requirements. On remand, the court may consider whether all the elements of estop-pel have been established and specifically address the required elements.

The trial court further erred in denying retroactive child support based on its finding that support was not needed. The order does not make findings regarding the child’s needs. To the contrary it focuses on the mother’s needs:

This is not a case in which the receiving party (Bassett), an attorney, has ever had the need to receive child support. To the contrary, she testified that she never wanted it which was evidenced by the agreement she entered into with Saunders.

In Bardin v. State, Dept. of Revenue, 720 So.2d 609 (Fla. 1st DCA 1998), this court reiterated the essential elements for determining child support: the child’s needs and a parent’s ability to pay. Id. at 611. In Bardin, as here, the father initiated the action for paternity. Although the mother initially denied paternity, she later counter-petitioned for child support. Also as in this case, the child had lived with the mother full time. There we found that where the child had need and the father had the ability to pay, retroactive child support should be awarded. Id. at 612.

In addition, a written order or final judgment must conform to the oral pronouncement of the trial court. See Bardin, 720 So.2d at 613. Here, the father concedes that the trial court’s written order stating the mother will have one 2-week vacation with the child does not comport with the earlier oral ruling that each party would have two 2-week vacations with the child. On remand, paragraph 4(A) should be corrected to reflect “Bas-sett shall be entitled to two 2-week uninterrupted periods with the Minor Child during the summer.” The trial court has discretion to award make-up visitation to the mother for any vacation time lost due to this error.

Finally, the parties both agree that there was no evidence that either parent had any intention of leaving the area, and therefore, the residency restriction clause is unnecessary. Given the contentious nature of the litigation and the tension between the parties, the trial court may have anticipated future conflicts; however, the residency restriction is premature because neither party has sought to relocate, and there are not any findings to support such a restriction. See Harris v. Joyner, 732 So.2d 341 (Fla. 1st DCA 1998); see also Mize v. Mize, 621 So.2d 417 (Fla.1993). On remand, the trial court should strike the residency restriction.

We affirm as to the issues regarding make-up visitation and the calculation of child support, but reverse and remand as to the issues of retroactive child-support and the residency restriction. We also instruct the trial court to incorporate its earlier oral rulings regarding vacation time into the final judgment.

VAN NORTWICK and POLSTON, JJ., concur.

      . Budnick involved the equitable defense of laches. However, the underlying basis for the defense, as in this case, was the void agreement.

      . Paragraph 4(B)9. currently states; “Neither party shall relocate outside of the State of Florida without the express permission of the Circuit Court in and for the Second Judicial Circuit.”


author: GROSS, J.

text:
    STATE of Florida, Petitioner, v. Brunel HOSTY, Respondent.
    No. 4D02-3457.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Rehearing Denied Feb. 17, 2003.

      Richard E. Doran, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for petitioner.
    Alan H. Schreiber, Public Defender, and Donald J. Cannarozzi, Assistant Public Defender, Fort Lauderdale, for respondent.
   GROSS, J.

This is a petition for writ of certiorari filed by the state challenging an order by the circuit court which granted the respondent’s motion to strike the state’s notice given under section 90.803(24)(b), Florida Statutes (2001), and which declared the statute unconstitutional as it concerns disabled adults. We deny the petition.

In the proceedings below, respondent, Brunei Hosty, was charged with sexual battery on a person who was mentally defective, in violation of section 794.011(4)(e), Florida Statutes (2001). Although the victim was twenty-three at the time of the offense, the state contended that she had the mental capacity of a ten-year-old. The state filed the notice of intent to use the victim’s hearsay statements to her teachers and law enforcement officers pursuant to the disabled adult hearsay exception contained at section 90.803(24).

Hosty moved to strike the notice, arguing that section 90.803(24) was facially unconstitutional, in light of Conner v. State, 748 So.2d 950 (Fla.1999), cert, denied, 530 U.S. 1262, 120 S.Ct. 2719, 147 L.Ed.2d 984 (2000). Following Conner, the circuit court granted the motion to strike and declared section 90.803(24) to be unconstitutional as it applied to disabled adults.

Section 90.803 provides, in pertinent part:

The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(24) HEARSAY EXCEPTION; STATEMENT OF ELDERLY PERSON OR DISABLED ADULT.—
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by an elderly person or disabled adult, as defined in s. 825.101, describing any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act on the declarant elderly person or disabled adult, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the elderly person or disabled adult, the nature and duration of the abuse or offense, the relationship of the victim to the offender, the reliability of the assertion, the reliability of the elderly person or disabled adult, .and any other factor deemed appropriate; and
2. The elderly person or disabled adult either:
a. Testifies; or
b. Is unavailable as a witness, provided that there is corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the elderly person’s or disabled adult’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to s. 90.804(1).

Section 825.101(4), Florida Statutes (2001) defines “[disabled adult” as:

[A] person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.

In Conner, the supreme court ruled that section 90.803(24) was facially unconstitutional for violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution, insofar as the statute created a hearsay exception for elderly adults. The court distinguished section 90.803(24) from section 90.803(23), Florida Statutes (1995), the child victim hearsay exception, that it had upheld against constitutional attack in State v. Townsend, 635 So.2d 949 (Fla.1994). The court expressly declined to reach the constitutionality of section 90.803(24) “as it applies to disabled adults,” since that issue was not “squarely presented” in that case. Conner, 748 So.2d at 960 n. 11.

We agree with the trial judge that the section 90.803(24) provision for disabled adults suffers from the same constitutional shortcomings identified by the supreme court in Conner with respect to the elderly person exception to the hearsay rule.

First, the exception applies to a “broad class” of adult declarants. Conner, 748 So.2d at 958. Section 825.101(4) includes in the definition of “disabled adult” any person over 18 “who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.” This class is broader than the class of declarants under section 90.803(23) that the court approved in Townsend — children “with a physical, mental, emotional, or developmental age of 11 or less.”

Second, as in Conner, the scope of the testimony admissible under the exception may apply to “any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any violent act on the declarant ... disabled adult.” § 90.803(24)(a). As in Conner, the disabled “hearsay exception would be broadly applicable to a wide variety of crimes and is not restricted to the [disabled] abuse context.” 748 So.2d at 958.

Third, the factors set forth in section 90.803(24)(a)l. for the court to consider when assessing the reliability of the hearsay statement “do not guarantee the reliability of a statement when applied” to a disabled adult. Conner, 748 So.2d at 958. Part of the problem comes from the breadth of the definition of “disabled adult.” A nuclear physicist confined to a wheelchair is very different from a person with organic brain damage. The “circumstances that might necessitate the use of the statement,” such as the mental or physical disability of the declarant, might “be the very circumstances that would render the statement less reliable.” Id. at 959. In this context, we do not believe that a court can “formulate a list of permissible considerations that would ensure the reliability of a hearsay statement made by [a disabled adult] to the extent that ‘adversarial testing would add little to its reliability.’ ” Id. at 958-59 (quoting Idaho v. Wright, 497 U.S. 805, 818, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)).

Fourth, “the policies that supported upholding the narrowly drawn child abuse hearsay exception are not present in the [broadly defined, disabled] adult context.” Conner, 748 So.2d at 959. The supreme court’s conclusion is equally applicable here:

Because the hearsay exception for elderly adults neither ensures the reliability of the hearsay statements admitted at trial, nor in its broadly worded form is supported by the competing policy interests present in the child abuse context, we conclude that section 90.803(24) is facially violative of the defendant’s constitutional right to confrontation.

Id. at 960.

The state argues that the trial court departed from the essential requirements of law in denying the state an opportunity to lay a proper factual basis in this case. However, there was no need to establish a factual basis for the application of the statute in this case, since the challenge to the statute was that it was facially unconstitutional. Contrary to the state’s contention, Conner was decided on the claim that the statute was facially violative of a constitutional right, not on the facts of that case.

We certify as a question of great public importance the question left open by the supreme court in Conner:

AS IT APPLIES TO A DISABLED ADULT, IS SECTION 90.803(24), FLORIDA STATUTES (2001) VIOLA-TIVE OF A CRIMINAL DEFENDANT’S RIGHT TO CONFRONT WITNESSES UNDER THE FLORIDA AND UNITED STATES CONSTITUTIONS?

The petition for writ of certiorari is denied.

TAYLOR and MAY, JJ., concur.


text:
    Dondrick CHERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1038.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Rehearing Denied Feb. 14, 2003.

      Dondriek Cherry, Arcadia, pro se.
    Richard E. Doran, Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Dondriek Cherry, appeals an order summarily denying his rule 3.850 motion for post-conviction relief. We affirm without discussion the order with respect to the second ground for relief, but with respect to the first ground, we reverse and remand for further proceedings.

Following a jury trial in which he was tried together with his co-defendant, Andre Wilson, appellant was convicted of one count of trafficking in cocaine over twenty-eight grams. At the trial, not only did the defendants’ version of the facts at trial differ from that of the police, but appellant’s version differed markedly from Wilson’s. After appellant testified, Wilson testified — against the advice of his separate counsel. On cross-examination he admitted being a five-time convicted felon who had been arrested under five aliases, including for purchase of cocaine and possession of cocaine. The state was able to argue in closing that either one defendant was lying or the other was lying, or they were both lying.

We conclude that the record portions attached to the state’s response do not conclusively refute appellant’s first ground for relief, which was a claim that his trial counsel was ineffective for failing to move the court to sever his trial from that of Wilson, citing Florida Rule of Criminal Procedure 3.152(b)(1)(B) (requiring a court to order severance of defendants during trial with the defendant’s consent “on a showing that the order is necessary to achieve a fair determination of the guilt or innocence of 1 or more defendants”), and Hernandez v. State, 570 So.2d 404 (Fla. 2d DCA 1990). Appellant contended that Wilson’s testimony was harmful to his case; his testimony that they had been friends for six years, which contradicted appellant’s testimony that he met Wilson for the first time on the date of the arrest, could only have left the jury with the impression that appellant was predisposed to deal in narcotics because of his association with a person who had drug convictions, although there was no evidence at trial that appellant had any prior involvement with narcotics. Appellant argued that counsel should have recognized that they did not have compatible defenses, and should have investigated to learn of Wilson’s other crimes.

The appellant in Hernandez, who was convicted of trafficking in cocaine and conspiracy to traffic in cocaine, was tried with Ms brother. When the brother testified, the state cross-examined him concerning his involvement in unrelated drug deals, questions as to which the trial court found the brother had opened the door. At that point, and several times thereafter, the appellant moved for severance of his case from his brother’s because the collateral matters were highly prejudicial and had no probative value to the crimes with which he was charged; the trial court denied the requests. 570 So.2d at 405. The second district referred to the rule cited above and noted that not only did the appellant consent to a severance, but he requested one. Id. While a motion for severance must be made either before trial or when the facts establishing the grounds are known to the defendant, the record indicated that the facts developed at the cross-examination of the co-defendant were not known to the defense before trial; the trial court had granted a defense motion in limine to prevent the state from introducing such evidence in voir dire, opening statement, or the state’s case-in-chief. Although the collateral evidence was directed only at the brother, it still could have contributed to the guilty verdicts against the appellant, as the brothers lived together and the jury may have attributed the offenses to the appellant as a possible participant. Thus, the second district reversed. Id. at 405-06.

This court followed Hernandez in Miller v. State, 756 So.2d 1072 (Fla. 4th DCA 2000). In Miller, two brothers were charged together for aggravated battery on one victim, both claiming to have acted in self-defense. At trial the state sought to have the victim testify that the appellant’s brother apologized and offered money to drop the charges, and the appellant moved to sever, arguing that the state was trying to prove consciousness of guilt from the brother’s statement that would be imputed to him. The trial court denied the motion, the victim was allowed to testify, and this court reversed, stating, “A motion to sever should be granted when the evidence sought to be admitted applies only to a co-defendant, but which may improperly influence the jury as to the charge against the other defendant.” Id. at 1072.

If a rule 3.850 motion is not denied for legal insufficiency on its face, the trial court must attach the portions of the files and records showing conclusively that the movant is entitled to no relief. See Fla. R.Crim. P. 3.850(d). Even though Wilson’s defense was not hostile toward appellant’s, neither incriminated the other, and the state did not make an argument that appellant was guilty by association with Wilson, the record attachments do not conclusively refute the possibility that the jury utilized the evidence against Wilson in convicting appellant. Although it is not likely that appellant’s defense counsel could have anticipated that Wilson would be cross-examined about his prior drug offenses when Wilson’s own attorney was advising him not to testify, so that even if counsel knew of the offenses he would not have known to move for severance prior to trial, the records do not conclusively refute the allegation that appellant’s attorney should have sought a severance when the evidence of those offenses was admitted, and that his failure to do so prejudiced the outcome of the case against appellant.

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

STONE, GROSS and TAYLOR, JJ., concur.

      . At trial, Andre Wilson testified that his real name was Derick Spurgeon.

      . Appellant was also convicted of one count of possession of marijuana with intent to deliver, but this conviction was reversed on direct appeal. See Cherry v. State, 775 So.2d 403 (Fla. 4th DCA 2000), and subsequently that charge was nolle prossed.


author: KLEIN, J.

text:
    Trent ALBURY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4189.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    Rehearing Denied Feb. 17, 2003.
    James K. Green of James K. Green, P.A., West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of DUI manslaughter, manslaughter by culpable negligence, and four counts of culpable negligence as a result of an accident. We affirm, but address one issue, whether a mistrial should have been granted when a witness for the state volunteered he had offered to take a lie detector test.

Appellant and the witness were roommates at the time of the accident. Both of them had, on occasion, ingested a controlled substance known as GHB (gamma-hydroxy-butyrate). It is used by bodybuilders and acts as a growth hormone.

Witnesses to the accident testified that just prior to the accident, appellant was swerving between lanes. After the accident he was groggy and unaware of his surroundings. His blood tested positive for a high level of GHB which could have induced deep sleep, impaired cognitive function and impaired judgment.

Appellant’s theory of defense was that his roommate had left a mixture of grape juice and GHB in the refrigerator and that appellant drank it, thinking it was only grape juice. The defense called witnesses who testified the roommate had admitted leaving the mixture in the refrigerator; however, the roommate, who admitted that he has consumed GHB mixed in juice, denied leaving such a mixture around on the night of the accident.

During the roommate’s testimony he volunteered that he had offered to a deputy to “come down at any given time and answer anything they wanted and take a polygraph if they wanted and any other questions.” The court instructed the jury to disregard the comment, but denied appellant’s motion for mistrial.

Whether a reference to a lie detector test is so prejudicial as to require a new trial depends on whether the jury can infer that the witness had taken or passed the test. See e.g., Olivera v. State, 813 So.2d 996 (Fla. 4th DCA 2002) and cases cited. Where no such inference can be drawn, as in this case, the error has been found to be harmless. Sullivan v. State, 303 So.2d 632 (Fla.1974); Jean v. State, 789 So.2d 550 (Fla. 3d DCA 2001); Hutchins v. State, 334 So.2d 112 (Fla. 3d DCA 1976).

Recognizing that his case falls into the class of cases in which the error has been held harmless, appellant argues that we should follow United States v. Hilton, 772 F.2d 783 (11th Cir.1985). Hilton, however, is distinguishable. In Hilton, the prosecution introduced into evidence, over the defendant’s objection, the written plea bargain agreements of three government witnesses. The agreements stated that the witnesses had agreed to submit to lie detector tests. The prosecution used the plea agreements, including the references to the lie detector tests, to bolster the credibility of the witnesses in closing argument.

Even though there was no evidence in Hilton that the witnesses had taken lie detector tests, the Eleventh Circuit reversed for a new trial. In Hilton, however, the error was far more egregious than in this case, because the offers to take lie detector tests were admitted into evidence. In addition, the prosecution was permitted to take advantage of that erroneous ruling in argument. The jury in Hilton was thus under the impression that this information was relevant to the credibility of the government’s witnesses. In the present case, on the other hand, the trial court recognized the problem and instructed the jury to disregard the unsolicited statement.

We have considered the other issues raised by appellant and find them to be without merit. Affirmed.

STEVENSON and TAYLOR, JJ., concur.


text:
    Carl ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3718.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    Rehearing Denied Feb. 13, 2003.
    Carey Haughwout, Public Defender, Jeffrey Anderson, Assistant Public Defender, and Samuel A. Walker, Assistant Public Defender, Certified to Practice as a Member of an Out-of-State Bar, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction on all issues raised. We affirm the issue raised as to the constitutionality of Chapter 98-223, Laws of Florida based on Sawyer v. State, 819 So.2d 966 (Fla. 4th DCA 2002).

AFFIRMED.

POLEN, C.J., SHAHOOD and GROSS, JJ., concur.


text:
    Bradley LEONARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2003.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    Rehearing Denied Feb. 12, 2003.
    Bradley Leonard, Okeechobee, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Georgina Jimenez^Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Bradley Leonard appeals an order entered March 12, 2002, by the Broward County Circuit Court, summarily denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. At the time the motion was filed and at the time the trial court ruled, appellant’s direct appeal from the revocation of his probation and the order denying his rule 3.800(b) motion for additional jail credit against his newly imposed sentence was pending in this court. The trial court’s lack of jurisdiction at the time it entered the order on appeal rendered the order a nullity. See Daniels v. State, 712 So.2d 765, 765 (Fla.1998).

Accordingly, we vacate the March 12, 2002, order and direct the trial court on remand either to dismiss the motion with leave to refile, or to enter a new ruling on the motion. See Perez v. State, 834 So.2d 882, 882-83 (Fla. 4th DCA 2002) (en banc) (receding from Wilcher v. State, 805 So.2d 74 (Fla. 4th DCA 2002), to the extent this court held in Wilcher that the proper remedy in such cases is dismissal, explaining that dismissal is not required, but “when the trial court is precluded by a pending appeal from ruling on a motion for post-conviction relief, the better procedure is to stay the post-conviction relief motion rather than dismiss it for lack of jurisdiction”).

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

      . The notice of appeal was filed on February 16, 2001; this court affirmed, issuing its mandate on June 21, 2002. See Leonard v. State, 819 So.2d 786 (Fla. 4th DCA 2002).


text:
    PROTECTIVE LIFE INSURANCE COMPANY, Appellant, v. Joanne HOUSMAN, M.D., Appellee.
    No. 4D02-1785.
    District Court of Appeal of Florida, Fourth District.
    Jan. 15, 2003.

      Jeannine Cline Jacobson and Kristina B. Pett of Pett, Furman & Jacobson, PL, Boca Raton, for appellant.
    Craig M. Greene and Robert I. Buehsb-aum of Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., Hollywood, for appellee.
   PER CURIAM.

Affirmed. See Kaufman v. Mutual of Omaha Ins. Co., 681 So.2d 747 (Fla. 3d DCA 1996).

WARNER, SHAHOOD and TAYLOR, JJ., concur.


text:
    BMAB EAST TOWER, INC., Appellant, v. TESTWELL CRAIG LABORATORIES AND CONSULTANTS, INC., et al., Appellees.
    No. 3D02-1507.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Isicoff, Ragatz & Koenigsberg and Eric D. Isicoff, Miami, and Louis Perfetti Durante, for appellant.
    Moore & Goodman and Bruce A. Goodman (Ft.Lauderdale), for appellees.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

After reviewing the record, we conclude that appellant’s amended complaint against appellees is not barred by the statute of limitations because it relates back to the date of filing of the fourth-party complaint. See McKee v. Fort Lauderdale Produce Co., 503 So.2d 412 (Fla. 4th DCA 1987), rev. denied, 513 So.2d 1061 (Fla.1987); Gatins v. Sebastian Inlet Tax Dist., 453 So.2d 871 (Fla. 5th DCA 1984).

Reversed and remanded for further proceedings.


text:
    BROWARD COUNTY, Appellant, v. INTERNATIONAL FIDELITY INSURANCE, Vincent W. Gerardi and Ann Gerardi, Appellees.
    No. 4D01-4999.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Rehearing Denied Feb. 24, 2003.
    Edward A. Dion, County Attorney, Andrew J. Meyers, Chief Appellate Counsel, Tamara M. Scrudder, Assistant County Attorney and Beth-Ann E. Herschaft, Assistant County Attorney, Fort Lauderdale, for appellant.
    Richard L. Rosenbaum of the Law Offices of Richard Rosenbaum, Fort Lauder-dale, for Appellee-International Fidelity Insurance Company.
   PER CURIAM.

We reverse the order of the circuit court canceling the bonds and discharging the surety where the surety failed to produce the defendants at court proceedings as ordered. See Bush v. Int’l Fid. Ins. Co., 834 So.2d 212(Fla. 4th DCA 2002); Wiley v. State, 451 So.2d 916 (Fla. 1st DCA 1984).

REVERSED.

WARNER, SHAHOOD and TAYLOR, JJ., concur.


author: FARMER, J.

text:
    R.P., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, State of Florida, Appellee.
    No. 4D02-74.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Rehearing Denied Feb. 19, 2003.
    Genie Holcombe Rothman of Genie H. Rothman, P.A., Delray Beach, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   FARMER, J.

This case began as a dependency case, in which the Department of Children and Families (DCF) initially named the wrong man as the father. Several months after filing, DCF learned the identity of the actual father but could not locate him. Nearly a year after the initial filing, DCF dropped the dependency claim and refiled the matter as an action seeking a termination of parental rights (TPR). DCF finally located the actual father in state prison. The trial judge ordered the father to be brought from his incarceration for an advisory hearing, but learned on the day of the hearing that the father had not been served with notice because of his release from prison. The court then rescheduled the hearing and the father was served barely four weeks before the rescheduled hearing date. When the hearing began, a lawyer appeared on behalf of the father. As the lawyer explained to the court:

“I got five calls from my client yesterday afternoon asking whether he needed to be here. When I called back, first there seemed to be a confusion. My receptionist told him he didn’t. When I called back — it was 5:45 — to tell him he did need to be here. He lives 200 miles away; he does not have a vehicle; the only car rental place in that town closed at 5:00 o’clock. He could rent a car this morning and drive here, but couldn’t be here by 9:00 o’clock. If the Court could just reschedule this to this afternoon, he would be here.”

DCF thereupon moved for a default against the father, but the court continued the case until the afternoon.

As the afternoon session convened the father still was not present. However, his lawyer explained that:

“I spoke to them as soon — to the grandmother — as soon as I got out of Court. They are 200-240 miles away approximately. They have an old pick-up truck. They were heading down here. [W]hen I got into the Court, I knew that they were on their way here. They were hoping to get here at least by 2:30.”

The lawyer asked for a further limited continuance until their arrival. DCF renewed its motion for default. The trial court granted the default and terminated the parental rights of the father. He appeals. We reverse.

We regard the trial court’s failure to grant a further continuance — say, until the following day — to be an abuse of discretion. The record shows that after the father was finally served with a notice to appear, the advisory hearing was his first required appearance, despite the fact that the case had been pending for nearly two years. The lawyer made clear that the father was actually en route to the hearing and that he intended to be there personally. This advisory hearing occurred within a short time after the father was first served; there is no indication of stalling or disregard by the father. The fact that the case had been pending for two years before this particular hearing is not attributable to any delay or abuse on the part of the father. The requested continuance was for a short time — only until the next day, at worst — and there is no showing in the record that such a brief continuance would have had adverse consequences to the child. In short, there was not a single valid reason to refuse the continuance, but several good ones to grant it.

So important is the parent-child relationship that the termination of it may be accomplished by the state only with a punctilious regard for the due process rights of the parent. See Santosky v. Kramer, 455 U.S. 745, 758, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); J.B. v. Fla. Dep’t of Children & Family Services, 768 So.2d 1060, 1064 (Fla.2000) (“[t]he significance of the rights at issue here cannot be overstated”). In cases under chapter 61, this court “has always been of the opinion that custody should never be determined on a default basis.” Webber v. Novelli, 756 So.2d 164, 165 (Fla. 4th DCA 2000). Surely that policy is no less applicable when parental rights are sought to be ended. While the statute does actually authorize a default at the advisory hearing in TPR cases, courts should ordinarily refrain from determining a termination of parental rights by default where an absent parent is making reasonable effort to be present at the scheduled hearing and is delayed by forces or circumstances beyond the parent’s control. We stress that there is nothing in this record hinting at any harm to the child by further delay. Nor does DCF contend that the child requires immediate permanency.

REVERSED.

GUNTHER and MAY, JJ., concur.

      . The father actually arrived at the courthouse barely an hour after the hearing had ended.

      . See § 39.801(3)(d), Fla. Stat. (2001) (“If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice.”).


text:
    Vernon NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3648.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Vernon Nelson, Chattahoochee, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Affirmed without prejudice to appellant filing a facially sufficient claim under rule 3.800(a). See Burgess v. State, 831 So.2d 137 (Fla.2002).

GUNTHER, KLEIN and STEVENSON, JJ., concur.


text:
    Christopher BATTIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2598.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Christopher Battie, South Bay, pro se.

      Charlie Crist, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Christopher Battie seeks review of an order denying his motion for additional jail credit. We affirm, but without prejudice. Battie’s motion was legally insufficient to support his claim. Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998). With respect to lower court case number 00-11720, the documents provided by Battie to this Court seem to support his claim. However, the record does not reflect that these documents were presented below.

KLEIN, GROSS and MAY, JJ„ concur.


author: STONE, J.

text:
    Andre WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D02-1050.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Rehearing Denied Feb. 19, 2003.
    Andre Wilson, Wewahitchka, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We grant this petition for writ of habeas corpus alleging ineffective assistance of appellate counsel for failing to raise an issue that was raised in a separate appeal by the co-defendant, resulting in the co-defendant receiving a new trial.

Petitioner and his co-defendant, Don-drick Cherry, were jointly charged and tried with trafficking in cocaine and possession of cannabis with intent to deliver. During their trial, Cherry’s counsel requested a jury instruction, pursuant to Chicone v. State, 684 So.2d 736 (Fla.1996), that the state had to prove beyond a reasonable doubt that Petitioner knew of the presence of the marijuana and also knew of its illicit nature before he could be convicted of its possession. Petitioner’s counsel specifically joined in co-defendant counsel’s request, which the trial court denied.

Petitioner’s brief failed to challenge the trial court’s denial of his request for this instruction and his conviction and sentence were affirmed by this court. In co-defendant Cherry’s appeal, Cherry v. State, 775 So.2d 403 (Fla. 4th DCA 2000), however, we affirmed Cherry’s conviction for trafficking, but reversed his conviction for possession of marijuana with intent to deliver based on the failure to include the requested instruction.

The trial record reflects that Petitioner, like his co-defendant, testified that he never went into the kitchen (where the marijuana was located) and never saw the drugs prior to the arrival of the police.

The major distinction between Cherry’s argument and Petitioner’s is that in Cherry’s case, he testified that he was a guest in Petitioner’s apartment and that he had never been to the apartment before. As to Petitioner, it was undisputedly his apartment, and there was other circumstantial evidence of guilt. Both defended, however, arguing that they did not know about the presence of the marijuana, thus, making the instruction critical.

In Cherry, this court rejected the argument that the lower court’s denial of the instruction amounted to harmless error. See also Scott v. State, 808 So.2d 166 (Fla.2002)(failure to give instruction not harmless error). It is clear to us that had the issue been raised, Petitioner was entitled to a reversal on the same basis as his co-defendant.

We, therefore, find the petition legally sufficient and grant relief. The conviction and sentence are reversed as to the charge of possession of cannabis with intent to deliver and, as to that charge, we remand for a new trial. See Kleckley v. State, 810 So.2d 1081 (Fla. 4th DCA 2002); Moment v. State, 785 So.2d 717 (Fla. 4th DCA 2001).

STEVENSON and SHAHOOD, JJ., concur.


text:
    Carlos NIEVES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3885.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Carlos Nieves, Bristol, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant refiling a legally sufficient motion pursuant to Florida Rule of Criminal Procedure 3.800. See Baker v. State, 714 So.2d 1167, 1167 n. 1 (Fla. 1st DCA 1998)(explaining that “[t]he allegations required by [State v.] Mancino [, 714 So.2d 429 (Fla.1998),] at a minimum would have to address how and where the record demonstrates an entitlement to relief’).

GROSS, TAYLOR and MAY, JJ., concur.


text:
    Jose Luis ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1760.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Jose Luis Ortiz, Florida City, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Claudine M. LaFranee, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant refiling his public records request with the requisite specificity. See Roesch v. State, 633 So.2d 1 (Fla.1993); Wootton v. Cook, 590 So.2d 1039 (Fla. 1st DCA 1991).

FARMER, TAYLOR and HAZOURI, JJ., concur.


text:
    Felton EPPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3027.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Felton Epps, Lowell, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Reighn v. State, 834 So.2d 252 (Fla. 1st DCA 2002).

STONE, WARNER, and FARMER, JJ., concur.


author: COBB, W., Senior Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Leroy WALDRON, Appellee/Cross-Appellant.
    No. 5D02-1194.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.

      Charlie Crist, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appel-lee/Cross-Appellant.
   COBB, W., Senior Judge.

The State appeals from a sentence arguing that the trial court erred in imposing a sentence which is not in accordance with the 10/20/Life statute, section 775.087(2)(a)3., Florida Statutes.

The defendant was found guilty of aggravated battery with a deadly weapon or causing great bodily harm with the special finding that he used a firearm and discharged said firearm resulting in death or great bodily harm to the victim. At sentencing, the scoresheet called for a sentencing range of between 51 months and 15 years. The State called the court’s attention to section 775.087(2)(c), Florida Statutes (2001), and argued that because the jury made the special finding that the defendant used and discharged a firearm resulting in great bodily harm, the 25 year minimum mandatory of the “10/20/Life” statute must be imposed. The trial court disagreed and sentenced the defendant to 15 years imprisonment, the statutory maximum for a second degree felony (§ 775.082(3)(c), Fla. Stat.) consecutive to a sentence imposed in another case, with a three year minimum mandatory. We reverse.

Section 775.087(2)(a)3., Florida Statutes (2001), the “10/20/Life” statute, provides that a person convicted of one of the enumerated felonies (which includes aggravated battery) who discharges a firearm during the commission of the felony and as a result of the discharge, death or great bodily harm is inflicted upon any person, shall be sentenced to a minimum term of imprisonment of 25 years to life. Section 775.087(2)(c) specifically provides:

If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed. If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section.

The State points out that the maximum sentence authorized under the Criminal Punishment Code based on the defendant’s scoresheet is 15 years. Since the minimum mandatory term of imprisonment under section 775.087(2)(a)3. was 25 years, the State contends the 25 year sentence had to be imposed.

The defendant’s position is that several statutes govern sentencing in this case, sections 775.087(2)(a)3., (2)(c) and 775.087(2) and that the trial court correctly read the statutes in pari materia in determining that the “10/20/Life” statute represents the maximum prison time that the defendant could receive for the offense and that the 15 year sentence with the three year minimum mandatory was the minimum prison sentence and so sentenced him.

The defendant is correct that courts are obligated to adopt an interpretation that harmonizes related statutes while giving effect to each. Jones v. State, 813 So.2d 22 (Fla.2002); State v. Drury, 829 So.2d 287 (Fla. 1st DCA 2002) (trial court has discretion to sentence defendant as youthful offender rather than under 10/20/Life statute where latter enactment did not contain any language which superseded the Youthful Offender Act). However, the way to do that in the instant case is to give effect to subsections 775.087(2)(a)3. and (2)(c) where the defendant did not simply use a firearm in the commission of the aggravated battery but rather discharged the firearm and as a result of the discharge death or great bodily harm was inflicted upon the victim. Here the jury expressly found that the defendant discharged the firearm resulting in death or great bodily harm to the victim. The Legislature intended to punish a miscreant more severely where his use of a firearm results in death or great bodily harm. The Legislature chose the “10/20/Life” legislation to do this and the courts are bound to follow this law. See Nelson v. State, 811 So.2d 761 (Fla. 4th DCA 2002); Navarrete v. State, 707 So.2d 803 (Fla. 1st DCA 1998).

REVERSED AND REMANDED FOR RESENTENCING.

PETERSON and PLEUS, JJ., concur.

      . See Fla. R.App. P. 9.140(c)(l)(K).


text:
    Bjarne Frydenlund NIELSEN, Appellant, v. Pavlo JOANNOU, Appellee.
    No. 5D02-1297.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.

      Bjarne Frydenlund Nielsen, St. Augustine, pro se.
    Nichole S. Pacella of Lawrence J. Bo-hannon, P.A., Ft. Lauderdale, for Appellee.
   COBB, W., Senior Judge.

On October 14, 1999, Pavlo Joannou, plaintiff below, sued the defendant, Bjarne Nielsen for specific performance of a contract to convey certain real property in St. Johns County. The contract for sale and purchase, executed on July 6,1999, reflects the defendant’s signature as seller. At the time the contract was executed the property was owned by the defendant and his mother, Else Nielsen, a resident of Denmark, as joint tenants with right of surviv-orship. The defendant filed a pro se answer and asserted he had informed the plaintiff that he needed his mother’s approval to sell the property. The defendant believed that a power of attorney he had from his mother was insufficient to convey the disputed property.

Because of the defendant’s persistent failure to provide discovery information requested by Joannou, the trial court ultimately entered an order on March 4, 2002, purporting to strike the defendant’s pleadings and entering a default against him, said order also assessing attorney’s fees and costs against him. This order is the subject of the instant appeal.

There is obvious error on the face of the record which, while not clearly enunciated by the defendant, warrants reversal of the March 4, 2002 order. In Commonwealth Federal Savings & Loan Association v. Tubero, 569 So.2d 1271 (Fla.1990), the supreme court recognized that a trial court has discretion to order a default against' a party for that party’s failure to comply with discovery requirements. The standard by which such order is reviewed is whether there was an abuse of discretion, with the caveat that the subject order must contain an express finding of willful non-compliance to warrant such extreme sanction. See also Tiller v. Straub Capital Corp., 800 So.2d 364 (Fla. 4th DCA 2001); Kelley v. Schmidt, 613 So.2d 918 (Fla. 5th DCA 1993).

The March 4, 2002 order contains no such finding nor any facts whatsoever from which such a finding could be derived. The order is facially defective and is patently inadequate to support entry of a default. The order must be reversed and the cause remanded for further proceedings consistent with Tubero.

We observe that there are additional problems which also must be addressed at the trial level prior to any ultimate disposition of this case. At the time the contract was executed, Else Nielsen was a joint owner of the property. Shortly after execution of the contract with Joannou, the defendant, on August 13, 1999, executed a quitclaim deed purporting to convey his interest in the property to Else Nielsen. The quitclaim deed is subject to a pending motion to quash/vacate in the trial court. It would appear that Else’s estate is an indispensable party to this litigation. In any event, we reverse and. remand for further proceedings.

REVERSED AND REMANDED.

PETERSON and PLEUS, JJ., concur.

      . This order, while not disposing of the entire case, assesses attorney's fees and costs "for which let execution issue". Accordingly, the order is appealable as a final order. See Hastings v. Osius, 104 So.2d 21 (Fla.1958); Saye v. Pieschacon, 750 So.2d 759 (Fla. 1st DCA 2000); Ruppel v. Gulf Winds Apartments, Inc., 508 So.2d 534 (Fla. 2d DCA 1987).


author: ORFINGER, J.

text:
    Maille JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3891.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    Spencer Rhodes of R. Spencer Rhodes, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   ORFINGER, J.

Maille Joseph appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied the rule 3.850 motion as untimely. We affirm.

After being convicted of burglary, robbery and kidnaping in 1998, Joseph filed an appeal with this court. His appeal was dismissed by order of this court rendered September 1, 1999, after Joseph filed a notice of voluntary dismissal. No mandate was issued. As a result, the two-year limitation period for filing a rule 3.850 motion began to run at that time. See Fla. R.Crim. P. 3.850(b). “A judgment and sentence ‘become final’ when direct review proceedings are concluded, and jurisdiction to entertain motions for post-conviction relief returns to the trial court.” Baggett v. State, 637 So.2d 303, 303 (Fla. 1st DCA 1994) (citing Ward v. Dugger, 508 So.2d 778 (Fla. 1st DCA 1987)). The two-year limitation period began to run on the date this court dismissed Joseph’s appeal even though no mandate was issued by the appellate court. Brown v. State, 802 So.2d 526 (Fla. 1st DCA 2001).

As such, Joseph had until September 4, 2001, to file his rule 3.850 motion. Joseph’s rule 3.850 motion was not filed until September 5, 2001. As a result, the trial court correctly concluded that Joseph’s motion for postconviction relief, which was filed through counsel, though only one day late, was untimely. Accordingly, we affirm the summary denial of Joseph’s rule 3.850 motion. However, we do so without prejudice for Joseph to seek relief in a properly filed motion for belated postcon-viction relief under Florida Rule of Criminal Procedure 3.850(b)(3), about which we express no opinion.

AFFIRMED.

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

      . September 1, 2001 fell on a Saturday and September 3, 2001 was Labor Day. Therefore, Joseph's rule 3.850 motion should have been filed no later than September 4, 2001.

      . Because the motion was filed by counsel, Joseph is not entitled to the benefit of the "mailbox” rule.

      . In his motion for rehearing of the order denying relief filed with the trial court Joseph suggests that the two-year limitation was tolled by an order on Joseph’s 3.800(a) motion rendered on April 24, 2000. The two-year limitation is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered. An illegal sentence may be corrected at any time, and it would malee no sense to allow a judgment to be attacked many years after the expiration of the two-year deadline simply because a sentence was corrected pursuant to a rule 3.800(a) motion.


text:
    Amir BUHBUT, Petitioner, v. Edward BIELUCH as Sheriff of Palm Beach County, Florida, Respondent.
    No. 4D03-2.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2003.

      B. Sue Foreman, West Palm Beach, for petitioner.
    Charlie Crist, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

The petitioner was taken into custody on charges of domestic battery and aggravated assault with a firearm in August, 2002. He moved for release on bond, which the trial court granted, ordering house arrest and a monetary bond. Petitioner posted the bond, resolved an immigration matter, and house arrest was implemented. He was later arrested for violation of the rules of house arrest, by being outside of his house, in his yard, and drinking alcohol. Petitioner moved for a bond hearing, at which he requested that the court impose a higher monetary bond but still allow his release. The trial court did not allow petitioner to present evidence at that hearing, and later entered an order denying the motion “without prejudice to renew.” It attached a copy of the Sheriffs Office report of his violation of house arrest rules. The court made no actual findings, though.

Petitioner moved for another bond hearing, which the trial court entertained. The victim, without being sworn, answered questions about her contacts with petitioner since his detention, and counsel gave additional argument to the court. The trial court orally denied bond relief, advising the parties that its ruling was unaffected by argument of counsel.

The trial court has denied petitioner’s motions without making any findings of actual violation of house arrest, or whether there were any conditions of release which could reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial. This is a requirement of section 907.041(4)(c)7., Florida Statutes (2002). We reject respondent State’s construction of this court’s decision in Barns v. State, 768 So.2d 529 (Fla. 4th DCA 2000), review dismissed, 796 So.2d 535 (Fla.2001), as holding that the statute now allows the trial court discretion to deny release on bond solely on a finding that the accused violated a condition of bond. See State v. Paul, 783 So.2d 1042 (Fla.2001).

We therefore grant the petition for writ of habeas corpus and remand to the trial court to set an expedited hearing to determine whether any conditions of bond were violated, and whether there are any reasonable conditions of release which would protect the community and assure petitioner’s presence at trial.

POLEN, C.J., SHAHOOD and GROSS, JJ., concur.


text:
    Isaac GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-129.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2003.

      Isaac Green, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Alvarez v. State, 358 So.2d 10, 12 (Fla.1978).

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


text:
    Samuel DUVALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2467.
    District Court of Appeal of Florida, Fourth District.
    Jan. 29, 2003.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions in this case. The judgment of conviction reflects that under count III, appellant was convicted of grand theft with a firearm. The trial judge properly instructed the jury only on the crime of grand theft as a lesser included offense of attempted carjacking. He did not also give an instruction on attempted grand theft. Unlike State v. Sykes, 434 So.2d 325 (Fla.1983), this was not a case where the jury was charged on attempted grand theft and, as a separate crime, grand theft. The verdict forms given to the jury for count III were for attempted carjacking with a firearm, attempted grand theft, attempted battery, aggravated assault, battery, and assault. The defendant did not object at trial to either the verdict forms or the charge to the jury. We agree with the state’s contention that the inclusion of the word “attempted” on the grand theft verdict form in this case was a scrivener’s error, not a fundamental error. See Lyons v. State, 690 So.2d 695 (Fla. 3d DCA 1997). We agree with appellant that the victim’s statements to his aunt were hearsay, but we find the errors to be harmless.

POLEN, C.J., GUNTHER and GROSS, JJ., concur.


author: DAVIS, Judge.

text:
    Alvin KING, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4545.
    District Court of Appeal of Florida, Second District.
    Jan. 29, 2003.
   DAVIS, Judge.

Alvin King was convicted at jury trial of armed robbery and attempted murder in the second degree in 1981. The trial court sentenced King to ninety-nine years’ incarceration on the armed robbery charge and to thirty years on the attempted murder charge, the sentences to run consecutively. The trial judge retained jurisdiction over the first one-third of each sentence pursuant to section 947.16, Florida Statutes (1979). To support the retention of jurisdiction, the trial court gave the following reasons:

1. The use of a firearm in the commission of the robbery,
2. The discharge of the weapon and the shooting of the victim in the course of the robbery, and
3. King’s extensive prior criminal record “as disclosed by the rap sheet handed to the Court by the State.”

King challenged the sufficiency of the court’s reasons by filing a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We observe first that rule 3.800(a) was the proper vehicle to challenge the court’s reservation of jurisdiction since the reservation effectively imposed a “harsher penalty” upon King, resulting in a potentially improper sentence enhancement. See State v. Williams, 397 So.2d 663 (Fla.1981); Hampton v. State, 764 So.2d 829 (Fla. 1st DCA 2000).

King contends that the first two reasons given for reserving jurisdiction were insufficient because each one uses an essential element of the offense charged to enhance the sentence. The first reason offered for the enhancement, King’s use of a firearm in committing the robbery, is an essential element of King’s armed robbery conviction. Likewise, the second reason, King’s discharge of the weapon and shooting of the victim, is an essential element of King’s attempted second-degree murder conviction.

King is correct. An element of the offense cannot be used to enhance the penalty because the elements of the offense already have been factored into the sentencing scheme by increasing the level of the offense charged. See Harris v. State, 533 So.2d 1187 (Fla. 2d DCA 1988). Although Hams concerns a departure sentence under the guidelines, not a reservation of jurisdiction as here, the reasoning of Harris applies here by analogy because in both situations the trial court must justify the sentence enhancement with “individual particularity.” Because each of the first two reasons given for the enhancement use essential elements of King’s convictions, they are insufficient.

Finally, the third reason offered, King’s extensive prior- criminal record, is also insufficient. In order to use the defendant’s prior criminal history as a reason to retain jurisdiction, the court must make the history a “matter of record.” Robinson v. State, 458 So.2d 1132 (Fla. 4th DCA 1984). The record in this case does not disclose whether the “rap sheet” referred to by the trial judge at sentencing was made a part of the record or what that rap sheet disclosed. Although the trial court did later reduce the reasons to writing, this record does not include that written order. Accordingly, in the absence of the criminal history, on this record we cannot determine that this is a sufficient reason to justify the retention of jurisdiction. We therefore reverse and remand for resentencing, at which time the trial court should either vacate its retention of jurisdiction over the sentence or state its justification for retention with sufficient specificity as required by the statute. See Cahill v. State, 489 So.2d 1219 (Fla. 2d DCA 1986).

Reversed and remanded.

FULMER and COVINGTON, JJ., concur.