text:
    Kathryn S. GROEGER, Appellant, v. Hans-Juergen GROEGER, Appellee.
    No. 5D03-1207.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2004.
    Alberto E. Lugo-Janer, Kissimmee, for Appellant.
    No Appearance for Appellee.
   SHARP, W., J.

Kathryn Groeger appeals from a partial final judgment dissolving her marriage to Hans Groeger. The sole issue on appeal is whether the trial court should have ordered the parties to attend further marital counseling before rendering the final dissolution judgment. We find no abuse of discretion and affirm.

The parties were married in 1994. They have no children. In December 2000, Hans filed for dissolution, alleging their marriage was irretrievably broken. Kathryn filed her answer, denying that allegation.

In October 2001, the parties entered into a mediation agreement. They agreed to modify an existing injunction so they could have “non-hostile” contact with each other through a family counselor until the counselor found the parties could meet privately in a non-hostile manner. The parties also agreed:

Either party has the right to terminate any contact between themselves, if either believes after a good faith effort at family counseling, that the counseling and/or contact with one another is counter-productive and will not assist the parties in getting on with their lives after the dissolution of their marriage.

The mediation agreement provided the parties’ attorneys would exchange financial information and discuss equitably dividing the parties’ assets. The attorneys agreed to complete their discussions and set a second mediation session, enter into an agreement or set the case for trial within the next six months.

In March 2003, Hans signed a form document providing sworn testimony for the final dissolution hearing. Hans marked the box stating, the marriage is “Irretrievably broken. I no longer love my spouse, I do not want to be married any longer, and no delay or counseling will save my marriage.”

A few days later, the trial court entered a partial final judgment of dissolution of marriage. The judgment states a final hearing was held, and the marriage was dissolved on the ground it was irretrievably broken. The court reserved jurisdiction as to the remaining issues.

On appeal, Kathryn argues the trial court should have ordered further marital counseling before rendering the judgment. Kathryn claims she was under psychiatric and psychological treatment while the dissolution was pending and so was unable to undergo any meaningful counseling, as the parties agreed during mediation. Kathryn believes her marriage is not irretrievably broken, and that counseling, now that she is stable, will salvage her marriage. Kathryn requests that we reverse the dissolution judgment and remand with instructions to order joint marital counseling.

A motion for marriage counseling is directed to the sound discretion of the trial court. Cruickshank v. Cruickshank, 420 So.2d 914 (Fla. 1st DCA 1982); Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981), rev. denied, 412 So.2d 465 (Fla.1982). The refusal to order marital counseling is not an abuse of discretion simply because one party contests whether the marriage is irretrievably broken. Cruickshank (trial court did not abuse its discretion in denying wife’s motion for marital counseling even though wife contested the marriage was irretrievably broken); Hair (trial court did not abuse its discretion in denying husband’s motion for marriage counseling even though husband opposed the dissolution and demanded court-ordered counseling for the parties).

Here the parties agreed to meet with each other in the presence of a counselor. However, this counseling did not appear to have been for the purpose of maintaining the marriage. Rather, the purpose seemed to be to help the parties adjust to the end of the marriage and get on with their lives after the dissolution.

The marriage was not dissolved until March 2003, more than two years after Hans filed for dissolution and some 16 months after the parties entered into the mediation agreement. During all this time, Hans has maintained the marriage is irretrievably broken and the parties have not been able to effect a reconciliation. At this point, requiring the parties to undergo counseling would be futile and an abuse of discretion. See Nelms v. Nelms, 285 So.2d 50 (Fla. 4th DCA 1973)(in view of pleadings and evidence showing that marriage of parties was irretrievably broken, trial judge abused his discretion in refusing to dissolve marriage and requiring that parties seek marriage counseling). We agree with Nelms that if the evidence demonstrates the marriage is broken beyond repair in one party’s firm view, the trial judge must dissolve the marriage. It is commendable to try to effectuate a reconciliation. But like ballroom dancing, it takes two.

AFFIRMED.

GRIFFIN and TORPY, JJ„ concur.


source: Caselaw Access Project

author: THOMPSON, J.

license: Public Domain

text:
    Holly STROUT a/k/a Holly Steere, Appellant, v. Kevin Clyde CAMPBELL, Appellee.
    No. 5D02-2724.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2004.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, for Appellee.
   THOMPSON, J.

Holly Strout appeals a judgment awarding primary custody of the parties’ two children to Kevin Clyde Campbell, the father, and ordering her to transfer custody to him within 30 days. We affirm.

The parties have never been married. In 1996, in the Circuit Court for the Ninth Judicial Circuit, the mother obtained a judgment of paternity against the father with respect to the older child. In 1999, she instituted this proceeding to establish the paternity of the parties’ second child. The mother had primary custody of the older child but in this paternity proceeding, the father sought primary custody of both children. During the litigation, the children were removed from the mother by the Department of Children and Family Services based on allegations of neglect, and the father was then given temporary custody of the older child. The mother was allowed to retain custody of the infant because it was being breast-fed. The mother absconded with both children to Germany during her first unsupervised visitation with the older child. It is apparent from the record that while living in Germany, the mother married a member of the United States Armed Forces.

In May 2001, the court entered a final judgment giving the father sole parental responsibility for the children. This judgment was vacated on the mother’s motion, which alleged that she had not been given notice of the hearing or a copy of the final judgment. The mother alleged that the father knew exactly where in Germany she was located, as evidenced by the fact that on the same day the final judgment was issued, both parties were before a court in Germany for a hearing on the father’s petition for the repatriation of the children under the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”). Attached to the mother’s motion was an English translation of the German court’s order denying the father’s petition for repatriation of the children.

After vacating the judgment, the circuit court rescheduled the trial and ordered the parties to submit pretrial memoranda. On the father’s motion, the court entered an order precluding the mother from presenting evidence on the ground that the mother had not filed any pretrial papers and had not made herself available for discovery. The father also stated in his motion that warrants for the mother’s arrest had been issued and that he would object if she sought to appear at trial by telephone. On the day of trial, at which the mother was represented by counsel but did not appear herself, an FBI agent was waiting “in the hallway.” The court entered the judgment on appeal over the objection of counsel for the mother that the Convention proceedings had divested it of jurisdiction. On appeal, the mother contends that the judgment is void because the trial court lacked jurisdiction to enter it.

In 1988, the United States entered the Convention, the text of which can be found in Duquette v. Tahan, 252 N.J.Super. 554, 600 A.2d 472 (Ct.App.Div.1991). The objects of the Convention are to “secure the prompt return of children wrongfully removed to or retained in any Contracting State, and to ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.” Convention, art. 1. The removal of a child is considered wrongful if it is “in breach of rights of custody ... under the law of the State in which the child was habitually resident immediately before the removal” Id. art. 3. The Convention seeks to deter parental abductions by eliminating the primary motivation for abductions, which is to obtain an advantage in custody proceedings by commencing them in another country. Holder v. Holder, 305 F.3d 854, 860 (9th Cir.2002). The United States Congress implemented the treaty in 1988 by enacting the International Child Abduction Remedies Act, often referred to as ICARA. See 42 U.S.C. § 11601 et seq. ICARA vests concurrent jurisdiction over claims brought under the Convention in the United States District Courts and in the courts of the states. 42 U.S.C. § 11603(a). Congress has found that the international abduction or wrongful retention of children is harmful to their well-being and that persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention. 42 U.S.C. § 11601(a)(1), (2).

In denying the father’s request, the German court cited Article 13 of the Convention, which provides that the “requested State,” i.e., Germany in the instant case, is not bound to order the return of the child if the opposing party establishes that, “there is grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” The court stated that the local child welfare agency had found just such a risk to the children if they were returned. According to the agency, the older child was afraid of being separated from his mother and having to return to the United States. The court pointed out that an international warrant had been issued against the mother and that she would face a lengthy imprisonment if she traveled to the United States to continue the custody proceedings. Further, the older child stated in court that although the father could visit “every week,” he did not want to return to the United States, and the younger child (who was four months of age when the mother absconded to Germany) did not know the father.

The court was concerned that wrenching the children from their mother would have a deleterious effect on them. For this reason, the court stated, “an undertaking was achieved at the hearing,” through which the father promised to meet with the American liaison staff in Germany to insure that the mother would not be arrested if the proceedings were continued in the United States. The parties agreed to meet with a military attorney at an airbase and “to make a written declaration,” but the father did not keep his promise. Instead, he left Germany two days before his scheduled return flight to the United States. The court concluded that the father was not interested in repatriation for the sake of the children or the custody proceeding, but was intent on punishing the mother, with whom the children had a good relationship. Because the children would suffer severe psychological harm by being separated from their mother and having to endure the father’s hatred for the mother, the court denied the father’s request for repatriation.

The mother states that the German court ruled “that it was in the best interests of the children that they ... remain in Germany,” and argues that this ruling “must be respected.” The problem with this argument is that we see nothing in ICARA or the Convention itself suggesting that the court of country “in which the child was habitually resident,” is divested of jurisdiction over the child custody matter when a parent petitions in the other country for the return of the child, or even when the court of the other country denies the petition. The mother cites no case so holding, and we have found none. The mother cites 42 U.S.C. § 11603(g) of ICARA, which provides:

Full faith and credit shall be accorded by the courts of the States and the courts of the United States to the judgment of any other such court ordering or denying the return of a child, pursuant to the Convention, in an action brought under this chapter.

That provision does not apply in this case, however, because this case, a paternity case, is not an ICARA proceeding and is therefore not one brought “under this chapter.” Although, Bekier v. Bekier, 248 F.3d 1051, 1053 (11th Cir.2001), states that “[t]he Hague Convention determines which contracting state has jurisdiction to resolve the underlying custody dispute, because nothing in ICARA purports to divest the jurisdiction of the court in the country of habitual residence, we must conclude that the court below acted properly.

AFFIRMED.

PLEUS and TORPY, JJ., concur.

      . The father states in his brief that the mother is guilty of kidnapping and interference with child custody. He testified at trial that he would like to see the mother arrested and prosecuted.

      . Blondín v. Dubois, 238 F.3d 153, n. 8 (2nd Cir.2001), explains the term ''undertaking”:
      Although the Hague Convention does not use the term "undertaking,” in cases under the Convention courts use the term "undertaking” to refer to a promise by the petitioning parent "to alleviate specific dangers that might otherwise justify denial of the return petition. Typical undertakings concern support, housing and the child's care pending resolution of the custody contest.” Carol S. Bruch, The Central Authority’s Role Under the Hague Child Abduction Convention: A Friend in Deed, 28 Fam. L.Q. 35, 52 n. 41 (1994) (explaining use of undertakings by British courts). See also Symposium, Women, Children and Domestic Violence: Current Tensions and Emerging Issues, remarks by Linda Garder, 27 Fordham Urb. L.J. 567, 757 (2000) (noting increasing use of undertakings by United States courts); Walsh [v. Walsh,] 221 F.3d [204,] 219 [(1st Cir.2000)] ("The undertakings approach allows courts to conduct an evaluation of the placement options and legal safeguards in the country of habitual residence to preserve the child’s safety while the courts of that country have the opportunity to determine custody of the children within the physical boundaries of their jurisdiction.”); Croll[v. Croll], 229 F.3d [133,] 135 n. 1 [(2d Cir.2000)]; Feder [v. Evans-Feder], 63 F.3d [217,] 226 [(3d Cir.1995)].


author: SHARP, W., J.

text:
    T.R., Father of A.R., T.R., and S.R., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-977.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2004.

      Stephen C. Mays, Merritt Island, for Appellant.
    Charles D. Peters, Department of Children and Family Services, Orlando, for Appellee.
   SHARP, W., J.

T.R. appeals from an order of adjudication, which found his two teenage children dependent as to him. The son was 14 at the time of the hearing and the daughter was 16. Their mother was incarcerated and expected to be released within a year. The three had been living with T.R.’s girlfriend, Jody. Jody and T.R. also had a baby daughter, age 6 months, living with them at the time of the domestic violence incident which forms the basis for the dependency adjudication. We affirm.

The trial court found that an act of domestic violence had taken place in the home at 6:30 a.m. on June 20, 2002. Although the testimony was in conflict, the trial judge chose to believe the parental aunts, that Jody has changed her story between the time she called out to the family for help. Shortly after the domestic violence incident, Jody called both aunts (T.R.’s sisters) and threatened to call the police unless they got T.R. to leave the house before she returned from work. She told them she would have him charged with attempted murder for having backed her into a corner with a steak knife while she was holding their baby in her arms. Although the aunts were reluctant to get involved, they intervened, got their brother to flee the house, and took charge of the teenagers. Both testified Jody had called them numerous times during the day the incident occurred, hysterical and crying.

At the trial, the incident had paled to a minor heated discussion between Jody and T.R., because T.R. had stayed out all night and taken Jody’s car without her permission. The steak knife was not used to threaten Jody, but was merely used to stir T.R.’s coffee.

The daughter was sleeping in her bedroom when the incident occurred. The son was sleeping on the porch at the back of the house, which was separated from the kitchen-living room area, where the incident took place, by a glass door. The door was open. Both had somewhat changed their stories more favorably to their father by the time of the trial. Nevertheless, both testified they had been awakened from sleep by hearing Jody and their father shouting and yelling. They knew Jody had the baby with her. The daughter testified she heard Jody say: “Keep the knife away from me ...” The son testified he heard Jody yell, “keep that knife away from me and the baby.” He heard Jody crying and both were screaming. He said his father was kind of drunk.

The trial court concluded the Department had proven by a preponderance of the evidence that the act of domestic violence had occurred and that although not in the room at the time it took place, the teenage children were aware of it. We agree with the trial judge that the evidence adduced supported those conclusions.

T.R. argues that even if the domestic incident occurred, there is no evidence this one incident of domestic violence was sufficient to support the trial judge’s conclusion that the teenagers were impaired emotionally or that future risk of impairment was likely. At the time of the trial, Jody and T.R. had separated and were no longer romantically involved. However, there was testimony that after the removal of the teenagers from the home, T.R. criticized his son because the son did not want to live with Jody, or have her supervise his visitation with his father.

This court has held that when children witness incidents of domestic violence, both verbal and physical abuse between parents, that the children are at risk of being “harmed” — impaired mentally and emotionally — if they remain in the custody of the abusive parents, within the meaning of section 39.01(30)(i), Florida Statutes (2002). See D.D. v. Department of Children and Families, 773 So.2d 615 (Fla. 5th DCA 2000). See also D.W.G. v. Department of Children and Families, 833 So.2d 238 (Fla. 4th DCA 2002); D.H. v. Department of Children and Families, 769 So.2d 424 (Fla. 4th DCA 2000). It does not matter that the violence is not directed at them so long as they are aware of its taking place, and the violent behavior demonstrates a wanton disregard for the presence of a child. In this case, the baby was directly threatened by the incident since Jody was holding her in her arms while being threatened with a knife. Both teenagers heard the domestic violence taking place from next door rooms, and were aware of it. We think the “presence” factor was satisfied in this case.

However, it is a close case. Should proof of one act of domestic violence — here T.R.’s threatening his girlfriend with a knife while she is holding their baby— suffice? In the cases cited above, D.W.G., and D.D., there were multiple incidents of domestic violence witnessed by the children involved. However, there are indications in the record in this case that T.R. had a domestic violence history including two prior battery charges and two petitions for domestic violence injunctions which were dropped. In addition, the domestic violence in this case was accomplished with a deadly weapon. On balance, we choose to affirm the able trial judge in this case. A finding of dependency is not a termination, but an opportunity to restore and hopefully repair a family heading in the wrong direction. See D.D., 773 So.2d at 618.

AFFIRMED.

GRIFFIN and MONACO, JJ., concur.

      . See Vandergriff v. Vandergriff, 456 So.2d 464 (Fla.1984); Boylan v. Boylan, 571 So.2d 580 (Fla. 4th DCA 1990); Wright v. Wright, 431 So.2d 177 (Fla. 5th DCA 1983).

      . Subsection 39.01(30), Florida Statutes (2002), defines harm and provides:
      (30)(i) "Harm” to a child's health or welfare can occur when any person:
      (i) Engages in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child.

      . See R.F. v. Department of Children and Families, 844 So.2d 821 (Fla. 5th DCA 2003)(denial of motion for reunification not abuse of discretion); Artuso v. Dick, 843 So.2d 942 (Fla. 4th DCA 2003)(trial court afforded wide discretion in determining child custody).


text:
    Elbert INGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2873.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2004.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Elbert Ingram appeals an order adjudicating him to be a sexually violent predator and committing him to the custody of the Department of Children and Family Services pursuant to the Jimmy Ryce Act. We affirm.

On appeal, Ingram argues that the special jury instruction he requested — that the state must prove it is “highly” likely that Ingram would reoffend — should have been given, rather than the standard jury instruction which uses the term “likely.” Assuming that Ingram’s argument is preserved for appeal, we conclude that the trial court’s instruction to the jury was proper. See Westerheide v. State, 767 So.2d 637 (Fla. 5th DCA 2000), approved Westerheide v. State, 831 So.2d 93 (Fla.2002).

Next, Ingrana contends that despite the fact that there was no evidence presented that sex offender treatment was available to him in prison, the state repeatedly told the jury that Ingram had not obtained treatment. Ingram argues that the prosecutorial comments were improper, warranting a reversal. Because Ingram made no objection to the comments of which he complains, we must determine whether they were so prejudicial as to constitute fundamental error. Freeman v. State, 717 So.2d 105, 105 (Fla. 5th DCA 1998); Caraballo v. State, 762 So.2d 542, 548, n. 18 (Fla. 5th DCA 2000). In essence, the abuse must be so great as to vitiate the entire proceeding. Laboo v. State, 715 So.2d 1034, 1035 (Fla. 1st DCA 1998).

At trial, Dr. Jordan testified that Ingram had admitted to committing sexual acts on his stepson, and Ingram’s stepson testified to the abuse. While on probation for prior sex crimes, Ingram violated his probation by meeting a teen-age boy, D.K., and in a taped telephone conversation, Ingram admitted to sexual acts with D.K. Doctors Jensen and Waldman both testified that they believed it was likely that Ingram would reoffend. Dr. Wald-man used an actuarial instrument with the highest score being sixteen, and Ingram scored off the scale at seventeen. Dr. Waldman opined that within reasonable medical certainty, Ingram was likely to reoffend in a sexually violent manner if he were not confined to an in-patient, controlled setting for treatment of his personality disorder and sexual deviancy. Accordingly, we conclude that the prosecutor’s comments were not so prejudicial that they vitiated the entire proceedings.

Finally, Ingram argues that the trial court erred in denying his motion to dismiss. Ingram argues that he and the state entered a plea agreement in connection with his 1989 probation violation, but that the state violated their agreement by subsequently filing Jimmy Ryce Act commitment proceedings. This argument is foreclosed by Murray v. Regier, — So.2d -, 2002 WL 31728885 (Fla.2002), which held that any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment. The court reasoned that the involuntary commitment of the sex offender was not continued punishment for the criminal offense, but was based upon the clinical evaluations of the offender’s current state.

AFFIRMED.

PETERSON and TORPY, JJ., concur.


author: PER CURIAM.

text:
    Gary KOESTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4406.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2004.
    Appellant, pro se.

      Charlie Crist, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s denial of his motion seeking additional jail credit, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the appellate record does not conclusively refute the appellant’s claim, we reverse.

The appellant made a facially sufficient claim for jail credit pursuant to rule 3.800(a) by providing the dates for which he is seeking credit and the date of his sentence, and alleging the specific record portions that would show that he is entitled to credit. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So.2d 429, 433 (Fla.1998). According to the appellant, he is entitled to 104 days of jail credit but he was only awarded 30. When a trial court denies such a claim made pursuant to rule 3.800(a), it must either attach to the order those portions of the record which refute the claim or, if the record is silent regarding the amount of jail credit, so state. Thomas, 634 So.2d at 177-78. The trial court did neither. Accordingly, we reverse and remand. Should the trial court again determine that the claim lacks merit, it shall ensure that its order denying relief complies with this opinion.

REVERSED and REMANDED.

ALLEN, WEBSTER and BENTON, JJ., concur.


text:
    Martinez WEATHERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3265.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2004.
    Martinez Weathers, pro se, petitioner.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Martinez Weathers seeks a belated appeal of the judgment and sentence rendered on April 8, 2003, in Escambia County Circuit Court case number 02-4063-CFA. According to Weathers, he timely requested that counsel file a notice of appeal, but counsel failed to do so. Jurisdiction was relinquished to the circuit court for the appointment of a special master to conduct an evidentiary hearing and issue a written order regarding Weathers’ entitlement to a belated appeal. The special master now has issued an order finding that Weathers filed a timely request for an appeal, in writing, with his trial counsel. The State Attorney also conceded that Weathers was entitled to a belated appeal. Accordingly, we grant the request for belated appeal. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If Weathers qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

BOOTH, KAHN and PADOVANO, JJ., concur.


author: WOLF, C.J.

text:
    Dexter S. BURKE, Appellant, v. Amy S. BURKE, Appellee.
    No. 1D02-3922.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2004.
    A. Richard Troell, Crestview, for appellant.
    David R. Thomas, DeFuniak Springs, for appellee.
   WOLF, C.J.

Dexter S. Burke, the former husband, appeals the final judgment of dissolution alleging the ti-ial court erred in (1) designating certain real property as marital assets, and (2) failing to properly identify, value, and dispose of the marital assets and liabilities. We reverse the final judgment in part.

No trial transcript was submitted in the record on appeal and the “statement of evidence” submitted by the former husband was not agreed to by the parties, nor approved of by the trial court. Therefore, we must reject the statement for failure to comply with rule 9.200(b)(4). See Walt v. Walt, 596 So.2d 761 (Fla. 1st DCA 1992) (finding “statement of evidence” purportedly reflecting evidence presented at child custody hearing would be rejected on appeal where statement was not fully agreed to by adverse party’s counsel and had not been approved by trial court). Absent a trial transcript, we may only reverse if an error of law appears on the face of the final judgment. See generally, Lafaille v. Lafaille, 837 So.2d 601, 604 (Fla. 1st DCA 2003). We, therefore, find no error in the trial court’s finding that the real property parcels at issue were marital assets.

The final judgment, however, does not refer to all the marital assets, nor does it identify or value all the marital assets and liabilities. As this court has held, section 61.075(3)(b), Florida Statutes, requires the final judgment to contain sufficient findings regarding assets and liabilities. See, e.g., Town v. Town, 801 So.2d 324, 325 (Fla. 1st DCA 2001) (“We do not decide whether the trial court erred in awarding all major assets to Former Wife; however, we reverse and remand the distribution to the trial court because of its failure to make written findings of the value of the various assets distributed.”); Green v. Green, 788 So.2d 1083, 1085 (Fla. 1st DCA 2001); Wetzel v. Wetzel, 671 So.2d 234, 236 (Fla. 1st DCA 1996). We remand for reconsideration of the equitable distribution of property. If necessary, on remand the trial court may take additional evidence to make findings to support its determination. See Shoffner v. Shoffner, 744 So.2d 1157, 1158 (Fla. 1st DCA 1999).

ALLEN and DAVIS, JJ., concur.


text:
    Jimmy ROSIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4780.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2004.
    Nancy A. Daniels, Public Defender; and James C. Banks, Special Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jimmy Rosier (Appellant) was charged with one count of sale of a controlled substance (Count One) and one count of possession of a controlled substance (Count Two). The jury found him guilty of both charged offenses, and the trial court sentenced him to ten and five years’ incarceration, respectively, on Counts One and Two. Appellant contends that the trial court erred 1) in limiting the defense’s cross-examination of the State’s key witness and 2) in calculating the Criminal Punishment Code scoresheet by including as “additional offenses” two offenses (which added 5.4 points total) that later were nolle prossed after Appellant was allowed to withdraw his plea regarding those offenses. Finding no abuse of discretion in the limiting of cross-examination, we affirm the convictions. See Lukehart v. State, 776 So.2d 906 (Fla.2000); Moore v. State, 701 So.2d 545, 549 (Fla.1997). As to the sentencing scoresheet issue, we rely on the reasoning in Romero v. State, 805 So.2d 92, 93-94 (Fla. 2d DCA 2002) (Altenbernd, J., concurring with opinion), and affirm the sentences because the sentences actually imposed could have been imposed under a corrected scoresheet (without a departure). See Heggs v. State, 759 So.2d 620, 627 (Fla.2000); Sain v. State, 824 So.2d 225 (Fla. 1st DCA 2002).

Appellant’s convictions and sentences are AFFIRMED.

BARFIELD, WEBSTER and BROWNING, JJ. concur.


text:
    Michael Lamar JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-816.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2004.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Karen Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm appellant’s revocation of probation based on appellant’s failure “to live and remain at liberty without violating any law,” as alleged in the violation affidavits. We direct, however, that the revocation orders be corrected to specifically reflect this violation for a new law offense, as found by the court during the violation hearing. See, e.g., Lee v. State, 826 So.2d 457 (Fla. 1st DCA 2002).

AFFIRMED.

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    David KITT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4729.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2004.

      Christopher J. Dale, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to David Kitt’s right to seek post-conviction relief.

WHATLEY, NORTHCUTT, and SALCINES, JJ., concur.


text:
    Sonia S. COLLADO, Appellant, v. Heriberto COLLADO, Appellee.
    No. 5D03-897.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2004.
    Richard J. D’Amico, Daytona Beach, for Appellant.
    Tee Persad, Orlando, for Appellee.
   PER CURIAM.

Sonia S. Collado appeals the trial court’s denial of her motion to set aside an amended final judgment of dissolution of marriage entered on February 4, 2003. The trial judge entered an amended judgment after setting aside a January 4, 2002 recu-sal order. However, this court quashed the order setting aside the recusal on November 14, 2003. Collado v. Collado, 858 So.2d 1255 (Fla. 5th DCA 2003).

Because the amended judgment was entered by the disqualified judge, we vacate the February 4, 2003 amended judgment and remand for further proceedings to be conducted by a different trial judge.

REVERSED AND REMANDED.

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


text:
    Laurie H. HOSFORD and Karen B. Hosford, Appellants/Cross-Appellees, v. Daniel G. WENTZ and Doris L. Wentz, Appellees/Cross-Appellants.
    No. 1D03-990.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2004.
    Kenneth G. Oertel of Oertel, Fernandez & Cole, P.A., Tallahassee, for Appellants/Cross-Appellees.
    Martin S. Friedman of Rose, Sundstrom & Bentley, LLP, Altamonte Springs, for Appellees/Cross-Appellants.
   PER CURIAM.

By appeal and cross-appeal, the parties seek review of a final judgment entered following a non-jury trial, granting to the Wentzes a 15-foot wide easement over the property of the Hosfords. The Hosfords assert that the Wentzes are entitled to only a 10-foot wide easement. The judgment is unaccompanied by findings of fact and conclusions of law, and we are unable to discern from the record the legal basis upon which the trial court rested its decision. The absence of findings of fact and conclusions of law precludes us from deciding the issues framed by the parties on appeal. Accordingly, we have no alternative but to reverse, and remand with directions that the trial court make findings of fact and conclusions of law on all issues framed by the parties, including the Wentzes’ claim that they are entitled to a 15-foot wide statutory way of necessity. See generally Pamela Equities, Inc. v. Nyren Enters., Inc., 850 So.2d 673 (Fla. 1st DCA 2003) (reversing and remanding because the appellate court was unable to determine from the record the basis for the trial court’s decision, including whether the trial court had even considered a particular issue); Miller v. Miller, 589 So.2d 317 (Fla. 1st DCA 1991) (reversing and remanding because the lack of specific findings on the issues raised precluded meaningful appellate review).

REVERSED and REMANDED, with directions.

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    Michael BLAKELY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3799.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his amended rule 3.850 motion, in which he alleges that his counsel was ineffective for a variety of reasons. We affirm the trial court’s denial as to all of the appellant’s claims for postconviction relief, but reverse that part of the order that prohibits the appellant from filing further pro se filings, because the trial court failed to provide the appellant an opportunity to respond to the allegations levied against him by the trial court. See State v. Spencer, 751 Solid 47 (Fla.1999).

AFFIRMED in part and REVERSED in part.

ALLEN, WEBSTER, and BENTON, JJ., concur.


text:
    Dana Lydell JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3844.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2004.
    Dana Lydell Johnson, pro se, petitioner.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Dana Johnson seeks a belated appeal of the order rendered on or about June 27, 2003, denying Johnson’s motion for post-conviction relief in Duval County Circuit Court case number 16-1988-CF-13729-AXXX-MA. In light of the special master’s findings that Johnson did timely request that his attorney file a notice of appeal and that the order denying the motion failed to apprise Johnson of his right to appeal as required by Florida Rule of Criminal Procedure 3.850(g), Johnson’s petition is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

ERVIN, BARFIELD and POLSTON, JJ., concur.


author: GRIFFIN, J.

text:
    James KARDELL and Daphne Kardell, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-698.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.
    Peter G. Shutters, of Law Offices of Peter G. Shutters, P.A., Ocala, for Appellants.
    Ralph J. McMurphy, Wildwood, for Ap-pellee.
   GRIFFIN, J.

Appellants, James Kardell and Daphne Kardell, have appealed the denial of an award of attorney’s fees for so-called “conflict counsel.” After examining the record, we find no error in the denial of fees.

Appellants also urge that the trial court erred as a matter of law in finding that they were not entitled to costs for appeal. We conclude that appellants have failed to demonstrate error. The purpose of the $7,000 cost application to transcribe the entire proceeding below is not apparent and is not explained.

AFFIRMED.

PLEUS and ORFINGER, JJ., concur.


author: MONACO, J.

text:
    Monica GFRORER, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-282.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.
    Monica Gfrorer, Orlando, pro se.
    John D. Maher, Deputy General Counsel of Unemployment Appeals Commission, Tallahassee, for Appellee.
   MONACO, J.

Monica Gfrorer appeals from an order rendered by the Unemployment Appeals Commission affirming the denial of unemployment benefits. While there are a number of issues raised by Ms. Gfrorer, the primary assertion concerns whether she left her employment voluntarily and without good cause attributable to the employer. After careful review of the record, we affirm.

The standard of review of an administrative agency’s adjudicative findings is whether those findings are supported by competent, substantial record evidence. If they are, the findings should generally not be disturbed on appeal. See Walukiewicz v. Unemployment Appeals Comm’n, 861 So.2d 1288 (Fla. 5th DCA 2004); Brown v. Unemployment Appeals Comm’n, 633 So.2d 36 (Fla. 5th DCA), review denied, 642 So.2d 1362 (Fla.1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 733, 130 L.Ed.2d 636 (1995). Whether a claimant leaves employment voluntarily and without good cause attributable to the employer is a question of fact, and a finding should not be reversed if it is based on competent, substantial evidence. See Rozell v. Unemployment Appeals Comm’n, 752 So.2d 99 (Fla. 2d DCA 2000); Tourte v. Oriole of Naples, Inc., 696 So.2d 1283, 1285 (Fla. 2d DCA 1997).

Here, the Commission decided adversely to Ms. Gfrorer, and there is substantial competent evidence supporting this determination. Accordingly, we affirm.

AFFIRMED.

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

      . We have considered the other issues raised by this appeal, but find that they are without merit.


author: ORFINGER, J.

text:
    Harold Thomas BRADSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-432.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Harold Bradshaw appeals the twenty-four year prison sentence imposed on him following his nolo contendere pleas to the offenses of lewd or lascivious molestation, kidnapping a victim under thirteen years of age and attempted sexual battery. On appeal, Bradshaw contends that the court was mistaken in its belief that the twenty-four year prison sentence was a firm agreement. Instead, Bradshaw argues it was a recommendation, leaving the court with the ultimate authority to sentence him to a lesser term. We affirm.

Initially, we note that Bradshaw never moved to withdraw his plea pursuant to Florida Rule Criminal Procedure 3.170(J). Nonetheless, on the merits, Bradshaw’s argument fails. Having carefully reviewed the transcripts of both the plea and the sentencing hearings, it is apparent to us that the plea agreement between Bradshaw and the State called for an agreed sentence of twenty-four years.

AFFIRMED.

PETERSON and THOMPSON, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. J.G., a child, Respondent.
    No. 5D03-4197.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.

      Charles D. Peters, Esq., Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari filed by the Department of Children and Family Services and quash the order awarding custody of respondent, J.G., a child, to the Department, as the order was entered without notice to the Department, which was not a party to the proceeding, and without giving the Department an opportunity to be heard. However, as the child is now in shelter custody, we acknowledge that the issue may be moot.

GRANT PETITION AND QUASH ORDER.

SAWAYA, C.J., ORFINGER and PETERSON, J.J. concur.


text:
    Darrin JOYCE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-4136.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.
    Darrin Joyce, Bowling Green, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   THOMPSON, J.

Pursuant to Florida Rule of Appellate Procedure 9.141(c), Darrin Joyce seeks a belated appeal of his conviction for aggravated fleeing and eluding, and resisting arrest without violence. In his sworn petition, he alleged that he instructed his attorney to file an appeal contesting the denial of his motion for discharge. The state responds that it contacted Joyce’s trial attorney, who “confirmed” Joyce requested an appeal, but that it was not filed. The state does not dispute Joyce requested an appeal or that a belated appeal should be granted. State v. Trowell, 739 So.2d 77, 81 (Fla.1999).

The petition for belated appeal is granted. A copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(e)(5)(D).

The Petition for Belated Appeal is GRANTED.

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


author: ERVIN, J.

text:
    Johnny BOLDEN, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D01-3205.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2003.
    Johnny Bolden, pro se.
    Carolyn J. Mosley, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
    Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, for Amicus Curiae Florida Parole Commission.
   ON MOTION FOR REHEARING

ERVIN, J.

This court’s previous opinion in this case filed on August 2, 2002, is withdrawn, and respondent’s motion for rehearing is granted to the extent the following opinion is substituted therefor.

Johnny Bolden, an inmate in the Florida Department of Corrections, has petitioned this court for a writ of certiorari to review an order denying his petition for mandamus, which sought recalculation of his release date. We review the petition pursuant to Sheley v. Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998), and grant the petition.

Petitioner Bolden was convicted of second-degree-felony aggravated battery, possession of a short-barreled shotgun, and felonious possession of firearms, and third-degree-felony aggravated assault in connection with an incident that occurred on December 21, 1992, and he was sentenced on April 27, 1993, to four concurrent ten-year terms. The sentences for aggravated assault, aggravated battery, and possession of a short-barreled shotgun were imposed under the habitual felony offender (HFO) statute, and Bolden was subject to conditional-release supervision for those three sentences pursuant to section 947.1405, Florida Statutes (1991). The release date for the shotgun sentence, April 25, 1999, was earlier than that for the aggravated battery and assault sentences, March 27, 2000, because Bolden was eligible to receive incentive gain time while serving the five-year minimum sentence on that conviction, but not while serving the three-year mínimums for the assault and battery crimes. See §§ 775.084(4)(e), 775.087(2)(a) & 790.221(2), Fla. Stat. (1991). Had the shotgun sentence been Bolden’s only sentence, he would have been released on April 25, 1999, subject to the conditional-release program for a period of time equal to the amount of gain time he had earned, 1,334 days. The Department, pursuant to Evans v. Singletary, 737 So.2d 505 (Fla. 1999), tolled the time for conditional-release supervision to begin on the shotgun sentence, however, while Bolden completed the incarcerative periods for the assault and battery sentences, which amounted to 337 days.

Bolden was released into the conditional-release program on March 27, 2000, and was required to serve, based on the gain time he had accrued on each sentence, 997 days for the assault and battery offenses and 1,334 days for the shotgun offense. Nevertheless, his supervision was revoked after 236 days on November 18, 2000, and he was returned to prison. In determining the new release date, the Department considered that Bolden had 1,334 days to serve on the short-barreled shotgun sentence and 997 days on the aggravated assault and battery sentences, with credit for one day of time served as awarded by the Florida Parole Commission (FPC). The Department calculated Bol-den’s new tentative release date of March 11, 2004, based upon the short-barreled shotgun sentence, beginning on the original date of sentencing, April 27, 1993, as follows: 3,650 days (10 years) + 337 days (time tolled in prison) + 236 days (time tolled out of prison)-127 days (jail eredit)-1 day (FPC credit)-l,334 days (gain time previously awarded) + 1,334 days (forfeited gain time due to conditional supervision revocation)-124 days (gain time awarded since return to prison).

Bolden filed a petition for writ of mandamus, wherein he complained that he was out of prison for 236 days, and the Department had erred by adding 337 days of time tolled in prison, for a total of 573, to his ten-year sentence.

The Department filed a response, explaining that when an inmate has multiple sentences that terminate at different times, the inmate must wait until all sentences are served before starting conditional-release supervision and that the term of supervised release is tolled while the inmate remains in prison on an unrelated sentence. Under the Department’s interpretation, if conditional-release supervision is revoked, the inmate’s new release date will be extended by the number of days the inmate was out of prison, plus the number of days the inmate was incarcerated serving another sentence. The circuit court agreed with the Department and denied Bolden’s petition based on Evans v. Singletary, 737 So.2d 505 (Fla.1999).

In Evans, the inmate was scheduled to be released on a sentence subject to the conditional-release program before he was eligible for release on a sentence that was not subject to the program. The question there before the court was whether the Department could transfer the conditional-release supervision from the expired sentence to the end of the longer, unrelated, ineligible sentence and then toll the beginning of the supervision period until the inmate had been released from prison. In upholding the Department’s actions, the court cited with approval State v. Savage, 589 So.2d 1016 (Fla. 5th DCA 1991), and Bradley v. State, 721 So.2d 775 (Fla. 5th DCA 1998), as authority for tolling the supervision period while the inmate remained in prison on unrelated, uncovered offenses. The court explained that requiring these more at-risk offenders to serve their conditional-release supervision in prison would be impracticable, and that tolling the supervision until the inmate is released from prison is the most logical choice. The court thus held that the Department “may use an unexpired Conditional Release-eligible sentence to determine the length of the supervision and then toll the running of that supervision period until the inmate has been released from prison.” Evans, 737 So.2d at 508-09.

We consider Evans, Savage and Bradley, as well as Brooks v. State, 762 So.2d 1011 (Fla. 5th DCA 2000), which the Department cited in its motion for rehearing, to be inapplicable to the facts in this case, because they all involve concurrent sentences for unrelated crimes. In the instant case, Bolden was serving concurrent ten-year sentences for related crimes arising from the same incident.

Both Savage and Bradley, upon which the court relied in Evans for tolling the commencement of conditional-release supervision, involve tolling of probationary terms. In Savage, 589 So.2d at 1017, the court acknowledged the general rules that prison terms in consecutive sentences cannot be interrupted by probation, and that the probationary term of a split sentence must immediately follow the prison sanction. The court recognized, however, an exception when the sentences are imposed for totally unrelated offenses, that is, offenses occurring at different times in different locales. Id. at 1018 (citing Porter v. State, 585 So.2d 399 (Fla. 1st DCA 1991)). As explained in Savage, 589 So.2d at 1018:

Simple logic would seem to dictate that, where a defendant is incarcerated in another jurisdiction, a probationary period from an unrelated sentence would be tolled since a probationary term should not be allowed to expire simply because a defendant has decided to incur new prison time as a result of a separate and distinct offense.

See also Porter v. State, 585 So.2d 399, 400 (Fla. 1st DCA 1991) (concluding that the defendant’s intervening criminal activity in Leon County and consequent sentences caused the interruption of his sentences in Gadsden County, which consisted of incarceration followed by probation). And see Brooks, 762 So.2d at 1013 (concluding that Brooks’ probation for his Brevard County battery offense was tolled until he was paroled in his Seminole County case).

Evans extends the reasoning in Savage to conditional-release supervision, as opposed to probation, but like Savage and Bradley, it also involves unrelated sentences: a 15-year sentence for a cocaine offense committed in 1988 and a seven-year sentence for manslaughter committed in 1992. In the instant case, Bolden is serving concurrent sentences on related crimes; therefore, it cannot be said that he “decided to incur new prison time as a result of a separate and distinct offense,” Savage, 589 So.2d at 1018, thereby justifying a deviation from the general rule that the supervisory portion of a split sentence should immediately follow the incarcera-tive portion of that sentence.

Additionally, we find Evans to be distinguishable, because it involved a situation where the ineligible, nonconditional release sentence had a release date later than the eligible sentence. Under those facts, one can understand why the court permitted the commencement of the conditional-release supervision to be tolled and why it stated: “Allowing Evans to receive credit toward his supervision for the time he was in prison serving a completely different sentence would be contrary to logic and would result in an undue windfall for Evans.” Evans, 737 So.2d at 508. The court’s reasoning reflects the purpose of conditional-release supervision, which is not an early-release program, but rather is an extra post-prison probationary-type program for more at-risk releasees. Id. at 507; Rivera v. Singletary, 707 So.2d 326, 327 (Fla.1998). In the instant ease, however, all three active sentences are subject to conditional-release supervision, and there is no windfall to Bolden in that he was not given the benefit of freedom, albeit subject to supervision, as a result of the additional gain time earned on the shotgun offense, because he remained incarcerated on the related assault and battery offenses.

As a final point regarding Evans, we also note that the case does not address recalculation of a release date following revocation of conditional release, and it does not state that upon revocation of conditional release, the tolled supervision period should also be added into the new release date calculation.

In addition, we find no statutory support for the Department’s calculation. The statute governing revocation of conditional release, section 947.141(4), Florida Statutes (1991), makes no mention of tolling or adding supervision time into the new release date calculation. Rather, it simply states that the releasee forfeits “all gain-time or commutation of time for good conduct.” Moreover, section 947.1405(2), Florida Statutes (1991), which controls Bolden’s conditional-release supervision, simply states that the inmate will be released under supervision “upon reaching the tentative release date or provisional release date.” Absent from the statute is the language that appears in the 1997 version of section 947.1405(2)(c) (footnote omitted), which provides: “Such supervision shall be applicable to all sentences within the overall term of sentences if an inmate’s overall term of sentences includes one or more sentences that are eligible for conditional release supervision[.]” The Florida Supreme Court appears to have interpreted these differing provisions as permitting the Florida Parole Commission to “only transfer the supervision to the end of the overall sentence for offenses committed after the 1997 amendment to the Conditional Release statute.” Pressley v. Singletary, 724 So.2d 97, 98 (Fla.1997).

We conclude that Evans, Savage, Bradley, Brooks, and the 1991 version of section 947.1405(2) do not support tolling of Bol-den’s conditional-release supervision on the shotgun charge while he continued serving the incarcerative sentences for the aggravated assault and aggravated battery offenses, nor do they mandate that the 337 days he remained in prison on the shotgun charge while pending release on the assault and battery offenses be added to the calculation of a new release date. Therefore, we conclude that the trial court departed from the essential requirements of law.

Nevertheless, because we are cognizant of the effect of this decision on the Department’s sentencing procedures and the Florida Parole Commission’s supervision of those subject to conditional release, we certify the following question to the Florida Supreme Court as one of great public importance:

WHEN AN INMATE WHO IS SERVING SEVERAL RELATED SENTENCES SUBJECT TO CONDITIONAL-RELEASE SUPERVISION FOR MULTIPLE CRIMES OCCURRING IN THE SAME CRIMINAL EPISODE HAS VIOLATED CONDITIONAL-RELEASE SUPERVISION, SHOULD THE DEPARTMENT OF CORRECTIONS, IN CALCULATING THE NEW RELEASE DATE, CONSIDER TIME SERVED FOLLOWING THE EXPIRATION OF THE INCARCERA-TIVE PORTION OF ONE SENTENCE, WHILE AWAITING EXPIRATION OF THE INCARCERATIVE PORTIONS OF THE OTHER RELATED SENTENCES, AS TOLLED, PURSUANT TO EVANS v. SINGLETARY, 737 So.2d 505 (Fla.1999), AND, IF SO, SHOULD THE DEPARTMENT ADD SUCH TOLLED TIME ONTO THE SENTENCE IN CALCULATING THE NEW RELEASE DATE?

The petition is GRANTED.

ALLEN, C.J., and KAHN, J., concur.

      .Section 947.1405 provides in pertinent part:
      (2) Any inmate who ... is sentenced as a habitual or violent habitual offender pursuant to s. 775.084 shall, upon reaching the tentative release date or provisional release date, whichever is earlier, as established by the Department of Corrections, be released under [conditional release] supervision[.]
      The length of conditional-release supervision is equal to the amount of gain time the inmate has accrued prior to release. See Evans v. Singletary, 737 So.2d 505, 507 (Fla.1999).

      . Bolden's release date for the felon-in-possession-of-a-firearm charge occurred before the release date for the other three crimes.

      . The Commission has broad authority to grant or deny credit for time spent on supervision upon revocation. See Rivera v. Singletary, 707 So.2d 326, 327 (Fla.1998).

      . The addition of 236 days for time spent out of prison is correct, as that simply extends the release date by the number of days that Bol-den was on supervision. See Rivera.


author: FARMER, C.J. PER CURIAM.

text:
    Byron L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1528.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Order Granting Clarification Jan. 21, 2004.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

At defendant’s trial on felony driving while license suspended (DWLS) the state adduced evidence of two prior convictions of DWLS. One of the two convictions, however, in 1995 did not satisfy our decision in Badger v. State, 798 So.2d 890 (Fla. 4th DCA 2001), because the statute then did not require the element of knowledge. The state argued that the trial judge could accept the DMV driving record as sufficient proof that defendant had another conviction in 1998. The trial court later found defendant guilty of felony DWLS, saying that the evidence established two post 1997 convictions. We reverse.

In Ward v. State, 807 So.2d 808 (Fla. 4th DCA 2002), involving a conviction under the felony DUI statute — which is functionally identical to the felony DWLS statute — we sustained a conviction even though all the required past offenses were not proven with certified copies of the judgments of conviction. We did so because the state supported the evidence of the defendant’s DMV driving record with other reliable evidence of the conviction.

In the present case there is no such corroborative evidence of any prior DWLS conviction except for the 2000 conviction. We approved the additional evidence as sufficient in Ward and would do the same if similar evidence had been adduced in this case. Nevertheless we wish to make clear that the safest course is for the state to adduce certified copies of the prior qualifying convictions. Relying on the sufficiency of .other evidence to prove qualifying convictions for felony driving offenses needlessly runs the risk of a reversal. It is much the best for the state to adduce its own official records, the certified copies of the convictions themselves.

We therefore reverse for a new trial.

KLEIN and SHAHOOD, JJ., concur.

On Motion for Clarification

PER CURIAM.

We grant defendant’s motion for “clarification” and now correct our opinion to specify that the case is remanded only for resentencing on the lesser offense rather than for a retrial.

FARMER, C.J., KLEIN and SHAHOOD, JJ., concur.

      . "The court file contained a booking photograph which resembled Ward, a probable cause affidavit which indicated the arrestee shared Ward's physical description and birth date, and other documents which indicated that the arrestee shared Ward's current and 1995 employer, as well as his address. In addition, the signature on the plea sheet in that case matched Ward’s in the instant case. Moreover, the suspension imposed for this 1989 conviction was for 5 years, which the state noted could be imposed only for a second DUI conviction, and it noted that the 10-year suspension imposed in 1995 meant it was Ward’s third Conviction.” Ward, 807 So.2d at 809.


text:
    INTEGRATED ADMINISTRATORS and Wal-Mart Store # 6020, Brooksville, Appellants, v. Carlos VALDES, Appellee.
    No. 1D02-4026.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2003.
    Rehearing Denied Jan. 9, 2004.
    Michael S. Waranch of Hurley, Rogner, Miller, Cox & Waranch, P.A., Orlando, for Appellants.
    Pamela Craig of Stump, Webster, Craig, Staten & Recksiedler, P.A., Orlando, for Appellee.
   PER CURIAM.

Appellants appeal the final order of the Judge of Compensation Claims (JCC) which granted Appellee’s claim for permanent total disability (PTD) benefits. Relit-igation of the issue of Appellee’s entitlement to PTD benefits was barred by the doctrine of res judicata. See Nelson & Co. v. Holtzclaw, 566 So.2d 307 (Fla. 1st DCA 1990). Moreover, Appellee did not demonstrate a change in condition or a mistake of fact which would warrant modification of the previous order denying his claim for PTD benefits. See Alachua County Adult Det. Ctr. v. Alford, 727 So.2d 388 (Fla. 1st DCA 1999). Accordingly, we reverse that portion of the JCC’s order granting PTD benefits, and remand for proceedings consistent with this opinion.

BARFIELD, ALLEN and DAVIS, JJ., concur.


author: BROWNING, J.

text:
    Alexis Gail DIRIENZO-GLUHAREFF, Appellant, v. Alex Michael GLUHAREFF, Appellee.
    No. 1D03-0111.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2003.
    Rehearing Denied Feb. 3, 2004.
    Allison E. Folds, of Folds & Walker, Gainesville, for Appellant.
    Irwin J. Weiner, of Weiner & Argo, P.A., Ocala, for Appellee.
   BROWNING, J.

The former wife appeals a post-final judgment order denying her motion to enforce the trial court’s previous interlocutory orders granting her temporary financial support. “The general rule of procedure is that all provisional or interlocutory proceedings in a cause are merged in, and disposed of, by the final decree therein.” Duss v. Duss, 92 Fla. 1081, 1090, 111 So. 382, 385 (Fla.1926). This issue was waived by the appellant in the proceedings in the trial court. See id. (stating that decree dismissing divorce suit, entered while accrued installments of temporary alimony remained, relieved former husband of obligation to pay arrear-ages, absent provision holding otherwise in final order); Skinner v. Skinner, 579 So.2d 358 (Fla. 4th DCA 1991) (indicating that interlocutory order directing former husband’s payment of former wife’s medical bill did not survive final dissolution judgment into which all interlocutory matters merged); Danoff v. Danoff, 503 So.2d 923 (Fla. 4th DCA 1987); Aylward v. Aylward, 420 So.2d 660 (Fla. 2d DCA 1982) (holding that because final judgment of dissolution made no references to arrearages in temporary support that former husband had failed to pay before entry of final judgment, former wife could not seek to enforce compliance with previous temporary order).

AFFIRMED.

POLSTON and HAWKES, JJ. concur.


text:
    P.M., Father of P.M., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-3569.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.
    Rehearing Denied Feb. 11, 2004.

      Dean G. Pepe of Pappas, Russell & Pepe, Daytona Beach, for Appellant.
    George P. Beckwith, Jr., Deputy District Legal Counsel and M. Celine, Cannon, Assistant District Legal Counsel, of Department of Children and Families, Daytona Beach, for Appellee.
   SHARP, W., J.

P.M. appeals from an amended order of dependency adjudication/disposition which adjudicated his infant daughter P.M. dependent and placed the child in the temporary custody of the Department of Children and Families. Because of a number of errors and inconsistencies in the proceedings below, we remand to the circuit court to clarify whether or not it found the child dependent as to P.M.; and if not, the Department should have the discretion to refile such petition based on the information and findings of Judge Piggotte, at the subsequent hearing regarding custody of the child.

The facts in this case suggest to us the child is at serious risk of being abused by P.M. and so we recite them in some detail. P.M. is not the biological father of the child. However, he is the child’s “legal” father since the child was born during his marriage to the child’s mother. Department of Health and Rehabilitative Services v. Privette, 617 So.2d 305 (Fla.1993)

The parties were married in 1999 in the Fiji Islands. At the time, the mother was eighteen and P.M. was forty-two years old. P.M. returned by himself to the United States because the mother, a citizen of the Fiji Islands, had visa problems. She arrived here fifteen months later pregnant by another man.

The child was born in August 2000. By March 2002, the mother left P.M. taking the child with her. P.M. did not provide any financial support for the child.

The Department took the child into shelter care in July 2002. According to the shelter petition, P.M. had sexually abused the child and been violent toward the mother and the mother failed to protect the child from the abuse.

The following month, the Department filed a petition alleging the child was de-pendant as to both P.M. and the mother. The Department alleged in part the child was abused or at risk of being abused because P.M. had fondled the child, allowed the child to touch his genitals, was violent towards the mother (the acts of violence included rape), and the mother failed to protect the child from this abuse.

The adjudicatory hearing was held on September 19, 2002 before Judge Vernon Mize. The mother filed a written consent to dependency in open court so the hearing involved only the dependency status of the child as to P.M.

Vickie Brandenburg, a nurse practitioner for the Department, examined the child in May 2002 after the case was referred to her for alleged sexual abuse by P.M. The medical findings were normal for the then twenty-one month old child.

Brandenburg explained she would not expect any diagnostic findings since the allegations did not involve penetration. Thus her findings neither confirmed nor ruled out sexual abuse. Brandenburg conferred with the case coordinator and both agreed the child’s risk for future abuse would be high based on the allegations. They recommended no contact between the child and P.M., and that the mother receive domestic abuse counseling.

Police Officer Coomans received a report of domestic violence and sexual abuse in December 2001. The mother reported P.M. and the child had just gotten out of the shower, they did not have on any clothes and she witnessed the child repeatedly touch P.M.’s penis.

The mother also reported she had been physically handled by P.M. P.M. admitted to Coomans these allegations were true.

Police Officer Traylor investigated a report of possible sexual abuse by P.M. in May 2002. Traylor contacted the Department’s investigator, who stated there were indicators P.M. had possibly been exposing himself to the child. Traylor spoke with the mother, who said she had seen P.M. undressed in front of the child and the child touching P.M. in a lewd manner on a number of occasions.

Traylor contacted P.M. and he consented to a taped interview. During the taped interview, P.M. admitted he had been unclothed in a bathing situation and also in the living room. P.M. wanted to have his daughter explore his body. P.M. said this happened about five times. Traylor said “he told me it was a bonding thing between him and his child and that it was something that made the child feel closer to him and that he said that he just wanted his child to explore the body.” P.M. also complained about a lack of sexual contact with the mother.

Eileen Copeland, a family support worker for the Easter Seals Healthy Family Program, visited the parties’ home on a weekly basis. Copeland felt P.M. was trying to interfere with the mother’s plan to become self-sufficient. For example, Copeland developed a plan for the mother to get her GED. P.M. told the mother that if she failed the test, she would be deported.

P.M. was always present with them and Copeland felt he was monitoring her contact with the mother. The mother told her there was physical abuse in the home. One time, the mother left the home and asked Copeland for the number for a domestic abuse shelter.

Christina Vestal, a child protective investigator for the Department, conducted a criminal background check on P.M. P.M. has an arrest record dating from 1983 for offenses including homicide, theft, and possession of a short barrel shotgun. An injunction against repeat domestic violence was on file against P.M. and he was prohibited from purchasing a firearm.

The mother testified when the parties were first married, P.M. tied her up and had sex with her. After she came to the United States, he no longer tied her up. On several occasions, he put a dog leash on her neck and told her to bark like a dog.

Several months after the child was born, the mother went to work and P.M. became physically abusive. He hit, kicked, shoved and tried to choke her. In February 2002, he tried to rape her. The mother obtained a two year restraining order against him.

On one occasion in November 2001, P.M. was on the couch watching TV. Both he and the child were naked. He picked the child up and put her on his lap. Suddenly the mother saw the child was playing with his private part. When she asked P.M. about this, he said the baby was exploring herself.

Sometimes when the mother had to work, she asked P.M. to bathe the child. On one occasion in January 2002, P.M. was giving the child a bath and the child was playing with his private part. The mother watched them doing this for about five minutes. P.M. did not try to stop the child until he noticed the mother was watching them. Then he told the child not to do that. The mother reported the incident to police.

P.M. threatened that if the mother left him, he would try to get her deported. He told her that if she failed her GED, she would be deported. P.M. also used his criminal background to frighten her. He told her he shot a person in 1989 and has a gun buried somewhere.

P.M. admitted he physically abused the mother. P.M. shoved the mother away from him when she was slapping him and twisted her arm and put it in an arm lock to prevent her from pinching and slapping him. P.M. also admitted a report had been made by the county health facility when the mother went for a physical examination and they noticed bruises on her body.

P.M. admitted the child was in the house when he had these physical altercations with the mother. On one occasion, he was arguing with the mother in front of the child, the child started crying and the mother called the police.

P.M. admitted he “encouraged” the mother to have sex with him. When asked whether he ever had sex with the mother against her will, P.M. replied he tried one time about two or three weeks before she left. P.M. wanted sex and the mother was unresponsive and started calling him names. P.M. became angry, called her names and the two started wrestling. Finally, P.M. became so angry that he stood up with the mother on his lap. He then dropped her on the floor and walked out the room. This was the only time P.M. would have considered raping the mother and blamed her for deliberately making him so angry.

P.M. denied threatening to have the mother deported, but did admit he warned her on occasions that certain actions of hers could be viewed by INS as a basis to deport her. P.M. admitted he has not provided any financial support since the mother left him.

P.M. admitted there were times he would undress himself and the child to bathe her. If the bath was not ready, P.M. and the child would sit on the couch and watch television for a few minutes. The child touched him spontaneously and he told her no, that was not for little babies. This happened three or four times.

P.M. uses his bare hands — not a washcloth — to wash himself and the child. He lathers up his hands, washes the child and then rinses her off. They bathe practically every day like this. The child has touched his genital area “three times, four times, less than half a dozen.”

Despite P.M.’s admissions and the testimony corroborating the Department’s allegations, the transcript reflects that Judge Mize found this evidence was insufficient to find the child dependent as to P.M. and ordered the child returned to him. However, no written order was entered at this time.

Five days later, the mother moved to change custody from P.M. to herself or to the Department. The mother alleged the child was in danger of being sexually abused if she were to remain in P.M.’s care. The mother also moved for unsupervised visitation with the - child. A hearing was held on these motions on October 14, 2002 before Judge Julianne Piggotte.

Christina Vestal, the Department’s child protective investigator, testified that since the child has been returned to P.M., additional abuse reports have been called in. On September 23rd, the Department received a report stating that in the past, the child had been sexually abused by P.M. There were also concerns about a lack of money and food in P.M.’s home. P.M. was not working and was selling blood for income. Vestal understood that P.M. had been taking the child with him to the blood bank. She found very little food in the home.

On October 7th, Vestal received a report the child had been sexually abused by P.M. The child was taken for an examination and slept through the entire examination. The child weighed 23 pounds, 11 ounces, which is borderline in the 10th percentile for her age. Vestal was told this means the child is underweight.

Vestal learned P.M. has a roommate, who also has a criminal background. P.M. admitted neither he nor his roommate was working.

Eileen Copeland, the Easter Seals family support worker, testified the reasons for the child’s removal from the mother have now been resolved. The mother has sufficient food and clothing for the child and the home is a safe environment for the child. Copeland has concerns about the child remaining with P.M. because of his admissions of what he has done to the child and not providing food for her.

After the adjudicatory hearing, Copeland saw P.M. take the baby to the restroom to change her diaper. When he returned, he sat the child in her mother’s lap. The child pulled up her dress and said “pee pee” and pointed with her finger to her diaper.

Mattie Carter, a family advocate with the Children’s Advocacy Center, was also concerned about the current placement of the child with P.M. Carter was present when the child was pointing to her genital area and was concerned because the child continued to indicate a problem with her body. Carter was at the Human Services Office and overheard P.M. say he did not have the money to pay his mortgage, he did not have food in the home and was selling his blood. She was concerned P.M. was taking the child to these places.

The mother testified P.M. told her he was going to take the child and move to Georgia. When she went to P.M.’s home, she peeked through the window and saw that he was naked in the bathtub with the child.

When asked about the claim the mother saw him and the child naked in the bathtub, P.M. said it was impossible because one could not see directly from the bedroom window into the bathtub. However, P.M. admitted he was bathing with the child apparently with the lights off:

[The mother] saw we were wet because I answered the door. Someone was banging on the door. I was getting ready to take the child to go out for the day. We were bathing. And while we were in the tub, bam bam bam. So I opened the door and [The mother] insisted on opening the door wide and turning the light on.

The guardian ad litem recommended the child not be placed in P.M.’s custody. She also recommended P.M. undergo a psycho-sexual evaluation.

At the conclusion of the hearing, Judge Piggotte expressed her serious concern about the well-being of the child if she remained in P.M.’s custody. She concluded circumstances had arisen since the adjudicatory hearing that concerned her about placing the child with P.M., even though the child had been found not de-pendant as to him. Judge Piggotte believed the mother had not yet demonstrated sufficient stability or maturity to protect the child and placed the child in foster care.

Judge Piggotte ordered both parties to complete parenting classes and a domestic violence assessment, maintain adequate and stable housing and income, pay child support, and refrain from illegal activity that effects their ability to effectively parent the child or places the child at risk of abuse. Judge Piggotte also ordered play therapy for the child and required P.M. to participate in a psychosexual evaluation with a polygraph. Contact between the parents and child was to be supervised.

Judge Piggotte asked the Department to develop a case plan. She also asked counsel for the Department to draft the disposition order.

Counsel for the Department apparently drafted the order of dependency adjudication/disposition which adjudicated the child dependent and placed her in the temporary custody of the Department. The order found the child was dependent as to the mother based on neglect and/or prospective neglect. The order also found the child was dependant as to P.M. based on abuse and/or prospective abuse.

Following Judge Piggotte’s directives, the order required the mother to participate in parenting classes and domestic violence counseling for victims, maintain suitable housing, and obtain employment. The order required P.M. to complete parenting classes and domestic violence counseling for batterers, obtain suitable housing and employment, and successfully complete a psychosexual examination which includes a polygraph test. Judge Piggotte signed this order, even though she acknowledged Judge Mize had found the child was not dependant as to P.M.

A case plan hearing was held a few days later before Judge Mize. The Department now filed a ease plan which had the goal of reuniting the child with the mother. Judge Mize approved the case plan, subject to objections by the guardian or attorneys for the parties. The case plan requires P.M. to complete a number of tasks before he can be reunited with the child.

Counsel for the Department also submitted an amended order of dependency adjudication/disposition, which corrected a minor error in the-caption of the order and was otherwise the same as the prior order. Judge Mize signed the amended order, which again we note provides the child is dependent as to P.M.

On appeal, P.M. argues the portions of the amended order finding the child dependent as to him and transferring custody to the Department must be reversed and the child immediately returned to him. We acknowledge the findings of abuse by the father set forth in the order do not comport with Judge Mize’s oral pronouncement from the adjudicatory hearing. Ordinarily we would remand for a corrected order. See Y.G. v. Department of Children and Families, 830 So.2d 212 (Fla. 5th DCA 2002) (remand was necessary to correct dependency order so that it conformed with oral pronouncement that basis for dependency was prospective neglect, not abuse as stated in the order):

However, we decline to do so because of the serious nature of the allegations against P.M. (admitted in large part by P.M.) and the confusion generated by the fact the order and amended order — ■ which found the child dependent as to P.M. -were signed by both judges who presided over this matter. Judge Mize also approved the case plan — subject to objections by the parties — which requires P.M. to complete a number of tasks before he could be reunited with the child. This suggests to us that Judge Mize may have changed his mind regarding the legal effect of the evidence and determined the child was in fact dependent as to P.M.

To adjudicate a child dependent, the trial court must find the child has been abused, abandoned, or neglected or is at substantial risk of imminent abuse, abandonment, or neglect only by a preponderance of the evidence. § 39.507(l)(b), Fla. Stat.; M.N. v. Department of Children and Families, 826 So.2d 445 (Fla. 5th DCA 2002). For the most part, P.M. admitted the facts which formed the basis for the allegations of domestic violence. He simply minimized their impact or attempted to shift the blame to the mother. He even acknowledged the child was in the house during their altercations and that on at least one occasion, the child became upset by their arguments and the police were called.

P.M. also admitted the facts which formed the basis for the allegations of sexual abuse. Under section 39.01(63), “sexual abuse of a child” includes the following:

(b) Any sexual contact between the genitals or anal opening of one person and the mouth or tongue of another person.
* * sis
(d) The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or the perpetrator, except that this does not include:
1. Any act which may reasonably be construed to be a normal caregiver responsibility, any interaction with, or affection for a child; or
2. Any act intended for a valid medical purpose.
(f) The intentional exposure of the perpetrator’s genitals in the presence of a child, or any other sexual act intentionally perpetrated in the presence of a child, if such exposure or sexual act is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose.

P.M.’s activities with the child involve much more than a parent bathing a child. P.M. was touching the child apparently every day with his hands and allowed the child to touch his genitals on numerous occasions. In P.M.’s own words, he wanted his daughter to “explore” his body and he considered this to be a “bonding” experience. These activities were occurring at a time when P.M. admitted a lack of sexual contact with the mother. P.M.’s admissions to police and at the adjudicatory hearing signal to us the child has been abused or is at substantial risk of imminent abuse if left in the unsupervised care of P.M.

However, even if the child has not been found dependant as to P.M., a “non-offending” parent is not automatically entitled to the immediate unconditional custody of the child. Section 39.521(3)(b) requires the court to place a child adjudicated to be dependent as to one parent with the child’s remaining non-residential parent if that parent so requests “upon completion of a home study unless the court finds that placement would endanger the child.” M.M. v. Department of Children and Families, 777 So.2d 1209 (Fla. 5th DCA 2001).

In this case, Judge Piggotte clearly concluded that placement with P.M. would endanger the safety, well-being, or physical, mental, or emotional health of the child. Furthermore, the record is unclear as to whether a home study of P.M. had been completed. See B.W. v. Department of Children and Family Services, 842 So.2d 1000 (Fla. 3d DCA 2003)(in proceeding adjudicating child dependent as to mother, trial court’s order terminating county’s jurisdiction over child and placing child in father’s care were premature, where the court placed the child with the father without requiring the Department to complete and file a home study on the father as dictated by statute).

Despite the parent’s status as “non-offending,” circuit courts have the authority to impose requirements upon that parent or custodian. In J.P. v. Department of Children and Families, 855 So.2d 175 (Fla. 5th DCA 2003), we recently held the father could be ordered to submit to a psychological evaluation as part of a case plan even though the child had not been adjudicated dependent as to the father. In that case, the Department filed a petition for dependency as to both of the child’s parents. After conducting a hearing, the circuit court adjudicated the child dependent as to the mother, but found the Department had failed to sustain its burden of proving the child was dependent as to the father. However, the court reserved ruling on the issue of placement of the child pending a positive home study of the father.

At the subsequent disposition hearing, the court was advised by the father’s counsel that the father was not prepared to take custody of the child since he had no stable home or employment, but counsel argued the father should not be required to participate in a case plan since he was found to have been a non-offending parent. The court ruled the father would be required as part of a case plan to submit to a psychological examination and then comply with any recommendations made by the evaluator.

The father appealed, arguing the circuit court erred in ordering him to participate in a psychological examination since he was found to be non-offending. We disagreed, noting that section 39.407(14) specifically authorizes trial courts to order mental health examinations in dependency matters upon a showing that the parent’s mental condition is in controversy and good cause exists to require an examination. We also relied on section 39.521(l)(b)l. which authorizes the court to require the parent and, when appropriate, the legal custodian, to participate in treatment and services deemed necessary to ensure the well-being of the child.

While these provisions specifically authorize certain actions by the circuit courts in their role as guardians of the rights of children, courts are not confined to the express provisions of chapter 39 in providing for the safety and welfare of children. Circuit courts have inherent and continuing jurisdiction to protect children and that jurisdiction is not dependent on a chapter 39 action. See Bilbo v. Bilbo, 688 So.2d 1031 (Fla. 5th DCA 1997) (circuit court has inherent jurisdiction to control the welfare and act for the protection of minors within its territorial jurisdiction); Waters v. Waters, 578 So.2d 874 (Fla. 2d DCA 1991) (circuit court has inherent jurisdiction over minor children as to their custody and welfare; jurisdiction is not dependent on case having originated in either a chapter 61 or chapter 39 action or under any other statute); In interest of J.M., 499 So.2d 929 (Fla. 1st DCA 1986) (circuit court has inherent and continuing jurisdiction to entertain matters pertaining to child custody and enter any order appropriate to a child’s welfare).

Accordingly, we affirm the portion of the order placing the child in the custody of the Department based on section 39.521(3)(b) as apparently no home study as to P.M. was conducted and Judge Piggotte found placing the child with P.M. would endanger her well-being. We remand for clarification of Judge Mize’s finding regarding dependency of the child as to P.M. If the child was found dependent as to P.M., then the order shall remain in effect in its entirety. If the child was not found dependent as to P.M., the requirements that P.M. undergo a psychosexual evaluation and attend parenting classes and domestic violence counseling are nevertheless affirmed pursuant to sections 39.407(14) and 39.521(l)(b)l. However, the remaining portions of the order inconsistent with the finding of no dependency as to P.M. must be stricken. In that event, the Department is urged to consider refiling a dependency petition as to P.M.

AFFIRMED in part; REMANDED for further proceedings consistent with this opinion.

PETERSON and GRIFFIN, JJ., concur.

      . § 39.521. Disposition hearings; powers of disposition
      (3) When any child is adjudicated by a court to be dependent, the court shall determine the appropriate placement for the child as follows:

      (b) If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child.

      . § 39.407. Medical, psychiatric, and psychological examination and treatment of child; physical or mental examination of parent or person requesting custody of child

      (14) At any time after the filing of a shelter petition or petition for dependency, when the mental or physical condition, including the blood group, of a parent, caregiver, legal custodian, or other person requesting custody of a child is in controversy, the court may order the person to submit to a physical or mental examination by a qualified professional....

      . § 39.521. Disposition hearings; powers of disposition
      (1) (b) When any child is adjudicated by a court to be dependent, the court having jurisdiction of the child has the power by order to:
      1. Require the parent and, when appropriate, the legal custodian and the child, to participate in treatment and services identified as necessary.


author: FARMER, C.J.

text:
    Richard WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4383.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 2003.
    Rehearing Denied Feb. 18, 2004.

      Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

We affirm defendant’s conviction for capital sexual battery and write primarily to discuss his argument that the court erroneously admitted hearsay statements of the victim concerning medical diagnosis and treatment. We also briefly address his other issues.

Defendant was charged with events occurring some two years before the victim first brought the alleged crimes to light. During the trial, the court admitted hearsay testimony by a Senior Case Coordinator from the Children’s Home Society. She testified that, at police request, she had arranged for the victim to be given an examination by a physician to ascertain whether there was any physical evidence of the alleged acts. She arranged for the child to be physically examined by a nurse-practitioner in her presence. Whilst the examination was underway, the Case Coordinator testified that the child told both women that his step-father (defendant) had inserted “his private part” inside him, causing bleeding, and that he had committed oral sex on him when he was 7 or 8 years old. Over defendant’s objection, the court admitted part of this hearsay testimony — that the incidents had occurred but not the identity of the assailant — as a statement of medical diagnosis.

Section 90.803(4) allows the admission of:

“Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

§ 90.803(4), Fla. Stat. (2003). The commentary to the Evidence Code explains the purpose of this hearsay exception as follows:

“Because of the strong motivation to be truthful when making statements to physicians for the purpose of diagnosis and treatments, the statements are treated as an exception to the hearsay rule.... This exception permits testimony relating to causation only when it is reasonably pertinent to diagnosis or treatment.
Under this subsection, statements need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.... The fact that an ‘examining’ physician depends in part on information gained from the patient in addition to findings from his examination will not prevent the physician from testifying as an expert nor will it prevent the physician from relating statements made by the patient.” [c.o.]

6C Fla. Stat. Ann. 348 (1999).

The trial judge in this case carefully limited the hearsay declarations for medical treatment only to describe the acts involved without identifying the perpetrator. See State v. Jones, 625 So.2d 821, 823 (Fla.1993) (“The medical diagnosis or treatment hearsay exception ... is premised on the assumption that a person seeking medical help has a strong motivation to be truthful because of the desire for effective treatment. In addition to statements about symptoms, statements describing the inception or cause of an illness or injury are admissible under the exception if they are reasonably pertinent to diagnosis or treatment.”); Hanson v. State, 508 So.2d 780 (Fla. 4th DCA 1987) (physician’s testimony that victim had stated that someone had sex with her was admissible under § 90.803(4) in sexual battery prosecution, but testimony identifying perpetrator was error).

Our decision in Begley v. State, 483 So.2d 70 (Fla. 4th DCA 1986), is not to the contrary. In that case, the prosecution sought to admit under section 90.803(4) statements made to a sexual abuse counselor. The counselor testified that her job required her to prepare young children for courtroom testimony and that she met with the victim “just to see how she was doing and what was troubling her at the time.” 483 So.2d at 73. We held that the hearsay was unsupported by any showing of a purpose of medical diagnosis.

In the current case, however, the Case Coordinator testified that her role was “to insure that the child knows why he is at the medical exam and to obtain history so that the medical examiner can diagnose or treat.” She added that the examination was to “attempt to diagnose any injury, if an injury is present, or to reassure the child that they [sic] is okay.” The trial court made an express finding that the child knew that his statements were being used for medical diagnosis and possible treatment. We conclude that the record adequately supports the admission of the hearsay testimony by the Case Coordinator under section 90.803(4).

We also hold that it was not error to admit the testimony through the Case Coordinator rather than through the nurse, who was unavailable to testify. As the commentary makes plain, the purpose of this exception envisions persons in the capacity of this witness testifying to such statements. The witness simply related what the child told the nurse after being advised that the exam was for diagnosis and possible treatment. The child also said that he suffered bleeding when the events occurred, so there was a plausible basis to consider possible treatment as a result of the exam.

There also was no error in admitting the testimony of the child’s father and a Child Protective investigator from the Department of Children and Families. In both instances defendant objected on the basis of Postell v. State, 398 So.2d 851, 854 (Fla. 3d DCA 1981), contending that the testimony implied inadmissible hearsay evidence. In each instance, however, even if it could be said that hearsay was supplied by implication, the declarant actually testified during the trial. As we read Postell, its ruling applies only when the declarant is not available to testify. The Postell court made clear that the mischief was in denying a defendant the right to confront the declarant. The right of confrontation is not impaired when the declarant takes the stand and testifies.

As for the state’s opening statement about all the children being removed, we note that the trial court found that, even if error, the statement did not “vitiate the entire trial.” We add that the record discloses uncontested testimony to the effect that the children were in fact all removed from the home. Defendant has failed to demonstrate that the opening statement operated to prejudice him in any discernible manner.

AFFIRMED.

GUNTHER, J., and KRATHEN, DAVID H., Associate Judge, concur.

      . Cf. Conner v. State, 748 So.2d 950, 959-60 (Fla.1999) (recognizing that policies supporting validity of narrowly drawn child abuse hearsay exception are not present in elderly adult context).