author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    Pedro LARA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-8.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Bennett H. Brummer, Public Defender, and Susan Martin, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge.
   PER CURIAM.

Affirmed. See § 59.041, Fla. Stat. (2003); Bradley v. State, 787 So.2d 732, 743-44 (Fla.2001); Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1028-29 (Fla.2000); State v. Jano, 524 So.2d 660, 661-62 (Fla.1988); Bell v. State, 847 So.2d 558, 560-61 (Fla. 3d DCA 2003); Pino v. State, 776 So.2d 1081 (Fla. 3d DCA 2001).

GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge, concur.

SCHWARTZ, Chief Judge

(specially concurring).

I believe both that it was error to admit a prior written statement of the victim, which was inadmissible as an excited utterance, State v. Justice, 92 Ohio App.3d 740, 637 N.E.2d 85 (1994); State v. Dixon, 37 Wash.App. 867, 684 P.2d 725 (1984), or otherwise, see Coluntino v. State, 620 So,2d 244 (Fla. 3d DCA 1993); Reyes v. State, 580 So.2d 309 (Fla. 3d DCA 1991), and that portions of the prosecutor’s unobjected to final argument went well over the line. See Card v. State, 803 So.2d 613 (Fla.2001), cert. denied, 536 U.S. 963, 122 S.Ct. 2673, 153 L.Ed.2d 845 (2002); First v. State, 696 So.2d 1357 (Fla. 2d DCA 1997). Nevertheless I concur in af-firmance because I am convinced beyond a reasonable doubt by the record — which shows the defendant was apprehended by the investigating officers literally in the act of brutally beating his wife — -that neither issue made any difference in the ultimate outcome. See § 924.33, Fla. Stat. (2003); Goodwin v. State, 751 So.2d 537 (Fla.1999); State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Justice, 92 Ohio App.3d at 740, 637 N.E.2d at 85; Dixon, 37 Wash.App. at 867, 684 P.2d at 725.

      . For example:
      There’s nothing up my sleeves. Nothing like that. Just the evidence and the truth. You're the truth-seekers. 'We who labor here, seek only truth.' We know what the truth is. You saw him on the stand, the guy's a- liar.
      You have got to understand that he's lied to you. He barely looked you in the eye, because I can't say he lied right to your face, he’s a liar.

      The Defendant lied. He lied on the stand. He lied to the police and he lied when he pled not guilty in this case, because he's guilty.

      Oh, this is my favorite part. Let's talk about the Defendant testifying. Now, well it’s clear that the Defendant lies when it’s convenient.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dorsett JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5502.
    District Court of Appeal of Florida, First District.
    March 18, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the appellant’s motion to correct illegal sentence. See Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, 854 So.2d 659 (Fla.2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

AFFIRMED.

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


text:
    John T. UNDERWOOD, Appellant, v. COLUMBIA COUNTY, Florida, Appellee.
    No. 1D02-4947.
    District Court of Appeal of Florida, First District.
    March 22, 2004.

      Barbara Hobbs of Cummings, Hobbs & Wallace, P.A., Tallahassee, for Appellant.
    Marlin M. Feagle of Feagle & Feagle, Lake City, for Appellee.
   PER CURIAM.

This is an appeal from a final judgment finding that real property titled to the appellant had been dedicated to public use, and awarding the appellant the fair market value of the dedicated property, as well as attorney’s fees. We affirm the ruling that the property was dedicated to public use, but we reverse the portions of the judgment ordering the County to pay the landowner compensation for the dedicated property and his attorney’s fees, as there was no valid basis for either award.

Columbia County filed the instant action against Underwood to quiet title to certain real property making up part of a roadway within the county limits. Underwood, as personal representative for the estate of one Lucy Jones, was the record titleholder of the property. The County sought a ruling that it had sole title to the property, because the land had been dedicated to public use as a roadway by operation of the state dedication statute. See § 95.361, Florida Statutes (2002).

Following a bench trial, the lower court found that the County had met the prerequisites for dedication of the land under the statute, in that it had constructed the road and had maintained or repaired it continuously and uninterruptedly for more than four years. Therefore, the court' ruled that the property had been dedicated to public use as a county roadway, thus vesting exclusive title to the land in the County. However, despite ruling that the property was dedicated, the court went on to order the County to pay Underwood the fair market value of the land and also to pay his attorney’s fees.

On appeal, Underwood argues that the evidence did not support the ruling that the property was dedicated to public use. However, he has failed to submit an adequate record on appeal for us to review his claim. He has not included a copy of the trial transcript or any other part of the record below containing evidence relevant to the dedication ruling. In the absence of a sufficient record by which to review Underwood’s argument, we must affirm the trial court’s ruling that the property was dedicated to public use under the statute. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

On cross-appeal, the County argues the trial court erred in ordering it to pay Underwood the fair market value of the dedicated land, as well as his attorney’s fees. Because both of these issues are pure questions of law, the de novo standard of review applies, and we may therefore review the issues despite the absence of a full record on appeal. See Pape v. Pape, 444 So.2d 1058 (Fla. 1st DCA 1984).

We agree with the County that there was no authority for either the compensation award or the fee award. Unlike a takings case, in which the property owner is entitled to the fair market value of the land converted to public use, a quiet title action brought under the dedication statute does not allow for payment of compensation for the dedicated property. Nothing in the dedication statute, section 95.361, authorizes a court to award a property owner compensation for dedicated lands. No other statute of which we are aware provides for such an award, either.

Nor is there a statutory basis for an attorney’s fee award to the owner of dedicated property. See § 95.361, Fla. Stat.; Suwannee County v. Garrison, 417 So.2d 1070, 1071 (Fla. 1st DCA 1982). Attorney’s fees may be awarded only if there is a contractual or statutory basis for such an award, see Sheriff of Alachua County v. Hardie, 433 So.2d 15, 16 (Fla. 1st DCA 1983), neither of which was present in the instant case. Moreover, Underwood did not request attorney’s fees in any of the pleadings below, so a fee award would not have been warranted even if it were authorized by statute. See Garrison, 417 So.2d at 1072, n. 4. We must therefore reverse both the compensation award and the attorney’s fee award as having no valid legal basis.

In sum, we affirm the ruling that the property was dedicated to public use, but we reverse the portions of the judgment ordering the County to pay Underwood’s attorney’s fees and compensation for the dedicated property.

Affirmed in part, reversed in part and remanded.

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

      . Section 95.361(1) provides,
      When a road, constructed by a county, a municipality, or the Department of Transportation, has been maintained or repaired continuously and uninterruptedly for 4 years by the county, municipality, or the Department of Transportation, jointly or severally, the road shall be deemed to be dedicated to the public to the extent in width that has been actually maintained for the prescribed period, whether or not the road has been formally established as a public highway. The dedication shall vest all right, title, easement, and appurtenances in and to the road in:
      (a) The county, if it is a county road;
      (b) The municipality, if it is a municipal street or road; or
      (c) The state, if it is a road in the State Highway System or State Park Road System,
      whether or not there is a record of a conveyance, dedication, or appropriation to the public use.
      § 95.361(1), Fla. Stat. (2002)


author: ERVIN, J.

text:
    Sallie CLEVELAND, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES DISTRICT: 07 SEMINOLE UNIT 55205, Appellee.
    No. 1D03-1744.
    District Court of Appeal of Florida, First District.
    March 22, 2004.

      Treena A. Kaye of Community Legal Services of Mid-Florida, Inc., Sanford, for Appellant.
    Kelly J. McKibben, Orlando, for Appel-lee.
   ERVIN, J.

This is an administrative appeal from an order of the appellee, Department of Children and Families (DCF or department), denying appellant Sallie Cleveland’s application for relative-caregiver (RC) benefits as a long-term permanent custodian of her three minor grandchildren. Because we conclude the denial of the application was based on an erroneous interpretation of law, we reverse the order of denial and remand the case to the agency with directions.

In April 1994, the juvenile court determined that Mrs. Cleveland’s three grandchildren were dependent by reason of their neglect, abuse or abandonment, as prescribed in chapter 39, Florida Statutes, and that the children would remain in the grandmother’s temporary care while under the protective supervision of the department. A later order placed the children in the long-term permanent custody of the grandmother. As legal custodian, Mrs. Cleveland has, since 1994, continuously received temporary cash assistance (TCA) from DCF and was receiving $303.00 per month at the time of the hearing below.

In 2002, because Mrs. Cleveland had suffered severe financial reversals caused by the death of her husband and extensive health-related expenses, she applied for conversion of the TCA benefits she had been receiving to RC benefits under section 39.5085, Florida Statutes (2002), following the department’s advice to her the preceding year that she might be eligible for greater benefits under the RC program than those available through TCA. After its preliminary denial, the application proceeded to hearing before a DCF hearing officer, resulting in the order of denial now on appeal. The reasons stated in the order were based on the department’s construction of Florida Administrative Code Rule 65C-24.010, listing the eligibility requirements necessary for an applicant’s receipt of RC benefits. The department concluded that Mrs. Cleveland did not fulfill the eligibility criteria for the program because (1) the RC Communication Forms, which were necessary to verify that the children had been adjudicated dependent, had not been completed by the DCF Family Safety office and routed to the DCF Economic Self-Sufficiency (ESS) office; (2) the juvenile court had terminated jurisdiction in 1997, thus ending the children’s dependency status and rendering them ineligible for the RC benefit program; and (3) no dependency adjudication or home study had been in place since the creation of the RC program in 1998.

We are committed to the rule that an agency’s interpretation of a statute it is charged with administering should not be rejected so long as its interpretation is consistent with the legislative intent and is supported by competent, substantial evidence. See Pub. Employees Relations Comm’n v. Dade County Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985). The department’s construction of its rule is, however, neither consistent with the legislative purpose nor supported by the evidence. In reaching its decision, DCF relied on a rule which, at the time Mrs. Cleveland filed her petition in 2002, had become obsolete by reason of subsequent statutory amendments governing the RC program.

Initially, we note that chapter 65C-24 was adopted before the enactment of the 2000 amendment to section 39.5085, Florida Statutes, which expanded the RC program to long-term relative caregivers, such as Mrs. Cleveland, given permanent custody of children adjudicated dependent pursuant to chapter 39. DCF has not modified its rules to implement the amended statute by providing for the eligibility of relatives with long-term permanent custody of children. As such, the unchanged rule clearly contradicts section 39.5085, Florida Statutes (2002), which contains categories of relative caregivers eligible for the program different from those listed in Rule 65C-24.010.

Section 39.5085(2)(a) provides the only-eligibility criteria necessary for Mrs. Cleveland to meet. In order for a relative caregiver to be eligible for RC assistance, section 39.5085 requires that (1) the relative be within the fifth degree by blood or marriage to the parent or stepparent of a child for whom they are caring; (2) the relative be caring full-time for a child determined dependent as a result of abuse, neglect, or abandonment, and that placement of the child with the relative be made pursuant to chapter 39, Florida Statutes; (3) the placement be either court-ordered temporary legal custody under protective supervision, or court-ordered placement in the home of a relative as a permanency option; (4) the relative caregiver be capable, as determined by a home study, of providing a safe and stable home for the children in which their well-being is met; and (5) that the RC benefits be provided to relieve the financial burden that would otherwise make the relative caregiver unable to serve.

Mrs. Cleveland satisfies all statutory criteria for eligibility in the RC program. The parties jointly stipulated that Mrs. Cleveland is the maternal grandmother of the three children; that she has been acting in the role of a substitute parent and full-time caregiver for the three children as a result of the juvenile court’s determination of their dependency based on a finding of child abuse, neglect or abandonment under chapter 39, Florida Statutes; that the children were placed in Mrs. Cleveland’s legal custody in 1994, after the court’s adjudication of dependency which followed the agency’s placement recommendation, that as legal custodian, she has been receiving TCA benefits on behalf of all three children; and that after placing the children with Mrs. Cleveland, the court twice thereafter determined that their placement in the home was stable and in their best interests. Moreover, DCF made no contention in its brief or during oral argument that Mrs. Cleveland did not satisfy her burden of showing financial need for the greater RC benefits.

Despite the parties’ stipulations, DCF argues that the criteria set out under Rule 65C-24.011, which the hearing officer followed in deciding Mrs. Cleveland’s ineligibility to receive RC benefits, provides that an applicant must also show (1) the completion of a new home study, (2) the approval of the home, (3) the dependency adjudication of the child, and (4) an order of the court placing the child with a relative.

It is clear from the record that the three grandchildren were adjudicated dependent, and that Mrs. Cleveland was approved as a long-term permanent caregiver following DCF’s favorable home study. The fact that neither of the above events occurred after the inception of the RC program is immaterial. To require an additional showing of such conditions is, in our judgment, contrary to the broad purpose expressed by the legislature in creating the Relative Caregiver Program, which was designed to

(a) Recognize family relationships in which a grandparent ... is the head of a household that includes a child otherwise at risk of foster care placement.
(b) Enhance family preservation and stability by recognizing that most children in such placements with grandparents and other relatives do not need intensive supervision of the placement by the courts or by the department.
(c) Recognize that permanency in the best interests of the child can be achieved through a variety of permanency options, including long-term relative custody, guardianship, or adoption, by providing additional placement options and incentives that will achieve permanency and stability for many children who are otherwise at risk of foster care placement because of abuse, abandonment, or neglect, but who may successfully be able to be placed by the dependency court in the care of such relatives.
(d) Reserve the limited casework and supervisory resources of the courts and the department for those cases in which children do not have the option for safe, stable care within the family.

§ 39.5085(1), Fla. Stat. (2002).

DCF’s argument that an order of the juvenile court in 1997 terminating jurisdiction had the effect of concluding the children’s dependency status, thereby causing them to become ineligible for the RC benefit program, represents, in our judgment, a fundamental misunderstanding of the placement process under chapter 39, which contemplates the eventual termination of jurisdiction at the court’s discretion. See § 39.521(l)(b)(3), Fla. Stat. (2002) (“Protective supervision shall be terminated by the court whenever the court determines that permanency has been achieved.... The termination of supervision may be with or without retaining jurisdiction[.]”); § 39.622(9), Fla. Stat. (2002) (“The court shall discontinue regular judicial-review hearings and may relieve the department of the responsibility for supervising the placement of the child whenever the court determines the placement is stable[.]”).

Given the clearly expressed goals of the legislature, recognizing that the permanent placement of a child in a stable home environment with a relative is preferred over the often impermanent arrangement of foster care, it is inconceivable to us that the legislature intended to disentitle such custodians from eligibility for RC benefits, in the face of evidence clearly showing their earlier compliance with all statutory requisites for same. If we were to accept DCF’s argument, the result would be that only long-term relative caregivers who currently demonstrate their compliance with the statutory criteria would be entitled to RC benefits, whereas those who otherwise conformed with such requisites before the inception of the RC program are rendered ineligible in that they are unable to establish their present compliance with the legislative demands because of the termination of both the court’s jurisdiction and the department’s supervision.

DCF’s restrictive construction of the statutory process overlooks the legislature’s overarching expressed purpose for providing financial assistance to relative caregivers, recognizing that without such provision, they would be unable to serve in such capacity, thereby “exposing the child to the trauma of placement in a shelter or in foster care.” § 39.5085(2)(a)(2), Fla. Stat. (2002). In our judgment, the department’s interpretation of its regulatory authority is clearly at odds with statutory language to the contrary, and for that reason must be rejected. See St. Joe Paper Co. v. Dep’t of Revenue, 460 So.2d 399, 401 (Fla. 1st DCA 1984). We therefore reverse DCF’s decision declaring Mrs. Cleveland ineligible for RC benefits.

Mrs. Cleveland next argues that if she is entitled to RC benefits, they should be made retroactive to June 1, 1999, the date of the adoption of Rule 650-24.005(3), because DCF contravened the provisions of the rule by fading to inform and assist her in applying for the RC program. In the alternative, she maintains that such benefits should commence no later than December 2001, the time she first discussed her eligibility for such benefits with DCF employees. We cannot agree with either assertion. At oral argument, Mrs. Cleveland conceded that her eligibility for RC benefits as a relative caregiver with long-term custody arose not through the provisions of the department’s rule, but rather from the 2000 amendments to section 39.5085, Florida Statutes, which did not take effect until a year after the rule’s adoption. Moreover, because chapter 65C-24 is inapplicable to Mrs. Cleveland, there is no legal basis for her claim that DCF was required to inform her of such eligibility.

As for appellant’s argument that she should receive RC benefits from the date she informally discussed the question of her eligibility for such benefits, the evidence is clear that Mrs. Cleveland did not apply for same until May 31, 2002, and that she could not become eligible until the TCA benefits she had been receiving were converted to RC benefits, which could not occur until ten days, or the next recurring month after DCF’s ESS office received the applicant’s RC Communication Form from the DCF Family Safety office in order to verify her eligibility for the greater benefit. Thus, there was no evidence from which the hearing officer could decide that appellant was eligible for RC benefits at any time before she actually applied for same. We therefore agree with the department to the extent that it maintains Mrs. Cleveland could not establish her eligibility for such benefits until after the filing of her application.

Because we have decided that DCF erred as a matter of law in denying appellant’s request, we conclude she is entitled to RC payments from the time she should have received them if the department had correctly processed her application. The record discloses that at the time of her application, the department was handling requests for RC benefits in the following manner: (1) the applicant sought such benefits through either the ESS office or the Family Safety office; (2) an RC Communication Form would be generated either directly by the Family Safety office or by the ESS office, which would route the blank form to the Family Safety office depending on the office to which the applicant initially applied; (3) the Family Safety office would complete the form, essentially checking off whether the applicant was eligible; (4) if eligible, the Family Safety office would route the completed form to the ESS office; (5) the ESS office would then convert the applicant’s existing TCA payments to RC benefit payments within ten days of receiving the completed form, or by the next recurring month.

In the present case, the Family Safety office failed to complete the form and forward it to the ESS office because of its erroneous belief that Mrs. Cleveland was ineligible for RC benefits. It is unclear from the record when the form would have been processed in the regular course of office practice if the department had correctly decided the eligibility issue. Accordingly, we remand the case to the department to decide, either from the evidence before it, or, if necessary, from additional evidence, when, during the ordinary application process, appellant should have received RC benefits if she had been properly determined eligible. Because of the legislative proscription in section 39.5085(2)(e) against children simultaneously receiving both TCA and RC benefits, DCF shall be allowed an offset or credit against RC benefits paid to Mrs. Cleveland during the time she also received TCA payments.

REVERSED and REMANDED.

ALLEN and WEBSTER, JJ., concur.

      . The department had previously conducted a favorable home study and recommended placement of the children in Mrs. Cleveland's home.

      . The rule provides in pertinent part:
      In order for a child placed with a relative caregiver to receive a monthly Relative Caregiver Program benefit, the child must:

      (3) Be adjudicated dependent pursuant to 39.508(9)(a)3. or 4., F.S., in
      (a) Court-ordered temporary legal custody of the relative, or
      (b) Court-ordered placement in the home of a relative under protective supervision of the department.

      . See Ch. 98-78, § 1, at 554-55, Laws of Fla., enacting section 39.5085, Florida Statutes.

      .For example, section 39.5085(2)(a)(2) provides that placement with a relative
      may be either court-ordered temporary legal custody to the relative under protective supervision of the department pursuant to s. 39.52l(l)(b)3., or court-ordered placement in the home of a relative as a permanency option pursuant to s. 39.622. The Relative Caregiver Program shall offer financial assistance to caregivers who are relatives and who would be unable to serve in that capacity without the relative caregiver payment because of financial burden, thus exposing the child to the trauma of placement in a shelter or in foster care.

      . As of August 2002, however, one of the children had become ineligible for RC benefits due to the child's receipt of supplemental security income.

      . Upon the applicant’s showing of compliance with the above requirements, the rule provides that the DCF Public Assistance Specialist must convert TCA payments then being made to RC benefits for each eligible child.


text:
    Gregory BRANCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0394.
    District Court of Appeal of Florida, First District.
    March 22, 2004.
    Gregory Branch, pro se, appellant.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. See Griffis v. State, 593 So.2d 308 (Fla. 1st DCA 1992) (holding that there is no authority for filing a motion for rehearing of an order disposing of a rule 3.800(a) motion to correct illegal sentence; thus, motion for rehearing does not postpone rendition of order so as to make notice of appeal timely).

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


text:
    Dywayne Tony WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0353.
    District Court of Appeal of Florida, First District.
    March 22, 2004.
    Dywayne Tony Wilson, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits. Petitioner’s request to certify a question of great public importance is denied.

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


text:
    Otis Frank WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4980.
    District Court of Appeal of Florida, First District.
    March 23, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Philip W. Edwards, Assistant Attorney General; Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the trial court failed to attach portions of the record conclusively establishing that the appellant’s claim has been previously decided on the merits, we reverse.

On September 28, 2003, the appellant filed a rule 3.800(a) motion alleging that his sentences are illegal because the trial court retained jurisdiction over his life sentences. The trial court denied the appellant’s motion as being barred by the doctrine of collateral estoppel. The trial court reasoned that the appellant has filed numerous post-conviction motions and has repeatedly asserted this exact claim. The trial court attached a copy of an order dated November 21,1997, which also noted the appellant’s multiple filings. In regard to the instant claim, the attached order denied the claim as being successive because the appellant raised the exact claim on direct appeal and in other post-convictions motions. The attached order also concluded that the appellant’s claim could not be raised in a rule 3.800(a) motion.

It appears that the appellant has raised a meritorious claim. A trial court is without statutory authority to retain jurisdiction over a life sentence, which constitutes an indeterminate sentence. Wainwright v. State, 704 So.2d 511, 515 (Fla.1998); State v. Mobley, 481 So.2d 481 (Fla.1986). If a trial court retains jurisdiction over a life sentence, the issue may be raised in a rule 3.800(a) motion. Cofield v. State, 602 So.2d 586, 587 (Fla. 1st DCA 1992). As the state concedes, the trial court erred in denying the appellant’s claim as being barred by the doctrine of collateral estoppel as it is not clear from the record before this Court that the instant claim has ever been decided on the merits. See State v. McBride, 848 So.2d 287, 291 (Fla.2003)(concluding in order for the doctrine of collateral estoppel to apply, the “matter must be fully litigated and determined in a contest that results in a final decision of a court”).

Accordingly, we reverse the trial court’s order and remand for further consideration consistent with this opinion.

REVERSED and REMANDED.

BOOTH, POLSTON and HAWKES, JJ., concur.


text:
    Salvatore N. ZIMMARDI, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1481.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2004.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Hertz v. State, 803 So.2d 629, 646 (Fla.2001).

PLEUS, PALMER and ORFINGER, JJ., concur.


text:
    Michael FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1870.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2004.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Lynn v. State, 687 So.2d 39 (Fla. 5th DCA 1997).

PETERSON, THOMPSON and ORFINGER, JJ., concur.


text:
    Mark Anthony FREDA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3180.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2004.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

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

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


text:
    Michelle T. TIERNEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3283.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2004.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Miller v. State, 814 So.2d 1131 (Fla. 5th DCA 2002).

PETERSON, GRIFFIN and ORFINGER, JJ., concur.


text:
    Carl J. CONTI, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-3871.
    District Court of Appeal of Florida, Fifth District.
    March 23, 2004.

      Carl J. Conti, Winter Springs, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

PETERSON, GRIFFIN and ORFINGER, JJ., concur.


author: HAZOURI, J.

text:
    J.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-736.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, J.H., appeals from his adjudication of delinquency for petit theft. We reverse and direct the trial court to discharge J.H.

A petition for delinquency was filed June 19, 2002, alleging J.H., a child, had committed the delinquent act of petit theft, a first degree misdemeanor, in violation of section 812.014(l)(a) and (2)(e), Florida Statutes (2001). The petition alleged the property taken, a cellular phone, had a value of more than $100 but less than $300.

The cellular phone in question belonged to Susie Bonilla who was employed in the office at Parkway Academy, the school where the theft occurred. Although her office door was kept open, no one was allowed to enter without her permission. She kept her purse in her desk and her cell phone, a 3390 champagne-colored Nokia, on top of her desk. The value of the cellular phone was approximately $140.

On May 21, 2002, at approximately 11:30 a.m., Bonilla reported that her cell phone had been stolen. Bonilla did not witness the theft and had no idea who may have stolen her phone. The theft was reported to law enforcement who conducted an investigation in an attempt to locate the cellular phone. The record reflects that juvenile S.J., was suspected of having stolen the cellular phone and was called to the office where he was confronted by law enforcement and Academy personnel. S.J. admitted that he had stolen the cellular phone, but did not currently have it in his possession.

J.H. was then called to the office and asked by law enforcement whether he knew anything about the phone. J.H. stated that he had the phone and had been holding it for S.J. because S.J. had left the cellular phone in the classroom. J.H. took the phone from his left pocket and gave it to the investigating officer.

J.H. argues on appeal that the state’s case rests wholly on circumstantial evidence and the inference of guilt under section 812.022(2), Florida Statutes (2001), for possession of recently stolen property. J.H. further asserts that his explanation of his possession of the stolen cellular phone is unrefuted, exculpatory and not unreasonable and, therefore, the inference of guilty knowledge is thereby dispelled. We agree.

Section 812.022(2) provides as follows:

(2) Proof of possession of property recently stolen, unless satisfactorily. explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

(Emphasis added.)

This court held in Jackson v. State, 736 So.2d 77, 84 (Fla. 4th DCA 1999), “that where a conviction for theft was based on nothing more than the section 812.022(2) inference, then the evidence was legally insufficient to support a guilty verdict, in the face of an unrefuted, exculpatory and not unreasonable explanation offered by the accused for his possession of the goods in question.”

Similarly, in Coleman v. State, 466 So.2d 395, 397 (Fla. 2d DCA 1985), the court held:

[Wjhere a defendant gives a patently reasonable explanation for his possession of recently stolen goods which is totally unrefuted, and there is no other evidence of guilt, the court must direct a judgment of acquittal. If, on the other hand, the explanation is only arguably reasonable or if there is any evidence which places it in doubt, the court should permit the jury to make the decision.

The facts of the instant case are similar to a line of case law arising out of the third district. In R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981), an adjudication of delinquency was reversed because the defendant’s “unrefuted, exculpatory, and not unreasonable explanation of his possession of a stolen moped that he bought it at a flea market rendered the state’s case, which was based solely on the inference provided by Section 812.022(2) ... without any additional incriminating circumstances, insufficient as a matter of law to establish guilt.” Id. at 1337.

Likewise, in R.M. v. State, 412 So.2d 44 (Fla. 3d DCA 1982), the appellate court reversed the defendant’s adjudication of delinquency because his unrefuted explanation that he borrowed the bicycle from a friend precluded a conviction.

In R.D.S. v. State, 446 So.2d 1181 (Fla. 3d DCA 1984), the defendant was adjudicated delinquent after he was arrested in possession of a stolen and severely damaged moped from which the identification number had been removed. He explained that he bought the moped from a boy named Rodney Middleton for $35 and it was in poor condition when he bought it. The state did not attempt to verify or refute his testimony. On appeal the state argued that there were incriminating circumstances inconsistent with the explanation, i.e., that the ID number was removed. The court held: “But an inference that the identification number was removed by the person who sold the moped to appellant is just as reasonable as, and comports with, appellant’s otherwise unrefuted testimony that he purchased the vehicle in poor condition from a person named Middleton.” Id. at 1182.

Finally, the third district again reversed an adjudication of delinquency in R.M. v. State, 450 So.2d 897 (Fla. 3d DCA 1984), in which R.M. was driving a stolen automobile but his reason for possession, that he borrowed it from his stepfather, was unre-futed, exculpatory and not unreasonable and therefore the state’s case was insufficient as a matter of law.

In the instant case, J.H. explained that he had seen S. J. with the cell phone, showing it off in class, and after S.J. was called out to the principal’s office, J.H. found the phone on the floor. He picked it up to hold it for S.J. until the next day. This explanation is exculpatory, unrefuted and reasonable. Therefore, the adjudication of delinquency is reversed with directions to discharge J.H.

REVERSED.

STONE and GROSS, JJ„ concur.

      . It is unclear how S.J. became a suspect but it appears that another student may have tipped off the authorities.


text:
    Kenneth N. SCHENCK, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and City of Pahokee, Appellees.
    No. 4D03-621.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.

      M. Kate Boehringer of Garcia, Elkins & Boehringer, P.A., West Palm Beach, for appellant.
    Therese Pine, Senior Attorney, Tallahassee for appellee Unemployment Appeals Commission.
   PER CURIAM.

Appellant, who had been city manager of Pahokee for twelve years, resigned because it became apparent to him that the new mayor wanted to terminate him and had the votes to do so. He was denied unemployment benefits because he voluntarily left work and he now appeals. We reverse.

Although appellant served at the commission’s pleasure, and no reasons were needed to terminate him, the city charter required a resolution, which provided for notice and a hearing before the city commission. Before any of that occurred, the new mayor said at a meeting that he wished to terminate appellant and two members of the commission indicated that, although they did not necessarily agree with the mayor’s reasons, they would agree to terminate appellant. Appellant then resigned before the city went through the procedures required by the charter.

At the hearing before the unemployment appeals referee, the mayor testified that when he stated at the meeting that he wished to terminate appellant, he did not give the specific reasons which he would have presented at the meeting required by the charter. Appellant gave the following explanation as to why he resigned rather than go through the formality of a hearing:

The mayor read the letter in the commission chambers, as he said, which had a lot of derogatory comments about my character and what I’ve done with the city. Which I took great offense to after 12 years of working hard for the city. The commissioners each had comments to say after that, and it was very obvious that he had the three votes to fíre me, with two of the other commissioners. Not necessarily for the same reasons, but they indicated that they would go along with it. And so it was obvious there was a three-to-two vote. To go back into a public hearing the comments that were made about me and my character were very upsetting to me and very upsetting to my wife. And I saw no reason to go back into another public hearing and air them all out again, when there was no basis for them and no proof has been shown for any of them. So I felt it was just easier for everybody if I went ahead and resigned. But it was under duress. I had no desire to resign. After 12 years, I wanted to stick around.

The appeals referee found that appellant had left his employment without good cause, stating:

The claimant made a decision to leave before a decision was made by his employer. He may have felt the public airing was disturbing or without point, given his beliefs about the future vote; however, it can only be determined to have been speculative on his part as to how the vote was to turn. When an employee, in the face of allegations of misconduct, chooses to leave the employment rather than exercise a right to have the allegations determined, such action supports a finding that the employee voluntarily left the job without good cause. Board of County Comm’s, Citrus County v. Florida Dep’t of Commerce, 370 So.2d 1209 (Fla. 2d DCA 1979).

There is no competent substantial evidence to support the finding that the claimant left before a decision was made by his employer. It was undisputed that the claimant could be terminated without any reason, and the essence of appellant’s testimony was that, once the mayor had the three votes, his termination was a foregone conclusion. Significantly, the city presented no testimony to contradict appellant’s position.

The present case is distinguishable from Board of County Commissioners, in that in that case there were specific allegations of misconduct, while in the present case there were no specific charges of misconduct before appellant resigned. Nor did the city claim there was any misconduct at the unemployment compensation hearing.

In Krueger v. Unemployment Appeals Commission, 555 So.2d 1225 (Fla. 2d DCA 1989), Judge Altenbernd explained “good cause” for giving up employment as follows:

Good cause has been defined as “a reason which would be deemed by reasonable men and women valid and not indicative of an unwillingness to work.” The above-described definition analyzes good cause both objectively and subjectively. If a reasonable person would regard Ms. Krueger’s reasons for resignation as valid reasons attributable to the employer, then the objective test has been met. Ms. Krueger must also establish that her resignation was not due to some subjective unwillingness to work on her own part.

Id. at 1228-29. (Citations omitted).

In Grossman v. Jewish Community Center of Greater Fort Lauderdale, Inc., 704 So.2d 714 (Fla. 4th DCA 1998), an employee quit before availing herself of grievance procedures. In that case, two executives who would have been on the grievance panel had verbally abused the employee. The referee found that the grievance procedure did not offer a feasible alternative for the employee. Relying on the dissent in Krueger, we said, “[wjhile there is a slight possibility that the remaining two steps of the process may have salvaged her employment, as the court in Krueger noted, “although there may be some certainty in requiring employees to exhaust even frivolous [procedures] ... this solution does not promote the objectives of the Unemployment Compensation Law.” 704 So.2d at 717 (quoting Krueger, 555 So.2d at 1228).

In the present case there was no evidence of any possibility that appellant could have been retained by the city if he had gone through a hearing. We accordingly reverse because there is no competent substantial evidence to support the finding that appellant left his job voluntarily.

WARNER, KLEIN and POLEN, JJ., concur.


author: STEVENSON, J.

text:
    Ricardo JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1885.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for Appellee.
   STEVENSON, J.

Appellant, Ricardo James, was tried by-jury and convicted of the aggravated battery of Edna Beard on January 7, 2000 (count I); shooting into the occupied dwelling of Edna Beard on February 26, 2000 (count II); the aggravated assault of Edward Beard on February 26, 2000 (count III); and possession of a firearm by a convicted felon on February 26, 2000 (count IV). James was sentenced to sixty-five years in prison. On appeal, he challenges his convictions on the basis that the trial court improperly allowed the State to reveal to the jury that one of his four prior felony convictions was a drug offense. James also challenges his sentence on various grounds, including the argument that he was improperly sentenced on count IV under section 775.087, Florida Statutes (2000), the so-called 10/20/Life statute. We find the erroneous introduction of the evidence harmless in this case and affirm the conviction, but we reverse the sentence in part and remand for re-sentencing. We write only to discuss the sentencing issues.

Procedural background

At the original sentencing hearing on April 11, 2002, the trial court sentenced James to thirty years on count I as a habitual felony offender; twenty years on count II under the 10/20/Life statute; twenty years on count III with a minimum mandatory of twenty years under the 10/20/Life statute; and twenty years on count IV. Count I was to run consecutive to counts II, III and IV; and counts II, III and IV were to run concurrent with each other. In total, appellant was sentenced to fifty years incarceration.

On February 14, 2003, James’s appellate counsel filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the twenty-year sentences imposed on counts II and IV were illegal and in excess of the fifteen-year statutory maximum for second degree felonies. As to count II, James argued that the 10/20/Life statute did not apply because shooting into an occupied dwelling is not an enumerated offense. James also maintained that the 10/20/Life statute did not apply to count IV because the jury was not asked whether he possessed the firearm. Additionally, as to count IV, appellant argued that the oral pronouncement of sentence of fifteen years, controlled over the twenty-year written sentence.

At the hearing on the motion to correct sentence, a new prosecutor appeared on behalf of the State. On count II, the State agreed that James should have been sentenced to fifteen years pursuant to section 775.082 because shooting into an occupied dwelling is not a 10/20/Life enumerated offense. As to count IV, the State agreed that the twenty-year sentence was incorrect because the jury did not find that James discharged a firearm. However, the State maintained that the 10/20/Life statute applied to count IV because James was charged with possessing a gun and the jury found him guilty as charged. Therefore, the State argued that, under the 10/20/Life statute, the three-year minimum mandatory should be included within the fifteen-year sentence. Further, the State argued that because count IV fell under the 10/20/Life statute, the court had no discretion and was required to run count IV consecutive to the other counts.

The new prosecutor also told the court that it was mistakenly informed at the initial sentencing hearing that it could not declare James a habitual offender on count I and least one of the other counts. The State explained that because count I (a January 7, 2000 offense) involved a different criminal episode than counts II, III and TV (all occurring on February 26, 2000), the court could have declared James a habitual offender on both count I and one of the other counts. The court declined the State’s request to declare James a habitual offender on counts II or IV because it failed to seek habitual offender treatment for those counts at the original sentencing hearing. The State also pointed out that the court could take into consideration disciplinary reports provided at the hearing regarding James, which were not considered at the initial sentencing hearing.

James agreed that he should be sentenced to fifteen years on count TV, but not under the 10/20/Life statute. James’s counsel also argued that count TV could not be sentenced pursuant to the 10/20/ Life statute since the jury was not asked to determine whether he actually possessed the firearm. The State then informed the trial judge that if he agreed that count IV triggered the three-year minimum mandatory under the 10/20/Life statute, the sentence was required to run consecutively.

The trial judge remained concerned over whether count IV could run consecutively, stating “[t]he only thing that troubles me, quite candidly, is the issue regarding count four and whether I run that consecutive or not.” The court then issued its ruling on re-sentencing, vacating the original sentences on counts II and IV:

[As to count II] I’m going to resen-tence him and sentence him to 15 years in Florida State Prison to run consecutive to count one and concurrent to three and four. As to count four, I’m going to resentence him to 15 years in Florida State Prison with a three year minimum mandatory under the 10, 20, life statute. And that is going to run consecutive to all other counts based upon 775.087 and the argument made by the State. The sentencing as to one and three will remain in full force and effect, (emphasis added).

Thus, after the trial judge ruled on James’s motion to correct sentence, count IV was now running consecutive to count II and James’s total period of incarceration rose from fifty years to sixty-five years.

Discussion

James argues that in his motion to correct sentence, he merely sought to have the sentences on counts II and IV corrected to fifteen years on each count instead of twenty. James maintains that the trial judge correctly reduced the sentences from twenty to fifteen years as requested, but erred in classifying count TV as a 10/20/Life offense. Additionally, James argues that the trial court violated North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), as qualified by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), in restructuring the concurrent/consecutive relationship between counts II, III and IV, thereby making his sentence harsher by adding an additional fifteen years to the original sentence.

We find that James was improperly sentenced under the 10/20/Life statute as to count TV. Count IV of the information charged James with possession of a firearm by a convicted felon contrary to sections 790.23 and 775.087, Florida Statutes (2000). We agree with the holding in Bundrage v. State, 814 So.2d 1133, 1134 (Fla. 2d DCA 2002), where the court stated:

We interpret section 775.087(2)(a)(l) to be a sentencing enhancement statute, not a statute prescribing a new offense. The statute enhances the sentence of a defendant who “actually possessed” a firearm during the. commission of the crime. Possession of a firearm by a convicted felon can be proven either by an actual or a constructive possession theory. See Daniels v. State, 718 So.2d 1274 (Fla. 2d DCA 1998); Wilcox v. State, 522 So.2d 1062 (Fla. 3d DCA 1988). Thus, in order to apply the enhancement provision of section 775.087(2)(a)(1), the State must prove actual possession. And, pursuant to the supreme court’s decision in State v. Overfelt, 457 So.2d 1385 (Fla.1984), the determination would require a jury finding.

In Bundrage, the court reversed the three-year mandatory minimum sentence that was imposed for possession of a firearm by a convicted felon, stating that

[Tjhere is no indication on the verdict form that would distinguish the possession as being actual, rather than constructive. The jury found Bundrage “guilty of possession of a firearm by a convicted felon, as charged in the information.” ... Even if the facts presented to the jury would only support an actual possession theory, the supreme court’s decision in Overfelt and its progeny require a jury finding of actual possession to justify imposition of the three-year minimum mandatory sentence. See Tucker v. State, 726 So.2d 768 (Fla.1999); State v. Hargrove, 694 So.2d 729 (Fla.1997); State v. Tripp, 642 So.2d 728 (Fla.1994).

814 So.2d at 1135 (citations and footnote omitted)(emphasis added).

The instant case is similar to Bun-drage. The jury found James guilty of count IV, stating “[tjhe Defendant is Guilty of Possession of a firearm by a Convicted Felon as charged in the Information.” The information did not use the words “actually” possess in the charge, and the verdict form on count IV did not have a special finding that James “actually possessed” the weapon during the commission of these crimes. Indeed, under section 790.23, a convicted felon may be convicted for possession of a firearm even if he merely owns the firearm or it is in his care or custody. Thus, the jury’s guilty verdict in this case does not equate with a finding that James actually possessed the firearm. Therefore, the trial court’s decision to enhance James’s sentence under section 775.087(2)(a)l. was improper because the essential requirements of Over-felt and its progeny were not met.

We note that the jury did make separate, specific findings on counts II (shooting into an occupied dwelling) and III (aggravated assault with a firearm) that James “actually possessed]” a firearm during the commission of those crimes. Although counts II, III and TV arise out of the same criminal episode, we can find no authority, and the.State cites none, that the jury’s findings in regard to the actual possession of a weapon in counts II and III should “spill-over” into count IV. Because count-IV is a separate and distinct offense, we believe that such a result would be inconsistent with the reasoning and rationale of Overfelt.

Because the trial judge erred in sentencing James under the 10/20/Life statute on count IV, we must reverse and remand for re-sentencing. The trial judge specifically stated that he was running count IV consecutive because of section 775.087. Indeed, at the hearing on the motion to correct sentence, the trial court was incorrectly informed that he was required to run count IV consecutive to counts II and III pursuant to the 10/20/Life statute. However, even if sentencing under the 10/20/Life statute had been proper, section 775.087(2)(d)’s directive regarding consecutive sentences would have had no application to this case, and the court would have been free to run count IV concurrently or consecutively to any of the other counts involved in this single prosecution. See Arutyunyan v. State, 863 So.2d 410 (Fla. 4th DCA 2003); Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002).

We need not decide if the current sentence violates the restrictions of Pearce since on remand the trial judge will need to make a new determination as to whether to run count IV consecutive to counts II and III. Accordingly, on remand, the trial court has the discretion, but is not required, to run the sentence under count IV consecutive to counts II and III. “ ‘A trial court can legally restructure a defendant’s sentences by changing concurrent terms to consecutive terms, as long as the new sentence is not found to be vindictive.’ ” Richardson v. State, 821 So.2d 428, 431 (Fla. 5th DCA 2002)(quoting Buchanan v. State, 781 So.2d 449, 450 (Fla. 5th DCA 2001)).

We note that m eases where the defendant has filed a motion to correct illegal sentence and subsequently challenged re-sentencing on the basis that a harsher sentence was imposed, Florida courts have found the Pearce presumption of vindictiveness applicable, unless there was some “independent legal basis or identifiable conduct” on the defendant’s part, other than the filing of the motion. See, e.g., Richardson, 821 So.2d at 431; see also Blackshear v. State, 531 So.2d 956 (Fla.1988); Everett v. State, 824 So.2d 211 (Fla. 1st DCA 2002). If, on remand, the trial court exercises its discretion to run count IV consecutive to counts II or III, it may do so only with independent legal justification.

Affirmed in part, reversed in part, and remanded.

STONE and WARNER, JJ., concur.

      . The court did not make a specific finding whether the sentence for count IV was pursuant to the 10/20/Life statute, although the information cited Florida Statute section 775.087.

      . The disciplinary reports were not made a part of the record.

      3. Later, during the hearing, the trial judge clarified that count II would actually run consecutive to count IV.

      . Count IV of the Information reads in part: RICARDO RICHARD JAMES on the 26th day of February, A.D.2000, ... having previously been convicted on January 10, 1996, of the felony crime of Delivery of Cocaine, in the Circuit Court of the Seventeenth Judicial Circuit, In and For Broward County, Florida, did then and there unlawfully own or have in his possession a firearm, contrary to F.S. 790.23 and F.S. 775.087 .... (emphasis in original).


author: POLEN, J.

text:
    Shayne Patrick KRAMER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2886.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.

      Carey Haughwout, Public Defender, and Benjamin W. Maserang, Assistant Public Defender, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for Appellee.
   POLEN, J.

This appeal follows Shayne Kramer’s conviction for aggravated battery on a pregnant woman, two counts of aggravated child abuse, and two counts of attempted second degree murder. Kramer was sentenced to ninety-five years in prison. For the reasons explained below we remand this case to the trial court and instruct the court to resentence Kramer in a manner consistent with this opinion.

On August 13, 1998 Tammy Kramer reported to police that she and her husband, Shayne Kramer, got into a verbal argument over money and custody of their children. Tammy left her home, leaving her husband with their two children. When the police arrived, Kramer had locked himself inside with the children. Deputy Consalo forced his way into the house and found Kramer sitting on the floor holding the children. Kramer and both children were bleeding from their wrists. Each wrist of each child was cut four times with a razor blade.

On September 3, 1998, Shayne Kramer was charged by information with two counts of attempted first degree murder, two counts of aggravated child abuse, and one count of aggravated battery on a pregnant woman. A jury found Kramer guilty as charged and sentenced him to thirty years in prison. Kramer appealed that conviction. This court reversed the conviction and sent the case back for a new trial.

After the case was remanded, the State filed an amended information. The amended information added “with a weapon” to the attempted first degree murder charges and to the aggravated child abuse charges. Kramer moved to dismiss the amended information on the ground that it was a violation of due process. In response, the State argued that the amended information allowed Kramer to be sentenced to thirty years even if the jury should convict him of a lesser included offense. However, the State stipulated that even if Kramer were found guilty on all counts he could not be sentenced to more than thirty years. Based on this stipulation, the trial court denied the motion to dismiss the amended information with prejudice.

The jury found Kramer guilty of aggravated battery on a pregnant woman, two counts of aggravated child abuse, and two counts of attempted second degree murder. At sentencing, the State asked that the court enforce the original thirty year sentence. However, the court sentenced Kramer to ninety-five years based on what it saw as clear aggravating factors. This appeal timely follows.

We are unpersuaded as to all but one of Kramer’s arguments on appeal. We write only to address the issue of whether the the trial court erred when it denied his motion to dismiss the amended information which added “with a weapon” to the charges of attempted first degree murder and aggravated child abuse. For the reasons explained below, we conclude that the trial court did err in denying the motion.

In Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the defendant was initially charged with a misdemeanor. He was convicted, then filed a notice of appeal. After the defendant filed the notice of appeal, but before he appeared in court, he was indicted for a felony charge based on the same conduct he was tried and convicted for in the misdemeanor charge. The defendant argued that the indictment on the felony charge constituted double jeopardy and also deprived him of due process of law. More specifically, the defendant contended that the indictment on the felony charge constituted a penalty for exercising his statutory right to appeal, and thus contravened the Due Process Clause of the Fourteenth Amendment.

Blackledge noted that the Court had previously held that vindictiveness can play no part in the sentence a defendant receives after bringing a successful appeal. Penalizing a defendant for having successfully pursued a statutory right of appeal or collateral remedy would be a violation of due process. Id. at 25, 94 S.Ct. 2098 (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). After recounting the earlier cases on this topic, the Court held that “[t]he lesson ... is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’ ” Id. at 27, 94 S.Ct. 2098.

In Blackledge the Court concluded that the impression of potential vindictiveness prohibited the subsequent charge. In so holding, the Court pointed out that the prosecutor was the central figure to bringing both charges and had a considerable reason for discouraging such appeals in that they require additional prosecutorial resources. The opinion noted that there was no evidence that the prosecutor actually acted in bad faith or maliciously in seeking the felony indictment. However, “since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.”

This issue was presented to the trial court in this case via Kramer’s motion to dismiss the amended information. At the hearing on that motion, the state acknowledged that in light of Blackledge, thirty years was the maximum sentence Kramer could receive since he had been sentenced to thirty years in his first trial under the original charging document. The trial court denied the motion specifically pointing out that the state had stipulated to a thirty-year cap. However, the case went before a different judge and Kramer was ultimately sentenced to ninety-five years in prison.

The Supreme Court has cautioned that “a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.” U.S. v. Goodwin, 457 U.S. 368, 381, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (rejecting argument that an increase in charges made after a defendant refuses a plea did not trigger the presumption).

In sum, the amended information improperly added “with a weapon” to the charges, after Kramer had successfully appealed his initial sentence and conviction. As a result, we reverse his sentence inasmuch as it was based on an amended information that enhanced the crimes charged. Upon remand, any sentence imposed that is greater than the original thirty year sentence must be imposed in accordance with the constitutional safeguards outlined in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969):

whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.
Id. at 726, 89 S.Ct. 2072.

In other words, any sentence on remand which exceeds thirty years must be based on factors which were unknown at the time of the first sentencing, or have occurred since, which would justify a harsher sentence. Those factors must be stated with particularity and specificity. The question is not whether the successor judge is acting vindictively, but rather whether the sentence imposed gives the appearance of vindictiveness.

The case is remanded to the trial court to resentence the defendant consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

KLEIN and MAY, JJ., concur.


text:
    Dannie YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-394.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Dannie Young, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

We re-designate this appeal as being from an order denying a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and affirm. Appellant’s claim that he was not present at a critical stage of his ease is not cognizable by motion under rule 3.800(a).

STONE, POLEN and STEVENSON, JJ., concur.


text:
    Enrique SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3234.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Enrique Sanchez, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for Appellee.
   PER CURIAM.

Affirmed. See § 921.0016(1)(b), Fla. Stat. (2001); Hall v. State, 823 So.2d 757, 762 (Fla.2002).

WARNER, STEVENSON and GROSS, JJ., concur.


author: WARNER, J.

text:
    Ana JORQUERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3591.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.

      Steven J. Hammer of Law Office of Steven J. Hammer, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant was convicted and sentenced for trafficking in amphetamines and possession of MDMA. She raises six issues, none of which constitute reversible error. We affirm and address each issue summarily.

Appellant was tried with her co-defendant, Alberto Eliakim, whose conviction was recently upheld by this court. See Eliakim v. State, — So.2d-, 2004 WL 432488 (Fla. 4th DCA Mar.10, 2004). The facts of this case are fully set forth in that opinion. Essentially, a confidential informant contacted Kelly Martelo to purchase a large quantity of drugs. Martelo in turn contacted appellant to obtain them. Appellant involved Eliakim. After all were arrested for the transaction, Martelo entered into a substantial assistance agreement and testified against appellant and Eliakim.

In her first issue on appeal, appellant argues that the court erred in denying her motion to suppress evidence, because the initial stop or detention was unlawful. However, based upon the evidence from her co-defendant who testified for the state, as well, as the observations of the officers conducting the surveillance and stop, the totality of the circumstances provided the officers with reasonable suspicion that appellant was involved in a drug transaction. See G.A.M. v. State, 780 So.2d 288, 290 (Fla. 4th DCA 2001) (noting that in order to justify a temporary detention, the detaining officer must have a reasonable suspicion of criminal activity based upon the totality of the circumstances as viewed by an experienced police officer).

Second, appellant contends that the evidence at trial was insufficient to support her conviction. Her argument is based upon the lack of credibility of Martelo, who was the only witness putting drugs in appellant’s possession. However, Martello’s testimony was legally sufficient; her credibility and bias go to the weight of the evidence, not its legal sufficiency. See Tibbs v. State, 397 So.2d 1120, 1125 (Fla.1981); Neal v. State, 792 So.2d 613, 615 (Fla. 4th DCA 2001).

Third, contrary to the argument she made at trial, on appeal appellant contends that the court erred in prohibiting cross-examination of Martelo as it pertained to the benefits received by Martelo based upon the information provided to law enforcement of prior drug deals. At trial, Eliakim’s counsel attempted to cross-examine Martelo on the substantial assistance agreement she entered into with the state and any prior drug deals she had with appellant. Appellant’s counsel agreed that defense counsel should be allowed to examine Martelo’s agreement with the state but objected to an inquiry as to Martelo’s prior dealings with appellant. The court allowed the parties to inquire as to prior deals and the arrangement with the state but restricted them from specifically naming persons with whom Martelo conducted these deals. Rather than completely restricting cross-examination, the court agreed to listen to each individual question and allow objections where necessary. Appellant made no objection to the court’s restrictions on cross-examination, so this issue was not preserved. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). In any event, the court gave appellant, as well as co-defendant Eliakim, great latitude in questioning Martelo. They were able to elicit the details of her substantial assistance agreement as well as the details of several prior drug transactions. They were not allowed to name appellant in any of those deals, but she quite naturally strongly objected to that evidence.

Similarly, appellant maintains that the court allowed the prosecutor to make improper comments, but those comments were not objected to by appellant, nor did she join in Eliakim’s objection. See Longo v. State, 580 So.2d 212, 215 (Fla. 4th DCA 1991) (citing Charles v. State, 565 So.2d 871 (Fla. 4th DCA 1990)). We do not deem the prosecutor’s limited remarks, unrelated as they were to any of the elements of the offense, as sufficiently objectionable as to warrant a reversal for fundamental error.

In her fifth issue on appeal, appellant contends that the court erred in denying her request to instruct the jury on the lesser included crime of attempt and denying her request for a circumstantial evidence instruction. Because the evidence proved only a completed offense, and no evidence supported an attempt, the court properly denied the instruction. See Fla. R.Crim. P. 3.510(a). As to the circumstantial evidence instruction, the trial court gave proper instructions on reasonable doubt and burden of proof; therefore, an instruction on circumstantial evidence was unnecessary. See Floyd v. State, 850 So.2d 383, 400 (Fla.2002).

Finally, as to her sentence, appellant argues that the trial court erred in denying her motion for downward departure. The current statutory scheme does not give this court the power to review a trial court’s discretionary decision to deny a downward departure. See § 924.06(1), Fla. Stat. (2003); Patterson v. State, 796 So.2d 572, 574 (Fla. 2d DCA 2001).

Affirmed.

STONE and STEVENSON, JJ., concur.


author: GEIGER, DWIGHT L., Associate Judge.

text:
    Robert PIERCE, Appellant, v. Damaris TELLO, Appellee.
    No. 4D03-266.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Meah Rothman Tell, Fort Lauderdale, for appellant.
    No brief filed for appellee.
   GEIGER, DWIGHT L., Associate Judge.

This is an appeal from a non-final order of custody, requiring supervised visitation by Appellant Robert Pierce of the parties’ now nine-year-old daughter. Pierce also seeks review of the denial of his motion for recusal of the trial judge. Appellee has not filed a brief with this court. For the reasons that follow, we reverse the trial court’s order.

Appellee, Demaris Tello, filed a suit to determine paternity and to establish custody and visitation in October of 2002. Thereafter she filed a petition for injunction to protect her from violence by Pierce. At the injunction hearing on November 22, 2002, the trial judge granted the injunction, which prohibited any harmful contact for a period of three months and ordered urine and hair sample drug testing for both parties and shared custody of the minor child. The blank in the resulting written injunction for the time period was not filled in. A week later the judge received a faxed copy of a lab report showing that Pierce’s hair sample had tested positive for cocaine and metabolites. Based upon the lab report the judge entered an ex-parte order on December 4, 2002 suspending all contact between Pierce and his daughter and set a status hearing on the drug test fifteen days later. Neither party apparently received a copy of the lab report. At the status hearing Pierce asked for the trial judge to recuse herself and was advised that such a motion had to be in writing. The hearing resulted in a written order requiring supervised visits between Pierce and the child and temporary child support. The written order also denied his motion to recuse. Pierce later filed a written motion to recuse which did not attach the affidavit required by Florida Rule of Judicial Administration 2.160(c) and which was also denied.

“Due process principles apply to modification proceedings including child custody and visitation matters.” Murphy v. Ridgard, 757 So.2d 607, 608 (Fla. 5th DCA 2000). Canon 3(B)(7) of the Code of Judicial Conduct states that “a judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.” The Supreme Court has said that “this canon implements a fundamental requirement for all judicial proceedings under our form of government.” In re Inquiry Concerning a Judge: Clayton, 504 So.2d 394, 395 (Fla.1987). We conclude that it was error for the trial judge to base her order suspending Pierce’s contact with the child on an ex-parte communication and that this resulted in a violation of due process. See Teeft v. Luna Cheese Corp. of Fla., 577 So.2d 1004, 1005 (Fla. 5th DCA 1991); Safie v. Safie, 414 So.2d 623 (Fla. 3d DCA 1982). Consequently, we reverse the December 4, 2002 order and all subsequent orders appealed and remand for further proceedings before a substitute judge on a de novo basis.

Aside from the order on custody and supervised visitation, the trial court’s incomplete domestic violence injunction was still in place in September 2003 when Pierce crossed paths with Tello in a peaceful attempt to pick up the daughter. Pierce was arrested for violation of the injunction, and now seeks a writ of mandamus to quash the resulting information formally charging him with violating a domestic violence injunction. Pierce argues that the injunction should have long since expired. We conclude that we do not have jurisdiction over the state attorney prosecuting Pierce for violation of a domestic violence injunction and therefore deny his petition for a writ of mandamus.

REVERSED.

STEVENSON and SHAHOOD, JJ„ concur.


author: GROSS, J.

text:
    Frederick A. DELUCA, Appellant, v. Thomas W. HISLOP, Appellee.
    No. 4D03-1688.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.

      Curtis R. Cowan and Adam J. Hodkin of Gelch, Taylor, Hodkin, Kopelowitz & Os-trow, P.A., Fort Lauderdale, for Appellant.
    Andrew T. Lavin of Navon, Kopelman & Lavin, P.A., Fort Lauderdale, Robert N. Shwartz and Howard S. Hogan of Debe-voise & Plimpton, New York, NY, for Ap-pellee.
   GROSS, J.

This is an appeal from an order dismissing a complaint. We affirm the circuit court on the forum non conveniens issue and do not address the remaining points raised on appeal.

Appellant, Frederick DeLuca, employed appellee, Thomas Hislop, to provide investment advisory and management services. On December 9, 2002, DeLuca filed a complaint in Broward County, seeking a declaratory judgment settling the amount of money he owed Hislop.

On January 22, 2003, Hislop filed a lawsuit in Connecticut to recover money from DeLuca for his services.

On February 4, 2003, Hislop moved to dismiss the Florida action, alleging, inter alia> that under the doctrine of forum non conveniens, Connecticut was the more appropriate forum. The motion was supported by Hislop’s sworn affidavit and exhibits.

In his affidavit, Hislop stated that he had been a full-time resident of Connecticut for over thirty years, had never been a resident of Florida, and had never maintained an office, post office box, telephone, bank account, or property of any kind in Florida.

Hislop asserted that he was employed from 1992 until 2001 as the controller of Doctor’s Associates, Inc., in Milford, Connecticut. Doctor’s is the franchisor for the Subway chain of restaurants; the corporation employs nearly 600 people at its Milford headquarters. DeLuca is the president and chief executive officer of Doctor’s.

Part of Hislop’s responsibility as controller was to oversee the record-keeping of DeLuca’s personal financial investments. In 1996, DeLuca agreed to compensate Hislop for providing investment advisory services, with the parties negotiating a formula for compensation.

According to Hislop, after 1998, the funds for the DeLuca Account were invested through Paine Webber, which is headquartered in New York City and New Jersey. DeLuca gave Hislop the authority and discretion to select the securities and other investment vehicles for his account. The transactions were executed by a registered representative of Paine Webber, who worked out of Florida and Massachusetts. Hislop provided investment services until the spring of 2001.

After Hislop decided to retire, he provided documentation of investment services to the replacement controller, who then conducted an audit at Doctor’s, in Connecticut. Hislop met with DeLuca and the new controller in July 2001, in Connecticut, to review the audit. Doctor’s paid Hislop $345,609 in Connecticut, with DeLuca sending a memo that additional amounts might be paid at a later date.

DeLuca filed two affidavits in opposition to the motion to dismiss the Florida action. DeLuca stated he had been a permanent resident of Florida since 1991, spending at least 50% of every year in Fort Lauder-dale, less than 25% of the year in Connecticut, and the balance of the year traveling. He acknowledged being the founder and president of Doctor’s. However, he claimed that the principal place of business for Doctor’s was Fort Lauderdale and that it was a Florida corporation.

DeLuca agreed that Hislop managed a stock trading account for DeLuca’s personal financial assets unrelated to the company.

Because Hislop is not a registered investment advisor, he engaged Doug Telep-man, a registered investment advisor employed by Paine Webber in Palm Beach, Florida, to take instructions from Hislop and DeLuca in executing stock trades for the account. DeLuca and Hislop agreed on a compensation formula based on the success of the account.

DeLuca stated that he met with Hislop in Florida “on at least three separate occasions and discussed his management of my financial accounts during those personal meetings,” with Telepman attending at least one of these meetings. DeLuca indicated that when he was in Florida, he and Hislop communicated by telephone and email on a regular basis regarding the management of his account.

One of the two grounds upon which the circuit court granted the motion to dismiss was forum non conveniens.

Forum non conveniens “is a common law doctrine addressing the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere.” Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 621 (Fla. 4th DCA 1999) (emphasis in original) (quoting Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So.2d 86, 87 (Fla.1996)).

“The decision to grant or deny the motion for dismissal rests in the sound discretion of the trial court, subject to review for abuse of discretion.” Fla. R. Civ. P. 1.061(a). However where, as here, “the trial court’s decision is not based on live testimony, ‘[t]he presumption of correctness given to a trial court’s rulings ... is lessened, because the appellate court has everything the trial court had before it.’ ” Woods, 739 So.2d at 621 (quoting Ciba-Geigy Ltd. v. The Fish Peddler, Inc., 691 So.2d 1111, 1118 (Fla. 4th DCA 1997)).

To address a forum non conveniens issue, the Florida Supreme Court has adopted a four-step analysis, with the defendant having the burden of establishing each factor in succession:

[ 1] ... [T]he court must establish whether -an adequate alternative forum exists which possesses jurisdiction over the whole case. [ 2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice. [ 3] If the trial judge finds this balance of private interests in equipoise or near equipoise, he [or she] must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. [ 4] If [the trial judge] decides that the balance favors such a ... forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

Kinney, 674 So.2d at 90 (citations omitted) (emphasis in original); see also Fla. R. Civ. P. 1.061(a).

The first and fourth factors are not in dispute, as an adequate alternative forum exists in Connecticut, where Hislop has filed a pending action against DeLuca, and this case could be litigated “without undue inconvenience or prejudice” to either party. Fla. R. Civ. P. 1.061(a)(4).

Concerning the second factor, the term “private interests”

encompasses four broad “practical” concerns: adequate access to evidence and relevant sites, adequate access to witnesses, adequate enforcement of judgments, and the practicalities and expenses associated with the litigation.

Kinney, 674 So.2d at 91.

In considering these “private interest” factors, both Kinney and rule 1.061(a)(2) speak of the strong presumption against disturbing the plaintiffs initial forum choice.

However, the application of this presumption should not depend on which party wins the race to the courthouse. It is Hislop who is seeking a money judgment against DeLuca; DeLuca’s preemptive filing of a declaratory judgment action in Florida was, at best, a defensive maneuver. Any presumption given to a plaintiffs choice of a forum carries little weight where a nominal plaintiff chooses a forum with a minimal connection to the cause of action. See Smith Barney Inc. v. Potter, 725 So.2d 1223, 1226 (Fla. 4th DCA 1999).

DeLuca’s Florida residency, and the use of a broker based in Florida to execute trades, is not enough to restore the presumption. Honoring the rule 1.061(a)(2) presumption in this case would favor “the tendency of some plaintiffs to shop for the ‘best’ jurisdiction in which to bring suit,” rather than the “brake” the supreme court sought to place with its adoption of the federal standard for forum non conveniens. Kinney, 674 So.2d at 87.

Without the rule 1.061(a)(2) presumption, we find no abuse of discretion in the trial court’s conclusion that Connecticut is the more appropriate forum.

Hislop performed the work for which he seeks compensation in Connecticut. As the trial court concluded, the “large majority of potential witnesses” are not located in Florida, but in or near Connecticut. Cf. Ira Mex, Inc. v. Southeastern Interior Constr., Inc., 777 So.2d 1107, 1110 (Fla. 4th DCA 2001) (affirming dismissal in part because many relevant witnesses reside in Georgia). DeLuca contends that the only relevant witnesses are the two parties and the Florida broker; however, the trial court was within its discretion to conclude that Hislop’s eight listed witnesses would offer testimony relevant to this lawsuit and the compensation formula in dispute. Amongst these Connecticut witnesses are the current controller of Doctor’s Associates, who audited Hislop’s investment work; the payroll supervisor at the company who oversaw the payments made to Hislop under the compensation formula; Hislop’s former assistant, who prepared and sent regular updates to DeLuca concerning the account; and DeLuca’s estate lawyer who has knowledge of the compensation agreement.

The trial court also observed that most of the relevant documents are not in Florida. All of Hislop’s records are in Connecticut. DeLuca does not dispute that many relevant records are located at the company office in Connecticut. Cf. La Reunion Francaise, S.A v. La Costena, 818 So.2d 657, 660 (Fla. 3d DCA 2002) (most, if not all relevant evidence and witnesses located outside of Florida); Ryder Truck Rental, Inc. v. Rosenberger, 699 So.2d 713, 717 (Fla. 3d DCA 1997) (dismissal warranted where relevant evidence and many witnesses located out of state). That some records may be located in Texas, as DeLuca contends, does not support litigating this case in Florida.

Finally, as noted by the trial court, given the (1) disparity in financial resources and (2) DeLuca’s concession that he spends 25% of his time in Connecticut, where he has an office, Hislop would be far more prejudiced by litigating in Florida than DeLuca would be in Connecticut.

We find no abuse of discretion in the trial court’s finding that “all relevant factors of private interest” favor Connecticut as a forum. Fla. R. Civ. P. 1.061(a)(2). We affirm the circuit court’s dismissal of the action on forum non conveniens grounds.

STONE and HAZOURI, JJ., concur.

      . This is not a case where the "balance of private interests is at or near equipóse.” Fla. R. Civ. P. 1.061(a)(3). We do not therefore consider the third factor in the rule, except to note that "there is little or no public interest in the dispute” that would justify retention of jurisdiction in Florida. Kinney Sys., Inc. v.

        Cont'l Ins. Co., 674 So.2d 86, 92 (Fla.1996)
      (citation omitted).


text:
    Jay McGILTON, Appellant, v. L. Dana MILLMAN, Appellee.
    No. 4D03-953.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2004.
    Charles E. Ray, Port St. Lucie, for appellant.
    Richard G. Bartmon, Boca Raton, and Kevin H. Hendrickson, Fort Pierce, for appellee.
   POLEN, J.

This appeal arises from an order of the guardianship court directing Jay McGilton to return $35,081 to Dana Millman in her capacity as guardian for her grandmother, Catherine McGilton. For the reasons outlined below, we reverse that order.

On August 2, 2002 L. Dana Millman was appointed plenary guardian of the person and property of Catherine A. McGilton. Thereafter the court ordered Jay McGil-ton, previously the ward’s attorney-in-fact, under the power of attorney, to file an accounting of the ward’s assets and to return all assets to Millman as the guardian.

After an accounting was filed by Jay McGilton there were objections raised due to numerous large sums of money that were missing from the ward’s assets and were now unaccounted for. In part, the accounting showed that McGilton paid $35,000 to purchase some McGilton Company stock. Millman questioned whether there was even such a company. In addition, she pointed out large discrepancies in the assets of the ward as well as several cash withdrawals from the ward’s assets. Millman contended that there was $88,000 withdrawn in five months. She claimed that the misappropriation took place while McGilton held the power of attorney, before Millman was appointed guardian.

Millman sought permission from the court to bring an independent lawsuit against McGilton for the alleged misappropriation of the funds. There was no sworn testimony taken at the hearing. At the conclusion of the hearing, the court ordered that McGilton return the $35,000 for the stock certificates and held that Mill-man could initiate a lawsuit based on the allegations of misappropriations. The portion of the order requiring McGilton to return $35,000 is the subject of this appeal. McGilton raises three issues on appeal. We find two of them persuasive.

Initially, McGilton contends the guardianship court had no authority to rescind a transaction occurring before the guardianship. We disagree. Section 744.361, Florida Statutes (1997), specifically includes pre-guardianship assets in the property that the guardian shall, with court approval, take possession of. Section 744.361 details the powers and duties of guardians. Section 744.361(8) provides as follows:

The guardian, if authorized by the court, shall take possession of all of the ward’s property and of the rents, income, issues, and profits from it, whether accruing before or after the guardian’s appointment, and of the proceeds arising from the sale, lease, or mortgage of the property or of any part. All of the property and the rents, income, issues, and profits from it are assets in the hands of the guardian for the payment of debts, taxes, claims, charges, and expenses of the guardianship and for the care, support, maintenance, and education of the ward or the ward’s dependents, as provided for under the terms of the guardianship plan or by law.

§ 744.361(8), Fla. Stat. (emphasis added).

Under the plain language of the statute, the fact that the stock purchase took place prior to the appointment of the guardian has no bearing on whether Millman was entitled to seek possession of the assets.

McGilton next contends the guardianship comb erred by ordering him to pay $35,081 to the guardian without having first received any evidence. We agree. At the conclusion of the hearing, although not clearly, the court explained the basis for its decision.

Mrs. Millman was appointed guardian in this case, the guardian as you know, Mr. Ray and Mr. Hendrickson, has an obligation to try to muster up and get all the assets of their ward, in this case, the grandmother and they see some questionable procedures that have taken place that have exhausted some of the ward’s funds inappropriately, than I think they need to be able to pursue that and make that determination, so I’m going to give them the opportunity to do that so we can get started because she says through counsel that there are problems here and I need an opportunity to get Grandmother’s money back because I don’t think it was appropriately spent on her behalf and I doubt she knew — I don’t know this, but that she gave permission or agreed to do this, but that she gave permission or agreed to do this or was not in a position to do and her funds are for her, not for somebody else, for stock in Texas that may not have one — you know, I could see, Mr. Ray, if he had bought IB — what is it, IBM, General Electric, even though market’s down some, they’re solid, old-line companies would give you the GE stock and if it went down, fine, it went up, great, we made some money, but she — she has stock, but see, we don’t know what — you know, a red flag comes up when we call — when we talk about the McGilton company or something, I mean, who in the world? You know, maybe it is — maybe they got equipment, maybe it is worth $35,000, I don’t know, but we’re going to find out.

This portion of the record makes clear that the guardianship court was concerned about some portions of the accounting. However, more importantly for purposes of this appeal, the court’s conclusions also make it clear that the court reached no conclusions about the nature of this stock transaction. The judge concluded with “we’re going to find out,” yet never found out.

The second district explained that “[a] court appointed guardian of an incompetent may initiate and maintain an action to preserve his ward’s property. If the guardian can establish that the equities are in favor of and that the relief requested is in the best interest of his ward, the court is authorized to grant relief.” Cohen v. Cohen, 346 So.2d 1047 (Fla. 2d DCA 1977). Cohen clarifies that if a guardian needs to take action to preserve the property of a ward, it is appropriate to file a cause of action against them with the guardianship court’s approval. In this case Millman sought, and obtained, approval to file a cause of action.

In sum, Millman requested that the guardianship court permit her to file a cause of action against McGilton based on his alleged misappropriation of the Ward’s assets. The court order specifically authorizes Millman to initiate a lawsuit. However, as of yet, no hearing has been held and no court has found any misappropriation. As a result, ordering McGilton to repay the $35,000 rather than ordering him to simply turn over the stock certificates was in error. The correct mechanism to pursue this claim is in a separate civil action the pursuit of which the guardianship court has already approved.

Last, McGilton contends the trial court erred in ordering rescission of the transaction without any written request by Millman for the rescission and without proper notice. More specifically, McGilton claims that he was not afforded adequate due process. We agree.

“Due process in a court proceeding demands that the defendant be given fair notice and a reasonable opportunity to be heard before a judgment is rendered.” Hinton v. Gold, 813 So.2d 1057, 1060 (Fla. 4th DCA 2002). “The courts of this jurisdiction have consistently recognized that, as a general rule, a violation of due process occurs when a court determines matters not noticed for hearing and not the subject of appropriate pleadings.” Kanter v. Kanter, 850 So.2d 682, 685 (Fla. 4th DCA 2003).

Due process concerns are equally viable in guardianship proceedings. In re Guardianship of King, 862 So.2d 869, 870-71 (Fla. 2d DCA 2003)(quoting Joan L. O’Sullivan, Role of the Attorney for the Alleged Incapacitated Person, 31 Stetson L. Rev. 687, 702, 706 (2002)).

In the case at bar, the notice of hearing simply stated that a hearing was going to being conducted on the “objections to accounting by power of attorney and petition to maintain an action to surcharge the power of attorney Jay McGilton for misappropriation of the ward’s assets.” Further, the wherefore clause in the objection to accounting filed by Millman reads as follows:

WHEREFORE, the Petitioner objects to the filing of the Final Report and Accounting by the agent under the durable power of attorney and requests the entry of an order allowing the guardian of the property to maintain an action for the purposes of recovering the property which has been misapplied and misappropriated to the benefit of the agent, Jay McGilton and set this cause for a hearing in order to allow the guardian an opportunity to establish the loss suffered by the ward as a result of the improper administration of the ward’s estate by the power of attorney; attorney’s fees and costs incurred by the ward for the services of the petitioner and counsel for protecting the ward’s interests and safeguarding the administration from the mismanagement of Jay McGilton; reimbursement of excessive, needless and unessential attorney’s fees paid from the ward’s assets to the law office of Thomas J. Farley and grant any other relief deemed just and proper by this court.

Nothing in the notice of hearing, or the objection to accounting filed by Millman, mentions rescission of the stock purchase transaction and return of the purchase price to the ward. As a result, by considering this issue and ultimately ruling on the matter, the guardianship court violated McGilton’s due process rights.

For these reasons we reverse the portion of the order requiring McGilton to return the $35,000.

REVERSED and REMANDED for further proceedings consistent with this opinion.

WARNER and KLEIN, JJ., concur.