text:
    Joseph NUSSBAUMER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 2D03-5573.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2004.
    Rehearing Denied Sept. 30, 2004.

      Mathew D. Staver, Erik W. Stanley, Anita L. Staver, Joel L. Oster, and Rena M. Lindevaldsen of Liberty Counsel, Longwood, for Petitioner.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.
   WALLACE, Judge.

Joseph Nussbaumer, Jr., an ordained minister, petitions this court for a writ of certiorari to quash two orders of the circuit court that directed him to produce records and answer questions over the objection of clergy communications privilege, section 90.505, Florida Statutes (2003), in a criminal prosecution pending against Mr. Lowell Bloom. We hold that the circuit court’s orders departed from the essential requirements of the law, causing material injury to Pastor Nussbaumer from which there is no adequate remedy on appeal. Because the start of Mr. Bloom’s trial was imminent, we granted the petition and quashed the circuit court’s orders by a prior unpublished order. We issue this opinion to explain our ruling.

THE PROCEEDINGS IN THE CIRCUIT COURT

Mr. Bloom, who is an adult, was charged with committing the offense of lewd or lascivious molestation on a child, a violation of section 800.04(5), Florida Statutes. On or about June 20, 2003, the State caused a subpoena for records to be issued and served on Pastor Nussbaumer for “any and all records relating to treatment and or counseling from 06/01/02 to present date of LOWELL BLOOM ... relating to his involvement with sexual abuse of a child.” Pastor Nussbaumer declined to produce the requested records and notified the State Attorney that he objected to producing the records or giving testimony based on the clergy communications privilege. On July 17, 2003, Mr. Bloom’s counsel filed a motion to quash the subpoena pursuant to section 90.503, the psychotherapist-patient privilege. The State responded by filing a motion to compel compliance with its investigative subpoena and scheduled a hearing on the motion for August 14, 2003. The State issued and served a subpoena on Pastor Nussbaumer requiring his appearance at the scheduled hearing.

Pastor Nussbaumer did not appear at the hearing as scheduled. On the day of the scheduled hearing, he faxed a letter to the circuit court. Pastor Nussbaumer explained in his letter that he had been on vacation and had discovered that personal commitments had prevented his attorney from filing a motion for protective order as Pastor Nussbaumer had previously requested. Pastor Nussbaumer informed the circuit court that he requested “the Order of Protection as an Ordained Minister.” He also enclosed a copy of his certificate of ordination. The circuit court issued a rule to show cause requiring Pastor Nussbaumer to appear before the court on September 19, 2003, and show cause why he should not be held in contempt of court. On September 19, 2003, Pastor Nussbau-mer appeared before the court as directed. The circuit court adjudged Pastor Nuss-baumer to be in contempt of court but withheld disposition pending a further hearing.

On October 29, 2003, the circuit court conducted an evidentiary hearing on Mr. Bloom’s motion to quash and on the State’s motion to compel compliance with its investigative subpoena. Although Mr. Bloom claimed the benefit of the psychotherapist-patient privilege in his motion to quash the subpoena, at the hearing he claimed that his communications with Pastor Nussbaumer were protected by the clergy communications privilege. This was consistent with Pastor Nussbaumer’s previously stated position. Pastor Nuss-baumer had maintained from his receipt of the State’s initial subpoena that the applicable privilege was the clergy communications privilege, not the psychotherapist-patient privilege. The State made no objection based on the change in the defense theory.

Both Pastor Nussbaumer and Mr. Bloom testified at the hearing. On November 18, 2003, the circuit court entered an order that made the following findings of fact:

1. The communications between Joseph Nussbaumer and Defendant took place within a psychotherapist-patient relationship. In light of the fact that Defendant is charged with lewd molestation (pursuant to [section 800.04]), [section 39.204, Florida Statutes (2003)] abrogates the psychotherapist-patient privilege which was enacted pursuant to [section] 90.503. Therefore, the communications between Nussbaumer and Defendant are not protected by the psychotherapist-patient privilege.
2. The Court rejects Defendant’s contention that his communications with Nussbaumer took place within a clergyman-penitent relationship. Therefore, the communications are not protected pursuant to the clergyman-penitent privilege ([section] 90.505).

Based on these findings, the circuit court denied Mr. Bloom’s motion to quash the subpoena and granted the State’s motion to compel compliance with its investigative subpoena. Once again, the circuit court deferred imposing any sanctions for contempt of court on Pastor Nussbaumer.

After the conclusion of the October 29 hearing, the State issued a third subpoena to Pastor Nussbaumer. The third subpoena directed him to appear personally at the State Attorney’s office on December 3, 2003, and to produce the records concerning Mr. Bloom that had previously been subpoenaed. Pastor Nussbaumer then retained counsel and filed a motion for protective order and/or stay pending appeal. In this motion, Pastor Nussbaumer reasserted the clergy communications privilege and requested an order, protecting him from being required to comply with the State’s subpoena. On November 25, 2003, the circuit court found that there was no reason to recede from its previous order and entered the second order that denied the motion for a protective order. However, in order to give Pastor Nussbaumer an opportunity to seek review in this court, the circuit court granted the motion for stay pending review. Pastor Nussbaumer timely filed his petition for a writ of certio-rari in this court.

THE AVAILABILITY OF RELIEF BY CERTIORARI

A petition for writ of certiorari is appropriate to review a discovery order when the order departs from the essential requirements of law, causing material injury throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995). To determine whether a reviewing court has jurisdiction, the court must first decide whether the petitioner has demonstrated that the order complained of creates irreparable harm. Morgan, Colling & Gilbert, P.A. v. Pope, 798 So.2d 1 (Fla. 2d DCA 2001). In this case, Pastor Nussbaumer does not have an adequate remedy by appeal because he is not a party to the circuit court proceedings. As we stated in Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980), the only way that a nonparty claiming privilege may test a court’s order-other than by certiorari-is to risk a contempt citation and then to appeal if cited for contempt. However, this is “too great a price” to require Pastor Nussbaumer to pay. See id. at 266. Thus Pastor Nussbaumer has demonstrated that the challenged orders create the potential for irreparable harm. Because Pastor Nuss-baumer has satisfied the jurisdictional threshold, our task is to determine whether there has been a departure from the essential requirements of the law. See City of Oldsmar v. Kimmins Contracting Corp., 805 So.2d 1091, 1092 (Fla. 2d DCA 2002). The entry of an order compelling the disclosure of communications protected by a legal privilege is a departure from the essential requirements of the law. See Superior Ins. Co. v. Cano, 829 So.2d 991 (Fla. 2d DCA 2002) (trade secrets); Robihaud v. Kennedy, 711 So.2d 186 (Fla. 2d DCA 1998) (attorney-client privilege); Hill v. State, 846 So.2d 1208 (Fla. 5th DCA 2003) (psychotherapist-patient privilege).

THE IMPACT OF SECTION 39.201

With the exceptions of the attorney-client privilege and the clergy communications privilege, section 39.204 abrogates the various evidentiary privileges in cases involving child abuse, abandonment, or neglect. Section 39.204 provides as follows:

The privileged quality of communication between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the privilege provided in s. 90.505, as such communication relates both to the competency of the witness and to the exclusion of confidential communications, shall not apply to. any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect and shall not constitute grounds for failure to report as required by s. 39.201 regardless of the source of the information requiring the report, failure to cooperate with law enforcement or the department in its activities pursuant to this chapter, or failure to give evi- ' dence in any judicial proceeding relating to child abuse, abandonment, or neglect.

“Abuse” is defined in chapter 39 as “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2). “Child” is defined as “any unmarried person under the age of 18 years who has not been emancipated by order of the court.” § 39.01(12). Chapter 39 provides further: “ ‘Harm’ to a child’s health or welfare' can occur when any person ... [cjommits, or allows to be committed, sexual battery as defined in chapter 794, or lewd or lascivious acts, as defined in chapter 800, against the child.” § 39.01(30)(b). Based on our limited record, we assume for purposes of this review that the alleged victim in this case is an unmarried person under the age of eighteen years who has not been emancipated by order of the court. Mr. Bloom is charged with the offense of lewd or lascivious molestation against a child in violation of section 800.04(5); an offense that qualifies as “abuse” under chapter 39. Therefore, if the trial court correctly concluded that the communications between Mr. Bloom and Pastor Nussbaumer occurred within a psychotherapist-patient relationship, those communications were not privileged to the extent that they related to or concerned “any situation involving known or suspected child abuse” as defined in chapter 39.

On the other hand, the result is different if the clergy communications privilege applies. The abrogation of the evidentiary privileges in cases involving child abuse, abandonment, or neglect provided for in section 39.204 has an exception for cases in which the clergy communications privilege is applicable. The exception to the abrogation of the evidentiary privileges in section 39.204 for clergy communications was added to the statute in 1985. Ch. 85-28, § 2 at 97, Laws of Fla. Therefore, if the clergy communications privilege applied, Pastor Nussbaumer could not be compelled to disclose his records or to testify to his communications with Mr. Bloom even if the communications extended to matters involving child abuse, neglect, or abandonment. The clergy communications privilege contains no exceptions to its application. State v. Pinder, 678 So.2d 410, 414 (Fla. 4th DCA 1996).

Although the circuit court did not make an express finding on the point, its ruling assumes that Pastor Nussbaumer was a “psychotherapist” within the meaning of section 90.503(l)(a) of the psychotherapist-patient privilege. For purposes of this evidentiary privilege, a “psychotherapist” is:

1. A person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, who is engaged in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction;
2. A person licensed or certified as a psychologist under the laws of any state or nation, who is engaged primarily in diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction;
3. A person licensed or certified as a clinical social worker, marriage and family therapist, or mental health counselor under the laws of this state, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction; or
4. Treatment personnel of facilities licensed by the state pursuant to chapter 394, chapter 395, or chapter 397, of facilities designated by the Department of Children and Family Services pursuant to chapter 394 as treatment facilities, or of facilities defined as community mental health centers pursuant to s. 394.907(1) who are engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction.

The evidence presented at the evidentiary hearing held on October 29, 2003, would not support a finding of fact that Pastor Nussbaumer qualified as a “psychotherapist” for purposes of the psychotherapist-patient privilege. In fact, the evidence strongly supports the, opposite conclusion. Pastor Nussbaumer was not authorized to practice medicine, nor did Mr. Bloom testify that he believed him to be so authorized. Pastor Nussbaumer testified that he was not licensed by the State of Florida as a psychologist. ■ There was no evidence presented that Pastor- Nussbaumer was licensed or certified as a clinical social worker, marriage and family therapist, or mental health counselor under the laws of the State of Florida.,, Pastor Nussbaumer was not shown to be ope of the “treatment personnel” at any of the, facilities described in section 90.503(l)(a)(4). Therefore, to the extent that the circuit, court found that Pastor Nussbaumer qualified as a “psychotherapist” for purposes of the psychotherapist-patient privilege, we. reject that finding because it is- not supported by competent, substantial evidence.

Neither party has addressed this point directly in their submissions to this court. We will review the circuit court’s orders on the basis of our conclusion that Pastor Nussbaumer was not a “psychotherapist” for purposes of the psychotherapist-patient privilege recognized in section 90.503.

SECTION 90.505 AND ITS FOUR REQUIREMENTS '

Florida’s version of the clergy communications privilege is set forth in section 90.505, which provides as follows:

(1) For the purposes of this section:
(a)A “member of the clergy” is a priest, rabbi, practitioner of Christian Science, or minister of any religious organization or denomination usually referred to as a church, or an individual reasonably believed so to be by the person consulting him or her.
(b)A communication between a member of the clergy and a person is “confidential” if made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication.
, (2) A person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.
(3) The privilege may be claimed by:
(a) The person. ■
(b) The guardian or conservator of a person.
(c)' The personal representative of a deceased person. ' ■
(d) The member of the clergy, on behalf of the person.' The member of the 1 clergy’s authority to do so is presumed ' in the absence of evidence to the contrary.

Section 90.505 has four requirements that must be satisfied in order for the clergy communications privilege to be applicable. First, the communication must be made to a “member of the clergy” as defined in the statute. Second, the eonfi-der must make the communication for the purpose of seeking spiritual counseling and advice. Third, the clergy member must receive the communication in the usual course of his-or her practice or discipline. Fourth, the communication must be made privately and must not be intended for further disclosure except to other persons present in furtherance of the communication. With these requirements in mind, we turn now to an analysis of whether Mr. Bloom’s communications made to Pastor Nussbaumer enjoy the benefit of the clergy communications privilege.

ANALYSIS

1. To a Member of the Clergy

The evidence presented at the evi-dentiary hearing established that Pastor Nussbaumer has been the pastor at the Groveland Free Church in Groveland, Lake County, Florida, since 1969. He was ordained by that church as a minister of the gospel in 1977. A copy of his certificate of ordination appears in the record. Pastor Nussbaumer is recognized as a member of the clergy by the Lake County Department of Corrections. Pastor Nuss-baumer’s duties at his church include preaching at Sunday services, providing spiritual and administrative leadership, and pastoral counseling. Based on these facts, Pastor Nussbaumer’s status as “a member of the clergy” within the meaning of section 90.505(l)(a) was established.

2. For the Purpose of Seeking Spiritual Counsel and Advice

■ The clergy communications privilege does not apply unless the confider consults the member of the clergy “for the purpose of seeking spiritual counsel or advice.” § 90.505(l)(b). No reported Florida decisions address this requirement of the privilege. Courts from other jurisdictions have interpreted similar statutory provisions to exclude from the operation of the privilege communications made for purposes not related to religious or spiritual concerns. E.g., Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992) (finding privilege inapplicable to defendant’s admission to minister’s accusation of sexual abuse of minors where conversation was initiated by minister for disciplinary purposes and not for spiritual counseling); Burger v. State, 238 Ga. 171, 231 S.E.2d 769 (1977) (holding defendant could not claim privilege concerning conversational statements to clergy member who was his friend and frequent companion concerning defendant’s intent to kill his wife and her lover); Keenan v. Gigante, 47 N.Y.2d 160, 417 N.Y.S.2d 226, 390 N.E.2d 1151 (1979) (finding privilege inapplicable to defendant’s communications to priest where the communications were made for purpose of securing defendant’s entrance into a work release program). The common thread in such cases “is that the privilege may not be invoked to enshroud conversations with wholly secular purpqses solely because one of the parties to the conversation happened to be a religious minister.” People v. Carmona, 82 N.Y.2d 603, 606 N.Y.S.2d 879, 627 N.E.2d 959, 962 (1993).

In this case, Mr. Bloom testified that when he decided to seek counseling, he first consulted Pastor Phillips, the clergyman at the church where Mr. Bloom was a member. Pastor Phillips referred Mr. Bloom to Pastor Nussbaumer for “Christian counseling.” Mr. Bloom understood Pastor Nussbaumer’s role as that of “a Christian Pastor that was a counselor.” Concerning his purpose in seeking counseling, Mr. Bloom testified:

Well I wanted to find out if I had a problem for one thing. And then I wanted Christian counseling because I uh, — I believe that is the way it is — I don’t understand the other kind of counseling. We had Bible study and like I would get homework and stuff. And I would do things he would give me literature and stuff he gave me about the Bible. And I would go into the Bible in reference to my living and what I—
... I liked the [idea] of using text out of the Bible for Christian counseling. And then taking it and referencing it to your everyday life or your problems or whatever the case maybe [sic]. Like a Bible study that is exactly what it amounted to.

Mr. Bloom’s counseling sessions with Pastor Nussbaumer were conducted either in the church itself or in an office on the church grounds. A substantial portion of the counseling sessions was devoted to prayer and to the study of the Bible. Mr. Bloom expressed the view that the Christian aspect of the counseling sessions with Pastor Nussbaumer had been very beneficial to him.

There is .no evidence in the record that Mr. Bloom consulted Pastor Nussbaumer for secular purposes. On the contrary, the only competent, substantial evidence in the record establishes that Mr. Bloom consulted Pastor Nussbaumer specifically for spiritual counsel and advice. Thus the second requirement of the privilege was met.

3. In the Usual Course of His or Her Practice or Discipline

The requirement that the communication be made to the member of the clergy “in the ■ usual course of his or her practice or discipline” has also not been the subject of any reported Florida decisions. Similar requirements in the clergy communications privileges of other jurisdictions have been referred to as the “discipline enjoined” requirement. See R. Michael Cassidy, Sharing Sacred Secrets: Is it (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege?, 44 Wm. & Mary L.Rev. 1627, 1640-44 (2003). One of the purposes of the discipline enjoined requirement is to expand the scope of the privilege so that it is not limited only to those religious traditions that require formal confession. See id.; Ronald J. Colombo, Forgive Us Our Sins: The Inadequacies of the Clergy-Penitent Privilege, 73 N.Y.U. L.Rev. 225, 233-34 (1998); Mary Harter Mitchell, Must Clergy Tell? Child Abuse Reporting Requirements versus the Clergy Privilege and Free Exercise of Religion, 71 Minn. L.Rev. 723, 747-50 (1987). Although the interpretation of the discipline enjoined requirement is by no means uniform, the modern trend is to interpret it as requiring only that the confider consulted the clergy member in his or her professional capacity. See, e.g., In re Swenson, 183 Minn. 602, 237 N.W. 589 (1931); see also Cassidy, 44 Wm. & Mary L.Rev. at 1640-44; Colombo, 73 N.Y.U. L.Rev. at 233-34; Mitchell, 71 Minn. L.Rev. at 747-50.

The evidence presented at the hearing established that Mr. Bloom’s pastor referred him to Pastor Nussbaumer. Mr. Bloom was not only aware of Pastor Nuss-baumer’s role as a clergy member, he sought him out precisely for that reason. Pastor Nussbaumer saw Mr. Bloom in a professional capacity. Their counseling sessions were conducted either in the church itself or in an office on the church property. Pastor Nussbaumer testified that his regular duties included pastoral counseling and that he regarded it as his duty to hold in “absolute” confidence the matters entrusted to him by those persons he counseled, including Mr. Bloom. Under these circumstances, Mr. Bloom’s communications to Pastor Nussbaumer were made in the usual course of the pastor’s practice or discipline.

Although we conclude that Mr. Bloom’s communications to Pastor Nussbaumer were made in the usual course of the pastor’s practice or discipline, it is appropriate to examine the State’s arguments with regard to this requirement. The ■ State frames the issue we are called upon to decide as “whether, upon the evidence presented to the trial court, Pastor Nussbau-mer was performing as a psychotherapist or as a pastor.” The State asserts that because Pastor Nussbaumer was acting as a psychotherapist in his counseling sessions with Mr. Bloom, the clergy communications privilege does not apply. We reject the State’s formulation of the issue before us for several reasons.

First, pursuant to the clergy communications privilege, the relevant inquiry is what Mr. Bloom sought rather than the nature of Pastor Nussbaumer’s response. See Cox v. Miller, 296 F.3d 89, 110 (2d Cir.2002). As we have seen, Mr. Bloom sought spiritual advice and counsel from Pastor Nussbaumer. Therefore, provided that the other requirements of the privilege are satisfied, the privilege applies and the inquiry is at an end. It is not necessary to examine Pastor Nussbaumer’s response and place it in the appropriate pigeonhole.

Second, the State’s approach would require the circuit court to review and interpret Pastor Nussbaumer’s message in order to determine whether it was spiritually based counseling or secular psychotherapy. Depending upon the circumstances, such a task might be difficult, if not impossible. Psychotherapy may be defined as “[t]he treatment of mental and emotional disorders through the use of psychological techniques designed to encourage communication of conflicts and insight into problems, with the goal being relief of symptoms, changes in behavior leading to improved social and vocational functioning, and personality growth.” The American Heritage Dictionary of the English Language 1415 (4th ed.2000). We need not devalue religion to recognize that there are probably many instances in which it would be difficult to distinguish a call to personal growth based on a spiritual message from one that is only psycho-therapeutic in origin. And if, as we would anticipate, the call to personal growth incorporates elements of the spiritual and the secular, what then? The State’s approach poses an array of overwhelming practical problems to the application of the clergy communications privilege. Fortunately, section 90.505 does not require the courts to assess the spiritual content of the clergy member’s response to the eonfider’s request for spiritual advice and counsel.

Third, the State’s approach runs afoul of the ecclesiastical abstention doctrine. Pursuant to the ecclesiastical abstention doctrine, courts do not interpret religious doctrine or otherwise inquire into matters involving religious dogma. Southeastern Conference Ass’n of Seventh-Day Adventists, Inc. v. Dennis, 862 So.2d 842, 843-44 (Fla. 4th DCA 2003); Goodman v. Temple Shir Ami, Inc., 712 So.2d 775, 777 (Fla. 3d DCA 1998). The judicial review of the clergy member’s message required by the State’s approach would likely involve an interpretation of religious doctrine in violation of the ecclesiastical abstention doctrine. We decline to interpret section 90.505 in a way that would lead to such an interpretation of religious doctrine.

In further support of its position, the State has directed our attention to a facsimile cover sheet and a letter that Pastor Nussbaumer sent to the circuit court upon receipt of a subpoena duces tecum from the State Attorney’s Office in the criminal prosecution pending against Mr. Bloom. The cover sheet described Pastor Nuss-baumer’s organization as “GFC Counseling”; the letter referred to it as “G.F.C. Family and Crisis ‘Counseling.’ ” The letterhead on the letter refers to Pastor Nussbaumer as “Joseph Wm. Nussbau-mer, Jr., Ph.D.,” and his credentials listed include the designation “Clinical Christian Psychologist.” In the letter to the court, Pastor Nussbaumer stated that Mr. Bloom was referred to him by another pastor for “assessment.” The record also reflects that Pastor Nussbaumer administered several psychological tests to Mr. Bloom at one of their initial meetings.

Pastor Nussbaumer testified at the evi-dentiary hearing that he held a Ph.D. in “clinical Christian psychology.” Nevertheless, he also testified that he did not hold a license from the State of Florida to practice psychology. Pastor Nussbaumer was “licensed” as a clinical Christian psychologist by the Florida Association of Christian Counselors and Therapists (F.A.C.C.T.). Pastor Nussbaumer explained that F.A.C.C.T. is a nonprofit organization dedicated to developing and applying biblically based models of counseling and therapy that are supported by sound psychological concepts. He explained further that the initials “GFC” in GFC Counseling were a dual acronym for Groveland Free Church Counseling and Groveland Family Counseling Center. Pastor Nussbaumer also testified that the GFC Counseling office was located in. a building on the church property and that GFC Counseling was a part of the Church’s ministry. Based on these facts, the State contends that the counseling portion of Pastor Nussbaumer’s ministry is secular psychotherapy rather than pastoral counseling. The State contends further that the facts of Pastor Nussbaumer’s training and practice in the field of clinical psychology compel the conclusion that he was acting as a psychotherapist and not as a member of the clergy in his counseling sessions with Mr. Bloom. We disagree.

Initially, we note that it is not unusual for a member of the clergy to hold an advanced degree in such traditionally secular disciplines as psychology, sociology, philosophy, or even law. We are not willing to assume that a member of the clergy who has attained such an advanced degree is thereby rendered incapable of responding appropriately to a request for spiritual advice and counsel. It would be antithetical to the purpose of the clergy communications privilege if a clergy member’s attainment of an advanced degree in a subject other than religion, theology, or divinity could strip the confider of the benefit of the clergy communications privilege or make another privilege applicable in its stead regardless of the confider’s original purpose. Yet this would be the logical result of the State’s position.

More to the point, we also note that licensing requirements for persons performing psychological services and clinical, counseling, and psychotherapy services contain express exemptions for clergy members. §§ 490.014(2)©, 491.014(3). These exemptions are indicative of the legislature’s intention to permit members of the clergy to perform pastoral counseling that might otherwise be characterized as psychological or psychotherapeutic services without being denominated as “psychologists” or “psychotherapists.” Such pastoral counseling is not inconsistent with clerical status. Friedman v. State, 825 So.2d 1063 (Fla. 4th DCA 2002). Thus the State’s division of pastoral counseling functions into the “spiritual” and the “psycho-therapeutic” is a false dichotomy. Pastor Nussbaumer was a member of the clergy. Because Mr. Bloom consulted him for spiritual advice and counseling in the usual course of his practice and discipline, the clergy communications privilege applies.

4. Made Privately and Not Intended for Further Disclosure

In order for the privilege to apply, the communication to the clergy membér must be made “privately.” Thus the presence of a third person or persons not present in furtherance of the communication when the communication is made renders the privilege inapplicable. Fernandez v. State, 730 So.2d 277, 282 (Fla.1999). Similarly, a communication to a member of the clergy is not confidential and not privileged if it is intended to be communicated to others. Bottoson v. State, 443 So.2d 962, 965 (Fla.1983).

In this case, the evidence established that no third persons were ever present during Pastor Nussbaumer’s counseling sessions with Mr. Bloom. There was no evidence that Mr. Bloom made any communications to Pastor Nussbaumer with the intent that the information be disclosed to someone else. Pastor Nussbaumer’s practice of holding communications made to him during counseling sessions in “absolute” confidence has previously been mentioned. Mr. Bloom testified that Pastor Nussbaumer had assured him that their conversations would be private and confidential. Thus the fourth and final requirement for the applicability of the privilege was satisfied.

NO MEMBERSHIP REQUIREMENT

The State also suggests that Mr. Bloom was not entitled to the benefit of the clergy communications privilege because he was not a member of Pastor Nussbaumer’s church. The State cites no authority for this proposition. Section 90.505 does not include a requirement that the confider be a member of the clergy member’s church in order for the privilege to apply. Our independent research has not disclosed any reported Florida cases that have addressed the point. The fact that the confider is not a member of the church of the clergy member consulted may be one circumstance among others relevant to the determination of the spiritual purpose or the discipline enjoined requirements of the privilege. See, e.g., Johnson v. Commonwealth, 310 Ky. 557, 221 S.W.2d 87, 89 (1949). However, the modern trend of authority does not support a requirement that the confider be a member of the clergy member’s church in order for the confider to claim the benefit of the privilege. E.g., In re Swenson, 237 N.W. at 591 (dicta); Kohloff v. Bronx Sav. Bank, 37 Misc.2d 27, 233 N.Y.S.2d 849, 850 (N.Y.Civ.Ct.1962); Kruglikov v. Kruglikov, 29 Misc.2d 17, 217 N.Y.S.2d 845, 846 (N.Y.Sup.Ct.1961); State v. Potter, 197 W.Va. 734, 478 S.E.2d 742, 755 n. 23 (1996) (dicta); see generally Mitchell, 71 Minn. L.Rev. at 745. Taking into account the absence of a membership requirement in section 90.505 and the trend in the modern authority to dispense with such a requirement, we hold that Mr. Bloom was entitled to claim the benefit of the privilege despite the fact that he was not a member of Pastor Nussbaumer’s church.

CONCLUSION

The foregoing analysis determines that Mr. Bloom’s communications to Pastor Nussbaumer met each of the four requirements for the application of the clergy communications privilege. In addition, we conclude that the psychotherapist-patient privilege does not apply. Because the communications between Mr. Bloom and Pastor Nussbaumer — including any records relating to them — are privileged as a matter of law pursuant to the clergy communications privilege, we conclude that the circuit court departed from the essential requirements of the law by denying Mr. Bloom’s motion to quash the State’s subpoena and granting the State’s motion to compel. Furthermore, because the circuit court’s order denying Pastor Nussbau-mer’s motion for protective order was based on its earlier order denying the motion to quash the subpoena, that order also departed from the essential requirements of the law. Therefore, we grant the petition for writ of certiorari and quash both orders.

Petition granted.

DAVIS and CANADY, JJ., Concur.

      . The privilege has been referred to variously as the "priest-penitent” privilege, the "cleric-congregant” privilege, the "clergy-congregant” privilege, the "clergy-communicant” privilege, and the "ministerial” privilege. In accordance with the title of section 90.505, we will refer to the privilege as the "clergy communications” privilege. We will refer to a person who consults a member of the clergy as "the confider.”

      . The date of the offense is not apparent from the face of the record. However, section 800.04(5) has not been the subject of recent amendments, and its terms are not material to the resolution of this case. Thus the applicable statutory year is not relevant.

      . Part of the impetus for the amendment to the statute was the case of John Mellish, who was the minister of the Margate Church of the Nazarene in Broward County, Florida. Reverend Mellish was cited for contempt and jailed briefly in 1984 after he refused to testify concerning communications made to him by a parishioner accused of sexually abusing a child. See Fla. H. Comm, on Jud., HB 136 (1985) Staff Analysis (revised April 5, 1985) (archives); see also Shane D. Cooper, Chaplains Caught in the Middle: The Military’s “Absolute" Penitent-Clergy Privilege Meets State “Mandatory" Child Abuse Reporting Laws, 49 Nav. L.Rev. 128, 145 (2002); Donald I. Pollock, To Tell or Not to Tell: What a Lawyer Should Know About Florida’s Clergy Privilege, 62 Fla. B.J. 19, 21 (April 1988).

      . In considering the State’s argument, we have assumed that Pastor Nussbaumer was, at least in part, providing psychotherapeutic services to Mr. Bloom.


source: Caselaw Access Project

author: BENTON, J.

license: Public Domain

text:
    Linda Dyanne THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4120.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Rehearing Denied Oct. 6, 2004.
    Jon H. Gutmacher, Esquire, Orlando, for Appellant.
    Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

The trial court erred in denying a motion for post-conviction relief Linda Dyanne Thomas filed under Florida Rule of Criminal Procedure 3.850, but only insofar as the motion was denied without an evidentiary hearing on the question of whether her trial counsel provided ineffective assistance at the sentencing hearing. See Fla. R.App. P. 9.141(b)(2)(D) (“On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”).

Although the motion for post-conviction relief asserts in passing that the written sentencing order “failed to conform with the oral order of the trial court,” this ground was not squarely presented below or ruled on by the trial court, and has not been reached on appeal.

The motion for post-conviction relief does, however, identify with particularity “submissions and evidence ... that are relevant to the sentence,” Fla. R.Crim. P. 3.720(b), allege that they were known to trial counsel, and aver that their omission “resulted in actual prejudice ... concerning the sentence entered.” Because the record does not conclusively refute these allegations, an evidentiary hearing is required. See Cherry v. State, 659 So.2d 1069, 1074 (Fla.1995); Reed v. State, 795 So.2d 140, 140—41 (Fla. 5th DCA 2001); cf. Keith v. State, 492 So.2d 444, 444-45 (Fla. 1st DCA 1986).

Accordingly, the Order Denying Defendant’s Motion to Strike and for Post-Conviction Relief is reversed insofar as it denied the claim of ineffective assistance of counsel at the sentencing hearing, and the case is remanded for an evidentiary hearing on that claim. In all other respects, the Order Denying Defendant’s Motion to Strike and for Post-Conviction Relief is affirmed.

BROWNING and POLSTON, JJ., CONCUR.


author: PER CURIAM.

text:
    Jeffrey A. COLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2727.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2004.
    Jeffrey A. Cole, Milton, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. State v. Harris, 881 So.2d 1079 (Fla.2004).

SHARP, W., GRIFFIN and MONACO, JJ., concur.


text:
    Victor M. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2716.
    District Court of Appeal of Florida, Fifth District.
    Aug. 31, 2004.
    Victor M. Moore, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. McBride, 848 So.2d 287 (Fla.2003).

SHARP, W., GRIFFIN and ORFINGER, JJ., concur.


text:
    David KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2638.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Rehearing Denied Oct. 18, 2004.
    David Knight, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. The trial court found that appellant’s motion to correct an illegal sentence was successive. We agree that the first ground for relief was successive. The second ground, in which appellant alleges that he could not be sentenced as a habitual felony offender for the delivery of cocaine, was not successive to his prior claims. Nevertheless, the motion was properly denied because that claim was without merit. See, e.g., Adams v. State, 724 So.2d 137 (Fla. 4th DCA 1998); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002); Marrero v. State, 741 So.2d 634 (Fla. 3d DCA 1999); Williams v. State, 667 So.2d 914 (Fla. 3d DCA 1996).

WARNER, POLEN and GROSS, JJ., concur.


author: FARMER, C.J.

text:
    Kenneth WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4547.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 2004.
    Rehearing Denied Oct. 25, 2004.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

We affirm a final judgment and civil commitment under the Jimmy Ryce Act (JRA) §§ 394.910-.931, Fla. Stat. (2003). Defendant raised two issues on appeal, only one of which merits discussion. The issue is whether it is improper for the State’s lawyer in a JRA trial to argue in closing argument that defendant failed to present any contrary expert opinion as to whether he is likely to engage in acts of sexual violence if he is not confined in a secure facility. Because JRA trials are civil, not criminal, we hold that it is not per se improper for the State to argue the failure of a JRA defendant to adduce contrary expert testimony on the propensity issue.

The facts underscore the issue confronting us. At the JRA commitment trial, the state produced the testimony of a licensed psychologist as an expert witness on the issue of defendant’s alleged propensity to commit acts of sexual violence. As required by JRA, he evaluated defendant to determine whether he ought to be prosecuted as a sexually violent predator. He testified that defendant had such a propensity and was likely to commit new sexually violent offenses if he was not involuntarily committed. He was the only expert to testify during the trial, and defendant offered no expert testimony to challenge the opinions of the State’s expert.

During closing argument, counsel for State commented as follows:

“I submit to you the evidence is clear. The defense never put on an expert to counter [the State’s expert witness]. You heard from one expert.”

Defense counsel objected on the grounds that defendant did not bear the burden of presenting any evidence. The trial judge overruled the. objection, saying that that the State was “entitled to comment.”

We agree. Counsel’s remarks were confined to the evidence. See Airport Rent-A-Car, Inc. v. Lewis, 701 So.2d 893, 896 (Fla. 4th DCA 1997) (attorney’s closing remarks “must be confined to the evidence, the issues and inferences that can be drawn from the evidence.”). While our holding is not novel, we write to underscore the civil nature of JRA trials and to clarify the governing rule.

JRA explicitly provides for civil proceedings. § 394.9155(1), Fla. Stat. (2003) (providing the Rules of Civil Procedure apply to commitment proceedings). The State has the burden of proof by clear and convincing evidence that a JRA defendant’s mental condition requires continued confinement and that “if released, [he] is likely to engage in acts of sexual violence.” § 394.918(4), Fla. Stat. (2004). Our state supreme court upheld the constitutionality of JRA in Westerheide v. State, 831 So.2d 93 (Fla.2002) (finding that the clear and convincing standard of proof satisfies constitutional due process requirements).

Critically in Westerheide, the supreme court held that involuntary commitment proceedings under JRA are civil, not criminal in nature. 831 So.2d at 100 (‘While ‘the civil label is not always dispositive,’ the Legislature’s stated intent should be rejected only where the challenging party presents ‘the clearest proof that ‘the statutory scheme [is] so punitive either in purpose, or effect as to negate [the State’s] intention’ that the proceeding be civil.”). If any doubt as to the nature of these trials remained, in State v. Harris, 881 So.2d 1079, 1084-85, (Fla.2004), the supreme court repeated that JRA trials are civil in nature, not criminal.

In civil cases, attorneys are afforded great latitude in presenting closing arguments, as long as their comments are confined to arguing the application of law to the evidence presented in the case, as well as logical deductions therefrom. Murphy v. Int’l Robotic Systems, Inc., 766 So.2d 1010, 1028 (Fla.2000); Airport Rent-A-Car, Inc. v. Lewis, 701 So.2d at 896. In this case, counsel’s argument constituted fair comment on the record evidence which, as it stood, lacked any defense rebuttal of the testimony by the state’s expert as to defendant’s propensity to commit new sexually violent offenses. See Rutherford v. Lyzak, 698 So.2d 1305 (Fla. 4th DCA 1997) (finding trial court abused its discretion in sustaining objection to prejudicial closing remarks when the “arguments were fair comment on the' evidence”).

Defendant says that counsel’s argument improperly led the jury to believe he carried the burden of introducing evidence. He relies solely on authority in criminal trials holding that the state may not comment on a defendant’s failure to produce evidence or refute an element of the crime charged. See, e.g., Jackson v. State, 575 So.2d 181, 188 (Fla.1991) (“state cannot comment on [criminal] defendant’s failure to produce evidence”); Jackson v. State, 832 So.2d 773 (Fla. 4th DCA 2002). Criminal authorities do not apply to JRA trials. See Pedroza v. State, 773 So.2d 639, 640-41 (Fla. 5th DCA 2000) (applying civil authority in analysis of closing argument in JRA trial); Green v. State, 826 So.2d 351, 353 (Fla. 2d DCA 2002) (applying.civil harmless error standard to assess error relating to expert’s opinion on propensity). We decline to import the criminal rule to JRA civil trials. See Lee v. State, 854 So.2d 709, 714 (Fla. 2d DCA 2003) (declining to apply criminal case law to evidentiary appeal in JRA case because issue is civil in nature).

AFFIRMED.

. GROSS and MAY, JJ., concur.

      . We reject without discussion the argument that JRA requires that a commitment action follow imprisonment for an enumerated sexually violent offense. See Tabor v. Stale, 864 So.2d 1171 (Fla. 4th DCA 2004) (rejecting same argument; certifying question).

      . § 394.912(100)), Fla. Stat. (2003)) (" ‘Sexually violent predator’ means any person who ... suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.”).

      . See § 394.913(3), Fla. Stat. (2003) (requiring multi-disciplinary evaluation prior to state’s petition for involuntary commitment).

      . We note that JRA expressly enables defendants to retain their own expert witnesses. § 394.916(4), Fla. Stat. (2004).


text:
    Virginia P. CASAMAYOR, Appellant, v. Augusto CASAMAYOR, Appellee.
    No. 3D03-576.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Greene Smith Associates, P.A., and Cynthia L. Greene, and Raquel A. Rodriguez, for appellant.
    Fleitas & Bujan, and Jesus F. Bujan, for appellee.
    Before GERSTEN, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Berry v. Berry, 550 So.2d 1125 (Fla. 3d DCA 1989).


author: SALCINES, Judge.

text:
    Kirsten E. AGRANOFF, Appellant, v. Stuart M. AGRANOFF, Appellee.
    No. 2D03-3020.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    Rehearing Denied Oct. 8, 2004.
    John R. Lonergan of John R. Lonergan, P.A., Fort Myers, for Appellant.
    Stuart M. Agranoff, pro se.
   SALCINES, Judge.

Kirsten E. Agranoff, the Former Wife, appeals an order granting the petition of Stuart M. Agranoff, the Former Husband, to modify the final judgment of dissolution of marriage. The Former Wife specifically challenges the provision of that order which awarded the Former Husband the primary residential responsibility for the parties’ minor children. We reverse that provision of the modification order because the Former Husband failed to meet the extraordinary burden necessary to support a postdissolution change of custody.

In a modification proceeding there is a presumption in favor of the custodial parent “which can only be overcome by satisfying an extraordinary burden.” Wyckoff v. Wyckoff, 820 So.2d 350, 352 (Fla. 2d DCA 2002) (quoting Gibbs v. Gibbs, 686 So.2d 639, 641-42 (Fla. 2d DCA 1996)). The party petitioning for a change in parental responsibility must demonstrate that circumstances have substantially changed since the final judgment and that the change has had such an important impact on the children that a change of custody is justified. Gibbs, 686 So.2d at 641. In order to justify the change in custody, the petitioning parent must establish that the custody change would clearly promote the children’s best interest and that a failure to change custody, would be detrimental to the children’s overall best interests. Id. at 641—42.

In the present case, the trial court noted one factor which influenced its decision to modify the custody provision — the fact that the Former Husband’s financial condition was superior to that of the Former Wife. That factor alone, however, does not support a decision to modify custody under the extraordinary burden test.See Blosser v. Blosser, 707 So.2d 778 (Fla. 2d DCA 1998). The record lacks any finding concerning substantial change in circumstances and detriment to the best interests of the children or any facts which would support such a finding. Accordingly, we reverse and remand for the entry of an order reinstating the Former Wife as the parent with primary residential responsibility for the parties’ minor children.

Reversed and remanded.

NORTHCUTT and COVINGTON, JJ., Concur.

      . The Former Wife also challenges the provision that capped the amount of attorney’s fees which were to be determined at a later date. The trial court orally pronounced that it believed the maximum fee it would grant would be $2500 but that it could not determine fees at that juncture. However, for some reason, the fee provision in the modification order was written as an absolute cap of $2500. That provision was erroneous. Nonetheless, this issue is moot in light of the entry of the subsequent attorney’s fee order which has not been appealed.


author: . MONACO, J.

text:
    Donna ROBINSON, Appellant, v. Mitchel KALMANSON, Appellee.
    No. 5D03-2662.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      Law Offices of Norman D. Levin, P.A., Longwood, and Cynthia L. Greene of Law Offices of Greene, Smith & Associates, P.A., Miami, for Appellant.
    Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, for Appellee.
   ON MOTION FOR REHEARING

. MONACO, J.

We grant Appellee’s Motion for Rehearing, withdraw our previous opinion and issue this opinion in its place.

This is the fifth appeal involving or spawned by the dissolution of marriage between the appellant, Donna Robinson (Former Wife), and the appellee, Mitchel Kalmanson (Former Husband). In this installment the Former Wife appeals an Order Granting Former Husband’s Motion For Summary Judgment and Final Judgment for Former Husband' on Former Wife’s Rule 12.540 Motion. We reverse because there are factual issues that bar summary judgment.

In 2001, the lower court rendered a final, judgment of dissolution of marriage and incorporated into its terms a marital settlement agreement executed by the parties. The Former Wife subsequently moved pursuant to Rule 12.540, Florida Family Law Rules of Procedure, to vacate the final judgment of dissolution of marr riage, as well as the marital settlement agreement upon which it is based because of fraud, misrepresentation, or other misconduct of the adverse party. Rule 12.540 essentially provides that Rule 1.540 of the Florida Rules of Civil Procedure shall govern the' general provisions concerning relief from judgments or orders in marital matters, except that there is no time limit for motions based on fraudulent financial affidavits. The Former Wife presents a litany of alleged false and fraudulent misrepresentations of the Former Husband concerning his assets, and asked the trial court to set aside the marital settlement agreement and final judgment because she “had no choice but to rely on the information provided by the Former Husband.”

In response, the Former Husband asserted that he was entitled to summary judgment on this issue because the “undisputed facts” are that his Former Wife did not rely on the alleged misrepresentations or false financial information. He argues further that the Former Wife elected to forego additional discovery, and had independent advice and counsel, and should not complain about any fraud, misrepresentation, or misconduct now.

The trial court in granting the Former Husband’s motion for summary judgment noted that the “Former Wife produced substantial evidence of suspected fraud, but she did not show any instance where she relied oh the alleged false information.” That sentence summarizes the crux of this appeal.

Generally, the issue of fraud is not a proper subject for summary judgment since fraud generally requires a full explanation and exploration of the facts and circumstances of the alleged wrong. See Amazon v. Davidson, 390 So.2d 383, 385 (Fla. 5th DCA 1980). A court can seldom determine the presence or absence of fraud without a trial or evidentiary proceeding. See Alepgo Corp. v. Pozin, 114 So.2d 645 (Fla. 3d DCA 1959), cert. denied, 117 So.2d 842 (Fla.1960).

The Former Wife asserts that the lower court’s ruling to the effect that she did not rely on any fraudulent misrepresentations is contrary to her affidavit filed with the court indicating that she was forced to rely on “false financial affidavits.” More importantly, whether or not the Former Wife relied on the Former Husband’s alleged misrepresentations under the peculiar circumstances of this case became an issue of fact that could not have been determined by summary judgment. As the moving party has the burden to prove conclusively the non-existence of any genuine issue of material fact, and as the Former Husband failed to demonstrate the non-existence of his Former Wife’s reliance, we must reverse. See Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966); see also Lawrence v. Pep Boys—Manny Moe & Jack, Inc., 842 So.2d 303, 304 (Fla. 5th DCA 2003).

The Former Husband argues that Macar v. Macar, 803 So.2d 707 (Fla.2001), is dispositive. The Florida Supreme Court there held that in cases in which a marital settlement agreement is reached after the initiation of litigation and the completion of discovery, a party challenging the final judgment should not be permitted to claim lack of knowledge, “because through due diligence, they could have unearthed all of the relevant facts.” Id. at 713; see also Crupi v. Crupi, 784 So.2d 611 (Fla. 5th DCA 2001). The present case, however, does not quite fit the Macar template.

Here, the Former Wife asserts that she did not have the benefit of full litigation discovery because a judge formerly assigned to this case (not the judge who entered the order being appealed in this case), placed a $15,000 limit on the parties on further discovery expenses. If either party exceeded the $15,000 limit, the party would incur severe monetary sanctions specified in the order. While we fully understand the good motives of the trial court in setting a discovery limitation in this case based on economic considerations, the limitation had the unintended consequence of cutting off discovery before at least one party felt it was fully exhausted. Thus, the Former Wife argues persuasively that because of the limitation there is a factual issue concerning whether she was prevented from exploring specific omissions in the disclosures of the Former Husband, and therefore could not learn the full nature and extent of the financial position of her Former Husband.

There is ample evidence reflecting that the Former Wife read over and understood the settlement agreement prior to executing it. There is even some evidence that before she executed the settlement agreement she might have believed her Former Husband to be fudging on his financial statements. Her reliance on his purported misrepresentations and fraudulent conduct, however, is still open to debate.

It may be that after a full evidentiary hearing the trial court will determine that the Former Wife did indeed have a full opportunity for discovery, or that she did not rely on the Former Husband’s financial representations. Based on the record before us, however, these factual issues preclude disposition of this case by summary judgment. Accordingly, we must reverse the summary final judgment and remand for further proceedings.

REVERSED and REMANDED.

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

      . Kalmanson v. Lockett, 848 So.2d 374 (Fla. 5th DCA 2003); Kalmanson v. Kalmanson, 823 So.2d 304 (Fla. 5th DCA 2002); Kalmanson v. Kalmanson, 796 So.2d 1249 (Fla. 5th DCA 2001); Kalmanson v. Kalmanson, 785 So.2d 753 (Fla. 5th DCA 2001). In addition, another appeal has recently been filed dealing with the same dissolution. Robinson v. Kalmanson, Case No. 5D04-1644.


text:
    Jerry HARVIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2900.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we agree that no reversible error has occurred. We affirm the trial court’s revocation of appellant’s community control and imposition of judgment and sentence. However, the trial court erred in revoking appellant’s community control based on a subsequent amended violation report filed after appellant admitted to violating his community control. Cf. Perkins v. State, 842 So.2d 275, 277 (Fla. 1st DCA 2003) (holding that the trial court is not permitted to revoke probation based on conduct not charged in the affidavit). Appellant admitted to violating the conditions set forth in the violation report filed March 5, 2003. The trial court accepted the admission on May 8, 2003. The written order of revocation erroneously bases the revocation on the violation report filed May 13, 2003. The record does not show that appellant admitted to committing new violations raised in the May 13, 2003, report or that the state presented a factual basis to revoke probation based on the new violations. Therefore, we remand for the trial court to correct the order of revocation to reflect that revocation was based on the violation report filed on March 5, 2003, not May 13, 2003.

AFFIRMED; REMANDED with directions.

DAVIS, BROWNING and HAWKES, JJ., concur.


text:
    Willie BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-5077.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.

      Willie Baker, pro se, petitioner.
    Charlie Crist, Attorney General; Linda Horton Dodson and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of mandamus is granted. The trial court is directed to rule on petitioner’s pending motion for post conviction relief within 60 days. We withhold issuance of the writ, being confident that the trial court will rule forthwith on the pending motion and will take such further action as is required in a timely manner.

BARFIELD, VAN NORTWICK and PADOVANO, JJ., concur.


text:
    Jeffrey A. SHOEMAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-5339.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Jeffrey A. Shoemaker, pro se, petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted and Jeffrey A. Shoemaker is hereby afforded a belated appeal of an order denying his motion to correct illegal sentence in case number 1184-CFA003975 in the Circuit Court for Escambia County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    Roger SMITH, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS and Florida Parole Commission, Respondents.
    No. 1D04-0817.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Roger Smith, petitioner, pro se.
    Louis Vargas, General Counsel, and Judy Bone, Assistant General Counsel, for respondent Department of Corrections.
    Kim M. Fluharty, General Counsel, and Susan Schwartz, Assistant General Counsel, for respondent Florida Parole Commission.
   PER CURIAM.

As the Parole Commission concedes, the circuit court erred in denying Smith’s petition for writ of habeas corpus without affording him the opportunity to réply to the Commission’s response. See Fla. R.App. P. 9.100(k); Cf., Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996). Accordingly, the circuit court’s order is quashed and this cause is remanded with directions to reconsider the matter after affording petitioner the opportunity to file a reply. In light of this disposition, we decline to address the other arguments presented by petitioner.

ERVIN, PADOVANO and LEWIS, JJ., concur.


text:
    Maricka L. LATSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1422.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

‘The appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he alleges that his 35-year prison releasee reoffender sentence on his attempted murder conviction is an impermissible downward departure from a life sentence; his 35-year prison releasee reoffender sentence on his attempted robbery conviction is an illegal upward departure from the 15-year sentence mandated by statute; and his 35-year prison releas-ee reoffender sentence for possession of a firearm by a conviction felon is an illegal departure from the 15-year statutory maximum sentence beeáuse such an offense was not enumerated in the prison releasee reoffender statute. We affirm the summary denial of the appellant’s first and second claims without comment. Because the appellant’s third claim has merit, we reverse and remand for further proceedings.

On June 29, 2000, pursuant to a plea agreement, the appellant was sentenced to concurrent 35-year prison releasee reof-fender sentences with concurrent minimum mandatory sentences under the 10-20-Life statute for attempted first degree murder with a firearm, attempted robbery with a firearm, and possession of a firearm by a convicted felon pursuant to sections 777.04, 782.04(l)(a), 790.23(1), 812.13(2)(a), Florida Statutes (1995). The appellant alleges, among other things, that his 35-year prison releasee reoffender sentence exceeds the 15-year statutory maximum for possession of a firearm by a convicted felon and, therefore, is illegal.

Possession of a firearm by a convicted felon is a second degree felony punishable by a term not exceeding 15 years in prison. §§ 790.23(l)(a), 775.082(3)(c), Fla. Stat. (1999). The state attorney cannot classify a defendant convicted of possession of a firearm by a convicted felon as eligible for a prison releasee reoffender sentence, because such an offense is not enumerated in the prison releasee reoffender statute. § 775.082(9)(a), Fla. Stat. (1999). Furthermore, the subsection of the 10-20-Life statute used by the sentencing court to apply a minimum mandatory to the appellant’s sentence does not apply to convictions for possession of a firearm by a convicted felon. § 775.087(2)(a)(3), Fla. Stat. (1999). It is clear from the record that the appellant’s sentence is above the statutory maximum sentence of 15 years for a second-degree felony and the illegality is not extinguished simply because he pled to this offense. See State v. Mancino, 714 So.2d 429, 433 (Fla.1998); Taylor v. State, 778 So.2d 464, 465 (Fla. 1st DCA 2001).

Therefore, the appellant’s claim of an illegal sentence in regard to his conviction for'his possession of a firearm by a convicted felon was improperly denied.

AFFIRMED in part, REVERSED in part and REMANDED for further proceedings.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Robert A. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2498.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED, without prejudice to the appellant’s right to file a petition for a writ of mandamus in the circuit court. See Rood v. State, 790 So.2d 1192, 1193 (Fla. 1st DCA 2001).

ERVIN, PADOVANO and LEWIS, JJ., concur.


text:
    David BEVERLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2626.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, for Ap-pellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated August 6, 2004, we dismiss this appeal for lack of jurisdiction. See Fla. R.App. P. 9.130(a)(4).

DISMISSED.

BROWNING, LEWIS, and POLSTON, JJ., concur.


text:
    Paul D. PARTRIDGE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2974.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Paul D. Partridge, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

As the petition is untimely under Florida Rule of Appellate Procedure 9.141(c)(4), the petition for belated appeal is denied.

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    Bonnie Lynn WITCHLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2910.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.

      Bonnie Lynn Witchley, 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) (en banc); see also State v. Andrews, 875 So.2d 686 (Fla. 4th DCA 2004). We again certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review denied, 821 So.2d 302 (Fla.2002).

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


author: WARNER, J.

text:
    A.M. HOCHSTADT, Appellant, v. SANCTUARY HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 4D03-2000.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Rehearing Denied Oct. 22, 2004.

      A.M. Hochstadt, pro se.
    Michael W. Simon of Simon Sigalos & Spyredes, P.A., Boca Raton, for appellee.
   WARNER, J.

In Hochstadt v. Gerl, 678 So.2d 1310 (Fla. 4th DCA 1996), we held that Ho-chstadt, as an assignee of certain rights of a first mortgagee in a mortgage foreclosure, was entitled to be named in the final judgment of foreclosure as the party entitled to any award of taxes paid by the mortgagee and included in the judgment of foreclosure. On remand, after several years passed Hochstadt moved to enforce the judgment. The trial, court denied relief because in the interim years Hochstadt had entered into an agreement waiving his rights. We affirm.

The facts of this case are more fully set. forth in our 1996 case. In brief, the Gerls owned a house securing both a first mortgage held by AmeriFirst and a second, larger mortgage held by AmeriTrust. A corporation owned by Hochstadt, which was subsequently dissolved, purchased the second mortgage. AmeriFirst filed a mortgage foreclosure action when the Gerls defaulted on the first mortgage. The Sanctuary Homeowners Association was named as a defendant because of assessment liens. During the foreclosure proceedings, Sanctuary filed an independent foreclosure proceeding on its liens and took title to the property. It leased the property and then, according to Ho-chstadt, allowed it to fall into disrepair.

In the AmeriFirst mortgage foreclosure proceeding, Hochstadt counterclaimed, alleging that AmeriFirst’s delay in proceeding with foreclosure had caused damage to the property, reducing the surplus available to satisfy his junior mortgage. Eventually, Hochstadt settled with the Resolution Trust Corporation (“RTC”), which was substituted for AmeriFirst. In the settlement, Hochstadt was assigned all of RTC/AmeriFirst’s claims against Sanctuary for taxes accruing during the foreclosure when Sanctuary was the record title holder to the property. In exchange, Ho-chstadt dismissed his counterclaim. The trial court entered a final judgment of foreclosure, including within it the sums for property taxes paid by AmeriFirst for the years 1990, 1991, and 1992. These taxes, which had not been paid by either the Gerls or Sanctuary, were paid by Am-eriFirst to protect its lien. However, the judgment awarded the tax amounts to “plaintiff or it[s] assigns.” In Hochstadt, we held that because the assignee, Ho-chstadt, was before the court, it erred in not awarding the taxes to him. 678 So.2d at 1312. We remanded to modify the final judgment to award the tax amounts to Hochstadt. Id.

On remand, Hochstadt filed a multiple count complaint against Sanctuary that included. counts for waste of the property and recovery of taxes, which he alleged Sanctuary had an obligation to pay. The court ultimately dismissed or granted summary judgment on all of the claims. On appeal, this court affirmed as to most of the issues but reversed on the claim of waste. Hochstadt v. Sanctuary Homeowner’s Ass’n, Inc., 695 So.2d 1324, 1324 (Fla. 4th DCA 1997) (“Sanctuary I”). We remanded for a new trial but specifically stated that the claim for waste against Sanctuary would not include a claim for taxes that Sanctuary failed to pay after it had taken title to the property. Id.

’ On remand, Hochstadt’s claim of waste went to trial. The jury found in favor of Sanctuary, finding it did not commit waste. The trial court entered final judgment in favor of Sanctuary. Hochstadt again appealed." This court reversed and remanded for a new trial, finding it was error for the trial court to exclude the testimony of a property appraiser as to the assessed value of the property for tax purposes. Hochstadt v. Sanctuary Homeowner’s Ass’n, Inc., 761 So.2d 1163, 1165 (Fla. 4th DCA 2m)(“Sanctuary II”).

When the case returned to the trial court, Hochstadt twice attempted to amend his cross-claim in order to try to collect tax payments from Sanctuary. The trial court denied the motion as barred by our ruling in Sanctuary I. Hochstadt also moved to enforce our mandate in Hochstadt v. Gerl, demanding that the court enter a final judgment awarding taxes to him. However, in the interim, Hochstadt had entered into an agreement with GE Capital Mortgage. The agreement specified that although Hochstadt released all rights, title, and interest in the property, he retained “all rights against the Sanctuary for their failure to pay ad valorem taxes during the period of time the Property was owned by Sanctuary, and for all claims for waste.” It also specifically stated, “The parties have stipulated that Ho-chstadt waives all rights to be included in the Final Judgment of Foreclosure dated April 28, 1991 and releases any and all lien rights in and to the Property.” (Emphasis added). The trial court denied the motion to enforce the mandate in Hochstadt v. Gerl. This appeal follows.

Hochstadt is not entitled to have the trial court enforce the mandate and modify the final judgment of mortgage foreclosure to include him as the recipient of the award of taxes paid by AmeriFirst, as he waived all rights to this relief in his settlement with GE Capital Mortgage and assigned to GE all his rights to the property. Thus, any claim to recover based upon the foreclosure of the first mortgage originally held by AmeriFirst has been waived, and the trial court correctly refused to enforce the mandate. See Abraham v. Abraham, 730 So.2d 746, 747 (Fla. 3d DCA 1999) (refusing to enforce provisions of mandate when parties reached settlement agreement on those provisions after the court’s issuance of the mandate). Furthermore, while Hochstadt seeks to obtain a judgment against Sanctuary for the amounts of unpaid taxes, in the final judgment of mortgage foreclosure the court determined only that the amount of taxes paid by AmeriFirst could be recovered from the proceeds of the foreclosure sale. It did not determine that Sanctuary owed these amounts to the mortgage holder.

As to Hochstadt’s issue with respect to the trial court’s denial of his motion to amend his cross-claim against Sanctuary, we do not have jurisdiction. The issues with respect to the cross-claim have been treated as a separate suit and are independently appealable. See Sanctuary I and Sanctuary II. The claim for waste that was reversed in Sanctuary II remains pending in the trial court. Therefore, the denial of Hochstadt’s motions to amend his complaint in that action constitute non-final, non-appealable orders. See Fla. R.App. P. 9.130(a)(3); Palomares v. Ocean Bank of Miami, 574 So.2d 1159, 1161 (Fla. 3d DCA 1991) (stating appeal could not be brought from order denying leave to amend because order would be nonfinal and nonappealable).

KLEIN and HAZOURI, JJ., concur.

      . Sanctuary would have no obligation to the mortgage holder or its assigns to pay the taxes, as it only foreclosed and took title through a foreclosure sale. Without assumption of the terms of the mortgage, Sanctuary had no contractual obligation to AmeriFirst to pay the taxes. See McVeigh v. Mirabito, 556 So.2d 1226, 1227-28 (Fla. 4th DCA 1990).


text:
    Claretha YOUNGBLOOD, Appellant, v. PASADENA AT PEMBROKE LAKES SOUTH, LTD. and Pasadena at the Landings, Ltd., Appellees.
    No. 4D03-2537.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Rehearing Denied Oct. 21, 2004.
    David L. Perkins of Hoffman, Larin, Agnetti & Karas, P.A., North Miami Beach, for appellant.
    Nicholas F. Van Valen of Nicklaus & Associates, P.A., Coral Gables, for appel-lees. ' '
   WARNER, J.

Appellant Claretha Youngblood fell and was injured when the towel rack she was using as support while exiting from a shower ripped out of the wall. She sued appellee, Pasadena at Pembroke Lakes South, the, landlord of the, apartment in which the towel rack was located, alleging negligent, failure to maintain the towel rack. The trial court dismissed the complaint, and we affirm, concluding that the complaint failed to allege a legal duty owed by the landlord to repair the towel rack or warn of its condition.

Younglood’s second amended complaint alleged that Pasadena, which rented apartments at Pembroke Lakes South, knew or should have known that persons on the premises of its apartments would use a towel rack as support when exiting the shower, and that the loose and unsecured condition of the rack created a dangerous and unsafe condition to users of the bathroom. When exiting the shower, Young-blood reached for a towel on the towel rack and used the towel rack for support. Because the rack was loose, it was unable to provide support for her. She lost her balance and fell, suffering injuries. The trial court found that no duty existed to maintain the towel rack under these circumstances and dismissed the complaint. Youngblood appeals.

This is a landlord liability case. Here, Youngblood alleged that Pasadena was owner of the apartments for rent, a landlord, and that she was an invitee at one of its apartments. Youngblood was a tenant herself or an invitee of a tenant. In any event, the duty involved is that of a landlord to a tenant. The duty of the landlord is two-fold: (1) prior to possession by the tenant, the landlord has a duty to reasonably inspect the premises, and to make necessary repairs to transfer a reasonably safe dwelling unit, unless the tenant waives the defect; and (2) after possession by the tenant, the landlord has a continuing duty to exercise reasonable care in repairing dangerous defective conditions upon the tenant giving notice of their existence, unless waived by the tenant. Mansur v. Eubanks, 401 So.2d 1328, 1329-30 (Fla.1981). Youngblood does not allege that the landlord failed to inspect the premises prior to transfer of possession of the unit, nor does she allege the landlord was given notice of the' condition.

Moreover, a loose towel rack is not a “dangerous defective condition” that would obligate the landlord to make repairs. As was noted in Menendez v. Palms West Condominium Ass’n, Inc., 736 So.2d 58, 61 (Fla. 1st DCA 1999),

It is true that a landlord has a duty to repair defects in a residential apartment so that it will be reasonably safe for occupancy. See Mansur v. Eubanks, 401 So.2d 1328 (Fla.1981). This duty is limited, however, to conditions that are inherently unsafe or dangerous conditions that are not readily apparent to the tenant.

Menendez compared Mansur, which held that the landlord had a duty to repair a defective gas heater that exploded, with Fitzgerald v. Cestari, 569 So.2d 1258 (Fla.1990), where the court held that a landlord had no duty to put markings on a sliding glass door because the property was in the possession of the tenant who was in just as good a position to take precautions against any danger the door posed. Because the tenant was in control of the premises, the tenant should have taken such precautions.

We liken the loose towel bar to the sliding glass door in Fitzgerald. The tenant was in a better position to take precautions and correct this defect than the landlord, because the tenant was in possession of the premises. The towel rack hardly posed a dangerous condition like a defective gas heater capable of exploding. A towel rack is not even as dangerous as a sliding glass door which can break and cut a person. It is a matter of common understanding that a towel rack is designed to support the weight of a piece of cloth, not a person.

Youngblood cites to Bidar v. Amfac, Inc., 66 Haw. 547, 669 P.2d 154 (1983) and Corona v. Costa Crociere S.P.A., 844 So.2d 652 (Fla. 3d DCA 2003). However, these cases are distinguishable because neither involved the duties of a landlord to a tenant.

In sum, we affirm the trial court’s dismissal of this complaint, as appellant failed to allege a legal duty on the part of the landlord.

Affirmed.

KLEIN and GROSS, JJ., concur.

      . In a request for production, Youngblood says that she resided at the apartment in question.


author: SHAHOOD, J.

text:
    B.H., SR., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D04-191.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Rehearing Denied Oct. 22, 2004.
    Moria Rozenson of Pickett, Marshall & Glassman, P.A., West .Palm Beach, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee. ' ■
   SHAHOOD, J.

The trial court entered a default due to a constructive consent and terminated father’s parental rights based on his failure to personally appear at the permanent commitment advisory hearing. We reverse and remand for further proceedings.

In this case, father was served in Minnesota with a Summons, Notice of Advisory Hearing and Petition for Termination on October 18, 2008. The termination hearing took place on November 5, 2003.

At the termination hearing, father appeared by telephone and upon inquiry by the court, explained that he had been served about a week and a half to two weeks prior to the hearing.

The Court: Why aren’t you present here in court this morning?
[Father]: Well, it was kind of a short notice and I’m working up here and I just got stationed up here and I’m moving back to my original hometown and we just got, I’m sitting in about a foot and a half of snow. There was no way for me to leave on such a short notice with everything.

Counsel entered a denial on behalf of father and requested a trial. The attorney ad litem and the Department objected to father’s appearance by telephone and moved for entry of a default. The trial court accepted father’s denial by telephone and entered an Order reflecting the same.

Following a motion for rehearing, the attorney ad litem and the Department argued that under section 39.801(3)(d), Florida Statutes (2003), failure to personally appear at the advisory hearing after notice constitutes consent to the termination of parental rights. They claimed that there was no evidence that father made reasonable efforts to be present at the hearing. Father argued that courts have been liberal in setting aside default judgments and that he did attempt to make his presence known to the court. The trial court granted the motion for rehearing and held that father consented to the termination of his parental rights by failing to personally appear at the advisory hearing, pursuant to section 39.801(3)(d), Florida Statutes.

We reverse and hold that under the facts of this case, father’s appearance by telephone constituted a personal appearance for purposes of section 39.801(3)(d). Thus, the trial court abused its discretion in entering a default.

It is well-settled that section 39.801(3)(d) and Florida Rule of Juvenile Procedure 8.510(a)(3) provide statutory and procedural authority for the court to accept a parent’s failure to appear at an advisory hearing as constructive consent to termination of parental rights by default. See S.C. v. Dep’t of Children & Families, 877 So.2d 831, 832 (Fla. 4th DCA 2004). However, this court has made it clear that constructive consent in termination of parental rights cases should be a disfavored result. See id.; R.P. v. Dep’t of Children & Families, 835 So.2d 1212 (Fla. 4th DCA 2003). Custody and termination of parental rights should never be determined on a default basis or by “gotcha” practices when a parent makes a reasonable effort to be present at a hearing and is delayed by circumstances beyond his control. See, e.g., R.P., 835 So.2d at 1214 (father entitled to a continuance where father was en route to the hearing and there was no indication of stalling or disregard); A.J. v. Dep’t of Children & Families, 845 So.2d 973, 976 (Fla. 4th DCA 2003) (parents arrived 25 minutes late for hearing because they were delayed by public transportation). In such circumstances, the parents’ failure to appear was accompanied by a reasonable effort and a reasonable explanation. See S.C., 877 So.2d at 833. Courts have made a distinction between parents who fail to appear at a hearing without a reasonable explanation versus those who have made some reasonable effort to be present. See id.

In In re W.C., 797 So.2d 1273, 1274 (Fla. 1st DCA 2001), a father, living out-of-state, did not personally appear at the advisory hearing. Rather, his attorney appeared in his stead. The trial court treated his failure to personally appear as a default consent to termination. In affirming, the First District held that under section 39.801(3)(d), a parent’s personal appearance is required. See id. at 1276. The court explained that the purpose of the appearance is to:

[P]rovide[ ] the court with a means to assure that it performs its statutory duty of informing a parent of his/her rights and responsibilities in the termination of parental rights process. The court can be assured that the parent understands the significance of this procedure involving the parents’ rights, and the parent is left with no basis later to attempt to delay the process further by claiming that appointed or hired counsel did not adequately explain the process to the parent.

Id.

In S.C., this court upheld the termination of a mother’s parental rights following her default. In that case, mother, after personal service of the summons and notice to appear, was unable to personally appear. The Department advised mother that she could appear by telephone from her home in Virginia; the court agreed. When the court and the Department attempted to call mother at the hearing, mother never answered the calls. As a result, the trial court entered a default based on constructive consent. Thereafter, mother claimed that she had telephone problems and sought to vacate the default. At a hearing on the motion, mother’s testimony was inconsistent and contradictory as to her alleged telephone problems. The trial court denied the motion to vacate finding mother’s testimony not credible and that her failure to appear was not the result of mistake or inadvertence.

In affirming, this court held that mother failed to provide the court with a reasonable excuse for her failure to appear by telephone. The court held that despite the efforts of the court and the Department to accommodate mother’s inability to travel to Florida, mother intentionally failed to appear at, or participate in, the hearing. See id. at 833. When mother suggested that the trial court acted improperly by allowing her to appear by telephone, citing the language contained in section 39.801(3)(d), this court held that “neither the plain language of the statute nor case law indicate that an agreement between the parties and the trial court for a parent to appear by telephone is improper.” Id. The court further rejected mother’s claim that consent to a telephone appearance led to her delay in being appointed counsel. “To hold otherwise would suggest that the trial court or Department could not accommodate a parent in this manner where providing for participation by telephone is necessary and reasonable.” Id.

Following S.C., there does not appear to be a strict or per se prohibition against a parent appearing by telephone if it is sanctioned by the parties or the court. In this case, father, through his appearance by telephone, clearly sought to interject himself into the proceedings and enter a denial to the court entering a termination to his parental rights. This is not a situation where the parent sought to have counsel appear in his stead or simply chose to ignore the proceedings. Father’s appearance by telephone enabled the court to inform the parent of the significance of the advisory hearing and thereby comply with the purpose of the statute requiring a parent’s personal appearance.

Under the facts of this case, it is clear that father was not seeking to delay the proceedings. Father was given about two and a half weeks’ notice to travel from Minnesota to Florida. Father explained that his appearance by telephone was necessitated by the fact that he had just started working, was moving, and was unable to leave on such short notice. The court initially accepted father’s explanation and permitted him to enter his denial by telephone over the objection of the Department and the attorney ad litem. In light of the fact that father attempted to make his presence known, that his failure to appear personally was accompanied by a reasonable explanation, and that public policy frowns on termination of parental rights on a default basis, we hold the trial court abused its discretion in terminating father’s parental rights based on constructive consent.

REVERSED AND REMANDED.

WARNER, J., and GATES, MICHAEL L., Associate Judge, concur.


text:
    CITY OF FORT LAUDERDALE, Petitioner, v. PALAZZO LAS OLAS GROUP, LLC, a Florida limited liability company and The Fort Lauderdale Community Redevelopment Agency, Respondents.
    No. 4D04-343.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Clark J. Cochran, Jr. and Hal B. Anderson of Billing, Cochran, Health, Lyles, Mauro & Anderson, P.A., Fort Lauderdale, for petitioner.
    Robert J. Hunt and Jo-Jean M. Panton of Hunt, Cook, Riggs, Gross & Greenberg, P.A., Boca Raton, for respondent Palazzo Las Olas Group, LLC., a Florida limited liability company.
   PER CURIAM.

The City of Fort Lauderdale petitions for a writ of prohibition seeking review of the denial of its motion to disqualify the trial judge from certiorari proceedings below. We grant the petition.

In the underlying matter, the City denied approval of a developer’s site plan for a proposed redevelopment. The developer petitioned the circuit court for certiorari review of the City’s decision.

The developer’s attorney in the proceedings with the City had represented the judge in a separate matter before the Judicial Qualifications Commission. That attorney also filed the petition for certiorari and supporting appendix in the circuit court.

In Peterson v. Asklipious, 833 So.2d 262, 263-64 (Fla. 4th DCA 2002), this court summarized the standard of review and the test for reviewing a motion to disqualify:

Allegations in a motion to disqualify are reviewed under a de novo standard as to whether the motion is legally sufficient as a matter of law. See § 38.10, Fla. Stat.; Armstrong v. Harris, 773 So.2d 7 (Fla.2000). A motion to disqualify is governed in substance by section 38.10, Florida Statutes, and procedurally by rule 2.160, Florida Rules of Judicial Administration. The rule states that “[a] motion to disqualify shall show ... that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.160(d)(1).
Whether the motion is legally sufficient requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.
The term “legal sufficiency” encompasses more than mere technical compliance with the rule and the statute; the court must also determine if the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.

Id. at 263-64 (other citations omitted).

The City met its burden in this case. The general rule is that disqualification of the judge is required if counsel for one of the parties is representing or has recently represented the judge. See Atkinson Dredging Co. v. Henning, 631 So.2d 1129 (Fla. 4th DCA 1994); Marcotte v. Gloeckner, 679 So.2d 1225 (Fla. 5th DCA 1996). In Atkinson, we cited with approval to Smith v. Sikorsky Aircraft, 420 F.Supp. 661 (C.D.Cal.1976). In that case the judge sua sponte ordered the case reassigned because a member of the law firm representing the plaintiffs had in the past acted as counsel for the judge. Atkinson, 631 So.2d at 1130.

The developer’s position is that recusal of the trial judge was not required because its attorney withdrew from the case after it had been assigned to the trial judge. However, such a withdrawal does not erase the attorney’s involvement. We agree with the City’s contention that a “central concern” here is “the appearance of impropriety in a circuit judge reviewing a petition ... that was drafted and filed by the judge’s personal counsel to seek review of that same counsel’s presentation of a case in an administrative tribunal.” As we observed in Atkinson, the value that guides this case is that “ ‘justice must satisfy the appearance of justice,’ ” even though this “ ‘stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.’ ” 631 So.2d at 1130 (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954), and In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)).

SHAHOOD, GROSS and MAY, JJ„ concur.


text:
    Anthony McDOUGLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-407.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Anthony McDougle, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the order denying appellant’s motion to correct an illegal sentence. Although appellant’s motion was based upon the court’s failure to sentence him in accordance with section-958.045(5)(c), Florida Statutes (2001), after his successful completion of boot camp, he raises entirely different issues regarding jail credit in his initial brief. Thus, he has abandoned the claim raised in the motion below. As appellant cannot raise new issues for the first time on appeal, we affirm.

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


text:
    Gregory INGRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2564.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Gregory Ingraham, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

The defendant appeals an order summarily denying his motion to correct an illegal sentence,- pursuant to Florida Rule Criminal Procedure 3.800(a). In this appeal, he alleges he does not qualify for habitual felony offender sentencing because his release from the last predicate felony conviction occurred more than five years prior to the commission of the instant offenses. - If he lacks the predicate conviction necessary to satisfy section 775.084(1)(a)2, Florida Statutes (1997), then his habitual sentences would be illegal. See Bover v. State, 797 So.2d 1246, 1247 (Fla.2001). Unfortunately, while he raises the issue in this appeal, he did not raise it in the motion before the trial court. We therefore affirm the summary denial without prejudice to the defendant to refile a motion in the trial court to address this allegation.

SHAHOOD, HAZOURI and MAY, JJ„ concur.


text:
    Sybil N. MOTON, Appellant, v. NAVARRO GROUP LTD., INC., a Florida corporation, Appellee.
    No. 4D03-3797.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.
    Rehearing Denied Oct. 22, 2004.
    Roderick V. Hannah of Becker & Polia-koff, P.A., Fort Lauderdale, and Edwin R. Jonas, III, Boca Raton, for appellant.
    Jacqueline G. Emanuel of Riley, Knoerr & Emanuel, Fort Lauderdale, for appellee.
   SHAHOOD, J.

Appellant brought an action against ap-pellee for false arrest/false imprisonment and against the City of Fort Lauderdale for battery/ unnecessary force. Appellant alleged that appellee provided security services at a homeless camp operated by the City and that she provided lay ministry and support services to the homeless persons at that camp. She alleged that she was harassed by security personnel, and in particular, Matt Strauss, and was threatened with arrest for trespass if she continued to return to the camp. She alleged that a security service supervisor gave her written permission to return to the homeless camp and advised her that he would notify Strauss that she was permitted to return.

Appellant returned to the camp a couple of days later. Upon her arrival on the property, Strauss contacted Fort Lauderdale police and advised that she was trespassing; appellant was placed under arrest for trespass after warning and resisting without violence.

The trial court granted appellee’s motion for summary judgment finding, that there were undisputed facts, and, that, as a matter of law, appellee could not be held liable for false arrest/false imprisonment. The court found that appellee neither detained appellant nor instigated the police officer’s arrest; that the security employee merely reported to police that a violation occurred; that the employee did not personally or actively participate in the arrest; that appellee acted in good faith; and that the police independently determined that there was probable cause to arrest appellant.

. Appellant asserts that genuine issues of material fact exist as to whether Strauss instigated appellant’s arrest and acted in bad faith. She also maintains that appel-lee did not meet its burden in demonstrating that its employee acted in good faith in communicating information regarding appellant to the Fort Lauderdale police. We agree.

Because genuine issues of material fact exist, and the record does not support the court’s findings, we hold that the entry of summary judgment was improper. In this case, the record evidence presented on summary judgment failed to support the court’s findings that Strauss did not instigate the arrest or that he acted in good faith in communicating information to the arresting officer regarding appellant’s alleged trespass at the homeless camp. As no evidence was presented as to whether Strauss knew of the note written by his supervisor giving appellant permission to return to the camp, issues of fact exist as to whether Strauss acted in bad faith when he called the police. Further, the record does not support the court’s finding that the police officer independently determined that there was probable cause to arrest appellant. The evidence demonstrates that the officer relied solely upon the information provided to him by Strauss in determining that a trespass occurred. In addition, the record evidence disputes the officer’s testimony that he responded to a dispatch that a person who had been asked to leave by security had refused to do so. Appellant and another witness testified in deposition that Strauss never spoke to them prior to the arrival of the police and that appellant was never asked to leave the premises by Strauss.

Based on these disputed issues of fact, we must reverse and remand for further proceedings.

REVERSE AND REMAND.

WARNER, J., and GATES, MICHAEL L., Associate Judge, concur.

      . The City was voluntarily dismissed with prejudice.


text:
    Hector RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4876.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.

      Carey Haughwout, Public Defender and Patrick B. Burke, Assistant Public Defender, West Palm Beach, and Hector Rodriguez, Boynton Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. As to pro se appellant’s issue with respect to jurisdiction, see Peppers v. State, 696 So.2d 444 (Fla. 4th DCA 1997).

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