author: SILBERMAN, Judge.

text:
    In the Interest of W.H. and Q.S., children. A.H., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-1899.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.

      Geraldyne H. Carlton of Carlton & Carlton, P.A., Lakeland, for Appellant.

      Douglas Sherman of Department of Children and Family Services, Bartow, for Appellee.
   SILBERMAN, Judge.

A.H. (the mother) appeals from an order adjudicating her children, W.H. and Q.S., dependent. We reverse the order because the trial court’s findings are not supported by the evidence.

The Department of Children and Family Services (DCF) sheltered W.H. and Q.S. in December 2001. At the time, W.H. was living with the maternal grandmother, and Q.S. was living with the maternal grandfather. DCF filed a petition for dependency against the mother alleging that she had abused, neglected, and abandoned her children. After a trial, the court entered an order with factual findings that tracked many of the allegations contained in the petition for dependency. Based on those findings, the trial court concluded that the mother had abused and abandoned her children and adjudicated the children dependent. The mother argues that the record lacks competent, substantial evidence to support the trial court’s findings and conclusions. We agree.

In reviewing a dependency determination, we must ascertain whether DCF proved its allegations by a preponderance of the evidence, whether the trial court applied the correct law, and whether the trial court’s ruling is supported by competent, substantial evidence. See In re M.F., 770 So.2d 1189, 1192 (Fla.2000). Section 39.01(1), Florida Statutes (2001), defines “abandoned” as follows:

a situation in which the parent or legal custodian of a child or, in the absence of a parent or legal custodian, the caregiver responsible for the child’s welfare, while being able, makes no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. If the efforts of such parent or legal custodian, or caregiver primarily responsible for the child’s welfare, to support and communicate with the child are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned .... The incarceration of a parent, legal custodian, or caregiver responsible for a child’s welfare may support a finding of abandonment.

Section 39.01(2) defines “abuse” as follows:

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. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.

Concerning abandonment, our review of the record reveals that W.H. and Q.S. were each living with one of their maternal grandparents. The mother regularly visited the children, she spoke with them by telephone, and she would occasionally bring them clothes, toys, or money. The mother testified that she was letting her children live with the grandparents because she had personal problems to work out and the living arrangements provided a good environment for the children.

Although shortly before trial the mother had been arrested for an alleged violation of probation, she anticipated that she would soon be released from jail. She testified that after her release, she would get a job, raise her children, and do what is necessary to have her children with her full-time. DCF did not present any evidence contradicting the mother’s anticipated release from jail or her ability and intention to care for the children.

The evidence that was presented does not support the conclusion that the mother abandoned the children. The mother and the grandparents appear to have been satisfied "with the living arrangements, there was no evidence that the living arrangements were inadequate, the mother regularly called and often visited the children, and she provided the children with some support.

Although the mother acknowledged that she could have done better, the record does not demonstrate a willful rejection of her parental obligations under section 39.01, and it does not otherwise support a finding that her efforts were marginal and failed to evince a settled purpose to assume her parental duties. See In re E.B., 834 So.2d 415, 417 (Fla. 2d DCA 2003). Also, while the mother’s criminal history and incarceration are factors to be considered to determine whether abandonment has occurred, see In re T.B., 819 So.2d 270, 272 (Fla. 2d DCA 2002), the record does not reflect that these factors threatened the children’s well-being or resulted in the mother not visiting, providing for, or communicating with the children. See D.S. v. Dep’t of Children & Families, 842 So.2d 1071 (Fla. 4th DCA 2003). Because the trial court’s findings are not supported by the evidence, its conclusion that the mother abandoned the children cannot be upheld.

Turning to the question of abuse, we note that the record reflects that the mother occasionally spanked her children. Additionally, a child protective investigator testified that she had observed a small mark under W.H.’s right eye; however, nothing linked the mark to any conduct by the mother. The investigator also testified that the mother “had been arrested for things like domestic battery” and referred to the mother’s use of foul language and possibly having an anger management problem.

While the mother used corporal punishment to discipline the children, there was no evidence that she harmed either child, that she used excessive or inappropriate corporal punishment, or that she struck either child with excessive force. Her efforts to discipline the children do not constitute abuse under section 39.01(2). See K.R. v. Dep’t of Children & Families, 784 So.2d 594, 597 (Fla. 4th DCA 2001) (noting that in the absence of physical injuries, the discipline that was administered to the child was of the type exempted from the statutory definition of abuse).

Although the mother had disagreements with the grandmother that involved yelling, there was no evidence of physical altercations or violence, or that the children witnessed or were aware of any incident of domestic violence. Again, absent some showing of injury or harm to the children, or a showing that the physical, mental, or emotional health of the children was significantly impaired, the finding of abuse cannot be upheld. See § 39.01(2); K.R., 784 So.2d at 598; D.H. v. Dep’t of Children & Families, 769 So.2d 424, 427 (Fla. 4th DCA 2000) (stating that to satisfy the harm requirement for a finding of abuse, the children must have been aware of or observed the domestic violence). Regarding the mother’s anger management problem, criminal history, and the level of support that she provided to the children, nothing in the record suggests that the children were negatively affected or harmed. Based on the evidence that was presented, we conclude that the trial court erred in determining that DCF established abuse under section 39.01(2).

Because the record does not contain competent, substantial evidence of abandonment or abuse, we reverse the order of dependency.

Reversed.

WHATLEY and NORTHCUTT, JJ., concur.

      . It has been noted that the parents’ decision to place children with relatives is entitled to deference because parents have fundamental rights to the care, custody, and management of their children. See In re Z.J.S., 787 So.2d 875, 879 (Fla. 2d DCA 2001) (Northcutt, J. concurring).


source: Caselaw Access Project

author: ALTENBERND, Chief Judge.

license: Public Domain

text:
    Anthony PEPITONE, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-2869.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Chief Judge.

Anthony Pepitone appeals his judgment and sentence for attempted burglary of a dwelling. We conclude that we must reverse this judgment because there was no evidence to support a conviction for attempted burglary, and this offense should not have been included within the instructions.

On September 19, 1999, Mr. Pepitone went to a retirement condominium in Largo, Florida. He first entered condominium unit 521 on the fifth floor at approximately noon. The owner testified that he usually left his front door unlocked. When the owner of the unit went to the bathroom, he noticed Mr. Pepitone leaving the study. The owner did not know Mr. Pepi-tone. Mr. Pepitone claimed he was looking for a “Mr. Derino.” As he left the unit, Mr. Pepitone looked at the front door and explained that he had intended to enter unit 421. The owner reported the incident to the front desk, and then discovered that Mr. Pepitone had opened many of the drawers in the study. Nothing seemed to be missing in the unit.

Shortly after this incident, another unit owner was sitting in her living room with her husband when Mr. Pepitone opened the door and came into their unit, 334. He looked in the kitchen and went through their bedroom. When she asked Mr. Pepi-tone what he wanted, he explained that this was unit 334 and he was looking for unit 234. The police were summoned and arrived in a few minutes. They discovered Mr. Pepitone in the first floor common area. He was arrested and charged with burglary of the first unit and trespass of the second unit. This appeal concerns only the charge of burglary of the first unit.

At trial, the State requested an instruction on the lesser-included offense of attempted burglary. Mr. Pepitone objected, but the trial court decided to give this instruction. Thus, the jury received instruction on burglary of a dwelling, attempted burglary of a dwelling, and trespass. The jury found Mr. Pepitone guilty of attempted burglary.

On appeal, Mr. Pepitone argues that there was no evidence presented to permit a conviction of attempted burglary. He maintains that the jury could find him guilty of burglary or trespass, but not of attempted burglary. The State first argues that the issue is not preserved and then that the instruction was appropriate.

The issue of preservation presents an interesting question in this case. The discussion concerning the lesser-included offense of burglary occurred at the charge conference. The court reporter, however, has been unable to produce a transcript of those proceedings. At an evidentiary hearing conducted to resolve this problem, the defense attorney confirmed that he objected to the lesser-included offense because Mr. Pepitone was adamant that he did not want the jury to receive this option. The precise grounds for the objection could not be recreated.

It is well established that if a defendant is prejudiced by the absence of a portion of a trial transcript through no fault of his own and the missing transcript is necessary to a complete review of the case, the defendant is entitled to a new trial. See Jones v. State, 780 So.2d 218 (Fla. 2d DCA 2001). In this case, the missing record is not necessary to determine whether a harmful error occurred; it is only necessary to determine whether that error was preserved for appellate review. Somewhat analogous to the situation in which a proffer is denied, we conclude that this court should not automatically reverse due to the missing record; we should simply conclude that the transcript would establish preservation if it were available. Cf. R.J.J. v. State, 771 So.2d 1265, 1266 (Fla. 2d DCA 2000); Rozier v. State, 636 So.2d 1386, 1387-88 (Fla. 4th DCA 1994) (explaining function of proffer and reason that denial of proffer is treated as error). Thus, we conclude that we should review this issue as one that is preserved.

Attempted burglary is not a necessary lesser-included offense of burglary; it is a permissive or category 2 lesser-included offense. See Florida Standard Jury Instructions in Criminal Cases, 723 So.2d 123, 131 (Fla.1998). As a result, the State has the right to receive an instruction on this lesser offense over the defendant’s objection only when the allegations within the information and the evidence at trial support the instruction. See State v. Johnson, 601 So.2d 219, 220 (Fla.1992); see also Amado v. State, 585 So.2d 282 (Fla.1991); Russ v. State, 612 So.2d 688, 689 (Fla. 2d DCA 1993). Florida Rule of Criminal Procedure 3.510(a) provides that “[t]he judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense.” When the defendant is improperly convicted of such a lesser offense, the conviction must be reversed. See Gleason v. State, 591 So.2d 278 (Fla. 5th DCA 1991); see also State v. Robinson, 771 So.2d 1256, 1258 (Fla. 3d DCA 2000) (affirming grant of new trial by trial court).

Here, the evidence at trial did not support an attempt instruction. Normally, an attempted burglary involves a person who attempts, but fails, to gain entrance to a dwelling, structure, or conveyance. See, e.g., Smith v. State, 588 So.2d 654 (Fla. 2d DCA 1991); Cameron v. State, 214 So.2d 370 (Fla. 2d DCA 1968); Davis v. State, 730 So.2d 837 (Fla. 4th DCA 1999). It may be that Mr. Pepitone attempted unsuccessfully to steal something from the study, but it is undisputed that he successfully entered the condominium unit. If he did so with an intent to commit an offense, his crime was a completed burglary. See § 810.02, Fla. Stat. (1999). If he did so with no such intent, the crime was trespass. Attempted burglary simply is not a middle ground that exists between these two options in this case.

Unfortunately for the State, the tactical decision to request a lesser-included instruction under these circumstances has serious consequences. Double jeopardy bars retrial of the offense of burglary because the jury found Mr. Pepitone not guilty of that offense. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Gleason 591 So.2d at 279. Accordingly, we reverse and remand for the trial court to enter a judgment and sentence for the lesser-included offense of trespass. See § 924.34, Fla. Stat. (2002); I.T. v. State, 694 So.2d 720 (Fla.1997). This ruling renders moot sentencing issues that the State admits would have required resentencing.

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.


author: SALCINES, Judge.

text:
    Terry WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-1410.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Terry Walker appeals the denial of a dispositive motion to suppress the physical evidence obtained as a result of an allegedly illegal search. We reverse.

At the hearing on the motion to suppress, a Tampa Police Department officer testified that while patrolling a Tampa Housing Authority area described as a high drug area, he observed what he characterized as a “hand-to-hand transaction” between Walker and a man only identified as Mr. Butler. More specifically, the officer stated that the two men were “real close up tight with each other” and the men were looking down into Walker’s hand. The officer stated that both men had their backs turned to him, then indicated that only Walker had his back turned to the officer. He stated, “I could see what they were doing.”

On cross-examination the officer admitted that when he saw Walker and Mr. Butler he could not actually see what it was that the two men were observing in Walker’s hand. The officer testified, “[A]s I pulled up on the side I could see they were both looking down in his hand.” The officer, however, candidly acknowledged that he could not see the object, and he did not see any money exchange hands.

When the officer approached the two men, other people who were standing in the area scattered. The officer asked the two men to come to him, and he “detained both of them.” He then asked Walker alone to approach him and requested permission to perform a patdown. Permission was given, and the officer felt “little square objects” in Walker’s front pants’ pocket which he believed to be crack cocaine. The officer asked Walker for permission to retrieve the items, consent was given, and cocaine was recovered.

The meeting between Walker and the police officer was more than a mere police-citizen encounter. When the officer detained the two men, singled out Walker, and requested that he come to him, the meeting was transformed into an investigative stop. In such a situation, a police officer may temporarily detain a person if the officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. See Coney v. State, 820 So.2d 1012, 1013—14 (Fla. 2d DCA 2002). Whether an officer has a founded suspicion for a stop depends upon the totality of the circumstances in light of the officer’s knowledge and experience. Belsky v. State, 831 So.2d 803, 804 (Fla. 4th DCA 2002). A bare suspicion or mere “hunch” that criminal activity may be occurring is not sufficient. Id.

As this court noted in Burnette v. State, 658 So.2d 1170 (Fla. 2d DCA 1995), it is not absolutely necessary for an officer to observe drugs or money changing hands in order to develop the founded suspicion necessary to temporarily detain a citizen to investigate whether a drug offense has been committed. See also Ford v. State, 783 So.2d 284, 286 (Fla. 2d DCA 2001). Other factors considered by the Burnette court included the officer’s narcotics experience, the reputation of the location for drug transactions, that there had been an extended period of surveillance, and the history of previous multiple arrests from that site. In Burnette, although the police officer had not actually seen drugs or money exchange hands, the court found all of the factors, together with the nature of the “drive-up situation” and exchange between Burnette and a known dealer, gave rise to a reasonable suspicion that Burnette had engaged in an illegal activity. Burnette, 658 So.2d at 1171.

In the present case, the testimony presented at the hearing was very brief. When asked about his experience with narcotics, the officer testified, ‘Well, through numerous arrests I’ve had I’ve had dealings with crack cocaine.” The officer also informed the court that he had completed forty hours of narcotics training. The officer indicated that the location where he observed Walker and Mr. Butler was a high drug area and identified Mr. Butler by name. However, the officer ' did not state that Mr. Butler was a known drug user or drug dealer. The officer merely had been patrolling the area that evening when he observed Walker and Mr. Butler. He did not testify that the location had been under surveillance or that there had been other arrests in that area. The arrest affidavit indicates that Walker was arrested at 7:39 p.m. in July 2000. The totality of the circumstances does not support a finding of reasonable suspicion in the present case.

Further, this is not a situation as in Copeland v. State, 756 So.2d 180 (Fla. 2d DCA 2000), where Walker or Mr. Butler attempted to elude the police officer or acted nervous or suspicious upon being approached. Walker and Mr. Butler did not attempt to leave the area, and the officer described Walker as “very cooperative.”

Under the limited facts in this case, the officer did not have a reasonable suspicion that Walker had committed, was committing, or was about to commit a crime. Due to the fact that the stop was illegal, the search of Walker was also illegal because the State failed to prove a break in the chain of illegality. See State v. Paul, 638 So.2d 537, 538 (Fla. 5th DCA 1994). Accordingly, we reverse the order denying the motion to suppress and remand with directions to discharge Walker.

Reversed and remanded.

FULMER and CANADY, JJ., concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Robert HORNE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2572.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.
    John E. Kirkland, of the Law Offices of Gil Colon, Jr. & Associates, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   THREADGILL, EDWARD F., Senior Judge.

Robert K. Horne challenges his two convictions for soliciting his son, who was under the age of eighteen, to engage in sexual acts with Horne’s wife. He also challenges his conviction for committing a lewd and lascivious act in the presence of his son. Finally, he challenges his guidelines departure sentence. We reverse in part and affirm in part.

The State charged Horne by second amended information with seven counts, only three of which, counts I, II, and III, were tried together and are at issue in this appeal. Count I charged that during the relevant time period, Horne

did unlawfully engage in an act which constitutes sexual battery with [his son], a child of 12 years of age or older but less than 18 years of age, while [Horne] was in a position of familial or custodial authority over [his son] in that the penis of [his son] united with or penetrated the sexual organ of [Horne’s wife], contrary to Florida Statute 794.011. (1 DEG FEL) (LEVEL 9).
Count II charged that Horne, during the same time period,
did unlawfully engage in an act which constitutes sexual battery with [his son], a child 12 years of age or older but less than 18 years of age, while [Horne] was in a position of familial or custodial authority over [his son] in that the penis of [his son] had union with or penetrated the mouth of [Horne’s wife], contrary to Florida Statute 794.011. (1 DEG FEL) (LEVEL 9). '
Count III charged that Horne did unlawfully and knowingly commit a lewd or lascivious act in the presence of [his son], a child under the age of 16 years, in that the penis of [Horne] penetrated or had union with the vagina of [Horne’s wife] in the presence of [his son], contrary to Florida Statute 800.04. (2 DEG FEL) (LEVEL 7).

The pertinent portions of section 794.011(8), Florida Statutes (2000), read:

Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who:
(a) Solicits that person to engage in any act which would constitute sexual battery under paragraph (l)(h) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Engages in any act with that person while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (l)(h) commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Although the information did not specify under which subsection it charged Horne, the language used in counts I and II clearly tracks subsection (b), which refers to “engages in,” not subsection (a), which refers to “solicits.” The State argues that even though Horne’s acts appeared to fall within the dictates of subsection (a) (soliciting), the State charged Horne under subsection (b) (engaging in) due to Horne’s role as “director” of the activity, which made him a principal under section 777.011, Florida Statutes (2000).

After the State presented evidence and both sides rested, the defense moved for judgment of acquittal, arguing as to counts I and II that Horne could not be charged as a principal under subsection (b) because in order for Horne to be guilty as a principal, his wife, as the alleged actor, was statutorily required to be in a position of familial or custodial authority over the son, and the State had presented insufficient evidence of same.

Although not persuaded that the principal theory applied, given the State’s failure to allege a custodial or familial relationship between the son and the wife, the court concluded that the charging document was not fatally flawed because the case could still proceed under section 794.011(8)(a) (soliciting), which the court deemed to be a lesser included offense of section 794.011(8)(b) (engaging in). The court instructed the jury under subsection (a) (soliciting) over defense counsel’s objection that this was an improper charge because the information had not charged Horne under subsection (a). The jury returned a verdict finding Horne guilty of both counts under subsection (a) (soliciting).

In arguing for judgment of acquittal as to count III, which charged Horne with committing a lewd or lascivious act in the presence of his son, counsel argued that there was no testimony that Horne knew that his son was still in the room when the act occurred and that, in fact, Horne had told his son to go to the bathroom. However, the record shows that the son testified that he was told to go clean himself up and that when he returned, Horne and his wife were having sexual intercourse. The court concluded that the evidence was sufficient to go to the jury on that count. We agree.

A motion for judgment of acquittal should not be granted unless the evidence is such that no view which the jury may take of it favorable to the opposite party can be sustained under the law. Orme v. State, 677 So.2d 258, 262 (Fla.1996); Lynch v. State, 293 So.2d 44, 45 (Fla.1974). The court here erred in denying judgment of acquittal as to counts I and II because there was no view that the jury could lawfully take to support a conviction under section 794.011(8)(b) (engaging in), the section under which Horne was charged.

The trial court declined to grant the judgment of acquittal because it concluded that section 794.011(8)(a) was a lesser included offense of section 794.011(8)(b). This was error. The Florida Standard Jury Instructions (Criminal) (11.5 and 11.6), list no category one or category two lessers for either section 794.011(8)(a) or section 794.011(8)(b). An offense may be a permissive lesser of another offense “if the elements [are] alleged in the accusatory pleading and [are] supported by the evidence adduced at trial.” L.F. v. State, 694 So.2d 840, 840 (Fla. 2d DCA 1997). The elements of section 794.011(8)(a) were not alleged in the information here. The information did not allege that Horne commanded, encouraged, hired, requested, tried to induce, or solicited his wife or son to have sexual relations. Rather, it stated that Horne engaged in an act with his son that constitutes sexual battery. This was not sufficient. See also C.R.C. v. State, 842 So.2d 235 (Fla. 2d DCA 2003).

We note that the Florida Standard Jury Instructions do not appear to contemplate application of either subsection in this factual scenario involving a third party. The blank spaces in the instruction form in which the court is instructed to insert a name do not include as an option “third party,” but rather list only “defendant” or “victim.”

Because the trial court erred in finding section 794.011(8)(a) to be a lesser included offense of section 794.011(8)(b), and because the evidence simply did not support a conviction under subsection (b) (engaging in), we conclude that the court erred in denying judgment of acquittal as to counts I and II. As a result, Horne was improperly convicted of an offense with which he was not charged, see Wise v. State, 833 So.2d 882 (Fla. 2d DCA 2003); Gaines v. State, 652 So.2d 458 (Fla. 4th DCA 1995); Moore v. State, 496 So.2d 255, 256 (Fla. 5th DCA 1986), and the verdict as to counts I and II is a nullity.

In light of our disposition of this case, we need not reach Horne’s other issues on appeal. We therefore reverse Horne’s convictions under counts I and II, affirm Horne’s conviction on count III, and remand for resentencing.

If not barred by the statute of limitations, the State may file another information and proceed against Horne for soliciting under section 794.011(8)(a). See Wilburn v. State, 840 So.2d 384, 386 (Fla. 2d DCA 2003).

Affirmed in part, reversed in part, and remanded.

FULMER and CANADY, JJ„ Concur.


text:
    Kathleen BUONAVOLONTA n/k/a Kathleen Plotkin, Appellant, v. James J. BUONAVOLONTA, Appellee.
    No. 2D02-3775.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.

      Cynthia Byrne Hall and Brian M. Silver-io of Silverio & Hall, Naples, for Appellant.
    Cynthia L. Greene of Law Offices of Cynthia L. Greene & Associates, P.A., Miami; and John E. Long, Jr. of Law Offices of Long & Murphy, P.A., Naples, for Appellee.
   SILBERMAN, Judge.

Kathleen Buonavolonta (the mother) appeals a final order in favor of James Buo-navolonta (the father) which denies her supplemental petition to relocate with the parties’ two children from Collier County, Florida, to Broward County, Florida. Because the trial court applied the incorrect legal standards when it considered the petition, we reverse.

Section 61.13(2)(d), Florida Statutes (2001), sets forth the following six factors that the trial court must consider in determining whether to allow relocation:

1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child.
2. The extent to which visitation rights have been allowed and exercised.
3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.
5. Whether the cost of transportation is financially affordable by one or both parties.
6.Whether the move is in the best interests of the child.

Although the mother raises several issues that do not warrant relief, she correctly argues that the trial court erred in its evaluation of the second, third, and fourth factors.

With respect to the second factor, the trial court used the old factor from Mize v. Mize, 621 So.2d 417, 420 (Fla.1993), which was “whether the motive for seeking the move is for the express purpose of defeating visitation.” The trial court found that the mother was not trying to defeat visitation. Although section 61.13(2)(d) essentially codifies the Mize factors, the second factor is different under the statute. See Borchard v. Borchard, 730 So.2d 748 (Fla. 2d DCA 1999). On remand, the trial court must apply the statutory factor and determine “[t]he extent to which visitation rights have been allowed and exercised.” § 61.13(2)(d)(2).

The trial court correctly identified the third factor as whether the mother, “once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.” § 61.13(2)(d)(3). However, instead of applying this factor, the trial court made a finding that the substitute visitation would “not be of the same quality and quantity that it is now.” On remand, the trial court must reconsider the petition using the proper factor.

The fourth factor is “[wjhether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child or children and the secondary residential parent.” § 61.13(2)(d)(4). Again, the trial court stated the proper factor but did not apply it. Instead, the court found in favor of the father, stating that “although the [father] may have a meaningful relationship if the children do move, it will not be the same type of relationship he presently enjoys at this time.”

This court recently stated that the fourth factor does not turn on “whether the same degree of frequent and continuing contact would be maintained.” Wilson v. Wilson, 827 So.2d 401, 403 (Fla. 2d DCA 2002). We observed that extended visits may be more beneficial to the parental relationship than the typical weekly visits and, when liberal visitation rights are protected, relocation is not necessarily adverse to the children’s best interests. Id.

If the fourth factor required that the substitute visitation would result in the “same type of relationship,” it is doubtful that relocations would ever be permitted; a move of any significant distance necessarily means that the relationship and contact will not be the same type or to the same degree as existed before the move. Rather, the focus of the fourth factor is whether the substitute visitation is adequate to allow the parent to maintain a “continuing meaningful relationship” with the child. § 61.13(2)(d)(4).

At trial, both parties presented evidence as to the impact that relocation would have on the children and on their own lives. The father expressed concern about his ability to make changes to his work schedule and the difficulties that he would encounter if the mother relocated. The mother offered substantial substitute visitation on holiday weekends and in the summer to make up for the proposed loss of the father’s weekday visitation, and she offered to assist in transportation to help accommodate the father’s schedule. Because the trial court applied the incorrect legal standard to the evidence, on remand it must reconsider the petition using the proper standard.

The trial court also addressed a provision in the parties’ marital settlement agreement that states neither party would relocate with the children from Collier County without mutual consent or court approval. The mother challenges the trial court’s findings that the parties had bargained for the provision and that a party would have to meet a heavy burden to change the provision in order to allow relocation. Our review of a provision of a marital settlement agreement is de novo. See McIlmoil v. McIlmoil, 784 So.2d 557, 562 (Fla. 1st DCA 2001). We conclude that the agreement does not prevent the parties from seeking to relocate the children, and it does not alter the burden that must be met by the party seeking to relocate. Rather, if the parents do not agree on a relocation, the provision merely requires that the party seeking to relocate must obtain court approval before moving. The purpose of such a provision is to prevent a parent from moving a child without notice to the other parent. See Leeds v. Adamse, 832 So.2d 125, 127-28 (Fla. 4th DCA 2002).

Here, over one year after the parties were divorced, the mother wanted to move with the children from Collier County to Broward County. When the parties could not agree concerning the move, they each sought relief from the trial court. Once the issue was brought to the court for resolution, the trial court was required to follow the framework established in section 61.13(2)(d) to resolve the issue. See Leeds, 832 So.2d at 128. In addition to the six factors that the trial court had to consider under the statute, section 61.13(2)(d) provides that “[n]o presumption shall arise in favor of or against a request to relocate when a primary residential parent seeks to move the child and the move will materially affect the current schedule of contact and access with the secondary residential parent.” Therefore, on remand, the trial court is to weigh the evidence and apply the statutory factors without any presumption for or against the requested move.

Because the trial court must reexamine three of the six statutory factors, and the sixth factor, the best interests of the child, is basically a summary of the preceding factors, see Mize, 621 So.2d at 420, the trial court must reconsider all six statutory factors to decide this relocation issue. Accordingly, we reverse the trial court’s order denying relocation and remand for further proceedings consistent with this opinion. The trial court may consider additional evidence as to the parties’ current situation, and its ruling must demonstrate that it applied the proper standards in determining the petition to relocate. See Wilson, 827 So.2d at 403.

Reversed and remanded.

STRINGER and CANADY, JJ., Concur.

      . We note that at the time the trial court entered its order, it did not have the benefit of our opinion in Wilson.


text:
    Todd GROOMS and Tradewind Designs, Inc., Petitioners, v. DISTINCTIVE CABINET DESIGNS, INC., Respondent.
    No. 2D02-4536.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.

      Douglas L. Wilson of The Wilson Law Firm, Naples, for Petitioners.
    J. Michael Coleman and Damian C. Taylor of Conroy, Coleman & Hazzard, P.A., Naples, for Respondent.
   ALTENBERND, Chief Judge.

Todd Grooms and his company, Trade-wind Designs, Inc., petition for a common law writ of certiorari. They seek to quash an order of the circuit court denying their motion for protective order and compelling them to produce certain proprietary information from their business to a competitor, Distinctive Cabinet Designs, Inc. This discovery order departs from the essential requirements of law by requiring Mr. Grooms and Tradewind Designs to disclose confidential commercial information that is not reasonably necessary to further Distinctive Cabinet Designs’ claims in this lawsuit at this time. Because the order causes a material injury to the petitioners throughout the remainder of the proceedings that cannot be remedied upon appeal of a final order, we grant the petition.

Todd Grooms was employed by Distinctive Cabinet Designs from January 1995 to May 2001. During the last year of his employment, a dispute arose between Mr. Grooms and Distinctive Cabinet Designs regarding Mr. Grooms’ commissions. According to Mr. Grooms’ complaint, although he had an employment contract with Distinctive Cabinet Designs, the parties mutually agreed to terminate the employment agreement. It is undisputed that neither that agreement nor any other contract between the parties prohibited Mr. Grooms from competing with Distinctive Cabinet Designs once he left its employ. In May 2001, Mr. Grooms left Distinctive Cabinet Designs and started his own business, Tradewind Designs.

Mr. Grooms brought suit against Distinctive Cabinet Designs on October 19, 2001, seeking to recover alleged unpaid commissions. Distinctive Cabinet Designs filed a counterclaim, alleging that Mr. Grooms had violated a common law duty of loyalty by convincing customers to do business with him in his new business while he was still employed by Distinctive Cabinet Designs, and that Mr. Grooms had committed tortious interference with Distinctive Cabinet Designs’ business relationships by soliciting customers of Distinctive Cabinet Designs after he left that employment. Distinctive Cabinet Designs filed a third-party complaint against Mr. Grooms’ new company, Tradewind Designs, to impose a constructive trust on the proceeds of any transactions resulting from Mr. Grooms’ alleged tortious interference.

On November 16, 2001, Distinctive Cabinet Designs propounded a request for document production. It requested documents from September 1, 2000, to November 16, 2001, including (1) all bids prepared by Tradewind Designs for the design or installation of cabinets; (2) any contracts between Tradewind Designs or Mr. Grooms and any third parties regarding the design or installation of cabinets; and (3) all job logs, diaries, or calendars maintained by Mr. Grooms.

Mr. Grooms and Tradewind Designs first objected to these requests on grounds that they “invaded privacy” by seeking information regarding finances and business practices not relevant to any valid claim asserted in the lawsuit. Mr. Grooms and Tradewind Designs then filed a motion for protective order. The motion specifically argued that these particular requests would require Mr. Grooms to divulge highly sensitive and important details of his business dealings with all of his customers, not just those with whom he had dealings before he left Distinctive Cabinet Designs’ employment. Mr. Grooms asserted that this information would reveal how he has positioned himself competitively by exposing all of the financial arrangements he has made with customers. Mr. Grooms and Tradewind Designs further contended that, in the absence of a noncompetition agreement, they had an absolute right to deal with customers of Distinctive Cabinet Designs so long as they did not engage in wrongful conduct such as procuring a breach of a contract between Distinctive Cabinet Designs and an existing customer.

At a hearing on this matter, Mr. Grooms and Tradewind Designs conceded that the production of all documents relating to events before the date Mr. Grooms terminated his employment with Distinctive Cabinet Designs was appropriate. Mr. Grooms and Tradewind Designs also agreed to give Distinctive Cabinet Designs their full customer list, specifying every current and former customer and the date on which Mr. Grooms or Tradewind Designs first communicated with each customer. However, Mr. Grooms and Trade-wind Designs sought a bifurcation of the remaining requests. They argued that the court should require Distinctive Cabinet Designs to show some connection between a particular customer and the allegations made by Distinctive Cabinet Designs in its complaint before compelling Mr. Grooms or Tradewind Designs to disclose all of the business records regarding that client.

The circuit court denied the motion for protective order. The circuit court accepted that Mr. Grooms and Tradewind Designs’ contracts, bids, job logs, diaries, and calendars were confidential commercial information that could merit a protective order. However, the circuit court concluded that the discovery was relevant and reasonably necessary to pursue the claims made in the lawsuit. The circuit court qualified its order by imposing confidentiality requirements that the documents could not be disclosed to third parties and should be used solely for the purposes of litigation.

Certiorari review is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings and effectively leaving no adequate remedy on appeal. Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So.2d 445, 448 (Fla. 2d DCA 2002). Orders improperly requiring the disclosure of trade secrets or other proprietary information often create irreparable harm and are thus appropriate for certiorari review. Id.

Generally, a party may obtain discovery of any matter relevant to the subject matter of the pending action and reasonably calculated to lead to the discovery of admissible evidence, so long as that matter is not subject to a specified privilege. Fla. R. Civ. P. 1.280(b)(1). However, a party from whom discovery is sought may seek a protective order to prevent or limit certain discovery to protect from “annoyance, embarrassment, oppression or undue burden or expense.” Fla. R. Civ. P. 1.280(c). Such a protective order may require “that a trade secret or other confidential research, development or commercial information not be disclosed or be disclosed only in a designated way.” Fla. R. Civ. P. 1.280(c)(7).

In this case, Distinctive Cabinet Designs has not disputed that Mr. Grooms and Tradewind Designs’ contracts, bids, job logs, diaries, and calendars are confidential commercial information. Thus, Mr. Grooms and Tradewind Designs should not be compelled to disclose more than is reasonably necessary for Distinctive Cabinet Designs to investigate and pursue its claims, and any disclosure should be carefully regulated to ensure no improper use of the information. See Inrecon v. Vill. Homes at Country Walk, 644 So.2d 103, 105 (Fla. 3d DCA 1994) (holding burden is on party seeking discovery of confidential commercial information to establish information is sufficiently relevant and necessary to case to outweigh harm disclosure would cause to opposing party).

Mr. Grooms and Tradewind Designs have agreed to provide a full list of their customers from both before and after Mr. Grooms left his employment with Distinctive Cabinet Designs. Under these circumstances, it is not reasonably necessary for Distinctive Cabinet Designs to also have all of the contracts, bids, and other commercial documents related to those customers absent some indication that the particular contact had some connection to Distinctive Cabinet Designs and therefore that the documents are relevant to the breach of loyalty or tortious interference claim. See Inrecon, 644 So.2d at 105 (noting that rule allowing party to request production is not designed to afford litigant avenue to pry into adversary’s business or to go on fishing expedition to uncover business methods, confidential relations, or other facts pertaining to business); Goodyear Tire & Rubber Co. v. Cooey, 359 So.2d 1200 (Fla. 1st DCA 1978) (reversing order permitting discovery of confidential commercial information that was overly broad and lacking in sufficient specificity, conditions, and safeguards); cf. Fortune Pers. Agency of Ft. Lauderdale, Inc. v. Sun Tech Inc. of S. Fla., 423 So.2d 545, 546 n. 6 (Fla. 4th DCA 1982) (stating, in context of trade secrets, that court must weigh importance of protecting claimant’s secret against interest in facilitating trial and promoting just end to litigation, considering other available protections and necessity of disclosure).

Requiring the disclosure of such information is particularly troublesome in this case because Mr. Grooms has no contractual duty to avoid competition with Distinctive Cabinet Designs. See East v. Aqua Gaming, Inc., 805 So.2d 932, 935 (Fla. 2d DCA 2001) (recognizing former employee’s right to compete with former employer in absence of noncompete agreement); Thomas v. Alloy Fasteners, Inc., 664 So.2d 59, 60 (Fla. 5th DCA 1995) (same). Mr. Grooms therefore has a compelling interest in protecting his confidential commercial information produced while he was engaged in legitimate competition with his former employer. In contrast, Distinctive Cabinet Designs’ interest in disclosure is limited to those documents related to specific clients of Distinctive Cabinet Designs whom Mr. Grooms may have solicited during his employment or whom Mr. Grooms may have convinced to breach contractual relationships with Distinctive Cabinet Designs.

Compelling Mr. Grooms to disclose all of his proprietary information regarding every current and former customer to a direct competitor without first requiring Distinctive Cabinet Designs to establish a connection between a particular client and the issues raised in this litigation departs from the essential requirements of law and could irreparably damage Mr. Grooms’ business without legitimately addressing the issues within this litigation. We therefore grant the petition for writ of certiora-ri and quash the order denying Mr. Grooms and Tradewind Designs’ motion for protective order.

Petition for writ of certiorari granted.

FULMER and COVINGTON, JJ„ Concur.

      . See, e.g., Ins. Field Servs., Inc. v. White & White Inspection & Audit Serv., Inc., 384 So.2d 303, 307-08 (Fla. 5th DCA 1980) (noting there is normally nothing improper with employee terminating employment and proceeding to compete with former employer, but recognizing common law duty not to engage in disloyal acts during ongoing employment in anticipation of future competition).


author: NORTHCUTT, Judge.

text:
    Duane SAUSVILLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-688.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.
   NORTHCUTT, Judge.

Duane Sausville challenges the denial of his petition for writ of habeas corpus. We reverse and remand.

Sausville was sentenced in Pinellas County to two concurrent life sentences. He filed a petition for writ of habeas corpus in Pasco County, where he is housed. The circuit court treated Sausville’s petition as a motion for postconviction relief attacking his sentence. As such, however, the motion should have been filed in Pinel-las County; the Pasco County circuit court did not have the authority to address Saus-ville’s motion as an attack on his sentence. Therefore, we reverse and direct the circuit court on remand either to dismiss Sausville’s motion as attacking a conviction in a county other than the one in which he was convicted, or to transfer it to Pinellas County.

Reversed and remanded.

STRINGER and CANADY, JJ., concur.


text:
    Joseph R. KOLBE, Appellant, v. DEPARTMENT OF INSURANCE, Appellee.
    No. 2D02-4498.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.
    Justin E. LaVan of Mararca & Landry, P.C., Des Moines, IA, and Todd A. Strother of Bradshaw, Fowler, Proctor, & Fair-grave, P.C., Des Moines, IA, for Appellant.
    Richard J. Santurri, Tallahassee, for Ap-pellee.
   NORTHCUTT, Judge.

We affirm the final order of the Department of Insurance denying Joseph R. Kol-be’s application for licensure as a general lines agent. We remand for correction of a scrivener’s error in the administrative law judge’s recommended order. The order states that Kolbe admitted in his application for a license that he “misrepresented” a clause in a policy. The record demonstrates that he admitted “misinterpreting” a clause. We direct that the recommended order be corrected.

STRINGER and KELLY, JJ., concur.


author: DAVIS, Judge.

text:
    Lawrence LOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3151.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.
    James Marion Moorman, Public Defender, Bartow, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Lawrence Logan challenges five concurrent life sentences he received upon resen-tencing. We affirm.

In 1984, following a jury trial, Logan was convicted of five counts of robbery with a firearm. Pursuant to the guidelines enacted by the Florida Supreme Court in 1983, the trial court sentenced Logan to five concurrent life sentences as departure sentences.

In 1999, Logan moved to correct the illegal sentences, alleging that the guidelines did not apply to crimes committed prior to July 1, 1984. See Smith v. State, 537 So.2d 982 (Fla.1989) (holding the guidelines unconstitutional for offenses committed before July 1, 1984). Since Logan committed the offenses on March 17, 1984, the State conceded error. At resen-tencing in May 2001, Logan asserted his right, pursuant to Smith, to be sentenced under the guidelines. In so doing, Logan erroneously concluded that he was entitled to be sentenced under the guidelines applicable as of the date of his original sentencing. Under those guidelines, the trial court was required to file appropriate written reasons for departure sentences. At resentencing, the trial court again sentenced Logan to five concurrent life sentences but did not file the required reasons. Logan now argues that the trial court’s failure rendered the sentences illegal.

A defendant who elects to be sentenced under the guidelines, elects to be sentenced under the guidelines in effect at the time of the election. Smith, 537 So.2d at 987. Because Logan made his election in 2001, he elected to be sentenced pursuant to the Criminal Punishment Code. See Quevado v. State, 838 So.2d 1253, 1254 (Fla. 2d DCA 2003) (holding that defendant sentenced in 1999 had right to choose “either a nonguidelines sentence or one under the 1998 Criminal Punishment Code”).

Pursuant to the Criminal Punishment Code, the five concurrent life sentences received here by Logan were not departure sentences. Accordingly, the trial court was not required to file written departure reasons. See § 812.13(2)(a), Fla. Stat. (2001). Therefore, we affirm Logan’s sentences.

Affirmed.

WHATLEY and CASANUEVA, JJ., concur.


author: PER CURIAM.

text:
    Douglas A. DeSHONE, Appellant, v. Sylvia M. DeSHONE, Appellee.
    No. 1D02-5265.
    District Court of Appeal of Florida, First District.
    June 2, 2003.
    Alexa Alvarez of Alvarez & Page, Fer-nandina Beach; J. Garfield Hurt, Jacksonville, for Appellant.
    Mark H. Mahon, Jacksonville, for Appel-lee.
   PER CURIAM.

Upon consideration of the appellee’s “Response to Appellant’s Response to Order to Show Cause,” which the Court treats as a motion to dismiss, the Court has determined that the motion for rehearing below was not authorized. See Wagner v. Bieley, Wagner & Assocs., Inc., 263 So.2d 1 (Fla.1972). Consequently, the motion did not delay rendition of the order on appeal and the notice of appeal was not timely filed. Accordingly, the appellee’s motion to dismiss is hereby granted and the appeal is dismissed as untimely.

DISMISSED.

ERVIN, KAHN and HAWKES, JJ., concur.

      . The Court directed the appellant to show cause why the motion should not be granted and the appeal dismissed for lack of jurisdiction. However, the appellant has failed to respond.


text:
    Nimali SONDEL, Appellant, v. Florida UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D02-0257.
    District Court of Appeal of Florida, First District.
    June 2, 2003.
    Nimali Sondel, pro se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Nimali Sondel, the appellant, seeks reversal of an order of the Unemployment Appeals Commission which sustained the decision of the appeals referee and thus affirmed the denial of unemployment compensation benefits. Appellant has failed to include a transcript of the hearing before the appeals referee and therefore is unable to show that the findings of the referee are not supported by competent and substantial evidence. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980). Also, appellant has not identified a misapplication of law. Accordingly, the order under review is AFFIRMED.

AFFIRMED.

VAN NORTWICK, LEWIS AND HAWKES, JJ., concur.


text:
    KSL FAIRWAYS GROUP, L.P., Appellant, v. Timothy L. CAHILL, Appellee.
    No. 1D03-1371.
    District Court of Appeal of Florida, First District.
    June 2, 2003.
    David S. Shankman, Tampa, for Appellant.
    John Barrett, Pensacola, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of April 23, 2003, the Court has determined that the order on appeal is not final. Accordingly, the appeal is dismissed for lack of jurisdiction.

BARFIELD, WOLF and DAVIS, JJ., concur.


author: KELLY, Judge.

text:
    Carlos M. GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-3230.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Carlos Garcia appeals from the order denying his motion to withdraw his guilty plea. He argues that the trial court erred in denying the motion without his presence at an evidentiary hearing and by failing to appoint a conflict-free attorney to represent him during the hearing on his motion. We agree and reverse.

Garcia wrote a letter to the trial court asking to withdraw his plea, alleging that his trial counsel misled him into entering his guilty plea. Garcia was represented by counsel at the time he wrote the letter. The trial court treated the letter as a motion to withdraw a plea and questioned Garcia’s trial counsel as to the circumstances of the plea. Garcia was not present at this informal hearing, nor was he represented by independent counsel. After trial counsel explained that he could not conceive of how he could have misled Garcia, the trial court summarily denied the motion.

Florida Rule of Criminal Procedure 3.170(2) allows a defendant to challenge the entry of his plea within thirty days after sentencing on the grounds stated in Florida Rule of Appellate Procedure 9.140(b)(2)(A). One of the permissible grounds is that the plea was involuntary. Fla. R.App. P. 9.140(b)(2)(A)(ii)(c); Brown v. State, 835 So.2d 402 (Fla. 2d DCA 2003). Garcia’s allegation that he was misled by his court-appointed attorney into entering the plea can be construed as a challenge to the voluntariness of the plea. See Ricardo v. State, 647 So.2d 287 (Fla. 2d DCA 1994) (holding that a defendant may withdraw his plea if he was misled and induced to plead by his counsel’s mistaken advice). Thus, Garcia’s motion was facially sufficient to warrant a hearing. Because a motion pursuant to rule 3.170 has been treated as a critical stage of proceedings in the trial court, Garcia was entitled to be present at the hearing and to have counsel represent him. See Miller v. State, 838 So.2d 1213 (Fla. 2d DCA 2003) (holding that a defendant is entitled to conflict-free counsel to advise and assist with motions filed under rule 3.170(2)); Sanders v. State, 787 So.2d 264 (Fla. 2d DCA 2001) (stating that a defendant is entitled to be present at every critical stage of the proceedings).

The State argues that the holding in Harris v. State, 818 So.2d 567 (Fla. 2d DCA), review denied, 835 So.2d 266 (Fla.2002), requires affirmance in this case. In Harris, this court held that Harris’s allegation that he “did not fully understand the sentence” was insufficient to sustain a motion under rule 3.170(2); therefore, the trial court was not required to conduct an evidentiary hearing on the motion with Harris present and represented by conflict-free counsel. However, Harris is distinguishable. Harris’s minimal allegation was not a valid ground under rule 3.170(2). Further, at the hearing on the motion, Harris’s counsel continued to represent Harris in the matter and never took a position adverse to Harris’s interest. In addition, the court in Harris never conducted an evidentiary hearing on the motion.

In this case, the trial court took testimony from Garcia’s trial counsel (although it was unsworn), and counsel’s position was adverse to Garcia’s. Once it became clear that Garcia and his counsel had adversarial positions concerning what actually happened while counsel was advising Garcia concerning the plea, Garcia was entitled to conflict-free counsel. See Gunn v. State, 841 So.2d 629 (Fla. 2d DCA 2003); Jones v. State, 827 So.2d 1086 (Fla. 1st DCA 2002); Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999). The denial of the constitutional right to assistance of counsel can never be treated as harmless error. Jones, 827 So.2d at 1087.

Accordingly, we reverse and remand for a new hearing on the motion to withdraw plea at which Garcia is to be present, unless he waives his presence, and he must be represented by conflict-free counsel.

Reversed.

SALCINES and CANADY, JJ, Concur.


text:
    Brian Joseph JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-174.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Brian Joseph Jones challenges the sentence imposed after he pleaded guilty to driving with a revoked license (habitual offender) and resisting law enforcement officers without violence. Jones argues that condition (8) of the written order of probation erroneously provides that he submit to random drug testing at his own expense. Although submission to drug and alcohol testing is a general condition of probation which need not be orally pronounced at sentencing, the State concedes that the trial court’s failure to orally pronounce the requirement that Jones bear the cost of such testing was error. See § 948.03(l)(k)(l), Fla. Stat. (2000); Diaz v. State, 691 So.2d 589 (Fla. 2d DCA 1997). We agree and strike that portion of condition (8) requiring Jones to pay for random testing.

Jones also argues that condition (41), requiring payment of $50 in restitution to the Polk County Sheriffs Office, was error. Because the sheriffs office does not qualify as a victim for payment of restitution pursuant to section 775.089(l)(c), Florida Statutes (2000), we strike condition (41). However, because Jones agreed to pay $50 in investigative costs to the sheriffs office as part of his written plea agreement, on remand the trial court may include this assessment as an individual condition of Jones’ probation. See Sims v. State, 746 So.2d 546 (Fla. 2d DCA 1999); Stone v. State, 642 So.2d 34 (Fla. 5th DCA 1994). Reversed and remanded with directions.

SALCINES and SILBERMAN, JJ., Concur.

      . Jones preserved this issue for review by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).


text:
    Kenneth C. ELROD, Appellant, v. DEPARTMENT OF REVENUE o/b/o Charlene GEHRLEIN, Appellee.
    No. 2D02-2214.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.
    Kenneth Elrod, pro se.
    Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   SALCINES, Judge.

Kenneth C. Elrod appeals from the order of the circuit court adopting the hearing officer’s recommendation to grant the Department of Revenue’s motion to dismiss Mr. Elrod’s supplemental petition for modification/abatement of his child support obligation. We affirm without prejudice for Mr. Elrod to refile his supplemental petition for reconsideration under the newly established procedure set forth in Department of Revenue v. Jackson, 846 So.2d 486, 2003 WL 1922661 (Fla. Apr. 24, 2003).

Affirmed.

ALTENBERND, C.J., and VILLANTI, J., concur.


author: VILLANTI, Judge.

text:
    Peter G. STACK, Appellant, v. HOMESIDE LENDING, INC., Appellee.
    No. 2D02-2416.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.
    Peter G. Stack, pro se.
    Anne S. Mason of Mason & Associates, a Professional Association, Clearwater, for Appellee.
   VILLANTI, Judge.

Peter Stack challenges the entry of the second amended final judgment in this mortgage foreclosure action. We affirm.

We agree that paragraph ten of the amended final judgment is not enforceable because it purports to require Stack to pay an amount greater than the amount of the judgment in order to redeem his property. See Blue Heron Land Co. v. Brown, 98 Fla. 1238, 125 So. 369, 370 (1930); Cooper Smith Props., Ltd. v. Flower’s Baking Co. of Fla., Inc., 432 So.2d 683, 683 (Fla. 5th DCA 1983) (“A mortgagor attempting to redeem should not be required to pay any amount in excess of what the final judgment of foreclosure determines to be due.”). However, under the unique circumstances of this case, we find that entry of the second amended final judgment constitutes harmless error. § 59.041, Fla. Stat. (2000). See Parsons v. Whitaker Plumbing of Boca Raton, Inc., 751 So.2d 655, 656 (Fla. 4th DCA 1999) (holding that the trial court may enter an amended final judgment for additional attorney’s fees even after the mortgagor has validly redeemed the property if jurisdiction to do so has been reserved).

Affirmed.

ALTENBERND, C.J., and SALCINES, J., concur.


author: STRINGER, Judge.

text:
    Richard W. JENNEY, Petitioner, v. AIRDATA WIMAN, INC., Respondent.
    No. 2D02-3734.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.

      Jon D. Parrish of Parrish, White, La-whon & Adler, P.A., Naples, for Petitioner.
    John D. Kehoe and Louis D. D’Agostino of Cheffy Passidomo Wilson & Johnson, LLP, Naples, for Respondent.
   STRINGER, Judge.

Richard Jenney seeks certiorari review of the trial court’s order compelling disclosure of certain communications that Jen-ney claims are protected by the attorney-client privilege. We grant the petition in part and deny it in part.

Jenney sued Airdata Wiman, Inc. (Air-data), his former employer, seeking to obtain certain benefits allegedly due him under an employment agreement between the parties. As one of its affirmative defenses, Airdata contended that a provision in a subsequent retirement agreement between the parties rescinded and superseded the terms of the employment agreement. In reply, Jenney contended that the rescission provision of the retirement agreement was never intended to affect benefits he had already earned under the employment agreement.

During discovery, Airdata questioned Jenney about what he intended by the rescission provision of the retirement agreement. After Jenney testified that he had discussed his intent on this issue with the attorney who represented him during the negotiation of the retirement agreement, Airdata sought to depose that attorney. Airdata specifically sought to question Jenney’s former attorney about whether he and Jenney discussed the vested benefits under the employment agreement during the negotiation of the retirement agreement and, if so, what the content of those discussions was. In addition, Airdata sought certain documents from Jenney’s former attorney pertaining to the negotiation of the retirement agreement.

Jenney objected to these questions and discovery requests on the grounds of attorney-client privilege. Airdata then filed a motion to compel, arguing that some of the requested communications were not protected by the attorney-client privilege and that Jenney had waived his right to assert the attorney-client privilege as to other communications. After a hearing on the matter, the trial court granted Airdata’s motion to compel and ordered Jenney’s former attorney to do the following:

(1)answer at the continuation of his deposition questions 1 through 12 that appear in paragraph 17 of the defendant’s motion to compel;
(2) produce to defendant at the continuation of his deposition any copies of the Employment Agreement given by RICHARD JENNEY to Robert C. Zun-del, Jr., or others at Bond, Schoeneck & King, P.A.;
(3) produce to defendant at the continuation of his deposition all drafts of the Jenney Retirement Agreement that were received by Bond, Schoeneck & King, P.A. from third parties or which were shown by Bond, Schoeneck & King, P.A. to third parties or which were delivered to Bond, Schoeneck & King, P.A. by RICHARD JENNEY after being received by him from third parties;
(4) produce to defendant at the continuation of his deposition all correspondence between Robert C. Zundel, Jr., or any other attorneys at his firm and Mark Greenwood or any other representatives or attorneys of AIRDATA WI-MAN, INC.; and
(5) have his law firm’s file concerning his law firm’s representation of RICHARD JENNEY present with him when his deposition is continued so it is available for his review in responding to questions.

Jenney asserts that all of these communications are protected by the attorney-client privilege. Airdata asserts that the communications are either not protected by the attorney-client privilege or that Jenney has waived the privilege as to these matters. Neither party is entirely correct.

As an initial matter, a petition for certiorari is the proper vehicle by which to review this type of discovery order. See Robichaud v. Kennedy, 711 So.2d 186, 187 (Fla. 2d DCA 1998) (“Certiorari is the appropriate avenue to challenge a trial court order directing the disclosure of communications presumptively covered by the attorney client privilege.”). The standard of review is whether the trial court departed from the essential requirements of the law in ordering disclosure, thereby causing irreparable harm to the petitioner. Nat’l Union Fire Ins. Co. v. Fla. Constr., Commerce & Indus. Self Insurers Fund, 720 So.2d 535, 535-36 (Fla. 2d DCA 1998).

Turning to the substance of the petition, the trial court did not depart from the essential requirements of the law in requiring production of the document covered by item (2) because the document is not privileged. The only document covered by item (2) is the employment agreement between Jenney and Airdata. Jenney cannot seriously contend that the employment agreement is protected by the attorney-client privilege be- ■ cause both he and Airdata had copies of the agreement before Jenney retained his former attorney to negotiate the retirement agreement. The fact that Jenney may have given a copy of the employment agreement to the attorney negotiating the retirement agreement does not convert the nonprivileged employment agreement into a privileged document. See Tober v. Sanchez, 417 So.2d 1053, 1055 (Fla. 3d DCA 1982) (holding that a document which is given to an attorney in the course of seeking legal advice is privileged in the hands of the attorney only if it was privileged in the hands of the client); cf. Briggs v. Salcines, 392 So.2d 263, 266 (Fla. 2d DCA 1980) (holding that if documents are privileged in the hands of the client, they retain that privilege when given to an attorney for the purpose of seeking legal advice). Here, the employment agreement was not privileged in Jenney’s hands. Therefore, it is not privileged in his former attorney’s hands. Jenney does not contend that there are notes or other writings that would be covered by attorney-client privilege or work product privilege on any copy of the employment agreement held by his former attorney. Therefore, the trial court did not depart from the essential requirements of the law in -requiring production of this document.

Similarly, the documents covered by items (3) and (4) of the trial court’s order are, by definition, not protected by the attorney-client privilege. The attorney-client privilege protects only confidential communications between a lawyer and chent. § 90.502(2), Fla. Stat. (2000). A communication is “confidential” if it is not intended to be disclosed to third persons. § 90.502(l)(c), Fla. Stat. (2000). By the clear terms of the trial court’s order, the only documents that must be produced in response to items (3) and (4) are those that have already been disclosed to third parties. Therefore, the documents do not meet the definition of “confidential” communications and are not subject to the attorney-client privilege. Accordingly, the trial court did not depart from the essential requirements of the law in ordering their production.

As to the item covered by item (5) of the trial court’s order, there is no violation of the attorney-client privilege because no production is required. The order does not require the disclosure of privileged communications. Rather, the order requires only that the law firm’s file be available to Jenney’s former attorney at the continuation of his deposition. Because the order does not require disclosure of privileged communications, the trial court did not depart from the essential requirements of the law in requiring the presence of the file at the deposition.

As to the communications covered by item (1), however, the trial court did depart from the essential requirements of the law in ordering disclosure. Under this item, the trial court allowed Airdata to question Jenney’s former attorney about his communications with Jenney during the negotiation of the retirement agreement and specifically about Jenney’s intent in negotiating certain terms of that agreement, finding that Jenney had waived any attorney-client privilege as to these communications. We do not address whether the individual questions asked are covered by the attorney-client privilege because Airdata did not raise that issue in the trial court. See Dober v. Worrell, 401 So.2d 1322, 1323 (Fla.1981) (holding that a party may not raise an issue for the first time on appeal); Mendelson v. Great Western Bank, F.S.B., 712 So.2d 1194, 1197 (Fla. 2d DCA 1998) (holding that an appellate court cannot address on appeal an issue never ruled upon by the trial court). Rather, we address only the issue of whether Jenney waived any attorney-client privilege he might have had as to these questions as that was the only issue decided by the trial court.

Airdata contends that Jenney waived the privilege as to these communications under the “sword and shield doctrine” because Jenney injected the issue of the parties’ intent into the litigation. Air-data is correct that Jenney raised the issue of intent. However, the simple fact that Jenney raised the issue is not sufficient to waive his attorney-client privilege. Under the sword and shield doctrine, a party who raises a claim that will necessarily require proof by way of a privileged communication cannot insist that the communication is privileged. Savino v. Luciano, 92 So.2d 817, 819 (Fla.1957). However, nothing about Jenney’s claim or defense requires him to resort to proof by way of a privileged communication. Resolution of the dispute in this case depends, in part, on Jenney’s intent and Airdata’s intent in negotiating the retirement agreement. However, what Jenney told his attorney about his intent is not necessary to prove Jen-ney’s case. Jenney may testify to his intent himself. Therefore, because Jenney’s claim does not necessarily require proof through his conversations with his attorney, the sword and shield doctrine does not apply to waive his attorney-client privilege. Cf. Long v. Murphy, 663 So.2d 1370 (Fla. 5th DCA 1995) (rejecting application of the sword and shield doctrine to waive attorney-client privilege because the plaintiff could rely on his own testimony and cross-examination of the defendants to prove his case and thus had no need to use privileged communications with his attorneys to establish his claims).

Moreover, attorney-client privilege is not waived simply because the credibility of Jenney’s statements concerning his intent could possibly be impeached by his communications with his former attorney. See Cuillo v. Cuillo, 621 So.2d 460 (Fla. 4th DCA 1993) (holding that the former wife did not waive her attorney-client privilege simply because the credibility of her claim that she relied on her husband’s representations could be impeached by deposing her former attorney). Were this court to hold otherwise, it would essentially create a “credibility exception” to the attorney-client privilege that would swallow the entire rule. We decline to create such an exception.

Airdata also contends that Jenney waived his attorney-client privilege when his attorney failed to make timely objections to questions that it alleged sought privileged communications. This argument has no merit for two reasons. First, many of the questions Airdata asked did not seek confidential communications. Therefore, no objection was necessary to preserve the privilege. Second, Jenney’s current attorney did make timely objections to those questions actually seeking confidential communications. The fact that Jenney’s attorney had to interrupt him to make the objection is not sufficient to establish a waiver. Because the objections were made as soon as the confidential nature of the communication became apparent, Jenney did not waive the privilege. Cf. Gen. Motors Corp. v. McGee, 837 So.2d 1010 (Fla. 4th DCA 2002) (holding that the inadvertent disclosure of a privileged document does not waive the attorney-client privilege if attorney took all reasonable steps to avoid disclosure and asserted the privilege as soon as the disclosure became known); Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Decor, Inc., 698 So.2d 276 (Fla. 3d DCA 1997) (same).

Because Jenney did not waive the privilege as to his communications with his former attorney, the trial court departed from the essential requirements of the law in ordering disclosure of the communications sought in item (1) of the trial court’s order. Therefore, we grant Jenney’s petition as to those communications. We deny the petition as to the remainder of the documents covered by the order.

Petition granted in part and denied in part.

DAVIS and CANADY, JJ., Concur.

      . The attorney representing Jenney in this appeal did not represent him during negotiation of the retirement agreement.


author: FULMER, Judge.

text:
    SOUTHWALL TECHNOLOGIES, INC., a California corporation, and V-Kool, Inc., a Texas corporation, Appellants, v. HURRICANE GLASS SHIELD, Appellee.
    Nos. 2D02-5487, 2D02-5512.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.

      Michael C. Clarke of Reynolds & Sto-well, P.A., St. Petersburg, for Appellant Southwall Technologies, Inc.
    John H. Rains, III, of John H. Rains, III, P.A., Tampa, for Appellant V-Kool, Inc.
    Amy L. Sergent of Lancaster & Eure, P.A., Sarasota, for Appellee.
   FULMER, Judge.

In these consolidated, interlocutory appeals, Southwall Technologies, Inc., and V-Kool, Inc., challenge the trial court’s denial of their motions to dismiss a breach of contract suit filed against them by Hurricane Glass Shield. We reverse.

Hurricane signed a contract with South-wall containing a mandatory forum selection clause that set venue for disputes in California. Hurricane signed a contract with V-Kool containing a mandatory forum selection clause that set venue for disputes in Texas. Notwithstanding these contractual provisions, Hurricane filed suit in Florida against Southwall and V-Kool, who then moved to dismiss for improper venue. At the hearing on the motion to dismiss, Hurricane argued that it would be unreasonable to force it to conduct separate trials in California and Texas. The trial court accepted this argument and denied the motions to dismiss.

In Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986), the supreme court held that forum selection clauses should be enforced unless it would be unreasonable or unjust to do so. The supreme court further stated that the test of unreasonableness is not mere inconvenience or additional expense. Forum selection clauses in contracts should be enforced unless “trial in the contractual forum will be so gravely difficult and inconvenient that [the party seeking to avoid the forum selection clause] will for all practical purposes be deprived of his day in court.” 493 So.2d at 440 n. 4. Hurricane’s reasons for filing suit in Florida related solely to convenience and expense. Nothing was argued that rose to the level of unreasonableness described by the supreme court in Manrique. See also Straight, Inc. v. Yorba Linda Commercenter Assocs., 594 So.2d 849 (Fla. 2d DCA 1992) (holding that trial court abused its discretion in refusing to enforce forum selection clause). Therefore, we reverse and remand for the trial court to dismiss the case based on improper venue.

Reversed and remanded with directions.

DAVIS and KELLY, JJ„ concur.


author: POLEN, C.J.

text:
    Alfonso YOUMANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3814.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.

      Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, C.J.

Alfonso Youmans was charged with first degree murder and aggravated child abuse in connection with the death of his live-in girlfriend’s twenty (20) month old son. Youmans was convicted of the lesser included offense of aggravated manslaughter on the murder count; the trial court refused to instruct the jury on lesser included offense on the aggravated child abuse count, and Youmans was convicted as charged. While we affirm the aggravated manslaughter conviction, we reverse the aggravated child abuse conviction where the trial court failed to instruct the jury on simple child abuse, as requested, discussed, infra.

Youmans first contends he was improperly tried before a retired senior judge from another circuit who lacked authority to try this case in the 17th circuit, specifically in violation of Article V, §§ 8,10 of the Florida Constitution. First, this court lacks jurisdiction to address this claim, since the Florida Supreme Court has exclusive jurisdiction to review judicial assignments, derived from Article V, § 2(a) and (b). See Physicians Healthcare Plans, Inc. v. Pfeifler, 2003 WL 1987974, 846 So.2d 1129 (Fla. May 1, 2008). Moreover, in Pfeifler, the Court upheld the constitutionality of the 17th circuit’s usage of senior judges. Id.

Turning to the merits, we affirm the aggravated manslaughter conviction, finding all elements of this lesser offense were properly charged in the indictment. Furthermore, we find no abuse of discretion in the trial court’s refusal to instruct the jury on non-death lesser included offenses on the murder count where You-mans confessed to delivering the blows which ultimately resulted in the victim’s death. See Martin v. State, 342 So.2d 501 (as a general rule, where a homicide has taken place, the proper jury instructions are restricted to all degrees of murder, manslaughter, and justifiable and excusable homicide; since the death of the victim is not in issue, the factfinder’s duty is to ascertain whether the defendant caused the victim’s death, and, if so, whether the homicide was justifiable or unjustifiable); cf. Drotar v. State, 433 So.2d 1005 (Fla. 3d DCA 1983). We find no abuse of discretion in the trial court’s giving of both a principals instruction (as requested by the State) and an independent act instruction (as requested by Youmans) regarding the actions of Youmans and those of his girlfriend, the victim’s mother See Barfield v. State, 762 So.2d 564, 566-67 (Fla. 5th DCA 2000).

However, we hold the trial court committed reversible error in denying Youmans’s request for a jury instruction on the lesser included offense of simple child abuse on the aggravated child abuse count. As noted by our sister court in State v. McDonald, 785 So.2d 640, 645-46 (Fla. 2d DCA 2001), Florida’s child abuse statutes were extensively amended in 1996. See ch. 96-322, § 8, eff. Oct. 1, 1996. Unfortunately, the post-1996 statutory scheme is not reflected in the schedule of lesser included offenses in the most recent Standard Jury Instructions in Criminal Cases, and, accordingly, simple child abuse is not listed as a lesser included offense (category 1 or 2) of the crime of aggravated child abuse. Fla. Std. Jury Instructions (Crim.) Schedule of Lesser Included Offenses (2002)(citing aggravated child abuse as section 827.03(l)(a-d); 1996 amendments renumbering aggravated child abuse as section 827.03(2)(a-c)). It appears the trial judge looked at his copy of the Standard Jury Instructions, noted simple child abuse was not listed as a lesser included offense of aggravated child abuse, and denied the requested instruction. We hold this was error.

A crime is not a permissive lesser included offense unless the allegations contained in the count of the information charging the major crime also allege all of the elements necessary to prove the lesser included offense. When a defendant requests an instruction on a permissive lesser included offense, the trial court is required to grant the request only if: (a) the accusatory pleading specifically alleges all the statutory elements of the lesser offense; and (b) a finding of guilt on the offense would be supported by the evidence submitted at trial. See Wilson v. State, 749 So.2d 516, 518-19 (Fla. 5th DCA 1999). On these facts, we hold simple child abuse constitutes a permissive (category 2) lesser included offense of the charged crime of aggravated child abuse, and that the failure to give the requested instruction constitutes error. The indictment charged that Youmans did “knowingly or willfully abuse [the victim], a child under the age of eighteen years, by intentionally inflicting physical or mental injury or by doing an intentional act that could reasonably be expected to result in physical or mental injury to [the victim] and in so doing caused great bodily harm, permanent disability, or permanent disfigurement to [the victim] by causing him to suffer blunt force trauma.” We hold this charge of aggravated child abuse alleges all of the elements of simple child abuse pursuant to § 827.03(l)(a). Furthermore, proof of the charged crime would necessarily constitute proof of the lesser included offense, where the only distinction between the two crimes is the magnitude of the injury suffered by the victim. Where the requested lesser included instruction is only “one step” removed from the charged offense, as here, failure to give the requested instruction constitutes per se reversible error. See Henig v. State, 820 So.2d 1037, 1039 (Fla. 4th DCA 2002)(ap-pellate court is foreclosed from undertaking harmless error analysis). In reversing the instant aggravated child abuse conviction, we urge the Supreme Court to update the Standard Jury Instructions schedule of lesser included offenses to reflect the renumbering and amendment of the child abuse statutes, in order to prevent the reoccurrence of this error in the future.

We find Youmans’s additional challenges to evidentiary rulings of the trial court unpersuasive. Youmans’s conviction for aggravated manslaughter is affirmed, and his conviction for aggravated child abuse is reversed.

AFFIRMED in part; REVERSED in part.

GUNTHER and SHAHOOD, JJ., concur.

      . The victim’s mother was independently charged in connection with her child’s death.

      . Under the old statutory scheme, there was an issue as to whether simple child abuse could be a lesser-included offense of aggravated child abuse since a parent could be convicted of aggravated abuse, but was considered "privileged” against prosecution for simple abuse. See McDonald, 785 So.2d at 644.

      . Though not directly before this court, we note simple child abuse does not appear to be a necessary lesser included offense of aggravated child abuse, where at least one theory of simple child abuse does not seem to be "necessarily charged” within a charge of aggravated child abuse. Compare § 827.03(l)(a), Fla. Stat. (2002) with § 827.03(2)(a-c); see generally Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 596 (Fla. 1981).

      . We are mindful that it is highly improbable the jury would have convicted Youmans of (only) simple child abuse on count II, i.e., that the child did not suffer "great bodily harm,” especially where the jury found him guilty of aggravated manslaughter on count I. See McDonald, 785 So.2d at 646 (legislature intended simple child abuse to be applied in situations where a beating does not result in permanent injury, and aggravated child abuse to be applied in more egregious cases resulting in "great bodily harm or permanent disabilities or disfigurement"). However, we note in addition to direct liability, the jury was also instructed on principal liability on the manslaughter count, premised on the theory that Youmans shared liability for the mother's failure to provide adequate medical care, where Youmans concealed the true nature of the child’s injuries. Moreover, manslaughter requires a lesser degree of mens rea (negligence) as opposed to child abuse (an intentional act).


author: MAY, J.

text:
    Charles C. CHILLINGWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-439.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.
    John P. Page, Tampa, for appellant.
    Charles J. Crist, Jr. Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The extent to which a trial court may actively participate in obtaining information for sentencing is questioned in this appeal. We find error in the trial court’s denial of defendant’s motion for disqualification. We therefore reverse and remand the case.

On July 19, 2001, the defendant pled guilty to misappropriation of escrow funds over $100,000.00, a first degree felony. The judge accepted the plea and requested a pre-sentence investigation report. The State nolle prossed a grand theft and an organized scheme to defraud count.

On October 2, 2001, the court held an allocution hearing. The defendant called several witnesses on his behalf. The State cross-examined them, but did not call any witnesses. Time ran out before the defendant had concluded his presentation of evidence, including his own testimony. Near the end of the hearing, the court stated: “I advised both sides that they will have additional time, if that’s needed.”

On October 23, 2001, the trial court sent a series of letters to “several attorneys who participated in the litigation following the defalcation of October 3, 1997.” The court asked each one to “summarize his role and that of the defendant, and to report on the costs and fees incurred.” He then wrote: “As an instrument of the law, I have the responsibility to pronounce sentence. In evaluating that decision I need to assemble all the available information.” The court described his view of the assessment of loss. He then wrote:

More important perhaps, is discerning just how the defendant was able to prevent discovery of the deception for some ten months. Litigation to delay may be an acceptable strategy in some cases. Litigation to perpetuate the concealment of a theft and the enjoyment of its riches is another matter entirely.

The court ended the letter by indicating that his request was made to the recipients as officers of the court. Copies of the letters were sent to the State, defense counsel, the clerk, and a lawyer representing the victim insurer.

On December 20, 2001, the trial court issued an order scheduling the sentencing hearing for January 25, 2002. The next few days witnessed a flurry of defense motions. On January 11, 2002, the defense filed a motion to continue with the allocution proceeding. On January 14, 2002, the court wrote to the defense: “We received your motion this morning. Mr. Chillingworth will be sentenced by the court on Friday, January 25, 2002 as previously noticed. I will also set a supersede-as bond should your client desire to appeal.”

On January 22, 2002, the defense filed a motion to withdraw the guilty plea as well as a separate motion to disqualify the judge. The motion to disqualify the judge alleged that the defendant lost all hope for the judge’s impartiality when he read the judge’s January 14, 2002, letter on January 16, 2002. The motion further alleged that “there have been ... incidents which should have led a less trusting defendant to move to recuse the judge long ago.” The defense also filed a motion to exclude and strike a report from the state attorney and the letters solicited from the participating attorneys.

On January 23, 2002, the court advised the defense by phone that the motion for disqualification would be denied. The court entered a written order denying the motion for disqualification on January 24, 2002.

At the start of the sentencing hearing on January 25, 2002, defense counsel stated: “I would like to renew my objection to proceeding without completion of the [allo-cution] hearing that was recessed.” In response, the court began to read a large portion of the seventeen-page sentencing order and imposed an upward departure sentence of ten (10) years in prison followed by twenty (20) years of probation, including restitution. Defense counsel asked for permission to lodge an objection. The court responded: “You have objected, I believe, and that’s it.”

On January 31, 2002, the trial court denied the defendant’s motion to exclude and strike the state attorney’s report and the letters solicited from attorneys and the motion to withdraw the guilty plea. It is from these orders and the sentence that the defendant appeals.

MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990), sets forth the test to be employed in reviewing a motion for disqualification. In MacKenzie, the supreme court held that “the standard for determining whether a motion is legally sufficient is ‘whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.’ ” Id. at 1335 (quoting Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983)). Whether the motion is “legally sufficient” is a question of law. Id. Consequently, we review the trial court’s order de novo. Barnhill v. State, 834 So.2d 836 (Fla.2002); Armstrong v. Harris, 773 So.2d 7 (Fla.2000).

This court has previously held that the cumulative effect of events occurring within a short space of time “can cause a party to have a well-founded fear” that he will not receive fair and impartial handling of his case. Michaud-Berger v. Hurley, 607 So.2d 441, 446 (Fla. 4th DCA 1992). It is not an isolated incident that warranted disqualification in this case. Rather, it was a combination of two events that lead us to conclude that the trial court erred in denying the motion for disqualification.

The first event is the trial court’s independent marshaling of evidence and facts, which was accomplished by a letter writing campaign. In personally soliciting the information, the court departed from its neutral and impartial role. Surely, a court can request parties to present information it deems relevant to a sentencing and inform interested persons about an upcoming hearing. When, however, the court transforms itself into one of the litigants, it creates a well-founded fear that a party will not be dealt with in a fair and impartial manner. The court’s quest for information in this case crossed the fine of neutrality.

The second event is the trial court’s denial of the defendant’s request to speak to the court. This occurred when the court denied defense counsel’s request to continue the allocution hearing. The trial court denied this request even though it had previously told both parties that they would have additional time if they needed it.

Rule 3.720(b) of the Florida Rules of Criminal Procedure requires the trial court to “entertain submissions and evidence by the parties that are relevant to the sentence. Under the rule, the defendant was entitled to make a statement to the court,” Ventura v. State, 741 So.2d 1187, 1189 (Fla. 3d DCA 1999), as well as present matters in mitigation. Hargis v. State, 451 So.2d 551 (Fla. 5th DCA 1984). Here, the defendant had an opportunity to present witnesses in October, but the trial court refused to allow him to present additional evidence or make an oral statement even though it had assured both parties they would have additional time. By refusing the defendant’s request, the trial court did not respect “the right of the defendant to address the court [which] ‘maximiz[es] the perceived equity of the process.’” Ventura, 741 So.2d at 1188 (quoting American Bar Association Standards for Criminal Justice § 18-5.17 commentary at 208 (3d ed.1994)).

We view the trial court’s denial of defendant’s request to continue the allocution hearing in fight of the court’s marshaling of evidence and facts. Once the trial court left the sphere of impartiality by personally soliciting the information, his subsequent denial of the defendant’s request to continue the allocution hearing, after he promised additional time, would lead a reasonably prudent person to have a “well-founded fear” that he will not receive fair and impartial handling of his case. We hold that under this unique set of facts there is but one conclusion — disqualification.

“Florida Rule of Judicial Administration 2.160(h) provides that prior factual or legal rulings by the disqualified judge may be reconsidered, vacated or amended by a successor judge upon motion filed within 20 days of the order of disqualification.” Leslie v. Leslie, 840 So.2d 1097, 1098 (Fla. 4th DCA 2003). Thus, the successor judge may readdress the trial court’s rulings on the motion to withdraw plea and motion to strike upon proper motion. By saying that, we are neither suggesting any error in those rulings nor the propriety of those orders. We reverse and remand the case for a new sentencing hearing and possible reconsideration of other matters upon a properly filed motion.

TAYLOR and HAZOURI, JJ., concur.