author: SAWAYA, C.J.

text:
    Carl S. TRAEGER, Appellant, v. CREDIT FIRST NATIONAL ASSOCIATION, etc., Appellee.
    No. 5D03-1759.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.

      Arthur Graham and E. Channing Coolidge, Jr. of Landis Graham French, P.A., DeLand, for Appellant.
    No Appearance for Appellee.
   SAWAYA, C.J.

Carl Traeger appeals the final judgment denying in part and granting in part the Petition To Determine Homestead Status of Real Property filed by the personal representatives of the Estate of Rosemary Traeger. He asserts that the probate court erred in determining that the one-half share of the real property devised to him by his stepmother, Rosemary Traeger, in her will was not entitled to homestead protection and was thus not exempt from creditors of the estate. We reverse.

When Ms. Traeger died she was not survived by a spouse or minor children. Thus, in her last will and testament she devised her homestead, a condominium unit in Ponce Inlet, in equal shares to Carl Traeger, her deceased husband’s adult son, and to Suzanne Cairo, her adult natural daughter. After the probate court appointed Mr. Traeger and Ms. Cairo co-personal representatives, they petitioned the court to determine the homestead status of the condominium unit, asserting their belief that the property was exempt homestead that descended to them both sheltered by that protection. The probate court ruled that because Ms. Cairo is a lineal descendant of Mrs. Traeger, Ms. Cairo occupies a higher class under the intestacy statute, section 732.103(l)-(5), than does Mr. Traeger, and thus her share of the condominium unit is entitled to homestead status. Because Mr. Traeger is lower in the hierarchy established by the intestacy statute, the probate court further concluded that Mr. Traeger’s share of the condominium unit is not entitled to such protection. We reverse because, as Mr. Traeger correctly argues, the fact that Mr. Traeger is in a lower “class” of persons for intestacy purposes is irrelevant; he is an “heir” as that term is broadly defined and it is immaterial that he is not the closest heir under the intestacy statute. Our analysis of the constitutional provisions, legislative enactments and pertinent decisions of the Florida courts that form the body of Florida’s homestead jurisprudence leads us to our conclusion.

The law of homestead began as an “American innovation” that was incorporated into Florida’s jurisprudence where it evolved, relative to the homestead laws of other jurisdictions, into a rather unique body of rules and principles. Snyder v. Davis, 699 So.2d 999, 1002 (Fla.1997). The Florida Constitution, in article X, section 4(b), provides that the exemptions and protections established for homestead property under article X, section 4(a) “shall inure to the surviving spouse or heirs of the owner.” The term “heir” under article X, section 4(b) means “ ‘those who may under the laws of the state inherit from the owner of the homestead.’ ” State, Dep’t of Health & Rehabilitative Servs. v. Trammell, 508 So.2d 422, 423 (Fla. 1st DCA 1987) (quoting Shone v. Bellmore, 75 Fla. 515, 78 So. 605, 607 (1918)). Section 731.201(18) defines “heirs” as “mean[ing] those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.” § 731.201(18), Fla. Stat. (2002).

The purpose of the homestead exemption under Florida law and its attendant protections derives from public policy rather than principles of equity “to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law.” Snyder, 699 So.2d at 1002 (quoting Public Health Trust v. Lopez, 531 So.2d 946, 948 (Fla.1988)). The court in Snyder noted that in order to promote the declared purpose of homestead exemption, the homestead provision in Florida’s constitution “is to be liberally construed in favor of maintaining the homestead property.” Id. at 1002, 1005. It found that “the protections against creditors found in the homestead provision may be devised by will” and that a broad definition of “heirs” was appropriate. Id. at 1003-04, 1005. Accordingly, the court concluded:

In the context of this case, we reject the narrow entitlement definition of the term “heirs” that includes only those people who would inherit under the intestacy statute at the death of the decedent. Instead, we hold that the homestead provision allows a testator with no surviving spouse or minor children to choose to devise, in a will, the homestead property, with its accompanying protection from creditors, to any family member within the class of persons categorized in our intestacy statute.

Id. at 1005. This holding reversed the appellate court’s decision that a testator could only devise her homestead to the person or persons who would have actually taken the homestead had the testator died intestate and allowed the granddaughter to take the homestead, complete with homestead protection, even though the testator’s natural son (the father of the granddaughter) was still alive at the time of the testator’s death. See also Moss v. Estate of Moss, 111 So.2d 1110 (Fla. 4th DCA 2001); Walker v. Mickler, 687 So.2d 1328, 1331 (Fla. 1st DCA) (“To deny the exemption for a homestead property simply because the person chosen by the decedent to receive the property under the will, even though that person is within the class of persons entitled to take under the laws of intestate succession, is not the closest consanguine heir, is contrary to that constitutional intent.”), approved, 699 So.2d 687 (Fla.1997).

It is clear from the homestead provisions contained in Florida’s constitution and statutes, as properly interpreted and applied by the courts in the case law we have discussed, that Mr. Traeger’s one-half interest in the condominium unit is entitled to the protection of the homestead laws. Accordingly, we reverse and remand for further proceedings consistent herewith.

REVERSED.

GRIFFIN and PALMER, JJ., concur.

      . A condominium may qualify as a homestead. See Southern Walls, Inc. v. Stilwell Corp., 810 So.2d 566, 571 (Fla. 5th DCA) (citing King v. King, 652 So.2d 1199 (Fla. 4th DCA 1995)), review denied, 829 So.2d 919 (Fla.2002).

      . The intestacy statute, section 732.103, Florida Statutes, provides the following hierarchy of classes of people who are entitled to property if the decedent dies intestate:
      The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:
      (1) To the lineal descendants of the decedent.
      (2) If there is no lineal descendant, to the decedent's father and mother equally, or to the survivor of them.
      (3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.
      (4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:
      (a)To the grandfather and grandmother equally, or to the survivor of them.
      (b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
      (c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
      (5)If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
      § 732.103, Fla. Stat. (2002).

      . The term "heirs” also includes devisees, and not just those people who would inherit under the intestacy statute at the death of decedent. Snyder v. Davis, 699 So.2d 999, 1003 (Fla.1997).


source: Caselaw Access Project

author: TORPY, J.

license: Public Domain

text:
    ISLAND CLUB WEST DEVELOPMENT, INC., et al, Appellant, v. MID-STATE PAVING CO., INC., Appellee.
    No. 5D03-1396.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Rehearing Denied Feb. 10, 2004.

      Ladd H. Fassett of Fassett, Anthony & Taylor, P.A., Orlando, for Appellant.
    Donald E. Hemke and Paul J. Ullom of Carlton Fields, P.A., Tampa, for Appellee.
   TORPY, J.

In this construction dispute, the issue is whether the contract between the parties is unenforceable, thereby rendering the arbitration clause contained therein, likewise, unenforceable. The resolution of this issue centers upon whether the contract should be declared invalid pursuant to section 489.128, Florida Statutes (2000), which precludes the enforcement of any contract performed by an unlicensed contractor. After receiving evidence, the trial court concluded that the contract was unenforceable. As a result, the court ordered that the dispute not proceed to arbitration. We reverse.

The contract in this case is ambiguous as it relates to the identity of the contracting parties and their relationship with each other. The title of the contract is “Subcontractor Agreement,” but the “Sub” portion of the title is crossed-through. The introduction identifies the contracting parties as “Island Club West, Inc.,” (“ICW”) as “contractor” and “Mid-State Paving Co. Inc.” as “subcontractor.” Island Club West Development, Inc., (“ICWD”) is listed as “owner.” However, the signature page only contains two signatures, that of the owner, ICWD, and Mid-State, signing as “subcontractor.” This patent ambiguity was clarified at the hearing through the uncontradicted and unrebutted affidavit testimony of David Meadows, president of ICWD, which established that the contract was between ICWD, as owner, and Mid-State, as contractor. Mr. Meadows explained that a form agreement was utilized by the parties that contained a scrivener’s error.

Despite having received unrebutted evidence explaining the ambiguity, the trial court did not expressly make any factual finding on this issue, nor did the court conclude that either ICW or ICWD was acting as a contractor without a license. It is conceded that ICW and ICWD are not licensed contractors. It is likewise conceded that Mid-State is licensed to perform the scope of work required by the contract.

We conclude that the record establishes that the contract was between ICWD, as owner, and Mid-State, as contractor, as there was no evidence to contradict Mr. Meadows’ explanation of this ambiguous instrument. Because Mid-State was licensed, the only issue that remains is whether ICWD was performing as a contractor without a license and without benefit of exemption. On this issue, we conclude that there is no evidence in the record to establish that ICWD was performing as a contractor as defined by the applicable statute. See § 489.105(3), Fla. Stat. (2000) (defining contractor as a person who, for compensation, by himself or through others, improves real estate for others or for sale to others).

We therefore reverse the lower court order and remand this cause with instructions that the trial court stay the instant proceeding and compel arbitration.

REVERSED and REMANDED.

PETERSON and ORFINGER, JJ., concur.


author: GROSS, J.

text:
    Andrew SCHNEIDER, Appellant, v. Ivy SCHNEIDER, Appellee.
    No. 4D02-3629.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Rehearing Denied Feb. 20, 2004.

      Cynthia L. Greene of Law Offices of Greene, Smith & Associates, Miami, and Law Offices of Fischler & Friedman, P.A., Fort Lauderdale, for appellant.
    H.T. Maloney of Patterson & Maloney, Fort Lauderdale, for appellee.
   GROSS, J.

We affirm the final judgment of dissolution of marriage and write to address two issues.

The final judgment awarded shared parental responsibility of the parties’ three children. The former husband challenges a portion of the final judgment which provided:

Each parent shall share in all important decisions pertaining to the children’s health, education and travel. It is the intent of this final judgment that each parent shall fully cooperate with each other in making joint decisions relating to the child[ren].
In the event the parties after discussing said issue are unable to agree on an issue which concerns the [children’s] health, education or travel, then it is the intent of the court order that the primary residential custodian has the right to make said decision without the necessity of court intervention. The non residential parent, however, is not prevented from seeking this court’s review and/or modification of this provision upon proper petition or motion.

The former husband contends that giving the parties shared parental responsibility, but then making the former wife the final decision-maker over the children’s health, education, and travel, is “precisely the type of ‘covert’ sole parental responsibility award” that this court previously struck down in Kuharcik v. Kuharcik, 629 So.2d 224 (Fla. 4th DCA.1993).

The final judgment at issue in Kuharcik stated that the “[pjarents are to consult each other on long range and major decisions, and if no agreement can be reached, the primary residential parent will decide.” Id. at 225. We reversed the final judgment “[bjecause the trial court failed to follow the intent of section 61.13 and failed to delineate [the] specific aspects of the child’s welfare [over which the] wife should have ultimate responsibility.” (Emphasis in original). We directed the trial court to determine “which •specific aspects of the child’s welfare [the wife] should have ultimate responsibility over.” Id. (emphasis in original).

The holding of Kuharcik was only that giving the primary residential parent unlimited say over all matters regarding the children was not compatible with shared parental responsibility. The case did not forbid the delineation of areas where one parent would have final decision-making authority, in situations where the parties were unable to come to an agreement.

Indeed, section 61.13(2)(b)2.a., Florida Statutes (2002), allows a trial court to give one parent the ultimate authority over specific matters when ordering shared parental responsibility:

In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family.

The evidence in this case supported the trial court’s decision to give the former wife the final say on the children’s health, education, and travel.

The former husband had screamed at one of his son’s teachers, leaving her in tears, because the teacher had suggested that the boy might need a math tutor. On another occasion, the parties took their daughter to see an occupational psychologist. When the doctor commented about the daughter’s poor behavior in the waiting room, the former husband remarked that he would not entertain any further opinions from the doctor. These incidents supported the former wife’s testimony that her husband would not accept feedback on his children that suggested any need for improvement.

The former husband argues that if “the Final Judgment is construed as giving the Wife sole parental responsibility as to specific aspects of child-rearing, then such an award is necessarily erroneous because the Wife never sought such an award in her pleadings.” He relies upon McKeever v. McKeever, 792 So.2d 1234 (Fla. 4th DCA 2001). In that case, this court held the father, having only asked for shared parental responsibility, was improperly given sole parental authority over the education of the child.

Here, the final judgment cannot be interpreted as giving the former wife sole parental authority. The trial court has implemented a rational decision-making plan in the event the parties are unable to agree about three aspects of the children’s lives. Section 61.13(2)(b)2.a. contemplates the decision-making mechanism imposed in this case, because many aspects of children’s lives will not wait for their parents’ agreement or the mediating decision of a judge.

Given the hostility between the parties throughout this litigation, the trial court imposed a sensible plan. If the former husband disagrees with a decision, he may seek review by the court. Should the former wife unreasonably take issue with the foimer husband for the sake of flexing her power, the former husband would be able to seek a modification of the final judgment on this account.

On another issue, the former husband argues that the trial court erroneously treated his creation of an irrevocable trust, of which the parties’ three children are the beneficiaries, as one of his assets for the purpose of equitable distribution. We find no error for two reasons. First, the money to fund the trust came from the sale of the husband’s medical practice, which he built up during the marriage. Second, the wife was unaware that the husband had created the trust and the evidence demonstrated that he established the trust primarily to deprive his wife of the asset.

The former husband’s interest in a medical practice was acquired by a management company. As part of the purchase, the doctors could receive either a “straight out payment” that would incur ordinary income taxes, or a “split dollar arrangement” which had no immediate tax consequences. Under this second option, the former husband could either become the owner of a life insurance policy purchased by the management company, and borrow against the cash value of the policy, or he could establish an irrevocable life insurance trust, with the value of the life insurance policy going to the beneficiaries of the trust upon the former husband’s death.

The former husband chose to establish the irrevocable life insurance trust with the children as the beneficiaries 'and his mother as the trustee. He established the trust at a time when he was having an extramarital affair, while anticipating a dissolution proceeding and a distribution of marital assets.

As his share of the proceeds from the sale of the practice, the former husband was to receive six payments of $133,000.00. The first payment was placed into the parties’ joint bank account and used to furnish the marital residence. The next four payments went into the life insurance trust. A 2003 payment was anticipated for the trust. Thus, a total of $665,000.00 was allocated to the trust.

The former wife believed that her husband had established custodial accounts for the children’s college education. Her husband told her that he was selling his medical practice and was getting about $50,000 up front, giving her about $30,000 to furnish a bedroom. He made a vague reference to another $50,000 to $100,000 that he would be receiving within the next year. The former wife did not recall any conversations with her husband concerning a life insurance policy for the children. She did not find out about the trust until after the divorce proceedings began.

Dr. Martin Schiff, a friend of the former husband, testified that at a time before the filing of the divorce, the former husband explained that he was unhappy in the marriage and did not expect to stay married to his wife after the children were grown. The former husband asked Dr. Schiff to keep a secret — that he had arranged to sell his practice, and that he was putting the money into a trust for the children.

The trial court ruled that the former husband had “deliberately conveyed and concealed a marital asset from the wife in the amount of $405,090.” The figure of $405,090 reflects the after-tax value of the five annual payments. The court wrote:

that the husband’s apparent intent was to deprive the wife of an equitable distribution of this asset. The husband had the ability to direct how the payments would be made. He chose the direction of the payments without the knowledge or consent of the wife and, accordingly, this asset is considered as having been distributed to the husband. In this case, considering the value of the marital residence, there are enough other assets to divide to equalize this fraudulent concealment and dissipation of the marital asset.

The former husband’s main argument is that because he does not benefit from the trust where the children are the beneficiaries, the trial court erred in considering the trust a marital asset which it assigned to the husband.

The former husband points this court to Hedendal v. Hedendal, 695 So.2d 391 (Fla. 4th DCA 1997). There, the parties had maintained funds in a stock brokerage account. The husband removed $24,000 from this account to set up an “educational account” in an “irrevocable trust for the benefit” of the parties’ son. Id. at 392-93. This court reversed the trial court’s determination that these funds would be considered an asset of the husband, holding that, “the husband should not be assessed the $24,000 in the educational fund as the monies are in an irrevocable trust for the benefit of the son and cannot be reached by the husband.” Id. at 393.

Hedendal does not indicate the circumstances of the creation of the irrevocable trust. The case does not stand for the proposition that a spouse may unilaterally direct marital funds into an irrevocable trust and thereby transform the funds into a non-marital asset not subject to equitable distribution.

The trial court’s findings regarding the husband’s creation of the insurance trust amounted to a “depletion” of marital assets within the meaning of section 61.075(l)(i), Florida Statutes (2002), a relevant factor to consider in fashioning an equitable distribution.

The former husband emphasizes that the parties’ children are beneficiaries of the trust, but this argument misses the point. The trial court’s decision recognized that the wife should have had a voice in how the marital funds were allocated for the children. See Santiago v. Santiago, 749 So.2d 584, 586 (Fla. 5th DCA 2000) (indicating that loan to husband’s cousin could be charged against husband in equitable distribution, where wife did not consent to the loan). A party to a dissolution cannot use the children as pawns to set up trusts or other stratagems to manipulate equitable distribution.

AFFIRMED.

WARNER and HAZOURI, JJ., concur.


author: PER CURIAM.

text:
    Nina Fay REID, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2213.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Rehearing Denied Feb. 27, 2004.
    Nina Fay Reid, Fort Lauderdale, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003), in which we certified conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002).

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


text:
    Harry COPELAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-419.
    District Court of Appeal of Florida, First District.
    Jan. 14, 2004.

      Steven L. Seliger, Garcia and Seliger, Quincy, for Appellant.
    Charlie Crist, Attorney General; Karen Armstrong, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Harry Copeland, appeals the trial court’s revocation of his probation, arguing that the state failed to prove that his violations of probation were willful because he was suffering from a mental illness, and the trial court abused its discretion in finding otherwise. We agree and, therefore, reverse.

I. Background

In August 1998, the appellant was charged with two counts of attempted first-degree murder. Pursuant to a negotiated plea, and with the victims’ consent, the appellant pled no contest to the lesser included offense of aggravated battery with a deadly weapon. In exchange, he was sentenced to an eleven-year, suspended sentence and placed on probation. In November 2000, the appellant’s probation officer filed a violation report alleging that the appellant failed to file monthly reports for September and October 2000, was be1 hind in his cost of supervision payments, had changed his residence in August of 2000 without notifying his probation officer, and was behind in paying other monetary obligations.

The appellant initially argued that he was incompetent to proceed to trial. However, after a competency hearing, at which three experts testified, the trial court found the appellant competent to proceed. At the violation of probation hearing, psychologist Dr. Michael Thomas D’Errico stated that he had diagnosed the appellant as having schizophrenia, paranoid type. Dr. D’Errico explained that the appellant believed that while he was in the Army, the Army had placed a transmitter behind his eye and that someone had placed a transmitter in one of his teeth. The appellant believed that the Army and the secret military police were watching his movements and intended to kill him. The appellant believed that the Army and secret military police were closing in on him.

The appellant had been prescribed medication, but stopped taking it because it interfered with his libido. The appellant’s counselor agreed that they would try to maintain the appellant’s mental health with counseling and without the medication. After being off his medication for months, the appellant became delusional again. He saw a red truck outside his home and believed that the military police had found him and that his life was in danger. The appellant then abandoned his home and moved to Tallahassee to live in a homeless shelter.

Dr. Terry Leland, who had seen the appellant as far back as 1998, testified at the competency hearing that he did not necessarily agree with Dr. D’Errico’s diagnosis of paranoid schizophrenia because the appellant was also suffering from a number of substance abuse problems. Dr. Leland told the trial court that it was possible that the appellant had exaggerated or feigned some of his symptoms. Dr. Leland also stated, however, that it was possible that the appellant was a paranoid schizophrenic and that while some symptoms of schizophrenia were absent in Mr. Copeland, he in fact exhibited the common symptoms. Dr. William Spence testified at the appellant’s competency hearing and found him competent to proceed to a violation of probation hearing.

After the violation of probation hearing, the trial court found the appellant to be in willful violation of his probation. The court revoked his probation and sentenced him to eleven years in prison.

II. Mental Illness

A violation that causes a revocation of probation must be both willful and substantial. See Meade v. State, 799 So.2d 430, 432 (Fla. 1st DCA 2001). Illness, including mental illness, can render a technical violation of probation “not substantial or willful because a mental or physical illness can be debilitating to the point that a probationer cannot comply with the terms of probation.” Id. For example, in Williams v. State, 728 So.2d 287, 288 (Fla. 2d DCA 1999), the court held that Williams’s failure to file reports and submit to urinalysis testing, violations of his probation, were not willful because he was “crippled” by severe depression. In addition, the court stated, the violations did not appear to be willful because Williams had successfully completed more than two years of probation until the violation. Id. On the other hand, in Palma v. State, 830 So.2d 201, 203 (Fla. 5th DCA 2002), the Fifth District held that despite Palma’s bipolar disorder, her violation of probation was willful because she had made the decision to stop taking her medication, she had a history of violating probation, and although her disorder made it difficult to follow the rules, she had successfully completed a treatment program.

In the instant case, the uncontroverted evidence at the VOP hearing showed that the appellant suffered from severe delusions produced by his paranoid schizophrenia and that this illness caused him to violate his probation. Dr. D’Errico, the only doctor to testify at the violation of probation hearing, stated that the appellant suffered from severe delusions caused by paranoid schizophrenia. Dr. D’Errico also testified that this illness affected his everyday behavior and caused him to abandon his residence in fear for his life.

The State points to the testimony of the two doctors, Dr. Leland and Dr. Spence, who testified previously at the appellant’s competency hearing, as contradicting Dr. D’Errico’s testimony. Dr. Leland’s assertions, however, concerned not the willful nature of the appellant’s violation, but his competency to proceed to a VOP hearing. Similarly, Dr. Spence merely testified as to the appellant’s competency to proceed to a VOP hearing, not the willful nature of the appellant’s violation. Competency to proceed to a hearing and the willful nature of a violation are not necessarily the same determination. Cf. Patton v. State, 784 So.2d 380, 387 (Fla.2000) (ruling that “whether a defendant is competent to stand trial is not necessarily relevant on the question of whether the defendant was insane at the time of the killing” because these determinations “involve the defendant’s mental state at separate and distinct points in time”). In the instant case, whether the appellant had the ability to “consult with counsel with a reasonable degree of rational understanding” and understand the pending proceedings, see Fla. R.Crim. P. 3.211(a)(1), is not the same determination as whether the appellant’s actions were willful at the time of his violation, a year before the competency proceedings.

The State also argues that because the appellant failed to take his medication, the violation was willful under Palma. The instant case is distinguishable. First, there was evidence that the appellant’s counselor concurred in the appellant’s decision to discontinue medication and receive treatment solely through counseling. That does not appear to be the situation in Palma. Second, and more importantly, Palma’s failure to take her medication was just one reason the court found her violation willful. Palma’s prior history of probation violations also played a part in the court’s decision. See Palma, 830 So.2d at 203. In the instant case, this was the appellant’s first violation.

Accordingly, the trial court abused its discretion by finding that the State sufficiently proved that the violations of probation were willful. See Mead e, 799 So.2d at 432 (reversing probation revocation for insufficient evidence); Bell v. State, 643 So.2d 674, 675 (Fla. 1st DCA 1994) (reversing probation revocation; the standard of review is abuse of discretion).

REVERSED and REMANDED.

BROWNING, POLSTON and HAWKES, JJ., concur.


author: BROWNING, J.

text:
    Raymond Edward BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-0084.
    District Court of Appeal of Florida, First District.
    Jan. 14, 2004.

      Nancy A. Daniels, Public Defender; and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   OPINION ON REMAND FOR RECONSIDERATION

BROWNING, J.

The Supreme Court of Florida remanded this case for reconsideration in light of Reed v. State, 837 So.2d 366 (Fla.2002). The State was ordered to show cause why Appellant’s conviction should not be reversed on the authority of Reed, and Appellant filed a reply to the State’s response. Concluding that Reed compels a reversal, we remand the case for a new trial before a jury properly instructed in accordance with Reed. See also Goodman v. State, 839 So.2d 902 (Fla. 1st DCA 2003).

The State charged Appellant with unlawfully and knowingly possessing a controlled substance, Lortab/Hydrocodone (Count One), and with resisting an officer without violence (Count Two). Count Two eventually was dismissed due to a deadlocked jury and is not pertinent to this appeal.

In opening argument, the defense admitted that when narcotics officers had approached him on the night in question, Appellant was carrying a bag containing Lortab tablets. Appellant’s defense was that he had painful bone spur problems and secured some prescription pain medication from his stepfather, but Appellant was not told what the pills were; and that Appellant did not know of the illicit nature of the pills. In other words, whether or not Appellant knew that the tablets he was carrying were a controlled substance was disputed at trial.

With defense counsel’s acquiescence, the trial court read a jury instruction on Count One stating in pertinent part:

Before you can find the Defendant guilty of the crime charged the State must prove the following three elements beyond a reasonable doubt: One, that the Defendant possessed a certain substance; two, the substance was Lortab or ' Hydrocodone; and three, that the Defendant had knowledge of the presence of the substance.

In other words, the jury was not instructed that before it could find Appellant guilty of the crime charged in Count One, it would have to find that Appellant knew of the illicit nature of the substance he possessed. The jury found Appellant guilty as charged in Count One, and Appellant was sentenced under the Criminal Punishment Code to 3 years and 4 months of incarceration. On the authority of Reed v. State, 783 So.2d 1192 (Fla. 1st DCA 2001), we affirmed the judgment and sentence. Barnes v. State, 815 So.2d 745 (Fla. 1st DCA 2002).

Subsequently, in Reed, 837 So.2d at 366, the Supreme Court of Florida found fundamental error where an inaccurate definition of the disputed element of malice in the standard jury instruction reduced the State’s burden of proof on that essential element of the charged offense. Id. at 369. The court applied its decision retroactively to cases, like Appellant’s, pending on direct review. Id. at 370.

By analogy, the instruction given to Appellant’s jury on Count One reduced the State’s burden of proof on an essential element of the offense charged that was disputed at trial: whether Appellant knew of the illicit nature of the substance he carried. See McMillon v. State, 813 So.2d 56, 58 (Fla.2002); Scott v. State, 808 So.2d 166, 168 & 172 (Fla.2002) (stating that defendant’s knowledge of illicit nature of controlled substance is element of offense of possession, and holding that instruction that State must prove this element must be given as part of standard jury instructions); Chicone v. State, 684 So.2d 736 (Fla.1996). The elimination of an element of proof would have allowed the jury to convict Appellant because he knew the substance was present, even if the jury believed that he did not know its illicit nature. Because the incomplete instruction given reduced the State’s burden of proof, it was material to what the jury had to determine in order to convict Appellant. See Reed, 837 So.2d at 369. The Supreme Court’s language in Reed states unequivocally that under such circumstances, the error is “fundamental” and, thus, “is not subject to harmless error review.” Id. at 369-70; Scott, 808 So.2d at 167; Stewart v. State, 420 So.2d 862, 863 (Fla.1982) (acknowledging case law stating that “fundamental error occurs only when the omission [in the jury instruction] is pertinent or material to what the jury must consider in order to convict”); Gerds v. State, 64 So.2d 915, 916 (Fla.1953) (“It is an inherent and indispensable requisite of a fair and impartial trial under the protective powers of our Federal and State Constitutions as contained in the due process of law clauses that a defendant be accorded the right to have a Court correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence. Such protection afforded an accused cannot be treated with impunity under the guise of ‘harmless error.’ ”). Cf. State v. Delva, 575 So.2d 643 (Fla.1991) (holding that failure to instruct jury on element of crime that is not disputed is not fundamental error and, thus, is subject to contemporaneous objection rule). The enactment of section 893.101, Florida Statutes (2002), which became effective as of May 13, 2002, does not change the result in the case at bar, which involves a 1999 offense. See Thomas v. State, 844 So.2d 723 (Fla. 5th DCA 2003); Starling v. State, 842 So.2d 992, 993 n. 1 (Fla. 1st DCA 2003); Goodman, 839 So.2d at 903; Blunt v. State, 831 So.2d 770, 772 (Fla. 4th DCA 2002); Norman v. State, 826 So.2d 440 (Fla. 1st DCA 2002).

Given the clear mandate in Reed, we REVERSE Appellant’s conviction and REMAND for a new trial.

BOOTH and POLSTON, JJ., Concur.

      . Hydrocodone is the active ingredient in the pharmaceutical preparation known as Lortab, which is an analgesic used for pain relief. Hydrocodone is a controlled substance listed under Schedule II in section 893.03(2)(a)l.j., Florida Statutes (1999). Subject to exceptions not pertinent here, actual or constructive possession of a controlled substance violates section 893.13(6)(a), Florida Statutes (1999).


author: MONACO, J.

text:
    Jeffrey HORNBUCKLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-74.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

We once again consider the issue of vindictive sentencing. In this case Jeffrey Hornbuckle appeals the denial of his rule 3.850 motion alleging ineffective assistance of counsel. He asserts that because his attorney did not challenge a 36-month sentence on the ground that it was vindictive, his counsel failed to render the minimum level of effective assistance. Mr. Horn-buckle misapprehends the nature of vindictive sentencing.

Mr. Hornbuckle was charged by information with driving with a cancelled, suspended or revoked license pursuant to section 322.264, Florida Statutes (2001), as an habitual traffic offender. The State offered a plea bargain by which he would receive a sentence of 180 days in the county jail in exchange for a plea to the charge. The trial court seemed to be willing to agree to impose this sentence. Mr. Horn-buckle, hoping to receive a non-incareera-tive sentence, however, decided that he would rather plead “open” to the court. The trial judge did not actively participate in this negotiation, but simply listened to Mr. Hornbuckle’s attorney describe the reasons for the open plea. After agreeing to accept the open plea, the judge then said:

The Court: Does Mr. Hornbuckle also understand that in tendering an open plea — do you understand that I can sentence you from anything to no sanctions all the way to 5 years of incarceration?
The Defendant: Yes, Sir.
The Court: And $5,000.00 fine if I so choose. Do you understand that?
The Defendant: Yes, Sir.
The Court: Do you understand there’s no agreement or even hint by the court as to what I will do? All three options: plead open to the court, accept the negotiated settlement that the State has given you [180 days] or you can go to trial and take your shot there. Do you understand that?
The Defendant: Yes, Sir.

The judge accepted the plea and then considered Mr. Hornbuckle’s prior criminal record, which included several driver’s license violations, a failure to appear, a number of third degree felonies, and the fact that he was on probation at the time he committed the crime for which he was being sentenced. The court adjudicated Mr. Hornbuckle guilty and sentenced him to three years in state prison.

Mr. Hornbuckle filed an unsuccessful rule 3.800 motion to correct illegal sentence with the trial court, and appealed the order denying relief to this court. We affirmed per curiam, He then filed his rule 3.850 motion, which was denied after an evidentiary hearing during which the trial court found that Mr. Hornbuckle failed to demonstrate ineffectiveness of trial counsel under the Strickland standard. More specifically, the court found that Mr. Hornbuckle failed to show that he had been misadvised by his lawyer. This appeal followed.

Our Supreme Court has addressed the issue of judicial vindictiveness in two rather recent cases. In State v. Warner, 762 So.2d 507 (Fla.2000), the Court authorized certain limited judicial participation in the plea bargaining process. The Court related, however, that trial judges may not initiate the plea discussion. In addition, the Warner court indicated that the judge may neither state, nor imply “alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.” Warner, 762 So.2d at 513-514. That is, judges must not suggest in any way that the sentence might vary depending on whether the defendant chooses to exercise his or her right to trial by jury. See also Graff v. State, 843 So.2d 1012 (Fla. 5th DCA 2003).

The high court revisited the issue in Wilson v. State, 845 So.2d 142 (Fla.2003). There, the Court declined to adopt a presumption of vindictiveness to be applied in all cases in which a judge participates in plea negotiations, but instead concluded that a “totality of circumstances” review is more appropriate to determine if a defendant’s constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations with the court. Wilson, 845 So.2d at 156. See also Vondervor v. State, 847 So.2d 610 (Fla. 5th DCA 2003). The Wilson court held, moreover, that:

Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a “reasonable likelihood” that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial. (Citation omitted). The other factors that should be considered include but are not limited to: (1) whether the trial judge initiated the plea discussions with the defendant in violation of Warner; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Wilson, 845 So.2d at 156.

In the present case the trial judge did not initiate the plea discussion, and never implied that a harsher sentence would result if Mr. Hornbuckle exercised his right to go to trial. The only discussion involving the plea centered around whether Mr. Hornbuckle wanted to accept the State’s offer, or plead open to the court. There appeared to be no coercion, no threats, and no implication of an elevated sentence for exercising any right. Instead, Mr. Horn-buckle got a legal sentence that was well within the prerogative of the trial court. That the sentence was greater than offered by the State does not, without more, translate to vindictiveness.

Although Mr. Hornbuckle argues that his counsel was deficient in failing to object to a sentence that he thought was harsh, but within the sentencing authority of the trial court, no legal basis for the objection has been suggested. If there was no legal basis for defense counsel to object to the sentence, the failure to do so cannot be ineffective. See Sampson v. State, 832 So.2d 251 (Fla. 5th DCA 2002).

AFFIRMED.

SHARP, W., and GRIFFIN, JJ„ concur.

      . Hornbuckle v. State, 812 So.2d 429 (Fla. 5th DCA 2002).

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Danny A. LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1482.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

SHARP, W, THOMPSON and PLEUS, JJ., concur.


author: KLEIN, J.

text:
    Gary PORRO, Appellant, v. Jennifer PORRO, Appellee.
    No. 4D02-4229.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.

      Debra D. Duckett, Boca Raton, for appellant.
    Evelyn A. Ziegler, West Palm Beach, for appellee.
   KLEIN, J.

In 1995 the parties entered into an agreement and judgment requiring appellant father to pay a total of $950 a month support for three children, as well as an additional amount for arrearages. Because of his failure to promptly seek modification as the children reached majority, the trial court held that the father was precluded as a matter of law from receiving a credit against his substantial arrear-ages. We reverse because we conclude that the trial court should have considered the father’s entitlement to a credit on the merits.

In addition to requiring a single payment of $950 a month for all three children, and an additional sum for arrearag-es, the agreement provided:

In no event shall the Former Husband’s child support fall below $1170.00 per month until all arrearages are paid in full, regardless of any child reaching the age of majority. The parties agree to recalculate the Former Husband’s support obligation upon any of the minor children reaching the age of majority, so that the apportionment of his monthly payments towards support and arrear-ages may be determined.

The children reached majority in 1995, 1997, and 2001. Although the father made unsuccessful efforts to obtain reapportionment of child support starting one year after the oldest child reached majority, it was not until July, 1997, that he filed a second petition for modification and not until October, 2001 when it was heard. The trial court dismissed the petition with prejudice, holding that he was barred as a matter of law because he should have sought relief sooner.

Normally child support payments become vested, once the payment date is past, and that obligation cannot be retroactively modified prior to the filing of a petition for modification. Puglia v. Puglia, 600 So.2d 484 (Fla. 3d DCA 1992). In an action to collect past due child support, however, there may be equitable reasons, including the lack of a legal obligation to pay child support, which may constitute a valid defense. As our supreme court explained in State ex rel. Pittman v. Stanjeski, 562 So.2d 673, 678 (Fla.1990):

The following three equitable defenses may be appropriate grounds for relief: (1) payment — a direct payment is made to the payee because of the exigencies of the family situation or a family emergency; (2) no further obligation to pay support — a minor child reaches majority, marries, enters the armed services, or dies, or a former spouse receiving alimony remarries or dies; or (3) change of custody — a full change of child custody has occurred and the former custodial parent no longer supports the child or retains fiscal obligations relating to the chüd. There may be other equitable defenses that can be raised based on other types of extraordinary circumstances. We emphasize that the underlying purpose of this process is to assure the payment of child support for the welfare of the child.

Based on Pittman we conclude that the father was not barred as a matter of law from seeking credit back to the date each child reached the age of majority because of the combination of provisions of the agreement. First, the agreement obligated the father and mother to recalculate the father’s support obligation as each child reached majority. The father made efforts to have a recalculation, but they were not successful. Second, and very significant, is the fact that the father has at all times owed a very substantial arrearage. This meant that, under the agreement, even if the parties had agreed to a reduction when each child reached the age of majority, his payments would not have been reduced. Even if the trial court had granted the relief the father was seeking, he would still be required to pay $1170 a month on the arrearage.

Considering that the father would not have been entitled to a reduction in his actual monthly payment when each child reached majority, we can understand why he could see no urgency in expending the time and money to obtain a court-ordered reapportionment.

Because the trial court simply applied the general rule that child support payments become vested and cannot be modified prior to the filing of the motion for modification, it did not consider whether this was one of those equitable situations contemplated by Pittman, which would be an exception to the general rule. We therefore reverse for consideration on the merits. In deciding whether to grant relief, the court can consider any prejudice caused by the delay. In addition, any credit based on one of three children reaching majority would not necessarily be one-third of the undifferentiated amount paid per month. Hammond v. Hammond, 492 So.2d 837 (Fla. 5th DCA 1986). Reversed.

STONE and TAYLOR, JJ., concur.


text:
    Warren DEMETRIUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4938.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Warren Demetrius, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant seeks review of an order that denied his motion for additional jail credit. We affirm because the motion contained a defective verification clause. See Greenwood v. State, 802 So.2d 401, 401-02 (Fla. 4th DCA 2001). This affirmance is without prejudice to appellant filing a motion with the proper oath as set forth in Florida Rule of Criminal Procedure 3.987. Thereafter, the trial court can consider the coer-civeness and restrictiveness of appellant’s prior detention. See Smith v. State, 849 So.2d 409, 409 (Fla. 4th DCA 2003).

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    Antoine HASTIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4171.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Antoine Hastie, Belle Glade, pro se.

      No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003).

POLEN, TAYLOR and MAY, JJ„ concur.


text:
    Eain WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3232.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Eain White, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm, but note express conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), as we did previously in Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003).

GUNTHER, KLEIN and MAY, JJ., concur.


text:
    Sainfrene SAINTELUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3004.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Sainfrene Saintelus, Milton, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s motion for postconviction relief. As the state points out, and appellant concedes, the motion did not contain a proper oath. Fla. R.Crim. P. 3.850(c). Appellant may raise his claims in a motion containing a proper oath within 30 days of the date of this opinion.

POLEN, TAYLOR and HAZOURI, JJ„ concur.


text:
    Jorge L. RODRIGUEZ, Appellant, v. WAL-MART ASSOCIATES, INC., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D03-811.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2004.
    Jorge L. Rodriguez, in proper person.
    John D. Maher (Tallahassee), Deputy General Counsel, for appellee Commission.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   PER CURIAM.

Jorge L. Rodriguez appeals an order denying unemployment benefits. We conclude that disqualifying misconduct was not demonstrated and reverse the order now before us.

In August of 2000, the appellant-employee was counseled for making personal calls on company time. In September, the employee was counseled for failing to enter certain optical prescriptions in the computer, rather than handwriting the prescriptions. He also failed to collect remaining balances on lay-away purchases of eyeglasses. In October the employee was discharged for deteriorating job performance after the above referenced counseling.

“In defining misconduct, courts are required to liberally construe the [unemployment compensation] statute in favor of the employee.” Mason v. Load King Manufacturing Co., 758 So.2d 649, 654 (Fla.2000) (citations omitted); § 443.031, Fla. Stat. (2000). Subsection 443.036(29), Florida Statutes (2000), defines disqualifying misconduct:

(29) “Misconduct” includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

“In general, mere unsatisfactory work performance will not result in a denial of benefits.” Brownstein v. Hartwell Enterprises, Inc., 647 So.2d 1004, 1005 (Fla. 3d DCA 1994) (citations omitted); see also Doyle v. Florida Unemployment Appeals Commission, 635 So.2d 1028, 1031 (Fla. 2d DCA 1994).

Accepting the referee’s characterization that there was deteriorating job performance, it still would not rise to the level of disqualifying misconduct under the statutory definition of misconduct, or the case law. Accordingly we reverse the order denying unemployment compensation benefits.

Reversed and remanded.


text:
    Leonard LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1600.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Leonard Lewis, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Leonard Lewis, appeals the trial court’s summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. This motion followed Appellant’s conviction and sentence for possession of a firearm by a convicted felon. We affirm the summary denial of his post-conviction claims one through three without the need for discussion, but reverse and remand as to claim four as will be discussed below.

In claim four, Appellant alleged ineffective assistance of his trial counsel for failure to object to his presence in the courtroom with prison garb or jailhouse clothing, as well as the fact that Lewis was chained at the ankles. The trial court summarily rejected this entire claim on the grounds that the record showed that the jury was not afforded an opportunity to observe him in ankle chains or shackles. Record attachments revealed that Appellant was brought into the courtroom before the jury entered, and that the jury left the courtroom before he stood up from the jury box and returned to sit with counsel. There is no record indication that the jury ever viewed the shackles. However, the trial court wholly overlooked Appellant’s separate claim of ineffective assistance of counsel for failure to object to his presence before the jury in jailhouse clothing or prison garb.

It is well-settled that a defendant cannot be compelled to stand trial in identifiable prison clothes, see Torres-Arboledo v. State, 524 So.2d 403, 409 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239, (1988), because it could impair the defendant’s presumption of innocence, which is a basic component of the fundamental right to a fair trial. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, reh’g denied, 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976). In addition, equal protection concerns are triggered because “compelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial.” Id. at 505-06, 96 S.Ct. 1691; see also Waters v. State, 779 So.2d 625 (Fla. 1st DCA 2001)(finding ineffectiveness of counsel claim facially sufficient where trial counsel failed to object to defendant’s appearance in court in prison garb).

Appellant stated a valid claim of ineffective assistance of trial counsel for failure to object to his wearing jailhouse clothing before the jury. See Palmer v. State, 831 So.2d 725 (Fla. 4th DCA 2002); Pineda v. State, 805 So.2d 116 (Fla. 4th DCA 2002); Waters.

Appellant’s claim is not refuted by the record attachments. Accordingly, we reverse that part of the lower court’s order denying relief on this claim and remand for an evidentiary hearing or the attachment of portions of the record that conclusively refute it.

STONE, KLEIN and SHAHOOD, JJ., concur.


text:
    Freddie LOVE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1606.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.

      Freddie Love, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002).

GUNTHER, STEVENSON and SHAHOOD, JJ., concur.


text:
    GUARDIAN AD LITEM PROGRAM, Appellant, v. In the Interest of K.D. and R.A., minor children, Appellee.
    No. 4D03-2312.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Kathleen K. Peña, Fort Lauderdale, for appellant.
    Laurence J. Smith, Fort Lauderdale, for appellee.
   GROSS, J.

The Guardian Ad Litem Program timely appeals a circuit court order allowing it to adopt the petition for termination of parental rights (TPR), which had been voluntarily dismissed by the Department of Children & Families, but requiring it to file its own petition, serve it on the father, and begin a new adjudicatory hearing.

We affirm the requirement of a new adjudicatory hearing, but reverse the portion of the order mandating the filing of a new petition with service upon the father.

The Department filed a petition for termination against the mother and father of R.A., alleging grounds under section 39.806(1)®, Florida Statutes (2002). Trial began on March 3, 2003, and continued on March 6, March 7, and April 1, 2003. On April 1, in the middle of the adjudicatory hearing, the Department announced a voluntary dismissal of the petition as to the father.

The Guardian noticed all parties and the court that it would be adopting the petition against the father, pursuant to Florida Rule of Juvenile Procedure 8.500(f). The Guardian essentially sought to jump into the middle of the case and step into the shoes of the Department, so that the case could proceed without interruption. The Guardian stated that it would adopt the Department’s pre-trial statement and would offer only witnesses and evidence that the Department had offered and had planned to offer in the remainder of the trial, so that the father would not suffer any prejudice.

The father objected to the Guardian proceeding in this manner, contending that his trial strategy would significantly change due to the Department’s dismissal of its petition. The Attorney Ad Litem for the child also objected, noting that “the strategies would just by nature be different knowing that the Department is no longer pursuing a TPR case against the father.”

The trial court granted the Guardian’s motion to adopt the Department’s petition. However, the order required compliance with “every statutory guideline set forth” in Chapter 39, Florida Statutes (2002), including reservice of the TPR petition upon the father.

Rule 8.500(f) provides:

The petitioner, without leave of court, at any time before entry of an order of adjudication, may request a voluntary dismissal of the petition by serving a notice of request of dismissal on all parties or, if during a hearing, by so stating on the record. The petition shall be dismissed and the court loses jurisdiction unless another party adopts the petition within 72 hours. Unless otherwise stated, the dismissal shall be without prejudice.

(Emphasis added).

The rule must be read in the context of Chapter 39. To adopt a TPR petition under rule 8.500(f), a party must be one that could have filed a petition in the first place. A petition may be initiated by “the department, the guardian ad litem, or any other person who has knowledge of the facts alleged or is informed of them and believes that they are true.” § 39.802(1), Fla. Stat. (2002); see Fla. R. Juv. P. 8.500(a)(2) (noting that Department, guardian, licensed child-placing agency, or any person having knowledge of the facts may file a TPR). A petition must be filed “under oath stating the petitioner’s good faith in filing the petition.” § 39.802(2). To adopt a petition under rule 8.500(f), the adopting party must comply with the oath requirement of section 39.802(2).

The jurisdiction of the court over a parent in a termination proceeding is invoked by the filing of the petition and the service of the petition upon the parent. See M.J.W. v. Dep’t of Children & Families, 825 So.2d 1038, 1041 (Fla. 1st DCA 2002) (observing that without proper service of process upon a defendant in a termination proceeding, “the court lacks personal jurisdiction over the defendant”); B.G. v. Fla. Dep’t of Health & Rehab. Servs., 611 So.2d 71 (Fla. 1st DCA 1992). We read the language of rule 8.500(f) — that the “court loses jurisdiction unless another party adopts the petition within 72 hours” — as dispensing with the requirement that the petition be re-served upon the parent. Thus, we reverse that portion of the circuit court order requiring service of process.

After a party has adopted a petition under rule 8.500(f) and consistent with section 39.802(2), the court must reschedule the adjudicatory hearing to start anew. We agree with counsel for the father that a parent’s trial strategy may differ depending on the party bringing the termination petition. We note that at the new adjudicatory hearing, the party that adopted the petition may rely on section 39.809(3), Florida Statutes (2002), which provides in pertinent part:

For purposes of the adjudicatory hearing, to avoid unnecessary duplication of expense, the judge may consider in-court testimony previously given at any properly noticed hearing, without regard to the availability or unavailability of the witness at the time of the actual adjudicatory hearing, if the recorded testimony itself is made available to the judge. Consideration of such testimony does not preclude the witness being subpoenaed to answer supplemental questions.

WARNER and HAZOURI, JJ., concur.


text:
    Marc NOEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3182.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 2004.
    Marc Noel, Century, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002).

SHAHOOD, TAYLOR and HAZOURI, JJ., concur.


text:
    Pamela HOLIDAY, Appellant/Cross-Appellee, v. NATIONWIDE MUTUAL FIRE INSURANCE, etc., et al., Appellee/Cross-Appellant.
    Nos. 5D02-3369, 5D02-3491.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.

      Brandon S. Peters of Morgan, Colling & Gilbert, P.A., Orlando, for Appellant/Cross-Appellee.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Ap-pellee/Cross-Appellant, Nationwide Mutual Fire Insurance Company.
    Randy E. Schimmelpfennig of Billings, Cunningham, Morgan & Boatwright, P.A., Orlando for Appellee/Cross-Appellant, Leonard Shealey.
   MONACO, J.

Pamela Holiday and Leonard Shealey, who were plaintiffs below, successfully brought an action for damages against their property insurance carrier, Nationwide Mutual Fire Insurance Company. Two of the parties, Ms. Holiday and Nationwide Mutual Fire Insurance Company, have respectively appealed and cross-appealed the order rendered by the trial court granting appellant, Ms. Holiday, and cross-appellee, Mr. Shealey, attorneys’ fees founded on section 627.428, Florida Statutes (2002), and applying a contingency risk multiplier to the Shealey fee, but declining to do so with respect to the fee for Ms. Holiday’s attorney. Appel-lee/cross-appellant, Nationwide, seeks review of the award of fees to Mr. Shealey because of the imposition of the multiplier. A review of Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990), and its progeny leads us to the conclusion that the attorney’s fee award was correct with respect to Mr. Shealey, but erroneous as it pertained to Ms. Holiday, and that a contingency risk multiplier should have been applied to both fees.

The suit that gave rise to the attorneys’ fee controversy was an action to recover insurance proceeds from a policy of homeowner’s insurance issued by Nationwide following a fire to the residence of the parties. It appears that Ms. Holiday and Mr. Shealey purchased a home jointly, and insured it with Nationwide. After the couple ended their relationship, a suspicious conflagration occurred in the residence and substantial damage was done to it as a result. When arson was determined to be the cause of the fire, and there was some indication that Mr. Shealey might have been the culprit, Nationwide declined coverage. Ms. Holiday and Mr. Shealey brought suit, and eventually succeeded in recovering a verdict for the full amount sought by them after a four-day jury trial.

Ms. Holiday and Mr. Shealey then each filed motions to obtain an award of attorney’s fees in accordance with section 627.428, Florida Statutes (2002). After several evidentiary hearings at which a number of witnesses testified with respect to whether a contingency risk multiplier was warranted, the trial court issued an order awarding attorney’s fees in favor of both of the insureds, but applying the contingency multiplier only to the Shealey fee.

The trial judge concluded that Ms. Holiday’s attorney had reasonably expended 310 hours on the case, that $225 per hour was a reasonable hourly rate, and that the lodestar figure for this labor was $69,750. He found, however, that the contingency fee agreement executed by Ms. Holiday and her attorney would not permit a fee beyond one-third of the recovery, and accordingly reduced the award to $22,333.00.

With respect to Mr. Shealey’s counsel the trial judge found that 204 hours was reasonably expended, and that $225 was a reasonable hourly rate. Because he concluded that Mr. Shealey’s fee agreement authorized a contingency risk multiplier of 2.0, however, he awarded a fee of $91,800.

Ms. Holiday seeks review of the lower court’s order because no contingency risk multiplier was awarded for her counsel’s labor against Nationwide. Nationwide feels that the trial judge was correct with regard to the Holiday fee, but cross-appeals the fee awarded to Mr. Shealey because it asserts that no contingency risk multiplier was warranted under the circumstances of this case. We consider these in reverse order.

I. Whether a contingency risk multiplier was appropriate.

Section 627.428, Florida Statutes (2002), authorizes the award of a reasonable attorney’s fee to an insured who prevails against his or her carrier after being required to bring suit to establish a valid claim. Subsection (1) of the statute says, more specifically:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court ... shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

The legislative intention underpinning section 627.428 is to “discourage the contesting of valid claims against insurance companies and to reimburse successful insureds for their attorney’s fees when they are compelled to defend or sue to enforce them insurance contracts.” See Insurance Co. of N. Am. v. Lexow, 602 So.2d 528, 531 (Fla.1992). Thus, if a dispute is within the scope of this statute and an insured must enforce his or her rights under a policy, and if a judgment is rendered against the insurer, then the insurer is required to pay attorney’s fees for the insured or beneficiary. See Bell v. U.S.B. Acquisition Co., Inc., 734 So.2d 403 (Fla.1999); Bassette v. Standard Fire Ins. Co., 803 So.2d 744, 746 (Fla. 2d DCA 2001). To learn whether a contingent risk multiplier may be applicable to fees awarded under section 627.428, we must examine Quanstrom.

The Supreme Court in Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990), identified three different categories of cases in which attorney’s fees may be awarded by a court. The Court concluded that the second of those categories, which applies principally to tort and contract cases, including cases such as the present controversy involving an insured and his or her insurance company, is one in which a contingency risk multiplier may be appropriate. In Quan-strom the Court reaffirmed the principles set forth in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), with respect to these cases, and added three additional factors to be considered in determining whether a multiplier should be applied:

1. Whether the relevant market requires a contingency fee multiplier to obtain competent counsel;
2. Whether the attorney was able to mitigate the risk of nonpayment in anyway; and
3. Whether any of the factors set forth in Rowe are applicable, especially the amount involved, the results obtained, and the type of fee arrangement between the attorney and his or her client.

In the present case the trial court made specific findings of fact after having heard extensive testimony. He evaluated the likelihood of Mr. Shealey prevailing at less than 50%, and after hearing conflicting experts found that very few attorneys in Orlando would have taken this case without the potential for a multiplier. The court was persuaded that “both attorneys took the case as a ‘flyer’ in the hope of ‘getting lucky’ and recovering a huge fee.” He then found that a 2.0 multiplier was appropriate for Mr. Shealey’s counsel.

Once it is determined that attorney’s fees are awardable, the standard of review with respect to the application of a multiplier is one of abuse of discretion. See United Auto. Ins. Co. v. Padron, 775 So.2d 372 (Fla. 3d DCA 2000); cf. Centex-Rooney Constr. Co. v. Martin County, 725 So.2d 1255 (Fla. 4th DCA 1999). Here, there is substantial competent evidence to support the trial court’s decision to apply the multiplier, and we accordingly affirm with respect to the fee awarded to Mr. Shealey.

II. Whether the multiplier should have been applied to the Holiday fee.

The trial court decided to apply the multiplier to the Shealey fee, but not to the Holiday fee primarily because of a difference in the language of the attorney’s fee agreements between the clients and their individual attorneys. Mr. Shealey’s agreement, which was found to be sufficient to authorize the imposition of a multiplier, read in pertinent part:

I agree to pay my attorneys the following fee based on a percentage of the total gross recovery, or an amount awarded by the Court, whichever is greater: ...

The trial judge determined, however, that Ms. Holiday’s fee agreement would not permit a contingency risk multiplier to be utilized. The Holiday agreement said:

I agree to pay my attorneys the following fee from the total gross recovery:
(a) 33 1/3% of any recovery up to $1 million prior to filing suit and after suit is filed but before an answer is filed or demand for arbitration is made;
(b) 40% of any recovery up to $1 million after answer is filed or demand for arbitration is made;
...; and
(g) In the event attorneys’ fees are recovered pursuant to any state or federal statute, I agree to pay my attorneys the greater of the statutory fee or contingency fee stated above.

To understand the trial court’s reasoning in this connection, it is instructive to consider the Supreme Court’s decision in Kaufman v. MacDonald, 557 So.2d 572 (Fla.1990). In Kaufman the Court answered a certified question asking whether Rowe precluded an attorney’s fee above the percentage amount set out in the contingency fee agreement between claimant and counsel “where the agreement provides that the fee upon recovery shall be the higher of the percentage amount or an amount awarded by the court.” Kaufman, 557 So.2d at 573. (Emphasis added). The Kaufman court concluded that it did not, and held specifically that, “the court may apply a contingency multiplier and award a reasonable fee which exceeds the amount of the fee which would be recoverable under the percentage alternative of the fee agreement.” Id.

As fleshed out in oral argument, it appears that what troubled the trial judge was the notion that under the Holiday agreement, the party agreed to pay the statutory fee, regardless of the source, and regardless of whether the fee was actually collected from the insurance carrier. If the statutory fee awarded exceeded the contingency fee amount, it would mean that the client might have to pay a fee greater than the contingency amount, even if the fee was never actually collected from Nationwide. As that result would not be permissible under the rules governing contingency fees, the client would never be obligated beyond the contingency amount. See Rule 4 — 1.5(f), Rules of Professional Conduct. Because a court awarded fee cannot exceed the fee agreement reached between the attorney and the client [See Rowe, at 1151; Miami Children’s Hosp. v. Tamayo, 529 So.2d 667 (Fla.1988)], the trial court felt that it could not make an award greater than the contingency fee and that it could not grant a multiplier based on the language concerning statutory fees contained in the Holiday agreement. By contrast, the trial court was satisfied that the Shealey agreement met the Kaufman criteria. The line imposed by the trial court in this instance was, indeed, very fine.

It appears to us that both agreements satisfy Kaufman. First, Kaufman does not dictate that any particular language or “magic words” be used in the agreement, provided the fee arrangement is, in fact, contingent. See Superior Ins. Co. v. Gordle, 851 So.2d 207 (Fla. 1st DCA 2003). Secondly, the question certified to the Supreme Court in that case was couched broadly in terms of a “fee upon recovery.” Here, both the Holiday and Shealey fee agreements are contingent arrangements and are specifically conditioned on the “recovery” of a fee. Moreover, a fair reading of the language used by the participants really does not leave any doubt about how or to what extent a fee is payable. See Hollub v. Clancy, 706 So.2d 16 (Fla. 3d DCA 1997). While we understand the careful distinction being made by the trial judge, we are convinced that neither Ms. Holiday, nor Mr. Shealey would be responsible for attorney’s fees under their respective agreements except to the contingent extent actually recovered from Nationwide as a result of the lawsuit, or in the amount awarded by the trial court pursuant to section 627.428 and actually recovered from Nationwide, whichever is greater.

Thus, we reverse the Order on Attorneys’ Fees as it applies to the Holiday agreement, and remand for recalculation of the amount and entry of an appropriate order.

QUESTION CERTIFIED

This case has caused us to consider whether in light of Sarkis v. Allstate Insurance Co., 863 So.2d 210 (Fla.2003), a multiplier should continue to be applicable to fee awards based on fee-shifting statutes.

The Florida Supreme Court’s seminal decision in Quanstrom was founded on two then recent decisions of the United States Supreme Court: Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989); and Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987). Since the publication of Quanstrom, the United States Supreme Court has receded from Delaware Valley by its decision in City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), in which it held that fee-shifting statutes generally do not permit enhancement of a fee award beyond the lodestar amount to reflect the fact that a party’s attorneys were retained on a contingent fee basis.

In Sarkis our high court made the following observation:

Throughout the statutory and rule history of offers of judgment, the use of a multiplier has never been expressly authorized. Neither section 768.79 nor rule 1.442 authorizes the use of a multiplier in determining the amount of attorney fees as a sanction for the rejection of an offer. Applying a strict construction of the statute and rule, a multiplier therefore cannot be applied under section 768.79 or rule 1.442, and the trial court’s application of a multiplier in this case was error.

Sarkis, 863 So.2d at 223.

Section 627.428, Florida Statutes (2002), the statute that was the foundation for the award of attorney’s fees in the present case, likewise contains no authorization within it for the use of a multiplier. We are, of course, required to adhere to the decisions of the Supreme Court, and our opinion in this case follows the law as we believe it currently exists. Because from the most fundamental perspective, however, we cannot approve a multiplier based on this fee-shifting statute if Sarkis signals a tidal shift in this regard, we certify the following question as one of great public importance:

IN LIGHT OF THE SUPREME COURT’S DECISION IN SARKIS, MAY A MULTIPLIER BE APPLIED TO ENHANCE AN AWARD OF ATTORNEY’S FEES GRANTED UNDER A FEE-SHIFTING STATUTE SUCH AS SECTION 627.428, FLORIDA STATUTES (2002).

AFFIRMED in part, REVERSED in part, QUESTION CERTIFIED.

THOMPSON, and PALMER, JJ., concur.

      . Recently the supreme court in Sarkis v. Allstate Insurance. Co., 863 So.2d 210 (Fla. 2003), held that contingency risk multipliers are not authorized when the attorneys fee award arises out of the offer of judgment statute. The Supreme Court noted that attorney's fees awarded pursuant to offer of judgment statutes are sanctions for unreasonable rejections of offers of judgment. Id. The supreme court went on to state, however, that:
      We have recognized that the use of a multiplier must be consistent with the purpose of the fee-authorizing statute or rule. The reason for an award of attorney fees authorized as a sanction for the rejection of an offer to settle is very different from the reason that we authorized the use of a multiplier in Quanstrom. In those cases, we authorized the use of a multiplier to promote access to courts by encouraging lawyers to undertake representation at the inception of certain cases. We agree with the Third District Court of Appeal’s analysis in Amisub [American Hospital, Inc. v. Hernandez, 817 So.2d 870 (Fla. 3d DCA 2002)] that Quanstrom specifically refers to obtaining counsel in the first instance. It is self-evident that attorney fees awarded as a sanction under 768.79 and rule 1.422 are awarded after an attorney has already been obtained and agreed to undertake the case, and thus the use of a multiplier is not consistent with the purpose of the fee-authorizing statute.

        Id. at 222-223.

      . We note that the trial judge indicated in the order that should a higher court reverse the award to Ms. Holiday’s counsel, that Ms. Holiday’s counsel, too, would be entitled to a 2.0 multiplier to be applied to the lodestar amount. Further proceedings in this specific regard should, therefore, not be necessary.


author: THOMPSON, J.

text:
    Parker TRAVAGLIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2215.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.

      Parker Travaglia, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Parker Travaglia appeals the summary denial of his rule 3.850 motion. We find that two of Travaglia’s grounds have merit and reverse the order denying the motion.

Travaglia alleged in his motion that he rejected an early offer of five years’ incarceration because his trial counsel failed to advise him about the Violent Career Criminal Act when they were discussing the merits of the offer. Travaglia subsequently entered an open plea of guilty to burglary of a conveyance and was sentenced to ten years as a violent career criminal. Travaglia claims that but for counsel’s omission, he would have accepted the five-year plea offer.

Although the trial court found that Travaglia was advised of the Violent Career Criminal Act at the time he entered his open plea, the court did not attach any records refuting Travaglia’s claim that he was not advised of the Act at the time of the earlier plea offer and that, but for counsel’s misadvice, he would have accepted that offer. An attorney’s failure to inform a defendant of the possibility of an enhanced sentence when rejecting a plea offer for a lesser sentence may entitle the defendant to post conviction relief, where the defendant alleges he would have accepted the plea offer if correctly advised. Lewis v. State, 751 So.2d 715 (Fla. 5th DCA 2000). We conclude that Travaglia’s allegations in this ground are facially sufficient.

Travaglia also claims that counsel was ineffective for failing to advise him that he had a voluntary intoxication defense. He alleged that he had notified counsel that he was under the influence of alcohol and drugs when he committed the charged burglary of a conveyance. The voluntary intoxication defense was available to Travaglia because Travaglia’s crime predated the statute eliminating the defense. See § 775.051, Fla. Stat. (1999).

Travaglia did not expressly point to any evidence to support a voluntary intoxication defense, but factual allegations in a 3.850 motion must be accepted as true when the trial court denies a claim without an evidentiary hearing and without attaching any records. See Foster v. State, 810 So.2d 910 (Fla.2002). A defendant is not required to point to record evidence of intoxication to support a claim that counsel was ineffective for failing to investigate when advised that defendant was intoxicated at the time of the offense. Bartley v. State, 689 So.2d 372 (Fla. 1st DCA 1997). See also Brunson v. State, 605 So.2d 1006 (Fla. 1st DCA 1992) (holding that defendant’s claim that counsel failed to investigate intoxication defense when advised that defendant used drugs and alcohol shortly before crime was legally sufficient, although defendant had signed a plea agreement indicating satisfaction with counsel).

As the trial court failed to attach any records refuting these two facially sufficient claims, the order is reversed and the case is remanded for the trial court to either attach records conclusively refuting the claims or to hold an evidentiary hearing.

AFFIRMED in part, REVERSED in part, and REMANDED.

PETERSON and GRIFFIN, JJ„ concur.

      . § 775.084(l)(d), Fla. Stat. (2000).


author: WOLF, C.J.

text:
    M.F., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3427.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2004.

      Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for appellant.
    Charles J. Crist, Attorney General; Karen M. Holland, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

Appellant challenges his adjudication of delinquency for possession of burglary tools. He asserts that the trial court erred by denying the motion for judgment of dismissal as to this charge. We agree and reverse.

A deputy sheriff testified that around 11:00 p.m. he saw appellant near a pay phone outside a store that had one of its windows boarded up. At that time the two sheets of plywood covering the window as well as the screws or nails attaching the boards appeared to be intact. The deputy resumed his patrol, and received a call that the store’s alarm was going off shortly thereafter. He returned to the store, and observed appellant walking away from the direction of the boarded window. After noticing that the boards had been pried apart, the deputy did a pat down search for weapons, and found a large hammer in appellant’s waistband. Appellant stated that he always walks around with a hammer in his pants. The deputy testified that the impressions found on the pried wood matched the “claw part” of the hammer identically.

Appellant testified that he was at the store that morning to use the pay phone, and he found a hammer on the ground. He further testified, in relevant part:

Q: Did you use that hammer to try to pry the boards apart?
A: Yes, sir.
Q: Did you ever have an intent to burglarize the Express Mart?
A: No, sir.

The trial court found appellant guilty of possession of burglary tools, but not guilty of attempted burglary based on its finding that appellant could have intended to use the hammer for some other purpose than to burglarize the store:

All right. I don’t think I can convict him on the attempted burglary because we don’t have any proof what he intended to do was go inside the store and steal something. It’s entirely possible that he was only intending to damage the — trespass on the property by damaging the wood or by stealing the wood, but not necessarily that he intended to go inside.
I think it’s probably extraordinarily unlikely that he intended to do anything other than go inside and steal. We don’t have any evidence — and people steal plywood, so — I don’t think the State has enough evidence to exclude the hypothesis that he was only there to steal the plywood and not to go inside of the building.

The trial court’s specific finding that the State failed to prove that appellant intended to enter the store requires that we reverse the adjudication of delinquency for possession of burglary tools.

Section 810.06, Florida Statutes (2002), Possession of burglary tools, states:

Whoever has in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084.

(Emphasis added). Thus, the intent to use the tools during the commission of burglary or trespass is an essential element of the crime for which appellant was adjudicated delinquent. See Karp v. State, 698 So.2d 577 (Fla. 3d DCA 1997). A specific element of both burglary and trespass is an entry onto the property. See §§ 810.02 and 810.08, Fla. Stat. (2002). Therefore, the trial court’s determination as to lack of evidence of intent to commit a burglary is dispositive as to the crime of possession of burglary tools. The adjudication is reversed.

ALLEN and DAVIS, JJ., concur.

      . These factual findings were made by Circuit Judge Jonathan Sjostrom; the disposition order was signed by Circuit Judge George S. Reynolds, III.

      . The trial court found that the State’s evidence may have been sufficient to show only that appellant may have intended to steal the wood; however, a defendant cannot be convicted for possession of burglary tools based on his intent to use tools to commit a theft. Calliar v. State, 760 So.2d 885, 887 (Fla.1999) (noting conviction for possession of burglary tools requires proof of an intention to use tools in burglary or trespass).


text:
    Louis Alexander MASON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3600.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2004.

      Nancy A. Daniels, Public Defender and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

In this direct appeal, Appellant challenges his sentence of two concurrent terms of 48 months of incarceration on the grounds that it exceeds the maximum penalty of 364 days of incarceration for youthful offenders who were sentenced to probation upon completion of boot camp and thereafter violated that probation. We agree and reverse.

Appellant was originally sentenced as an adult to probation; upon violation, he was sentenced as a youthful offender, with a recommendation that he complete a basic training program for youthful offenders, known generally as “boot camp” and provided for in section 958.04, Florida Statutes. Appellant successfully completed boot camp and, as a result, was released from jail and placed on probation for two years. He thereafter violated that probation by committing a new law offense, and was given the sentence he now challenges.

Appellant’s sentence is illegal because it exceeds the statutory limitations set forth by sections 958.045(5)(c) and 958.04(2)(b), Florida Statutes. See State v. Mancino, 714 So.2d 429 (Fla.1998). Section 958.045(5)(c) states that a youthful offender who successfully completes boot camp, is placed on probation, and subsequently violates that probation may be given any sentence which the court might originally have imposed. Section 958.04(2)(b) states that, in sentencing a youthful offender, a court may impose as a condition of probation a period of incarceration not to exceed 364 days. Taken together, these statutes limit Appellant’s sentence to no greater than 364 days of incarceration. See Bloodworth v. State, 769 So.2d 1117 (Fla. 2d DCA 2000).

The state’s argument that these provisions do not apply to Appellant because he was originally sentenced as an adult fails in light of this Court’s recent decision in Thomas v. State, 825 So.2d 1032 (Fla. 1st DCA 2002). The state’s argument that these provisions do not apply to Appellant because he violated his probation by committing a new law offense also fails because the general statements reflected in sections 958.14 and 948.06, Florida Statutes, to the effect that probation violators may not be sentenced to a longer term than the maximum sentence for the underlying offense are superceded by the more specific provisions set forth in sections 958.045(5)(c) and 958.04(2)(b). See State v. J.M., 824 So.2d 105, 112 (Fla. 2002) (approving of this Court’s application of the rule of statutory construction that the specific statute controls over the general statute).

Accordingly, we REVERSE Appellant’s sentences and REMAND for resentencing consistent with this opinion.

BOOTH and PADOVANO, JJ., CONCUR.


text:
    Brenda YANCY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-5014.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Brenda Yancy, Lowell, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the order denying rule 3.800(a) relief, without prejudice to appellant seeking appropriate administrative remedies to address any issues associated with gain time. Taylor v. State, 780 So.2d 955 (Fla. 4th DCA 2001).

GUNTHER, KLEIN and HAZOURI, JJ., concur.


text:
    Donnie Ray WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3846.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Donnie Ray White, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Donnie Ray White appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), seeking jail time credit totaling 235 days allegedly spent awaiting sentencing for violation of probation. The trial court awarded 160 days of jail time credit.

The trial court summarily denied his rule 3.800(a) motion based on the plea agreement. We have reviewed this plea agreement and find that it does not demonstrate that appellant waived entitlement to credit for all of the time he served in jail awaiting sentencing for violation of probation. See Williams v. State, 711 So.2d 1369 (Fla. 4th DCA 1998); Silverstein v. State, 654 So.2d 1040 (Fla. 4th DCA 1995).

Therefore, the order denying relief is reversed and the case is remanded for attachment of further portions of the record conclusively showing that appellant is not entitled to any relief or for relief to be granted by the trial court.

REVERSED and REMANDED.

STONE, POLEN and STEVENSON, JJ., concur.


text:
    Travis HANKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4054.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Travis Hankerson, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Travis Hankerson (Appellant) appeals from an order summarily denying his motion for additional jail time credit, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. He claimed he was incarcerated on three lower tribunal cases from December 23, 1996, to January 16, 1998, or 380 days, but did not receive full credit. The trial court’s order explained that he was granted credit for the 380 days' in the two 1996 cases, but that he was not arrested in the 1997 case until January 27, 1997. (Documents filed by the state in response to this court’s order to show cause indicate that he received only 360 days credit for time served in the 1997 case.)

The trial court’s order did not attach, and the state’s response has not supplied, any portion of the files and records in this case supporting the trial court’s statement that Appellant was not arrested in the 1997 case until January 27, 1997. We conclude that the trial court erred in denying relief without attaching supporting portions of the record. Accordingly, the order on appeal is reversed and remanded with directions for the trial court either to refute Appellant’s claims with record attachments or to award the appropriate credit. See, e.g., Collins v. State, 805 So.2d 73 (Fla. 4th DCA 2002).

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    Kenissa ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1437.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Kenissa Ortiz, Ft. Lauderdale, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We again certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002).

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