text:
    William FEGER, Appellant/Cross-Appellee, v. Nancy FEGER, Appellee/Cross-Appellant.
    No. 2D02-1265.
    District Court of Appeal of Florida, Second District.
    July 23, 2003.

      Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellant.
    Debra A. Rowe, Fort Myers, for Appel-lee.
   PER CURIAM.

William Feger appeals the final judgment dissolving his marriage to Nancy Feger and challenges the distribution of marital assets, the denial of his request for alimony, the denial of his request for all of his attorney’s fees; and the award to the mother of sole authority to make decisions concerning the minor child. Nancy Feger cross-appeals the court’s denial of her special equity in the home, the failure to award her attorney’s fees, the child support award, and the denial of her motion to compel her husband to appear in person at the final hearing. We affirm the trial court’s ruling finding that no alimony is due to Mr. Feger, but we must reverse the equitable distribution portion of the final judgment because of the court’s failure to articulate the standards it used to make its findings. We also remand for the trial court to clarify its inconsistent rulings concerning the parenting arrangements for the minor child. We affirm the cross-appeal.

The parties were married on June 16, 1988, in New York, and separated on September 19, 1998. Their daughter Arianna was born on November 10, 1989. At the inception of their marriage Ms. Feger worked at a local hospital as a registered nurse; Mr. Feger worked as a production manager. Two years later, when Mr. Feger was only forty-seven years old, he suffered a stroke that rendered him severely disabled. Initially, Mr. Feger could neither speak nor walk; now he walks with braces and possesses minimal speech, but he suffers from receptive and expressive aphasia. At trial, Mr. Feger’s physician characterized his recovery as good but not excellent. Mr. Feger’s speech problems, particularly his difficulty understanding and communicating with others, presented substantial obstacles in the litigation of this matter.

After the stroke, Ms. Feger quit her job to care for her husband, and in 1991 she sold the family home, which was -her sole property acquired from a previous marriage, and relocated the family to Cape Coral. The Florida home was acquired, titled, and encumbered in the names of both parties.

Financial support for the family came from multiple sources. Ms. Feger expended funds generated from the sale of her former nonmarital home. Mr. Feger received social security disability income (SSDI) of $1205 per month and a disability payment from his employer’s ERISA plan of $1017 monthly. Arianna also receives a social security payment. Ms. Feger returned to work in 1995. By 1998 she was earning more than $46,000 annually and reported an income of approximately $48,000 in 1999. At trial, she testified that her income for the year 2000 was $40,000.

The parties’ separation in 1998 occurred when Mr. Feger suddenly and without warning left the marital home with his sister and relocated to Utah. After the separation, Ms. Feger refinanced the marital home, which before refinancing was valued at $800,000 subject to a $91,000 mortgage. Following refinancing, the encumbrance was increased by an additional $120,000.

The court entered a final judgment of dissolution of marriage on July 18, 2001, and amended the judgment pursuant to an order on rehearing entered on September 14, 2001. In pertinent part these orders resolved the issues between the parties as follows:

1. Equitable Distribution. The trial court found that Ms. Feger failed to overcome the presumption that certain jointly owned property acquired during the marriage with her premarital funds was not marital property. Accordingly, the trial court began its equitable distribution plan with the premise that the distribution should be equal unless there was a justification for an unequal distribution. Following an analysis of some of the factors set out in section 61.075(1), Florida Statutes (1997), the court awarded Mr. Feger marital assets valued at approximately $48,000. Ms. Feger received marital assets valued at more than $83,000. In the original final judgment Ms. Feger received the 'home as a form of child support. In the judgment on rehearing, however, the court awarded her the marital home and its contents as part of its equitable distribution scheme without identifying any further justification for the uneven split of the marital assets.

2. Alimony. No spousal support was awarded to either party. The court noted that although it did not specifically discuss the factors set out in section 61.08, it had made adequate findings throughout the final judgment to formulate a basis for its decision to award no permanent periodic alimony.

3. Attorney’s Fees. In its initial judgment the court declined to award Mr. Feger fees and instead determined that each party should be required to pay his or her own fees and costs. However, the trial court expressed concern over the legal positions Mr. Feger advanced at trial, finding his litigation strategy had Rosen implications. On rehearing, the trial court ordered Ms. Feger to pay $4775.37 toward Mr. Feger’s court costs and attorney’s fees in an attempt to help equalize the distribution of assets.

4. Child Support. In the first version of the final judgment, the court ordered no monetary child support but ordered Mr. Feger to relinquish his interest in the marital home to Ms. Feger as child support. On rehearing, however, the trial court found that Mr. Feger’s child support obligation was totally subsumed within the SSDI payments allotted to the child.

5. Parental Responsibility. The final judgment is somewhat inconsistent regarding the award of authority to make decisions for the minor child. In paragraph 7 of the original final judgment the court made extensive findings about Ms. Feger’s ability to care for and provide for her child, the fact that the mother is a more fit parent than the father, the superior bonding between daughter and mother as opposed to the father, and the detriment that would result to the child if she were required to travel to Utah for visitation with her father and an aunt that she does not know at all. The court concluded that it would order shared parental responsibility with the wife as primary residential parent. As for visitation, the court found that the father would have to travel to Florida or establish some mutually affordable means of communication. The court ordered the wife to cooperate with the husband in restoring the father-daughter relationship, threatening sanctions for her refusal and reserving jurisdiction to set a specific schedule in the event that face-to-face visits proved feasible. Paragraph 16 of the final judgment afforded Mr. Feger liberal visitation at the child’s residence, at his expense.

In paragraph 15 of the original final judgment, however, the trial court designated Ms. Feger as primary residential parent and as “the decision making parent with full authority to make decisions for the minor child.” This finding suggests that the court was ordering “sole parental responsibility” to the mother, which is defined in section 61.046(12) as “a court-ordered relationship in which one parent makes decisions regarding the minor child,” rather than “shared parental responsibility,” wherein “both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly,” as defined in section 61.046(11). Under section 61.13(2)(b)(2), a court is required to order shared parental responsibility unless it finds that such an arrangement would be detrimental to the child. In its order on rehearing, however, the court stated that it “continues to believe and therefore finds that it did create a parenting plan,” albeit unconventional, requiring affirmative action by the father, with the assistance of his caregivers if necessary, to reach out to his daughter.

EQUITABLE DISTRIBUTION

In its judgment the court recognized that section 61.075(1) requires the trial court to distribute marital assets and liabilities between the parties beginning with the premise that an equal distribution should occur. However, where a justification is shown, a trial court may make an unequal distribution. In making an unequal distribution “a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be ‘shortchanged.’ ” Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980) (citing Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974)). An equitable distribution award is reviewed under the abuse of discretion standard. Canakaris, 382 So.2d at 1203; Krafchuk v. Krafchuk, 804 So.2d 376, 380 (Fla. 4th DCA 2001).

The trial court found that in the time between Mr. Feger’s stroke and the parties’ separation, Ms. Feger expended extraordinary efforts and energy in her roles of wife, mother, therapist, and breadwinner. The final judgment and the subsequent order, however, fail to identify that factor or any other particular factor as a justification for an unequal distribution. A court must provide a legally sufficient factual basis for its unequal distribution of marital assets. Carr v. Carr, 779 So.2d 311, 312 (Fla. 2d DCA 1999); Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996). In Harreld, 682 So.2d at 636, this court noted that although the trial court provided a finding that could be read as an explanation for an unequal distribution, the court did not specifically state this was the reason it was distributing the marital assets unequally. Here, as in Carr, 779 So.2d at 312, the trial court erred by awarding the marital home, a major asset, without making a specific finding of fact to justify the unequal distribution. Therefore, we must reverse that portion of the final judgment and remand for the trial court to make the required specific findings.

In reversing the equitable distribution scheme, we are aware that the trial judge obviously found it desirable for Ms. Feger to remain in the home with the minor child. Our opinion should not be construed as foreclosing that option when the court revisits its findings on remand. Rather, the court must specifically address the facts pertinent to each statutory consideration to support its decision to distribute the marital assets in an unbalanced manner, if that should be the trial court’s ultimate determination. Although we take no position as to whether the marital assets should be equally or unequally divided, this may be the kind of situation discussed in Krafchuk, 804 So.2d at 380, where justifications exist for disparity in the distribution. As in Krafchuk, the trial court could find that Ms. Feger made significantly greater contributions to the marriage based on her premarital financial situation and her postmarital physical, emotional, and financial sacrifices in the care of her husband, which helped him achieve very good results from his rehabilitation program..

ALIMONY

Section 61.08 authorizes a trial court to award permanent alimony. In doing so, a trial court is required to consider the factors set forth in section 61.08(2) and to make findings of fact. See Staton v. Staton, 710 So.2d 744, 745 (Fla. 2d DCA 1998).

In its order on rehearing the trial court considered the significant alteration of the parties’ relationship caused by Mr. Feger’s stroke and his precipitous and mysterious relocation, as well as the number of years of intact marriage. See § 61.08(2); Krafchuk, 804 So.2d at 379-80. The court also acknowledged Ms. Feger’s significant contributions to the home and to her husband’s care. Of most importance, however was the trial court’s finding that Mr. Feger failed to present any evidence that he needed alimony. Because there is no basis in the record for us to overturn the court’s findings, we affirm the decision not to award permanent alimony to Mr. Feger. However, in recognition of the unique situation of these parties, we remand for amendment of the final judgment to include a reservation of jurisdiction specifically for the purpose of awarding future alimony that might be dictated by changes in the parties’ circumstances.

ATTORNEY’S FEES AND COSTS

In its order on motion for rehearing, the trial court awarded Mr. Feger his costs and a portion of his attorney’s fees. A trial court is authorized by section 61.16(1) to make such an award after considering the financial resources of both parties. Based upon a review of the parties’ relative financial conditions, a trial court may award a portion of the fee amount claimed. Belmont v. Belmont, 761 So.2d 406 (Fla. 2d DCA 2000). Further, as noted by the trial court, the Rosen case, 696 So.2d at 700, provides additional factors for the court’s consideration.

With the exception of the trial court’s conclusion that there was little merit in trying the equitable distribution scheme, we find sufficient articulated reasons to support the trial court’s award to Mr. Feger of $4775.37 for costs and attorney fees. Upon remand, after determining the equitable distribution of marital assets, the trial court may adjust this award upward or make no change.

CHILD SUPPORT AND SPECIAL EQUITY

We affirm, without discussion, the child support award and the denial of Ms. Feger’s claim for special equity, as raised in her cross-appeal.

PARENTAL RESPONSIBILITY

We emphasize again that the trial court in this case struggled with a unique situation. The trial judge did not ascribe fault to Mr. Feger for suddenly leaving the marital home, but he recognized, as does this court, that the move to Utah made it virtually impossible for the father to maintain a full relationship with his daughter or to participate in decisions regarding her upbringing. Distance, coupled with Mr. Feger’s limited ability to communicate, create barriers that might be insurmountable. Furthermore, Mr. Feger has not specifically proposed a way for him to participate meaningfully in parenting his daughter.

Nevertheless, because we are remanding for the trial court to make findings on other issues, we remand also for the trial judge to clarify the parenting arrangements in accordance with the statutory terms, making findings that would comport either with shared parental responsibility, granting to the mother “the ultimate responsibility over specific aspects of the child’s welfare,” or with sole parental responsibility. § 61.13(2)(b)(2)(a),(b).

CONCLUSION

We reiterate that the major deficiency in the final judgment is the court’s failure to articulate a specific factual and statutory basis for the uneven equitable distribution award, rendering appellate review impossible. On remand, the trial court may revisit the final judgment without holding further hearings, unless the court finds that it cannot comply with the statute without taking additional evidence concerning each party’s financial situation. Furthermore, we affirm the trial court’s decision to hold a final hearing without requiring Mr. Feger to appear in person.

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

WHATLEY, CASANUEVA, and COVINGTON, JJ., Concur.

      . Rosen v. Rosen, 696 So.2d 697 (Fla.1997) (holding that relevant factors in determining attorney's fee awards in dissolution cases in-elude the scope, history, and duration of the litigation, as well as the merits of each party’s position).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Russell C. BOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4185.
    District Court of Appeal of Florida, Second District.
    July 23, 2003.
    James Marion Moorman, Public Defender, and Richard T. McKendrick, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Bureau Chief, Tampa Criminal Appeals, Tampa, for Ap-pellee.
   PER CURIAM.

In this Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), appeal, Mr. Bowers challenges his convictions for grand theft, a second-degree felony requiring a theft of more than $20,000, see § 812.014(1), (2)(b), Fla. Stat. (2000); and burglary of an unoccupied structure, a third-degree felony, see § 812.02(4)(a), Fla. Stat. (2000); and his consecutive sentences of fifteen and five years’ imprisonment. After a thorough review of the record, we conclude that the only issue of arguable merit is whether Mr. Bowers’ trial counsel provided ineffective assistance in a manner that can be conclusively determined from the face of the record. See, e.g., Forget v. State, 782 So.2d 410 (Fla. 2d DCA 2001). Although we question trial counsel’s decision to elicit testimony from Mr. Bowers regarding the details of his prior convictions, we conclude that any claim of ineffective assistance of counsel is more appropriately raised in a postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We therefore affirm the judgments and sentences without prejudice to Mr. Bowers’ right to raise this issue in a properly filed motion for post-conviction relief, if appropriate.

ALTENBERND, C.J., and FULMER and WALLACE, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Ronald DALY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5644.
    District Court of Appeal of Florida, Second District.
    July 23, 2003.
   NORTHCUTT, Judge.

Ronald Daly challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

In his motion Daly disputed the inclusion of fourteen points for a prior offense on his sentencing scoresheet. He claimed that the offense occurred more than ten years before the commission of the offense giving rise to his current sentence. Convictions for offenses committed more than ten years before the commission of the primary offense must not be scored as prior record if the offender has not been convicted of any other crime for a period of at least ten consecutive years from the most recent date of release. Fla. R.Crim. P. 3.704(d)(14)(A). The circuit court denied Daly’s motion because his allegations were not apparent from the face of the record. Citing this court’s decision in Drayton v. State, 786 So.2d 1196 (Fla. 2d DCA 2001), the circuit court found that Daly’s challenge would best be presented via a motion pursuant to Florida Rule of Criminal Procedure 3.850.

The “prior record” portion of Daly’s scoresheet lists four misdemeanors, as well as the second-degree felony of which he complains. Since the denial of his motion, he has supplemented the record with a copy of the original sentence from his 1983 felony conviction. At present, it is not apparent either from the face of the score-sheet or anywhere else in the record when the misdemeanors were committed.

Pursuant to this court’s decision in Drayton, we affirm without prejudice to any right Daly has to raise this issue by filing a sworn motion pursuant to rule 3.850 within thirty days of the date of our mandate in this appeal, which motion shall not be deemed successive. Any such motion must set forth the complete factual basis for deleting the points for his prior convictions from his sentencing guidelines scoresheet. We note that Daly currently has a rule 3.850 motion pending in the circuit court. If the pending motion is unresolved at the time he files his motion for relief as contemplated in this opinion, the circuit court in its discretion may treat the new motion as an amendment to the pending one.

Affirmed without prejudice to Daly’s right to file a motion pursuant to rule 3.850.

WHATLEY and SALCINES, JJ„ concur.


author: CASANUEVA, Judge.

text:
    Roosevelt MARION, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-558.
    District Court of Appeal of Florida, Second District.
    July 23, 2003.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Sr. Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Roosevelt Marion, Jr.’s Anders counsel pointed out that the sentencing documents erroneously reflect that Mr. Marion is to serve a three-year habitual felony offender sentence consecutive to an eight-year guidelines term. When habitual and guidelines sentences are imposed consecutively, the habitual sentence is to be served first to preserve the defendant’s entitlement, if any, to control release. Hall v. State, 821 So.2d 1154, 1155 (Fla. 2d DCA 2002) (citing Smith v. State, 682 So.2d 95, 97 (Fla. 2d DCA 1994)). Because this appears to be a scrivener’s error, we remand for correction of the sentence to reflect that the eight-year term on count one for possession of cocaine with intent to sell be served consecutive to the three-year habitual offender term on count two for sale of cocaine.

Remanded for correction of sentence; affirmed in all other respects.

WHATLEY and SILBERMAN, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Appellate Court Response to Anders Briefs, 581 So.2d 149 (Fla.1991); State v. Davis, 290 So.2d 30 (Fla.1974).


author: KELLY, Judge.

text:
    In the Interest of A.P., a child. C.H.P., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-2654.
    District Court of Appeal of Florida, Second District.
    July 28, 2003.
    Beth Harlan of Beth Harlan, P.A., Lake-land, for Appellant.
    Douglas Sherman, Bartow, for Appellee.
   KELLY, Judge.

The mother, C.H.P., challenges the order finding her child, A.P., dependent. We affirm the order without discussion. We remand, however, for correction of the written adjudicatory order which provides that the mother consented to the dependency. The order shall be corrected to reflect that the trial court found A.P. dependent following a trial.

Affirmed; remanded with instructions.

FULMER and DAVIS, JJ., Concur.


author: WHATLEY, Judge. FULMER, Judge,

text:
    STATE of Florida, Appellant, v. Nathan RAMIREZ, Appellee.
    No. 2D02-795.
    District Court of Appeal of Florida, Second District.
    July 23, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    D. Keith Hammond, Port Richey, for Appellee.
   WHATLEY, Judge.

The State of Florida appeals an order granting Ramirez’s motion in limine, which alleged that his consent to provide police with the victim’s ring was not voluntary. We conclude that in ruling on the motion in limine, the trial court improperly considered testimony given at a hearing on a previous motion to suppress, and we therefore reverse.

Ramirez was originally convicted of first-degree murder and sentenced to death. In Ramirez v. State, 739 So.2d 568 (Fla.1999), the Florida Supreme Court reversed his conviction and sentence and remanded the case for a new trial, holding that Ramirez’s confession was improperly admitted because it was obtained in violation of his Miranda rights. On the morning of Ramirez’s second trial, he filed a motion in limine seeking to exclude the victim’s ring. Due to the untimeliness of the motion, the parties agreed to stipulate to certain facts. The State read a statement which had been agreed upon by the parties, and the State agreed to the admission of a portion of the transcript from the first trial. However, the State consistently objected to the admission of previous testimony given at a hearing on a motion to suppress, which had been heard before the first trial and which sought suppression of different evidence. In granting the motion in limine, the trial court erred in considering the testimony from the previous motion to suppress.

The use of previous testimony is permitted if (1) the testimony was taken during a judicial proceeding; (2) the party against whom the testimony is being offered was a party in the previous proceeding; (3) the issues in the previous proceeding are similar to those in the instant case; and (4) there is a substantial reason why the original witness is not available. Thompson v. State, 619 So.2d 261, 265 (Fla.1993). Here, the issue in the previous proceeding differed from the issue at hand, and Ramirez did not establish a substantial reason why the original witness was not available. In fact, the witness was not present because Ramirez brought the motion before the start of the trial, instead of properly raising the issue in a motion to suppress and setting the motion for hearing a reasonable amount of time before the trial. See McClain v. State, 411 So.2d 316 (Fla. 3d DCA 1982) (holding that hospitalization of witness’s wife and his desire to be by her side was not a substantial basis for admitting witness’s testimony from first trial).

Ramirez additionally argued that the testimony from the previous motion to suppress was admissible because a trial court may take judicial notice of its own records in a case. We do not find merit in this argument because hearsay may not be considered simply because it is part of the court file. Burgess v. State, 831 So.2d 137 (Fla.2002). In Huff v. State, 495 So.2d 145, 151 (Fla.1986), the Florida Supreme Court held the following:

[W]e find that in a situation such as is presented here, where, upon appellate review an accused has been granted a new trial, the utilization by judicial notice of evidence produced at the first trial constitutes a process which would make facts conclusive against an opposing party although these facts were unsupported by the evidence introduced in the new trial, and were therefore not subject to refutation by the party against whom they were offered.

The Huff court concluded that the trial court abused its discretion in taking judicial notice of the record in the first trial, noting that at a new trial the parties may use different theories or present new evidence than what was presented in the first trial. Id. at 152. We conclude that the trial court in the instant case abused its discretion in considering testimony from the hearing on the previous motion to suppress and reverse the order granting Ramirez’s motion in limine number five.

Reversed and remanded.

SILBERMAN, J., Concurs.

FULMER, J., Concurs in part and dissents in part.

FULMER, Judge,

Concurring in part and dissenting in part.

I agree that this case should be reversed; however, I would reverse the trial court’s ruling on the merits, not on the evidentiary issue alone, and remand with directions to the trial court to deny the motion to suppress.

The pertinent underlying facts of this case are detailed in the supreme court’s opinion entered after the first trial:

The victim’s body was found in an open field not far from her home. Her death was caused by two gunshot wounds to the head. The subsequent investigation revealed that someone had broken into her home and stolen some items of jewelry, her gun, and about $35. There was evidence that the victim had been raped before her death.
Grimshaw, who was the victim’s neighbor, soon became a suspect. After several interviews and a final interrogation lasting several hours, Grimshaw confessed his involvement in the crime. Although Grimshaw gave several inconsistent versions of events, he eventually admitted his involvement in the crime, but pointed to Ramirez as the ringleader.
In order to convince the police of the truthfulness of his statements regarding Ramirez’s involvement, Grimshaw phoned Ramirez from the station while the sheriffs detectives listened in and recorded the call. During the call, Ramirez and Grimshaw discussed the items of physical evidence related to the crime that were in Ramirez’s possession and made plans to destroy the victim’s automobile to eliminate evidence of the crime.
Ramirez was at home around three o’clock that afternoon when, shortly after the phone call, a sheriffs deputy arrived wearing a badge and carrying a firearm. The deputy asked Ramirez to produce the physical evidence in his possession linked to the murder, including the suspected murder weapon and some of the victim’s jewelry. According to the deputy, Ramirez was a “little hesitant at first, [and] denied having the articles.” After the deputy informed Ramirez that he knew about the phone conversation with Grimshaw, Ramirez turned over the items that were in the house and accompanied the deputy to retrieve other items. The deputy then asked Ramirez if he would be “willing to come with [him] to the sheriffs office” to speak with a detective. Once transported to the station, Ramirez was placed in a small room and questioned by two other detectives.

739 So.2d at 571-72. As noted by the majority herein, the supreme court reversed for a new trial in part because the officers who interviewed Ramirez at the station did not initially inform him of his Miranda rights and Ramirez’s confession was erroneously admitted at trial.

On the morning of the retrial, the defense moved to suppress evidence of the jewelry, a ring, that Detective Blum retrieved from Ramirez at his home before Ramirez was taken to the station. While the trial court was contemplating whether to hear the motion at that late date, the State did not move for a continuance; instead, the State and defense agreed to stipulate to the facts for the purpose of deciding the motion. During argument on the motion, the defense asked the court to consider additional testimony outside of the stipulation. The additional testimony requested included the original trial testimony of Detective Blum and the testimony of Detective Blum that was presented at a hearing on a motion to suppress which occurred before the first trial. The State initially objected but then agreed to stipulate to Detective Blum’s original trial testimony. The State did not expressly stipulate to the testimony of Detective Blum from the prior motion to suppress hearing.

After considering the stipulated facts and Detective Blum’s original trial testimony as well as his testimony from the prior motion to suppress hearing, the trial court granted Ramirez’s motion to suppress in a written order concluding that “[t]he seizure of the ring from the defendant by Detective Blum was not a result of a free and voluntary consent by the defendant when the totality of the circumstances are examined.” The trial court’s order recites the following facts upon which the court relied in reaching this conclusion:

1. Detective Blum had been advised by other members of the Pasco County Sheriffs Office that Mr. Grimshaw, a co-perpetrator in the murder, had confessed to the murder in this cause and named the defendant as the co-perpetrator in the murder and who had possession of the victim’s three (3) stone ring, the victim’s handgun, and some handcuffs relating to the murder.
2. Detective Blum had further been advised that Grimshaw spoke to the defendant by telephone in which conversation the defendant admitted that he still had possession of the victim’s three stone ring, but that the gun and cuffs were with other individuals.
3. Detective Blum was directed by the Pasco County Sheriffs Office to recover the three stone ring from the defendant and pursuant thereto, Detective Blum arrived at the defendant’s residence at approximately 3:00 p.m. which was a short time after aforesaid Grim-shaw — defendant taped conversation.
4. Neither Detective Blum nor any other member of law enforcement attempted or received a search warrant.
5. The defendant was age seventeen years at the time.
6. The defendant was home alone when Detective Blum, Pasco County Sheriffs Office, arrived at the defendant’s home at approximately 3:00 p.m.
7. The defendant’s parents were neither at home nor accessible to the defendant.
8. Detective Blum, when he arrived at the defendant’s home was without a jacket and had his Pasco County Sheriffs Office badge visible on his belt along with his holstered firearm.
9. The defendant was hesitant, at first, when Detective Blum requested of him the victim’s three stone ring. The defendant initially denied knowledge of the ring.
10. Detective Blum then confronted the defendant with the knowledge that the law enforcement had done a telephone intercept and knew of the contents of the defendant’s conversation with Grimshaw a short time before, wherein the defendant told Grimshaw that he had possession of the victim’s ring, but that others had the gun and cuffs.
11. The defendant, upon being confronted with the aforesaid information, acceded to Detective Blum’s request for the ring and left the living room and entered his bedroom.
12. Detective Blum followed the defendant and kept him in sight for officer safety.
13. The defendant recovered the ring in question from his bedroom and gave it to Detective Blum.

The majority concludes that the trial court erred by considering the testimony of Detective Blum that was presented at the prior motion to suppress hearing. I agree because the State did not stipulate to this testimony. However, I cannot agree that the inclusion of this testimony rises to the level of harmful error warranting reversal in and of itself. Although the majority fails to identify the erroneously included testimony or which findings of fact are based thereon, from my review of the record, it appears that the findings in paragraphs 8 and 9 of the trial court’s order are premised upon Detective Blum’s prior motion to suppress testimony, the entirety of which* only covers seven and one-half pages of transcript. I cannot-conclude that exclusion of these two findings would likely change the trial court’s ruling and, therefore, would not reverse on this evidentiary error. Nevertheless, I would still reverse because the facts as found by the trial court do not support the trial court’s ruling but rather indicate that the defendant voluntarily consented to turn over the victim’s ring to the officer.

The police are not prohibited from visiting a suspect’s home and requesting entry for the purpose of an investigation. See Younger v. State, 433 So.2d 636, 639 (Fla. 5th DCA 1983). Where there is a consensual encounter and no illegal detention, as in this case, the voluntariness of a consent to search must be established by the State by a preponderance of the evidence. See Taylor v. State, 28 Fla. L. Weekly S439, 2003 WL 21283161, — So.2d - (Fla.2003). Voluntariness is a question of fact to be determined from all of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The totality of the circumstances to be considered include factors such as whether the person was detained, whether the police used coercive questions, and what was the education, intelligence, and possible vulnerable subjective state of the person. See State v. McCord, 833 So.2d 828, 830 (Fla. 4th DCA 2002). A detective’s misrepresentations of the nature of the investigation may be evidence of coercion. Id.

Here, there was no detention and no evidence of intimidation or false misrepresentations to indicate coercion. Nor was there any allegation in Ramirez’s motion that he was subjected to any coercion. In fact, the motion was grounded on the contention that the ring was obtained without a warrant. The facts as found by the trial court indicate that Detective Blum engaged Ramirez in a consensual encounter. There was no indication that Detective Blum had drawn his gun, made any threats or given any overt demonstration of police authority. A reasonable person in Ramirez’s position would have felt free to terminate the encounter. See Taylor, 28 Fla. L. Weekly S439, — So.2d -. Although Ramirez was seventeen years of age, there is no evidence of any limitation to his education or intelligence or of any particular vulnerability. I would conclude that the stipulated facts show a voluntary consent to produce the ring and that the trial court erred in granting the motion to suppress based on these facts alone.

      . We note that the motion in limine sought suppression of evidence obtained by search and seizure, as it alleged that the seizure of the victim's ring violated Ramirez's fourth amendment rights. Therefore, the issue on appeal clearly involves a search and seizure issue, and the State may properly appeal this order pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(B). See McPhadder v. State, 475 So.2d 1215 (Fla.1985). Additionally, we note that the trial court treated the motion as a motion to suppress.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Scottie Lee WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1306.
    District Court of Appeal of Florida, Second District.
    July 23, 2003.
    James Marion Moorman, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

In this direct appeal, Scottie Lee White challenges his judgment and sentence for second-degree murder. He alleges that he received ineffective assistance of counsel at trial. We affirm without prejudice to White’s right to file a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850. See Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002) (holding that an appellate court will consider a claim of ineffective assistance of counsel on direct appeal only in rare instances where counsel’s ineffectiveness is clearly apparent from the record, prejudice to the defendant is obvious, and no tactical explanation for the conduct can be conceived).

Affirmed.

FULMER and DAVIS, JJ., Concur.


text:
    Gary ARNOLD, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-936.
    District Court of Appeal of Florida, Second District.
    July 23, 2003.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Gary Arnold appeals from the order revoking his probation. The State correctly concedes that the January 31, 2002, order revoking Arnold’s probation should be vacated. Accordingly, we reverse and remand with instructions for the trial court to vacate the January 31, 2002, order finding Arnold guilty of violation of probation and revoking his probation in case numbers 96-2661 and 96-2662.

Reversed and remanded with instructions.

CASANUEVA, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

      . After this appeal was filed, the trial court vacated the sentence it had imposed for the violation of probation; however, it neglected to vacate the order of revocation.


text:
    DEPARTMENT OF REVENUE, on behalf of Wendy Hope, Appellant, v. Kenneth J. HINNERSCHIETZ, Appellee.
    No. 2D02-669.
    District Court of Appeal of Florida, Second District.
    July 23, 2003.

      Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    Constantine Kalogianis of Kalogianis & Associates, P.A., New Port Richey, for Ap-pellee.
   KELLY, Judge.

The Department of Revenue, on behalf of Wendy Hope (the mother), appeals the trial court’s order adopting the recommended order of the child support hearing officer which determined the current gross incomes of the parties to be used in calculating current and retroactive child support. We agree with the Department of Revenue that the trial court failed to consider all of the in kind benefits Kenneth Hinnerschietz (the father) received from his business and reverse.

Mr. Hinnerschietz owns his own automobile collision repair business. As stated by the hearing officer in the recommended order, the business has gross receipts of over $300,000 per year, but nets considerably less because the profits are put back into the business. In calculating the gross incomes of the parties, the hearing officer imputed income to Mr. Hinnerschietz as follows: $600 per month living expenses (which includes rent, utilities, and garbage pick up), and $300 per year for medical expenses. During the hearing, the Department of Revenue argued that Mr. Hin-nerschietz received benefits of at least $2,500 per month from his business including child care and medical expenses; rent; bills for cable, electric, garbage, and telephone; the use of company vehicles; and petty cash. Counsel for Mr. Hinnerschietz conceded that this was an in kind ease and that the value of any such benefits should be imputed. He admitted that a portion of Mr. Hinnerschietz’s rent, electric, and garbage bills, a payment on a credit card, a percentage of child care expenses, personal medical bills, and personal living expenses should be imputed.

In determining the parties’ income levels under the child support guidelines, the court may consider “Reimbursed expenses or in kind payments to the extent that they reduce living expenses.” § 61.30(2)(a)13, Fla. Stat. (2002). After a review of the record, we conclude that the trial court failed to consider all of the benefits Mr. Hinnerschietz received from his business which in turn reduced his living expenses. By his counsel’s own admission, there were in kind benefits received by Mr. Hinnerschietz that we conclude should have been imputed in the calculation of his gross income for purposes of determining his child support obligation.

Accordingly, we reverse and remand to the trial court for a hearing to determine child support based on a new computation of Mr. Hinnerschietz’s imputed income assigning specific dollar values to all the various benefits received by Mr. Hinnerschietz from his business and applying that total value to his gross income. See Cozier v. Cozier, 819 So.2d 834 (Fla. 2d DCA 2002); Jones v. Jones, 679 So.2d 1270 (Fla. 2d DCA 1996).

Reversed and remanded with instructions.

CASANUEVA, J., and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.


text:
    Shawn E. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1300.
    District Court of Appeal of Florida, Second District.
    July 23, 2003.
    James Marion Moorman, Public Defender, and A. Anne Owens, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Shawn Williams appeals from an order imposing restitution. Because the State improperly relied on hearsay evidence to prove the amount of restitution, we reverse and remand for a new restitution hearing.

At the restitution hearing, the victim testified that before his 1989 Ford Mustang GT was stolen it was painted red and was in good condition. When the car was returned to him, it was painted primer gray, the transmission was “messed up,” and the molding was missing from around the windshield and doors. Over Williams’ objection, the prosecutor gave the court an estimate for $1033.38 from “JR’s Four by Four” to fix the transmission and an estimate of $2370.40 from “Hot Wheels Paint and Body Shop” for painting the car, replacing the molding, and fixing a few dents in the door. The trial court’s restitution award was based on these two estimates, which were purely hearsay.

Hearsay evidence may be used to determine the amount of restitution if there is no objection to the evidence. However, as Williams argues and the State concedes, Williams made a proper objection to the evidence which should have been sustained. See Moore v. State, 694 So.2d 836 (Fla. 2d DCA 1997); Thomas v. State, 581 So.2d 992 (Fla. 2d DCA 1991). Therefore, this court must reverse and remand for a new restitution hearing. See Sherwood v. State, 832 So.2d 926 (Fla. 2d DCA 2002) (reversing for a new restitution hearing where award was based on improper hearsay evidence concerning the cost of repairs to an automobile).

Upon remand, the State has the burden of proving the amount of loss by a preponderance of the evidence. Moore, 694 So.2d at 837. The State can meet its burden “by presenting testimony of a witness with knowledge of the amount of damage and repairs, or by presenting uncontested documentary evidence.” C.S. v. State, 617 So.2d 863, 864 (Fla. 1st DCA 1993).

Reversed and remanded.

FULMER and DAVIS, JJ., Concur.


text:
    VIRGINIA INSURANCE RECIPROCAL, as subrogee of Scottish Rite Children’s Medical Center, Inc., Appellant, v. William P. SIMMONS, M.D., Appellee.
    No. 1D00-0763.
    District Court of Appeal of Florida, First District.
    July 24, 2003.
    Michael T. Callahan and Weslee L. Klin-ka of Callahan & Martinez, St. Petersburg, for appellant.
    Esther E. Galicia of George, Hartz, Lun-deen, Fulmer, Johnstone, King & Stevens, Fort Lauderdale, for appellee.
   PER CURIAM.

The final order is reversed and this cause is remanded for further proceedings pursuant to Walker v. Virginia Insurance Reciprocal, 842 So.2d 804 (Fla.2003).

REVERSED AND REMANDED.

WOLF, C.J., and BOOTH and ALLEN, JJ., concur.


text:
    Mark JENNINGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-551.
    District Court of Appeal of Florida, First District.
    July 24, 2003.
    Nancy A. Daniels, Public Defender; Anne H. Dunlap, Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General; Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003).

KAHN, WEBSTER and DAVIS, JJ., concur.


text:
    VERIZON FLORIDA, INC., Appellant, v. FLORIDA DEPARTMENT OF BUSINESS REGULATION, Electrical Contractors’ Licensing Board, Appellee.
    No. 02-1763.
    District Court of Appeal of Florida, First District.
    July 24, 2003.
    Susan L. Kelsey, Esquire and Karen D. Walker, Esquire, Holland & Knight LLP, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Barbara R. Edwards, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Verizon Florida, Inc. sought a declaration that it is not required to be certified by, licensed by, or registered with appellee Florida Department of Business and Professional Regulation, Electrical Contractors’ Licensing Board, in order for Verizon’s own in-house employees to perform routine maintenance and inspections on fire alarm systems that Verizon voluntarily installs in its buildings to detect fire. Verizon asserted that it is not engaged in “contracting” and thus not subject to the Board’s regulation. Alternatively, Verizon argues that it would qualify for statutory exemption for public utilities because it is a telecommunication company regulated by the Federal Communications Commission and the Florida Public Service Commission.

Verizon owns or leases buildings throughout Florida for its exclusive use in conducting its telecommunications business. Although not required to do so by law, Verizon installs fire alarm systems in its buildings on a voluntary basis, and hires outside, licensed contractors to install and perform the initial inspections on such systems. Verizon proposes to use its own trained and certified in-house employees to perform the routine maintenance and inspections of these systems, but not to install, expand, or replace the systems. Verizon does not provide, nor does it hold itself out to the public or to any third parties as providing, fire alarm system contracting services.

The Board determined that if Verizon’s own employees perform routine inspection and maintenance on its fire alarm systems, then Verizon is receiving an economic benefit from those services. Based on that reasoning, the Board ruled that Verizon must become a licensed alarm system contracting company if it desires to have its own employees perform these services. The Board further found that Verizon is not exempt from the licensure requirement under the “public utilities” exemption provided in section 489.503(4), Florida Statutes (2001), because it is not a “public utility” and its maintenance and inspection of fire alarm systems is not “incidental” to its telecommunications business. Verizon argues that the Board erred as a matter of law on these issues. We agree with Verizon’s first argument and reverse the Board’s declaration that Verizon must be licensed under Chapter 489 because its described activities do not constitute “contracting” pursuant to section 489.505(9), Florida Statutes (2001). Because of our ruling, we do not reach Verizon’s alternative argument that it is exempted because it is a public utility.

The Board was created to regulate those persons and entities that engage in the occupation of “contracting.” § 489.501, Fla. Stat. (2001). According to section 489.505(9), “contracting” means engaging in a business as a contractor or performing electrical or alarm work for compensation. Also, the detailed requirements of the chapter are made applicable only to persons “engaged in the business of contracting.” § 489.513(1), Fla. Stat. (2001). An alarm system contractor is “a person whose business includes the execution of contracts requiring the ability, experience, science, knowledge, and skill to lay out, fabricate, install, maintain, alter, repair, monitor, inspect, replace, or service alarm systems for compensation, including, but not limited to, all types of alarm systems for all purposes.” § 489.505(2), Fla. Stat. (2001). Thus, the purpose of the statutes is to ensure that those persons and entities that hold themselves out to the public for hire as electrical and alarm system contractors meet the stated criteria and are subject to regulation. It is undisputed that Verizon is not holding itself out to the public for hire as an electrical and alarm system contractor.

The Board found that “Verizon will not receive direct compensation for the work done by its employees on these fire alarm systems, but will benefit economically.” Accordingly, the Board held that the “for compensation” element of section 489.505(9) would be satisfied. Verizon argues, and we agree, that the Board’s interpretation is inconsistent with the commonly understood meaning of providing services to someone in exchange for remuneration for such services. See Black’s Law Dictionary 277 (7th ed.1999)(defining “compensation” as receiving remuneration for services rendered).

Accordingly, we hold that Verizon is not required to be licensed under Chapter 489 for its described activities because it is not a “contracting” entity as defined in section 489.505(9), Florida Statutes (2001).

REVERSED.

WEBSTER, PADOVANO and POLSTON, JJ., concur.


text:
    STATE FARM MUTUAL AUTOMOBILE INS. CO., Appellant/Cross-Appellee, v. Brenda GULLEDGE and Terry Gulledge, Appellees/Cross-Appellants.
    No. 1D02-2822.
    District Court of Appeal of Florida, First District.
    July 24, 2003.
    ; Melanie Shaw Seymour and Bobby L. Whitney, Jr., of Seymour & Whitney, Fort Walton Beach, for Appellant/Cross-Appel-lee.
    Woodburn S. Wesley, Jr., and Arthur H. Lester of Woodburn S. Wesley & Associates, Fort Walton Beach, for Appel-lees/Cross-Appellants.
   PER CURIAM.

We affirm without comment all issues raised by appellant/cross-appellee, State Farm Mutual Automobile Insurance Co., and appellees/cross-appellants, Brenda and Terry Gulledge, in this appeal and cross-appeal from a final judgment entered in this action for uninsured motorist benefits, except that relating to the lower court’s error in denying State Farm’s motion to reduce Brenda Gulledge’s damage award for past lost earning ability by the amount of Social Security disability payments she received as a result of her accidental injuries. As to this issue, we reverse and remand the case to the trial court with directions that the amount so paid be deducted from the sum awarded.

In defending the trial court’s decision, the Gulledges contend the collateral-source setoff statute is inapplicable, because they claimed loss of earning capacity, not lost wages. We cannot agree. A plain reading of the statute offers no support for the distinction the Gulledges argue. Indeed, they cite no case law supporting their argument.

AFFIRMED in part, REVERSED in part, and REMANDED.

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

      . Section 768.76(2)(a)(l), Florida Statutes (1997) provides in part:
      (1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources....
      (2) For purposes of this section:
      (a) "Collateral sources” means any payments made to the claimant, or made on the claimant's behalf, by or pursuant to:
      1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits....


author: ALLEN, J.

text:
    Gregory MITCHELL, Appellant, v. SUNSHINE COMPANIES, Employer/Unisource Administrators, Carrier/Servicing Agent, Appellees.
    No. 1D02-2767.
    District Court of Appeal of Florida, First District.
    July 24, 2003.
    William H. McKnight of William H. McKnight, P.A., Tampa, for Appellant.
    Joey D. Oquist of Joey D. Oquist & Associates, P.A., St. Petersburg, for Appel-lees.
   ALLEN, J.

The claimant appeals a workers’ compensation order denying his request for an attorney’s fee award under section 440.34(3)(b), Florida Statutes. As the claimant asserts, he established the necessary predicate for a fee award under the statute and thus should have been found entitled to payment of his attorney’s fee.

Section 440.34(3)(b), as effective when the claimant was injured in 1996, provided for the recovery of an attorney’s fee when the employer or carrier files a notice of denial and the claimant has employed an attorney in the successful prosecution of a claim for benefits. The claimant here petitioned for permanent total disability benefits, and the carrier filed a notice of denial as to that petition. Several months later the claimant submitted an amended petition again claiming permanent total disability, and the employer/carrier did not file a notice of denial as to the amended petition. The employer/carrier did not then accept the claim, and the failure to timely respond is treated as the procedural equivalent of a notice of denial. Russell Corp. v. Brooks, 698 So.2d 1334 (Fla. 1st DCA 1997); see also Alachua County Bd. of County Comm’rs v. Starling, 699 So.2d 310 (Fla. 1st DCA 1997). As indicated in McDonald’s Restaurant # 7160 v. Montes, 736 So.2d 768 (Fla. 1st DCA 1999), the claimant was therefore entitled to a fee award if his attorney then successfully prosecuted the permanent total disability claim.

Rather than proceeding to an evi-dentiary hearing, the parties participated in mediation and the carrier thereafter agreed to accept the claim. And while this acceptance avoided the necessity of a merits hearing, the attorney’s efforts in obtaining the benefits constitutes a successful prosecution of the claim for purposes of an attorney’s fee award. Soriano v. Gold Coast Aerial Lift, 705 So.2d 636 (Fla. 1st DCA 1998); see also, e.g., City of Miami Beach v. Schiffman, 144 So.2d 799 (Fla.1962); Smith v. General Parcel Service, 699 So.2d 741 (Fla. 1st DCA 1997). The claimant thus met both of the necessary criteria under section 440.34(3)(b), so as to establish entitlement to an attorney’s fee award.

When the carrier eventually began paying permanent total disability benefits several months after indicating that the claim would be accepted, the payment was made retroactive to a date prior to the claimant’s amended petition for such benefits. In denying the subsequent attorney’s fee claim, the judge noted that there was no proof at the attorney’s fee hearing as to when the claimant attained maximum medical improvement and became permanently totally disabled, and the judge indicated that the claimant had failed to show that he was entitled to permanent total disability benefits before the time of acceptance. However, proof as to such details regarding the merits of the underlying disability claim is not required in the context presented here, with the successful prosecution being achieved on acceptance and payment of the claim. Insofar as the employer/carrier denied the claim which the claimant’s attorney thereafter successfully prosecuted, the claimant established his entitlement to an attorney’s fee award under section 440.34(3)(b).

The appealed order is reversed, and the case is remanded.

BOOTH and BARFIELD, JJ., concur.


text:
    YELLOW TRANSPORTATION and Yellow Freight System, Petitioners, v. William GOLDEN, Sr., Respondent.
    No. 1D03-0462.
    District Court of Appeal of Florida, First District.
    July 24, 2003.

      Robert L. Teitler and Henry Suarez of Walton Lantaff Schroeder & Carson, Miami, for Petitioners.
    Bill McCabe of Shepherd, McCabe &' Cooley, Longwood, for Respondent.
   PER CURIAM.

Yellow Transportation and Yellow Freight System’s petition for writ of cer-tiorari is denied without prejudice. Petitioners may raise the issue of the appropriateness of the striking the employer’s defenses on direct appeal.

KAHN, VAN NORTWICK and BROWNING, JJ, concur.


author: KAHN, J.

text:
    Jose H. CORTES, M.D., Petitioner, v. Edna P. WILLIAMS, Respondent.
    No. 1D03-608.
    District Court of Appeal of Florida, First District.
    July 24, 2003.
    Cynthia S. Tunnicliff, Wiley Horton, Kory J. Ickler, of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Petitioner.
    Kendra N. Davis and Daryl D. Parks, of Parks & Crump, LLC, Tallahassee, for Respondent.
   KAHN, J.

Petitioner, Jose H. Cortes, M.D., seeks a writ of certiorari to review a nonfinal order denying his motion for summary judgment on respondent’s medical malpractice complaint for failure to timely file a notice of intent to initiate litigation under the pre-suit notice requirements of section 766.106(4), Florida Statutes. Petitioner asserts the notice of intent, received by petitioner on December 13, 2001, was not served prior to expiration of the two-year limitations period and, therefore, the complaint should be dismissed -with prejudice. We deny the petition.

The alleged malpractice occurred September 30, 1999. Section 95.11(4)(b), Florida Statutes, requires, in relevant part, “[a]n action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred.... ” Accordingly, respondent’s statute of limitations was set to expire on September 30, 2001. Realizing that she would be unable to complete the required pre-suit investigation within the two-year limitations period, on September 12, 2001, respondent filed a petition for an extension of the statute of limitations, pursuant to section 766.104(2), Florida Statutes. That section provides:

Upon petition to the clerk of the court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $25, ... an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1). This period shall be in addition to other tolling periods. No court order is required for the extension to be effective. The provisions of this subsection shall not be deemed to revive a cause of action on which the statute of limitations has run.

§ 766.104(2), Fla. Stat. (1999). Under the statute, once the extension is purchased, the statute of limitations becomes two years plus ninety days. See Hankey v. Yarian, 755 So.2d 93 (Fla.2000); Burbank v. Kero, 813 So.2d 292 (Fla. 5th DCA 2002); Rothschild v. NME Hospitals, Inc., 707 So.2d 952 (Fla. 4th DCA 1998). With the extension purchased pursuant to section 766.104(2), the statute of limitations would have run December 29, 2001. Petitioner received the notice of intent to initiate litigation on December 13, 2001, well within the limitations period.

A timely filed notice of intent to initiate litigation tolls the running of the statute of limitations period for ninety days. See §§ 766.106(3), (4), Fla. Stat. (1999). Upon the expiration of the ninety-day tolling period, or “[u]pon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the' statute of limitations, whichever is greater, within which to file suit.” § 766.106(4), Fla. Stat. (1999); see Rhoades v. Southwest Fla. Reg’l Med. Ctr., 554 So.2d 1188 (Fla. 2d DCA 1989). Petitioner failed to respond to the notice of intent and, accordingly, respondent had until May 12, 2002 (150 days beyond December 29, 2001), to file suit. Respondent filed suit on April 25, 2002.

Petitioner argues that, under the Florida Supreme Court’s decision in Hills-borough County Hospital Authority v. Coffaro, 829 So.2d 862 (Fla.2002), the purchased extension does not extend the original two-year limitations period for purposes of filing a notice of intent to initiate litigation. This argument is contrary to the plain language of section 766.104(2) and the supreme court’s holding in Coffa-ro.

Under the plain language of the statute, the ninety-day extension applies to the end of the two-year limitation period. See § 766.104(2), Fla. Stat. (1999) (“This period shall be in addition to other tolling periods.”). The statute’s only restriction is that the extension be purchased within the original limitations period. See id. Accordingly, pursuant to the plain language of section 766.104(2), Florida Statutes, a timely purchased extension adds ninety days to the end of the two-year limitations period, including any other tolling periods.

The holding in Coffaro does not alter this result. Coffaro deals with the interplay between section 766.104(2) and section 766.106(4), Florida Statutes, in determining when a medical malpractice complaint must be filed after a notice of intent is served. See Cojfaro, 829 So.2d at 864, 866. Unlike the claimant in Cof-faro, respondent in this case filed for the purchased extension before serving the notice of intent. Accordingly, the 90-day tolling and the 60-day filing periods under section 766.106(4), discussed in Cojfa-ro, had not been triggered when respondent filed for the purchased extension. Here, the ninety-day purchased extension should be added to the two-year limitations period. See Burbank, 813 So.2d at 294. Supportive of respondent’s position, Cojfaro holds that “the ninety-day extension purchased pursuant to 766.104(2) is to be tacked on to the end of the statute of limitations period.” Cojfaro, 829 So.2d at 865.

Therefore, we find that respondent’s notice of intent to initiate litigation was timely and the trial court’s denial of petitioner’s motion for summary judgment is consistent with the holding in Cojfaro. Because petitioner has failed to show the trial court’s order departs from the essential requirements of law, the petition for certiorari is DENIED. See Steele v. Davis, 667 So.2d 264 (Fla. 1st DCA 1995).

WEBSTER and DAVIS, JJ., concur.


author: WOLF, C.J.

text:
    C.K., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4795.
    District Court of Appeal of Florida, First District.
    July 24, 2003.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for appellant.

      Charlie Crist, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

We reverse appellant’s conviction for knowingly disrupting or interfering with the lawful administration or function of an educational institution in violation of section 877.13(1), Florida Statutes (2002). We are required to reverse because evidence failed to demonstrate that appellant specifically and intentionally interfered with a school function. See T.H. v. State, 797 So.2d 1291 (Fla. 4th DCA 2001).

Appellant and a student, A.O., were involved in a verbal altercation over a bracelet. Later that day, a fight broke out between unknown persons in the gym building, attracting attention from many student observers. By the time the deans responded, the fight had broken up; however, the deans discovered that appellant and four other boys had allegedly fled the school campus sometime before or after the fight. No one was seen chasing the boys; a police officer testified that he spotted the boys behind a house and yelled at them, but he did not know if the boys heard him. Appellant testified that he was not involved in the fight and that A.O. and two other boys had chased appellant off campus. A.O. testified that he did not see appellant run off campus, nor did he chase appellant off campus. Approximately three to four hundred students were late to their next classes as a result of the incident.

Section 877.13(1), Florida Statutes (2002), provides that:

(1) It is unlawful for any person:
(a) knowingly to disrupt or interfere with the lawful administration or functions of any educational institution, school board, or activity on school board property in this state.

(Emphasis added.) This statute contains a specific scienter requirement and prohibits acts which are “specifically and intentionally designed to stop or temporarily impede the progress of any normal school function or activity occurring on a school’s property.” M.C. v. State, 695 So.2d 477, 483 (Fla. 3d DCA 1997) (emphasis added); see also T.H. v. State, 797 So.2d at 1292.

In M.C., a juvenile entered the school’s office to protest her brother’s arrest, “hurlfed] obscenities” at the arresting officer, and “wav[ed] ... her arms as if to encourage or incite the other students to join in the protest of her brother’s arrest.” Id. at 479. The Third District in M.C. noted that the apparent intent of section 877.13 is to ensure that educational institutions and their administrators are able to perform their lawful functions without undue or unwarranted interference or disruption, and the court held that because the juvenile’s actions “brought the school office’s normal activities to a temporary halt,” the juvenile’s, actions disrupted the normal school regimen and were clearly proscribed by the statute. Id. at 480-481.

The state relies on M.C. and argues that some four hundred students were distracted from their classes and other school activities as a result of the incident, causing them to be tardy. One of the deans testified that administrators’ tasks include assisting students to their classes. The state, however, presented no competent evidence that appellant was involved in the fight or that appellant’s flight from campus was intended to disrupt lawful administration of the school. Unlike , the facts in M.C., where the defendant took intentional action to cause a disruption of the school’s function, there is no evidence that such intentional action occurred here.

Appellant argues that this case is similar to T.H. and that T.H. should be controlling. There a juvenile was convicted under section 877.13(1) for engaging in a fight with another student over a girl on a high school campus before school began in the morning. The court in T.H. found no evidence of knowing or intentional conduct designed to disrupt a school function or activity. We agree with appellant that T.H. controls the result in this case.

The conviction is reversed.

LEWIS and POLSTON, JJ., concur.


author:
PER CURIAM.
      CASANUEVA, Judge, KELLY, Judge,

text:
    Justin SHERIDAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3885.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.
    Ronald N. Toward, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Justin Sheridan appeals from his judgment and sentence for trafficking in methamphetamine, contending that the trial court erred in failing to grant his motion for judgment of acquittal and reducing the offense to possession. We agree and reverse.

On January 19, 2001, the automobile being operated by Mr. Sheridan was stopped by Polk County Sheriffs Office narcotics deputies. At trial, the defense focused on two issues: whether Mr. Sheridan possessed the requisite knowledge to sustain a conviction and whether the State proved the trafficking weight of the drug. Our resolution of these issues focuses on the testimony of three witnesses.

The State’s first witness, Detective Wallace, testified that he conversed with Mr. Sheridan at the scene. After Detective Wallace told Mr. Sheridan that law enforcement was aware that Mr. Sheridan intended to trade an ounce of methamphetamine for two pounds of marijuana, Mr. Sheridan admitted to Detective Wallace that he was delivering the substance for George Mendosa and that he had made other deliveries for Mr. Mendosa in the past. According to the detective, Mr. Sheridan stated that he was coming over here with this ounce to trade for two pounds of marijuana. Mr. Sheridan made this statement after Detective Bell had shown him a bag of a substance that had presumptively tested positive for methamphetamine, at which time Mr. Sheridan was arrested.

The State’s expert chemist then testified that he had tested and weighed a baggie marked State’s exhibit number two. The testing identified the presence of methamphetamine, and the contents of the baggie weighed less than one ounce, at 23.0 grams. Importantly, the witness also testified that a baggie identified as State’s exhibit number one had not been provided to him for examination. He had not seen or tested either that baggie or its contents. During the chemist’s testimony the defense tendered two objections, one as to the substance’s identity and the other as to the weight of the baggie marked as exhibit two. Each was overruled.

Finally, Detective Bell testified that State’s exhibits one and two were the baggies he had seized from the automobile operated by Mr. Sheridan. The field test indicated the contents were methamphetamine rather than similar looking items such as flour or vitamin powder. When asked how the substance from State’s exhibit number one got into the baggie marked State’s exhibit two, Detective Bell testified that Detective Wallace “separated them” prior to entering them as evidence.

At the conclusion of the State’s case, defense counsel offered two bases for a judgment of acquittal. As the first ground, he asserted that his client lacked the requisite knowledge or intent to commit the offense, and the trial court properly denied the motion on that basis. Second, defense counsel argued that the State failed to prove the offense of trafficking because it failed to prove the element of weight. Because the State could prove the weight necessary for the element of the trafficking crime only by improperly commingling the contents of the two bags and then finding an aggregate weight, the defense contended that the offense should be reduced to possession. The court’s denial of the motion for judgment of acquittal on that basis was error.

The State charged that Mr. Sheridan had violated section 893.135, Florida Statutes (2000), by possessing fourteen grams or more of a controlled substance. Detective Bell testified that he seized the two baggies marked, respectively, State’s exhibits one and two from Mr. Sheridan’s vehicle. The chemist testified that only one baggie had been provided for chemical testing. The conclusion is inescapable that someone from law enforcement commingled the contents of the two baggies into one.

In Safford v. State, 708 So.2d 676 (Fla. 2d DCA 1998), our court condemned this practice and concluded that combining the contents of a number of packets into one mixture to meet the quantitative element of the trafficking statute was error. This court noted:

The testing of the powder cocaine mixture, however, is distinguishable in that there are many white powdery substances which can resemble powder cocaine. Therefore, the chemist’s failure to test each individual packet before the contents were combined and weighed mandates reversal.

Id. at 677. To reach this conclusion this court relied upon Boss v. State, 528 So.2d 1237, 1239 (Fla. 3d DCA 1988), which held that the State must “establish that each of the subject packets contains cocaine or a mixture thereof which in the aggregate satisfies the ... statutory weight.” See also State v. Clark, 538 So.2d 500 (Fla. 3d DCA 1989) (affirming the trial court’s reduction of a charge from trafficking to possession because the chemist mingled the powdery contents of capsules that were tested for heroin with the contents of untested capsules prior to weighing them).

The rationale behind Ross applies to this case. The substance found by the detective was a powdery material, according to State testimony, similar in appearance to other noncontrolled substances, such as vitamin powder or flour. Therefore, the contents of each baggie should have been tested separately, and, if found to be the same controlled substance, the weights combined. As the State bears the burden of proof as to the amount, it is inappropriate to permit the State to commingle, albeit negligently, the contents without testing and then assert that the contents of each baggie when aggregated meet the trafficking quantity, all without providing the defense with an opportunity to test the alleged drugs. The State’s procedure created an assumption as to the amount without the necessary proof. Thus, the evidence of trafficking was legally insufficient and should not have gone to the jury.

To avoid the application of this rule the dissent cites Pama v. State, 552 So.2d 309 (Fla. 2d DCA 1989). There, this court cited the recognized rule that the “state may prove the identity of a controlled substance by circumstantial evidence such as the substance’s appearance, odor, and packaging, by the circumstances under which the substance was seized ...; [including] a person’s on-the-scene remarks identifying the substance.... ” Id. at 311. We have no disagreement with the rule as properly used here to establish that the aggregated substance contained some percentage of methamphetamine. The record establishes the presumptive testing, the chemical testing, and the accused’s admission. The defendant’s admission refuted his contention that he lacked knowledge. However, Pama cannot be read to relieve the State of its burden to prove the contents of each baggie. Pama is factually dissimilar in that the testimony of weight came not from a suspect but from a law enforcement officer; and it is significant also that the Pama court refused to use that testimony to find a trafficking quantity. We note that this record is silent as to packaging. While the record establishes the existence of two baggies, there is no testimony describing the contents of each baggie.

Clearly, the case law permits circumstantial evidence to be used to establish the identity of certain controlled substances such as marijuana and crack cocaine. See Brooks v. State, 762 So.2d 879, 893-94 (Fla.2000). However, the rule has not yet been extended to allow circumstantial proof of weight. In Brooks, our supreme court held that a drug dealer may express an opinion regarding the identity of crack cocaine if a proper predicate can be established. Id. at 893. However, the court further explained in Brooks that the trial court erred by allowing the drug dealer to express his opinion as to the exact weight of each piece of crack cocaine, because “there was not a sufficient predicate establishing that Johnson was qualified as an expert in determining the exact weight of crack cocaine rocks by visual inspection.” Id. at 894 n. 17. Similarly, the record here fails to establish that Mr. Sheridan was a dealer or that he was qualified to offer an opinion as to the exact weight of the drug by visual inspection.

Recently, the distinction between powdered cocaine and crack cocaine in the context of determining the weight for trafficking purposes was noted in Lyons v. State, 807 So.2d 709, 710 (Fla. 5th DCA 2002). There, the court noted that the rule against commingling did not apply to crack cocaine but did apply to the powdered cocaine yet allowed evidence of weight despite a commingling contention because of the unique packaging of the drugs. The court relied on the following factors: The powdered cocaine was packaged to resemble two bricks of approximately the same size; the' bricks were similar in appearance; and they were hidden together in a single cereal box wrapped with tape. Those factors are not present here. This record is devoid of evidence describing the contents of each baggie, the approximate amount each contained, or their packaging as a single unit.

Ultimately, instead of relying upon evidence, the dissent assumes that the two packages each contained methamphetamine because the accused said he had an ounce of the drug, a weight not supported by the chemist’s testimony (although admittedly there was only a one-gram difference). It is possible that one of the two bags held the drug or that both did. As a result of the commingling of the contents, the truth of the matter is incapable of proof. The accused’s opinion as to weight, without more, is insufficient under present law to establish a trafficking weight of fourteen grams or more.

Reversed with instructions to grant the motion for judgment of acquittal as to trafficking, enter a verdict of guilty as to possession, and resentence accordingly.

WHATLEY and CASANUEVA, JJ., concur.

CASANUEVA, J., concurs specially.

KELLY, J., dissents with opinion.

CASANUEVA, Judge,

Concurring.

I am sure the dissenting opinion was crafted after long and careful thought. After review, I am unable to join with its reasoning.

First, the dissent contends that the sole issue is the identity of the controlled substance.’ To prove trafficking, the State must prove two primary elements: that the substance is a controlled substance and that its weight equals or exceeds the statutory trafficking weight. Failure to prove weight, in most instances, results in a conviction only for possession of the controlled substance. Here, the evidence established that among the contents seized and commingled was methamphetamine. However, pursuant to statute, the information charged that Mr. Sheridan did knowingly traffic in methamphetamine by possessing fourteen grams of the substance or any mixture containing it. The record fails to establish that either of the two seized bags individually met the statutory requirement, enunciated in the information, that Mr. Sheridan possessed fourteen grams of methamphetamine or a mixture containing that controlled substance. Thus, at that evidentiary point, the State could not meet its burden of proof.

To conclude that the State met its burden of proof, the dissent seeks to use the aggregate weight of the two seized packages without evidence that each contained the controlled substance. Logic and the scientific analysis finding the presence of methamphetamine establish that at least one seized bag contained the controlled substance; however, neither establishes that both bags did. The element of weight for the trafficking requirement cannot be met by taking the aggregate weight of all bags and proving that the bag containing the commingled contents contained methamphetamine. The weight is properly aggregated when each separate bag is found to contain methamphetamine or a mixture of the drug. Thus, two elements require evidentiary proof, and from the evidence adduced at trial further inferences or assumptions may be drawn. While it may be more likely than not that the second bag also contained methamphetamine, there is no evidence from which that assumption may be reached.

The dissent states, “[I]n my view, Mr. Sheridan’s statement regarding weight is immaterial.” I agree. That being so, no evidence establishes the weight element of the offense. That evidence cannot consist of the improperly mixed bags or a police officer’s testimony at trial that a confidential informant told him that the defendant would be in possession of methamphetamine for the purpose of exchanging the drug for something else. The confidential informant’s statement, if offered to prove the identity of the drugs carried by this defendant, would be inadmissible hearsay offered for the truth of the matter asserted, although the statement could be used, as it was here, for other purposes.

Additionally, it must be recalled that the evidentiary integrity of the seized items was destroyed while in the control of the seizing officers. We are fortunate to have officers in this state who are well educated in the requirements of the law, including evidence. It is unlikely that this error will arise with any frequency, but sometimes people make mistakes, and in those cases the rule of law must nevertheless be followed.

Finally, I fully concur in the majority opinion.

KELLY, Judge,

Dissenting.

I would affirm Mr. Sheridan’s conviction. I have no quarrel with the majority’s statement that in Safford, 708 So.2d 676, this court, relying on Ross v. State, 528 So.2d 1237 (holding that the State failed to prove a prima facie case of trafficking where it tested only two out of ninety-two packets of white powder resembling cocaine), disapproved the practice of commingling untested individual packets of drugs in powder form where the weight of the combined mixture is used to support increased sanctions. However, I do not believe the rationale behind these cases supports a reversal in this case. Rather, I agree with the State that this case is distinguishable from Safford and. Ross because of Mr. Sheridan’s admission that the substance he possessed was methamphetamine.

The rationale underlying Ross and Saf-ford is that visual examination of separately wrapped packages of white powder is insufficient to prove that each package contains an illegal substance because the white powder may be any one of a variety of white powdery substances that are not illegal. Thus, if the State is going to rely on the aggregate weight of separately wrapped packages to establish that a defendant possessed a trafficking amount, of contraband, it must prove that each package contained contraband.

While visual inspection alone may be insufficient to establish the identity of a white powder, there are other methods by which the State can establish identity. Obviously, chemical testing is one of those methods, but it is not the only method of proving identity. In Pama v. State, 552 So.2d 309, 311 (Fla. 2d DCA 1989), this court held:

The state may prove the identity of a controlled substance by circumstantial evidence such as the substance’s appearance, odor, and packaging, by the circumstances under which the substance was seized, the manner by which the substance was being transported, a person’s on-the-scene remarks identifying the substance, and circumstances surrounding the sale or ■ use of the substance.

(Citations omitted). In Pama, the substance in question was marijuana. To prove identity, the State relied on testimony from “an experienced law enforcement officer” who examined twenty out of 234 bales of the substance. The court found the officer’s testimony adequately proved that those twenty bales contained marijuana. The. court then relied on circumstantial. evidence regarding the substance’s odor, packaging, and manner of transport to conclude that there was a sufficient-basis to support the conclusion that the remaining 214 bales contained marijuana.

In this case, the State did not rely solely on appearance to establish the identity of the white powder found in Mr. Sheridan’s possession. ' In addition to appearance, the State relied on Mr. Sheridan’s admission that the substance was methamphetamine. The State also offered testimony that the police were • told by a. confidential informant that Mr. Sheridan had methamphetamine he was-going to trade for marijuana. I Relieve that this combination of circumstantial evidence was sufficient to allow a jury to conclude beyond a reasonable doubt that the substance contained in both baggies was methamphetamine. The fact that Mr. Sheridan did not specifically state “I have methamphetamine in two baggies” or ,‘T only have methamphetamine” is a factor the jury can weigh when it considers the evidence. In my view, given this circumstantial evidence, a jury could conclude beyond a reasonable doubt that each package contained methamphetamine. In fact, I believe that such a conclusion is more reasonable than a conclusion that one baggie contained methamphetamine and one contained an innocent white powder.

In addition to disagreeing with the majority’s resolution of the ultimate issue in this case, I have other differences with the majority that I believe need to be addressed. Contrary to what the majority states, I do not “assume that the two packages each contained methamphetamine because the accused said he had an ounce of the drug.” In my view, Mr. Sheridan’s statement regarding weight is immaterial. The aggregate weight of the substance possessed by Mr. Sheridan is undisputed — what is disputed is the identity of the substance he possessed. If the contents of each baggie had been identified by chemical testing, rather than through circumstantial evidence, nothing in Ross or Safford would preclude the State from relying on the aggregate weight of the baggies to establish a trafficking amount of methamphetamine.

The State’s procedure did not, as the majority suggests, create an “assumption as to the amount without the necessary proof.” The assumption that one must make as a result of the State’s procedure is as to the identity of the substance, not the weight. The State offered direct evidence to establish weight. The issue is not whether the State’s procedure sufficiently proved the weight of the substance, • but whether it was sufficient to establish the identity of the substance in each baggie.

The majority also suggests that I am attempting to extend Pama to permit the use of circumstantial evidence to prove weight. However, as explained above, weight is not the issue in this case. The State established the aggregate weight of the substance by direct testimony from the chemist who weighed and tested the substance. I am relying on Pama for the proposition that the State may use circumstantial evidence to prove the identity of the substance in the two baggies. While the majority states that it does not disagree that identity can be established by circumstantial evidence, it nevertheless refuses to apply the rule in this case because Mr. Sheridan simply said he had methamphetamine instead of being more specific.

Although it is dicta, the majority suggests that Ross requires that “the contents of each baggie ... be weighed and tested separately, and, if found to be the same controlled ' substance, the weights combined.” While I agree that Ross requires testing of each package before they are combined to obtain an aggregate weight, I do not read Ross to require that each package be separately weighed. See Ross, 528 So.2d at 1239-10 (stating that the State has the burden to prove “that each of the subject packets contains cocaine or a mixture thereof which in the aggregate satisfies the ... statutory weight”). In Safford, this court did not read Ross to impose such a requirement, instead stating that the flaw in the State’s case was “the chemist’s failure to test each individual packet before the contents were combined and weighed-” Safford, 708 So.2d at 677. The majority also makes reference to providing the defense with an opportunity-to test the alleged drugs before they are commingled. Because Ross imposes no such requirement and Mr. Sheridan has not raised that issue, I do not believe that we should suggest in this opinion that such a requirement exists.

      . Even if the arresting officer had performed a Valtox test on both of the baggies for the presence of methamphetamine before commingling the contents, the proof would still have been legally insufficient. See Smith v. State, 835 So.2d 387 (Fla. 2d DCA 2003) (reversing a conviction for trafficking when the contents of both baggies field-tested positive for the presence of methamphetamine prior to commingling).

      . In Smith v. State, 835 So.2d 387, 388 (Fla. 2d DCA 2003), another case involving commingling separate packages of contraband, this court notes that there was "no evidence as to the weight of the contents of either baggie." To the extent that this could be read to require that each package be weighed individually, I believe it imposes a requirement not found in Ross.


author: SCHEB, JOHN M., Senior Judge.

text:
    Carolyn Alfreda KING, Appellant, v. Ralph JORDAN, Appellee.
    No. 2D02-2681.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.
    John D.C. Newton, II, Tallahassee; Philip A. McLeod, St. Petersburg; and Peter R. Wallace of Skelton, Willis, Bennett & Wallace, LLP, St. Petersburg, for Appellant.
    Jane H. Grossman of Law Office of Jane H. Grossman; St. Petersburg, for Appellee.
   SCHEB, JOHN M., Senior Judge.

Carolyn Alfreda King, the mother, contends that because the order granting custody of the parties’ daughter to the father, Ralph Jordan, was entered in a dependency proceeding under chapter 39, Florida Statutes (1999), the trial court erred in applying the “extraordinary burden test” set forth in Gibbs v. Gibbs, 686 So.2d 639 (Fla. 2d DCA 1996), in adjudicating her petition seeking primary residential custody of their daughter, Porsche, pursuant to section 61.13(2), (3), Florida Statutes (2000). We agree.

Porsche was born December 8, 1989, to parents who never married. In 1993, when the mother was under protective supervision of the Department of Health and Rehabilitative Services, the court adjudicated Porsche dependent as to her mother and placed her with her father. Porsche has continued to reside with her father, his wife, and the father’s two other children by a former marriage.

In March 2000, in exercise of its continuing jurisdiction under chapter 39, the court reopened the dependency proceeding, restored to the mother “full rights, duties and obligations as mother,” continued the father’s primary residential responsibility for Porsche, and granted the mother liberal visitation privileges. In closing that proceeding, the court ordered that the custodial and visitation rights granted were without prejudice to the right of either parent to seek further relief under chapter 61.

In October 2000, the mother filed suit seeking to become Porsche’s primary residential parent. The trial court ordered a social investigation pursuant to section 61.20, Florida Statutes (2000). The social investigator recommended, among other things, that shared parental responsibility be continued between the parents but that primary residential responsibility for Porsche be transferred to the mother.

After an evidentiary hearing, the trial court found that each of the parents loved Porsche very much and “they are both ready, willing and able to provide a primary residence for Porsche in a shared parental relationship.” Observing that “none of the material facts in this case are disputed,” the court found the evidence clearly established that Mr. Jordan has been a good father and that there is great affection between Porsche and her father. The court also found that the mother “has completely turned her life around since the early 1990s, ... has improved her formal education [and] maintains her own apartment in Tallahassee, and ... is active in the community, including her church.” The court noted an indication of some conflict between Porsche and her stepmother since Porsche’s mother had increased her exercise of visitation rights and observed that Porsche had indicated a preference to live with her mother.

After considering the facts and circumstances, including the factors in section 61.13(3), Florida Statues (2000), the trial court concluded that the mother had not met the “extraordinary burden” required to justify the. trial court ordering a change in custody. In support of its judgment, the trial court cited Gibbs, 686 So.2d 639, where this court held that a party seeking to modify a custody decree must establish a substantial change in circumstances since the final judgment and that such a change justifies imposing a change of custody in the best interests of the child. Citing Gibbs, the trial court noted that to change the custodial arrangement it must find that a change will so clearly promote or improve the child’s well-being to such an extent that any reasonable parent would understand that maintaining the status quo would be detrimental to the child’s overall best interests. Gibbs, 686 So.2d at 641.

In Gibbs, Judge Altenbernd explained: “[T]he analysis in a modification proceeding is substantially different from when the initial child custody decision is made in the dissolution because the presumption in favor of the custodial parent in the modification proceeding can only be overcome by satisfying an extraordinary burden.” Gibbs, 686 So.2d at 641.

The mother contends that instead of applying the “extraordinary burden” test under Gibbs, the court should have applied the “best interests” standard because the previous custody determination was one made under the rehabilitative scheme of chapter 39. The father argues that the mother is not entitled to application of the “best interests” test because she is attempting to modify a judgment made by the dependency court and therefore must meet the “extraordinary burden” required to modify custody.

Stability in the placement of children demands that courts respect orders designating a primary residential parent once child custody has been determined. This rationale supports the firm principle that once custody has been determined under chapter 61, a trial judge does not have the same degree of discretion to modify custody as it does in initially determining custody. We therefore reaffirm the standard articulated in Gibbs with respect to modifying a custody decree that was previously determined pursuant to section 61.13(2), (3), in a paternity or dissolution of marriage judgment. But this is not the case before us. Rather, here, custody had simply been incident to placement of Porsche with her father in a chapter 39 dependency case without prejudice to the right of either parent to seek further relief under chapter 61. The trial court, however, treated the mother’s petition as one seeking to change custody that had been previously adjudicated, thus improperly requiring the mother to carry the burden imposed under Gibbs to show that a substantial change in circumstances had occurred since the order was entered in the dependency proceedings. See Enyeart v. Stull, 715 So.2d 320 (Fla. 2d DCA 1998) (holding trial court mistakenly perceived custody hearing to be custody modification proceeding, rather than initial custody proceeding, and required movant to carry burden of proof for modification proceeding).

The trial court conscientiously addressed the concerns of the parties and, as noted, gave consideration to the child’s best interests. The trial court erred, however, in not recognizing that when a custodial arrangement is ordered in a dependency proceeding the court simply makes a determination to place a child with a responsible adult, preferably a parent, without the necessity of considering all of the factors outlined in section 61.13 concerning a determination of the primary residential parent based on the best interests of the child. The extraordinary burden applicable to a petitioner who seeks to change custody does not apply where, as here, the court has not determined the best interests of a child in awarding primary residential custody in a dissolution of marriage or paternity proceeding.

We reverse the judgment denying the mother’s petition for custody and remand to the trial court to make an original determination of custody under section 61.13(2), (3) without according any presumption to either party. The trial court may, in its discretion, allow additional evidence to be submitted to the court to enable it to make a judgment based on all the factors listed in section 61.13(3).

Reversed and remanded.

STRINGER and DAVIS, JJ., Concur.

      . Although these parties were never married, section 61.13(2), (3), has been held to apply to custody determinations involving unmarried parents. See Stepp v. Stepp, 520 So.2d 314 (Fla. 2d DCA 1988) (holding that shared parental responsibility law set forth in section 61.13 applied to custody determination regarding child born out of wedlock); Barnes v. Frazier, 509 So.2d 401 (Fla. 5th DCA 1987) (same); see also Brown v. Bray, 300 So.2d 668 (Fla.1974) (finding paternity statute constitutional by construing it to provide unwed father similar rights to child custody as granted to father in dissolution of marriage).