text:
    RBC MINISTRIES, Appellant, v. Barbara TOMPKINS, as personal representative of the estate of Lewis A. Simoneau, Appellee.
    No. 2D07-256.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2008.

      John T. Mulhall III of Rutherford Mul-hall, P.A., Boca Raton, for Appellant.
    Diane E. McGill, Winter Haven, for Ap-pellee.
   CANADY, Judge.

RBC Ministries appeals a final summary judgment entered in favor of Barbara Tompkins, as personal representative of the estate of Lewis A. Simoneau, on RBC Ministries’ petition to revoke probate of will. We reverse the summary judgment as it relates to RBC Ministries’ claim that the will was obtained by undue influence, and we remand for further proceedings on that issue. We affirm without comment on the remaining issues raised by RBC Ministries.

I. Background

Tompkins obtained a trial court order admitting a will of the decedent, Lewis A. Simoneau, into probate and appointing her as the personal representative of the decedent’s estate. The will was executed in November 2004 and named Tompkins as a residual beneficiary. In June 2005, RBC Ministries filed its petition for revocation of probate of will on the grounds that the decedent did not have the testamentary capacity to execute the will and that the will was procured by undue influence. RBC Ministries alleged that it was the residual beneficiary under a will and trust executed by the decedent in September 1997.

Tompkins filed a motion for summary judgment on the basis that RBC Ministries could not prove the grounds for revocation. Concluding that “there is no material issue of fact showing that the Last Will and Testament was procured by undue influence,” the trial court granted Tompkins’ motion. RBC Ministries now appeals, claiming that the trial court erred in granting a motion for summary judgment when the undisputed facts established a presumption of undue influence by Tompkins over the decedent. RBC Ministries claims that when such a presumption arises, summary judgment should not be granted in favor of the party who has the burden of overcoming the presumption.

II. Analysis

A. The Summary Judgment Standard

An order granting summary judgment is reviewed de novo. Sherry v. Regency Ins. Co., 884 So.2d 175, 177 (Fla. 2d DCA 2004). “A summary judgment is properly entered when the record discloses (1) that no genuine issues of material fact remain, and (2) that the movant is entitled to judgment as a matter of law.” Id. (citing Holl v. Talcott, 191 So.2d 40, 48 (Fla.1966)); see also Fla. R. Civ. P. 1.510(c). “When reviewing a summary judgment, we must view the facts in the light most favorable to the nonmoving party.” Garden St. Iron & Metal, Inc. v. Tanner, 789 So.2d 1148, 1149 (Fla. 2d DCA 2001). Summary judgment is only appropriate if the moving party has met the burden of conclusively proving the nonexistence of “genuine triable issues.” Holl, 191 So.2d at 43.

Of particular relevance here is the rule that where there is evidence supporting the existence of a rebuttable presumption with respect to a material issue and the moving party bears the burden of disproving the presumed fact, the moving party is precluded from obtaining summary judgment. Determining whether such a presumption has been rebutted requires a “weighing [of] the available evidence against the presumption,” which cannot appropriately be undertaken in summary judgment proceedings. Heisig v. Heisig (In re Estate of Short), 620 So.2d 1106, 1106 (Fla. 4th DCA 1993).

B. Undue Influence

A will—or a portion thereof—procured by undue influence is void. § 732.5165, Fla. Stat. (2005). “Undue influence comprehends overpersuasion, coercion, or force that destroys or hampers the free agency and will power of the testator.” Newman v. Smith, 77 Fla. 633, 667 and 668, 82 So. 236, 246 (1918).

“[I]f a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.” Carpenter v. Carpenter (In re Estate of Carpenter), 253 So.2d 697, 701 (Fla.1971). The supreme court has provided the following nonexclusive list of criteria which are relevant to determining whether a beneficiary has been active in procuring a will:

(a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.

Carpenter, 253 So.2d at 702. Will contestants are not “required to prove all the listed criteria to show active procurement.” Id. Indeed, “it will be the rare case in which all the criteria will be present.” Id.

The rebuttable “presumption of undue influence implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof.” § 733.107(2), Fla. Stat. (2005). Such a presumption “affecting the burden of proof’ — as distinct from a presumption affecting the burden of producing evidence— “imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.” § 90.302(2), Fla. Stat. (2005). Accordingly, once a will contestant establishes the existence of the basis for the rebuttable presumption of undue influence, the burden of proof shifts to the proponent of the will to establish by a preponderance of the evidence the nonexistence of undue influence. Diaz v. Ashworth, 963 So.2d 731, 735 (Fla. 3d DCA 2007); Hack v. Janes, 878 So.2d 440, 443-44 (Fla. 5th DCA 2004).

C. The Instant Case:

The Presumption of Undue Influence Precluded Summary Judgment

Here, evidence was presented showing that Tompkins is a substantial beneficiary under the will and that Tompkins had a confidential relationship with the decedent. In fact, Tompkins does not challenge this evidence. Instead, Tompkins contends that RBC Ministries failed to show that she exercised such influence over the decedent that his free agency and will power were overborne. Based on the evidence that she presented tending to show that the decedent was coherent, alert, and aware, Tompkins asserts that she rebutted the presumption of undue influence and that the burden therefore shifted to RBC Ministries to show by a preponderance of the evidence that undue influence occurred. Tompkins’ argument on these points is unsuccessful.

Contrary to Tompkins’ argument, the granting of summary judgment to Tompkins on the undue influence issue could not be justified if Tompkins failed to establish beyond dispute that the presumption of undue influence did not arise. Given her concession that she is a substantial beneficiary and that she had a confidential relationship with the decedent, to show that the presumption of undue influence did not arise, Tompkins must establish that the evidence shows without dispute that she was not “active in procuring the contested will.” Carpenter, 253 So.2d at 701.

On the active procurement issue, the record before the trial court shows the following facts: Tompkins was present at the execution of the will. She was present when the decedent expressed a desire to make a will. She did not recommend an attorney to draft the will, but she herself drafted the will on her home computer. Because she drafted the will, she was aware of the contents of the will before it was executed. Tompkins secured the witnesses to the will, but the witnesses were neutral parties. Finally, Tompkins had possession of the will after its execution.

Accordingly, the circumstances identified in Carpenter’s criteria (a), (b), (d), (f), and (g) are all present here. Circumstances similar to — but, in fact, more egregious than — the circumstances identified in criteria (c) and (e) are also present here. In view of these facts, there is no basis for concluding that Tompkins established beyond dispute that she was not active in procuring the contested will. Given Tompkins’ conceded status as a substantial beneficiary under the will, her admitted confidential relationship with the decedent, and her failure to show beyond dispute that she was not active in procuring the will, Tompkins did not establish that the presumption of undue influence had not arisen. See id. at 702 (holding that “at least four of the factors” regarding active procurement were “sufficient to raise the presumption of undue influence” where the beneficiary was a substantial beneficiary who had a confidential relationship with the decedent).

“[0]nce the presumption arises, the undue influence issue cannot be determined in a summary judgment proceeding.” Allen v. In re Estate of Dutton, 394 So.2d 132, 135 (Fla. 5th DCA 1981). “[A] summary judgment cannot be entered in favor of one who has the burden of overcoming the presumption of undue influence for such proceeding does not afford the contesting party the right of cross-examination and an opportunity to present rebuttal testimony.” Knight v. Knight (In re Estate of Knight), 108 So.2d 629, 631 (Fla. 1st DCA 1959). Instead, “the proponent of the contested will must come forward with a reasonable explanation of his active role in the decedent’s affairs,” and “the trial court is left to decide the case in accordance with the greater weight of the evidence.” Allen, 394 So.2d at 135.

III. Conclusion

The trial court erred in entering a summary judgment on the issue of undue influence. Therefore, we reverse the trial court’s order and remand for further proceedings. “In remanding this matter for trial we do not intend to suggest in any way the proper disposition to be made by the trial court in light of such evidence as may be formally presented.” Allen, 394 So.2d at 135.

Affirmed in part; reversed in part; remanded.

FULMER and CASANUEVA, JJ„ Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John OAKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5670.
    District Court of Appeal of Florida, First District.
    Feb. 15, 2008.
    Nancy A. Daniels, Public Defender, and Jeanine Cohen, Special Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. State v. White, 891 So.2d 502 (Fla.2004).

ALLEN, WEBSTER, and PADOVANO, JJ., concur.


author: KAHN, J.

text:
    John J. JONES, Appellant, v. Mary D. ATKINSON, an individual, Appellee.
    No. 1D07-1187.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2008.

      Stephen E. Day and Rhonda E. Boggess of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appellant.
    Bryan S. Gowdy of Mills & Creed, P.A., Jacksonville, for Appellee.
   KAHN, J.

Appellant John J. Jones, the defendant below, appeals the trial court’s order granting a new trial. We must reverse because the trial judge ordered a new trial for reasons not legally sustainable.

BACKGROUND

This case arose from an automobile accident in Nassau County on April 20, 2004, when appellee Mary Atkinson, driving west on State Road A1A, collided with appellant’s one-ton pickup truck with a travel trailer in tow, turning to the north, across A1A at its intersection with Interstate 95. Ms. Atkinson sustained back and neck injuries that, according to her, caused persistent pain. She filed this lawsuit oh March 30, 2005, to recover damages for, among other things, bodily injury, pain and suffering, disability, hospitalization expenses, medical and nursing care and treatment, and aggravation of a pre-exist-ing condition.

At trial, the parties intensely disputed whether Ms. Atkinson’s negligence contributed to the accident and whether she sustained permanent injuries requiring future medical care. Mr. Jones theorized at trial that Ms. Atkinson negligently changed lanes, from the left westbound lane of A1A, which was obstructed by vehicles waiting for Mr. Jones to cross, to the unobstructed right lane, where the impact occurred. Appellant also produced the testimony of an accident reconstructionist, who testified that Ms. Atkinson might have contributed to the accident by changing lanes suddenly and failing to brake to avoid the impact. Ms. Atkinson testified she had maintained her course in the right lane at all times, but that she remembered little else about the accident sequence after defendant’s truck appeared in her path.

The parties also disputed whether Ms. Atkinson sustained permanent injuries requiring future medical treatment. Appel-lee’s examining neurologist, Dr. Manley Kilgore, diagnosed several sprain and soft-tissue injuries that would likely cause permanent discomfort and “set up a chronic pattern of pain.” Her treating chiropractor, Dr. Kerry Kornacki, testified Ms. Atkinson sustained a “permanent injury” to her lower back and would “have an increase in her symptoms and ... may actually [need] further invasive-type treatments.” Dr. Christopher Roberts, Ms. Atkinson’s pain management physician, testified she would require, among other things, epidural and facet injections, periodic diagnostic imaging, and visits to doctors to manage her pain, which would likely worsen “for the rest of her life.”

Appellant offered a different perspective; his expert neurologist, Dr. James Nealis, testified during a videotaped deposition played before the jury that, upon examining appellee, he found no permanent injuries — only “degenerative,” possibly arthritic, conditions in ■ her cervical spine that predated the accident. The trial court, however, excluded, for reasons not here germane, Dr. Nealis’ testimony reflecting his additional and more specific conclusion that the accident did not cause physical injuries necessitating future medical expenses.

The jury returned a verdict apportioning liability approximately evenly between the parties. As to damages, the jury found that appellee’s past medical damages and lost income totaled $48,100.17 and $15,000, respectively, but that appellee proved no entitlement to future medical expenses or lost ability to earn money in the future. Ms. Atkinson moved for judgment notwithstanding the verdict or, alternatively, a new trial, arguing the verdict, with its nearly even split of liability, ran against the manifest weight of evidence. A subsequently prepared memorandum of law in support of the motion, however, contended the verdict reflected an impermissible compromise by jurors conflicted over the extent of liability and the plaintiffs entitlement to damages.

The trial judge, on January 30, 2007, granted appellee’s motion and ordered a new trial solely on the basis of compromise verdict. Mr. Jones appeals the order granting a new trial. For the reasons that follow, we reverse and remand the case for entry of judgment on the jury’s verdict.

ANALYSIS

Florida appellate courts have long recognized the trial judge’s broad discretion to rely “on his [or her] talents, his [or her] knowledge, and his [or her] experience to keep the search for the truth in a proper channel,” and to order a new trial when a jury’s verdict offends the judge’s sensibilities and suggests the search for truth has been improperly diverted. Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959). Accordingly, a trial judge may, at his or her discretion, order a new trial “on the grounds that the verdict is inadequate or excessive, against the manifest weight of the evidence, or both.” Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla.1999). Some cases hold, furthermore, that a trial judge might also properly grant a new trial when the judge believes that conflicted jurors compromised in their apportionment of liability in an effort to avoid awarding one party substantial damages. See, e.g., Watson v. Builders Square, Inc., 563 So.2d 721, 722 (Fla. 4th DCA 1990) (holding that trial judge may find compromise and order new trial “when a damage award is clearly inadequate and the issue of liability is hotly contested”).

The trial judge does not, however, possess unqualifiedly broad discretion when ordering a new trial. Florida Rule of Civil Procedure 1.530(f) requires that “[a]ll orders granting a new trial shall specify the specific grounds therefor,” and, as this court observed in Jordan v. Brown, “[i]n reviewing an order granting new trial we are dependent on the trial court to articulate reasons supporting its order.” 855 So.2d 231, 234 (Fla. 1st DCA 2003) (citing Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla.1978)); see also Int’l Ins. Co. v. Ballon, 403 So.2d 1071, 1077 (Fla. 4th DCA 1981) (limiting review to trial judge’s stated reasons for new trial, rejecting each of them, and concluding that “the trial judge in this case acted as a seventh juror with veto power”).

In the present case, plaintiff moved for a new trial as an alternative to judgment notwithstanding the verdict and initially posited, inter alia, that the verdict ran against the manifest weight of the evidence. Then, however, in a subsequent letter to the trial judge accompanying a memorandum of law in support of the motion, plaintiffs trial attorney wrote the verdict “was clearly the product of impermissible compromise,” citing the jury’s “assignment of comparative negligence and awarding of damages.”

The trial judge completely adopted counsel’s reasoning in the order, the dis-positive sentence of which sets forth the finding that

the jury’s failure to award future medical costs from testimony requiring future medical care and costs for Plaintiff, in the absence of any testimony that such costs were unnecessary, considered in light of an attribution of almost equal fault from testimony devoid of significant, if any, evidence of negligent conduct by PIaintiff[,] suggests a verdict based in compromise, an impermissible basis under Florida [flaw.

The order is internally inconsistent — a finding of compromise would be supported by a record full of “hotly contested” evidence of comparative fault, see Watson, 563 So.2d at 721, not one “devoid of significant, if any, evidence” of plaintiffs negligence. We are unable to conclude, therefore, that the trial judge reasonably exercised his discretion in ordering a new trial. Moreover, the judge’s conclusion that the record was “devoid” of evidence of plaintiffs negligence is clearly erroneous; defendant’s theory that plaintiff was comparatively negligent figures prominently in the record, particularly in the extensive testimony of defendant’s expert accident reconstructionist, who described one possible scenario in which, in his opinion, plaintiff may have contributed to the accident.

The trial court’s other characterization of record evidence is also unsupported. In a subsequent portion of the fact-reciting sentence in the order, the judge determined that medical evidence “required” the award of future medical costs. To the contrary, although the judge excluded the defense doctor’s opinion that the accident did not cause plaintiffs continuing need for medical treatment, the jury heard the doctor’s testimony that plaintiff did not suffer from any permanent condition at all. Although the appellate court’s task is not to simply determine whether competent, substantial evidence supports the jury’s verdict (this evidence would), see Estate of Stuckey, 749 So.2d at 498, we cannot conclude the judge reasonably exercised his discretion when the order is premised on such a prominent misconstruction of the record evidence.

We have considered, but decline to apply in this case, the “tipsy coachman” doctrine, whose parameters the supreme court expressed in Dade County School Board v. Radio Station WQBA, 731 So.2d 638 (Fla.1999). By an unambiguous civil procedure rule, a trial judge is required to state the reasons for granting a new trial. Fla. R. Civ. P. 1.530(f). We have previously expressed our reliance on trial judges to articulate the reasons for granting new trials so that we can intelligently review their orders, and we and other district courts of appeal have confined review of such orders to their stated reasons. See, e.g., Jordan, 855 So.2d at 234; see also Ballon, 403 So.2d at 1074-75. Indeed, the supreme court has made clear that we review orders granting new trials for abuse of discretion because the trial judge has the benefit of “contact with the trial and ... observation of the behavior of those upon whose testimony the finding of fact must be based” and is thus “better positioned than any other one person” or an appellate court, relegated to the “cold type” of the record, to assess the fairness of a jury’s verdict. Cloud, 110 So.2d at 673; see also Estate of Stuckey, 749 So.2d at 498.

We are bound, when reviewing a new-trial order, by the standard proclaimed in Estate of Stuckey and construed by this court in Jordan. Accordingly, we have reviewed the trial court’s exercise of discretion, and have not speculated on what some other judge (or we ourselves) might have done.

CONCLUSION

In light of the foregoing, we REVERSE the trial court’s order granting a new trial, and we REMAND the case for the trial judge to enter judgment on the jury verdict.

WEBSTER and ROBERTS, JJ., concur.


text:
    Zabra BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1558.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2008.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The State properly concedes the trial court committed error by imposing sentence upon appellant without first conducting a sentencing hearing, as appellant requested. See Fla. R.Crim. P. 3.720(b); State v. Scott, 439 So.2d 219, 221 (Fla.1983). We REVERSE appellant’s sentence and REMAND for the trial court to conduct a sentencing hearing, during which appellant shall be “entitled to show legal cause why sentence should not be pronounced and to submit evidence relevant to the sentence.” Id.

KAHN, WEBSTER and ROBERTS, JJ., Concur.


text:
    Stanley Mac BENNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3069.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2008.

      Stanley Mac Benner, pro se, Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion, in which he asserts that he was improperly sentenced to drug offender probation because his DUI conviction was not an offense contained within chapter 893, Florida Statutes, as required by sections 948.034 and 948.20, Florida Statutes.

When denying Appellant’s 3.800(a) motion, the postconviction court clarified that the drug offender portions of Appellant’s probation were not imposed pursuant to sections 948.034 or 948.20, Florida Statutes. Rather, the trial court had imposed standard probation with special drug offender conditions. However, the trial court failed to orally pronounce the special conditions at the time they were imposed. See State v. Williams, 712 So.2d 762 (Fla.1998) (holding special condition of probation had to be pronounced orally to be properly imposed); Holmes v. State, 866 So.2d 144, 145 (Fla. 1st DCA 2004) (same).

Here, the trial court orally pronounced the special conditions that Appellant not consume any alcohol or non-prescribed drugs during his probation. Consequently, those conditions are valid and are AFFIRMED. However, the trial court failed to orally pronounce the requirement that Appellant complete a substance abuse treatment program at his own expense. Consequently that condition is REVERSED.

AFFIRMED in part, and REVERSED in part, and REMANDED for proceedings consistent with this opinion.

BARFIELD, WOLF, and HAWKES, JJ., Concur.


text:
    Peter E. PFLAUM, Appellant, v. Thomas and Leanne PFLAUM, et al., Appellees.
    No. 1D07-6102.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2008.

      Peter E. Pflaum, pro se, Appellant.
    Bill Hoppe of the Hoppe Law Firm, Gainesville, for Appellees.
   ORDER IMPOSING SANCTION

PER CURIAM.

Peter E. Pflaum seeks review of an order of the Circuit Court for Alachua County arising from a probate action involving his mother’s estate. Appellees’ counsel has filed a motion which asks this court to prohibit appellant from appearing further without legal representation in this court, to award attorney’s fees and to dismiss the appeal. For the reasons set forth below, we grant the motion in part and deny it in part.

This is the tenth appearance of Peter E. Pflaum in proper person in this court since October 2005. All of the cases have related to either the probate action or his separate circuit court action seeking money damages from certain persons having a role in the probate action. The first case resulted in an affirmance. Pflaum v. Pflaum, 926 So.2d 1276 (Fla. 1st DCA 2006). Two extraordinary writ petitions were denied on the merits; four cases were dismissed for failure to pay the filing fee; and three cases, including this one, are pending. All of the cases have been characterized by a steady stream of motions and other filings by appellant/petitioner Peter E. Pflaum, very few of which complied with any rule of appellate procedure or stated a cognizable basis for relief of any kind from this court. Appellees’ motion draws our attention to the fact that the circuit court found that Peter E. Pflaum had “engaged in a protracted pattern of willful, deliberate, persistent and contumacious disregard and violation of court orders and intentional abuse of the judicial process,” and had proffered a forged document to the court. The circuit court also concluded that Peter E. Pflaum had misrepresented his assets to the court in order to obtain a waiver of filing fees.

Having now considered appellees’ motion and appellant’s response, and taken notice of Peter E. Pflaum’s cases in this court and his filings therein, we conclude that imposition of a sanction is appropriate in accordance with Florida Rule of Appellate Procedure 9.410 and this court’s authority to control its docket. See May v. Barthet, 934 So.2d 1184 (Fla.2006); Lee v. Fla. Dep’t of Com., 873 So.2d 489 (Fla. 1st DCA 2004). Accordingly, Peter E. Pflaum is hereby prohibited from appearing before this court as appellant or petitioner unless represented by a member in good standing of The Florida Bar. He is permitted 15 days from the date of this order within which to retain a Florida attorney who shall file a notice of appearance in this and his other active cases, failing which the cases will be subject to dismissal. The clerk of this court is directed to accept no further pro se filings from Peter E. Pflaum; if received, the filings shall be returned to the sender without filing and with reference to this order.

Appellees have asked this court to certify that Peter E. Pflaum is a vexatious litigant pursuant to section 68.093, Florida Statutes. That portion of appellees’ motion must be denied because the statute, by its express terms, applies only to proceedings in the trial courts. That limitation, of course, does not affect our authority to impose the sanction described above. Ap-pellees also move for an award of attorney’s fees pursuant to section 57.105, Florida Statutes, and we defer a ruling on that portion of the motion until final disposition of this proceeding. Appellees’ motion to dismiss is denied at this time, but the case will be subject to dismissal if appellant fails timely to comply with the terms of this order.

IT IS SO ORDERED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Nigel HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3239.
    District Court of Appeal of Florida, Fifth District.
    Feb. 19, 2008.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Blackwood v. State, 777 So.2d 399 (Fla.2000); Marek v. State, 492 So.2d 1055 (Fla.1986); Ketrow v. State, 414 So.2d 298 (Fla. 2d DCA 1982).

TORPY, LAWSON, and COHEN, JJ., concur.


text:
    Michael Allan MOORE, Appellant, v. Carven D. ANGEL, Appellee.
    No. 5D07-3147.
    District Court of Appeal of Florida, Fifth District.
    Feb. 19, 2008.
    Michael Allan Moore, Ocala, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

MONACO, TORPY and LAWSON, JJ., concur.


text:
    Ruffino GUEBARA, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-294.
    District Court of Appeal of Florida, Fifth District.
    Feb. 19, 2008.
    Robert L. Sirianni, Jr., of Brownstone, P.A., Winter Park, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

See Lewis v. State, 952 So.2d 1271 (Fla. 5th DCA 2007).

PLEUS, TORPY and EVANDER, JJ„ concur.


author: VILLANTI, Judge.

text:
    Floyd Lucas WILLIAMSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-282.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2008.
    James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Floyd Lucas Williamson challenges his judgments and sentences for robbery and possession of cocaine solely because the sentencing judge was not aware of his existing written plea bargain which had been accepted by another judge. The sentencing judge, after rejecting a downward departure, imposed a sentence in excess of the written plea agreement. Williamson’s counsel did not file a motion to withdraw plea prior to filing the notice of appeal. Williamson now contends, and the State concedes, that Taylor v. State, 919 So.2d 669 (Fla. 2d DCA 2006), should control this issue and that Williamson should be entitled to have an opportunity to withdraw his plea. However, despite this concession, if there was error, it is not remediable in this direct appeal. Under the unusual facts of this case and for the reasons stated below, we conclude that -the only remedy legally available for Williamson’s problem is to affirm without prejudice to Williamson filing for relief under Florida Rule of Criminal Procedure 3.850.

Williamson was charged with robbery with a knife, possession of drug paraphernalia, possession of cocaine, and driving with a suspended or revoked license. These charges arose from events occurring on March 21 and July 6, 2006. On October 24, 2006, Circuit Judge Linda Babb, the State, defense counsel, and Williamson entered into plea negotiations relating to these charges. In exchange for Williamson pleading no contest to the charges, Judge Babb agreed to cap his sentence at fifty-eight months, the lowest permissible sentence under the Criminal Punishment Code, and also to consider a possible downward departure at a sentencing hearing which was scheduled for November 8, 2006.

However, after the plea hearing but pri- or to sentencing, Judge Babb recused herself, and the case was reassigned to Judge Wayne L. Cobb. At the subsequent sentencing hearing on November 8, 2006, neither Williamson’s defense counsel nor the State advised Judge Cobb of the plea agreement or the sentencing cap to which Judge Babb had agreed. In fact, Williamson’s defense counsel did not object when the State represented to Judge Cobb that Williamson’s sentence could range from 56.25 months “up to life.” As a result, Judge Cobb imposed a sentence apparently without any knowledge of the plea bargain. Judge Cobb sentenced Williamson to consecutive sentences totaling ten years in-prison — eight years in prison for the robbery count and two years in prison for the cocaine possession count.

The complexity in analyzing this case arises from the possible remedies posed by the parties: both sides agree error occurred, but each side suggests a different cure. Williamson’s suggested cure is to have us reverse the judgment and sentence while specifically giving the trial court the option of imposing the agreed sentence on remand as permitted by Echeverria v. State, 949 So.2d 331, 334 (Fla. 1st DCA 2007). Williamson recognizes that if the hoped-for sentence is not imposed, then he is limited to either going to trial or renegotiating a new plea deal. The State posits Williamson’s suggested remedy is more limited — Williamson may either go to trial or enter into new plea negotiations, but he may not seek to enforce the prior plea agreement.

Both sides recognize that the trial court is not bound by any plea agreement. See Rollman v. State, 887 So.2d 1233 (Fla.2004). Further, there is no assurance that the State will agree to reinstate the plea offer. See Bass v. State, 932 So.2d 1170 (Fla. 2d DCA 2006). Consequently, we discern no practical differences in either suggested cure. It is thus not necessary for us to decide which position should prevail, and based upon our holding, this has no bearing on the ultimate outcome.

Regardless, the problem with either suggested cure is that, even if different, neither is legally available. Both suggestions arise from the same mistaken belief that under the undisputed facts, the failure of counsel below to notify the sentencing judge of the plea agreement constitutes ineffective assistance of counsel apparent on the face of the record. While it is also true that trial counsel filed an appeal before filing a motion to withdraw Williamson’s plea, this omission is also not per se ineffectiveness of counsel on the face of the record. An evidentiary hearing would be necessary to determine, for example, if either omission flowed from Williamson’s consent after conferring with his counsel. Because the sentencing court was not bound to honor the plea agreement even if it were so informed and because Williamson’s sentence could have included life if convicted, it is plausible that, after conferring with counsel, Williamson strategically elected not to file a motion to withdraw his plea. For this reason, we are unable to grant relief in this direct appeal, even with the State’s concession that Taylor controls this case.

Moreover, we disagree with the contention that Taylor controls the outcome here. Unlike here, the defendant in Taylor was only charged with two third-degree felony drug possession counts, and by the time his appeal was decided, he had served the nine months his plea bargain called for and he was likely very dose to completing, depending upon any time served credit, its ensuing three-year probationary portion. In addition, before filing his notice of appeal, Taylor sought relief under rule 3.800(b)(2), which was properly denied, but this motion essentially raised the same grounds that would have supported a motion to withdraw his plea. Under these facts, we held that counsel’s failure to inform the sentencing judge of the existence and terms of the plea agreement constituted ineffectiveness on the face of the record because it could not plausibly be a “matter of strategy.” 919 So.2d at 671. Here, we cannot determine from the record whether strategy may have come into play.

In addition, the Taylor opinion contains no facts indicating that Taylor could realistically be exposed to a greater sentence on remand. Although that prospect may have been legally possible since Taylor’s five-year sentence was concurrent with each count, it was extremely unlikely, if not impermissible, that Taylor would have received a longer sentence. Rather, it was apparent that by the time his conviction and sentence were reversed and remanded, the only significant risk Taylor faced was that his sentence would have been fully served before he had the chance to withdraw his plea. Therefore, the Taylor court, based on “judicial economy” and expediency considerations, implicitly held that an evidentiary hearing would not be necessary to prove Taylor’s claim of ineffectiveness as there was no risk in withdrawing his plea. Id. at 671. The same simply cannot be said here.

Specifically, in response to Williamson’s counsel’s opinion that Williamson “could have pled to bottom of the guidelines at arraignment and gotten that[,]” Judge Cobb went on the record to recite significant facts that justified the sentence he imposed. It is clear that he regarded the robbery offense as a crime requiring a sentence longer than one near the bottom of the guidelines. Williamson was facing sentencing on a first-degree felony punishable by life, a third-degree felony, and two misdemeanors. On his scoresheet, he had twenty prior misdemeanors and eight prior felonies — including another robbery and a burglary.

Thus, even if Williamson had filed a timely motion to withdraw his plea under rule 3.170(1), there is no guarantee that he would have ended up with an outcome more favorable than the ten-year sentence he received. We also note that the same could be said if Williamson seeks to withdraw his plea as part of a rule 3.850 claim following remand; i.e., his cure could be worse than the ailment of which he complains. We therefore caution Williamson to consult with counsel before pursuing such relief.

Therefore, for the reasons noted, we find no legal authority or fact established on the face of the record that would allow Williamson relief in this appeal. We note that nothing in this opinion should hamper the parties from entering into future plea negotiations with the trial court if Williamson elects to file a rule 3.850 motion. However, as we have explained, because the trial court has broad discretion at sentencing, a lawful sentence could include the terms of the original plea agreement, a better sentence, or a worse sentence.

Affirmed.

ALTENBERND and SALCINES, JJ., Concur.

      . We note that the parties’ reading of this court’s opinion in Taylor was not unreasonable, and were it not for distinguishing factors in this appeal, we might be compelled, to some extent, to recede en banc.

      We can also appreciate that the State is willing to concede error because it is highly likely that Williamson would be entitled to relief if he files a motion for postconviction relief pursuant to rule 3.850 at any time during the subsequent two years. If a trial must occur in this case, the State understandably would prefer to try the case before the memories of witnesses fade.

      . Williamson was also sentenced to time served on the other two offenses — possession of paraphernalia and driving while license suspended or revoked.

      . We also note the obvious: the manner in which Williamson frames the issue on appeal does not otherwise dispense with the need, based upon these facts, for an evidentiary hearing to determine ineffectiveness of counsel below.

      . We note that even though this claim was coincidentally similar to the plea agreement, it did not inform the sentencing judge that a plea agreement was actually entered into and approved by Judge Babb, which is at the heart of Williamson’s complaint.

      . Absent such advice being available beforehand, if Williamson files a rule 3.850 motion, due to the complexity of this matter, it is likely counsel will have to be appointed by the trial court to advise him of the risk of going forward.


author: PER CURIAM. LAROSE, Judge,

text:
    Max TALBOT and Ellen Talbot, Appellant, v. COUNTRYWIDE HOME LOANS, INC., a corporation, Appellee.
    No. 2D07-1437.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 2008.
    Jeffrey M. Liggio of Liggio, Benrubi & Williams, P.A., West Palm Beach, and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, co-counsel for Appellants.
    Katherine E. Giddings of Akerman Sen-terfitt, Tallahassee, and William P. Heller of Akerman Senterfitt, Fort Lauderdale, counsel for Appellee.
   PER CURIAM.

Affirmed.

FULMER and WALLACE, JJ., Concur.

LAROSE, J., Concurs with opinion.

LAROSE, Judge,

Concurring.

Mr. and Mrs. Talbot sued Countrywide, alleging that Countrywide improperly exacted a prepayment penalty upon accelerating payments due on a note and mortgage. After Hurricane Jeanne destroyed their home, the Talbots directed Countrywide to use their insurance proceeds to pay off the note and mortgage. Although Countrywide assessed a prepayment penalty under the note, the record before the trial court reflected clearly that Countrywide did not accelerate payment under the mortgage terms. On this basis, the trial court correctly entered a final summary judgment in favor of Countrywide and against the Talbots.


author: MAY, J.

text:
    STATE of Florida, Appellant, v. Isac POWELL, Appellee.
    No. 4D07-336.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellant.
    Jonathan Friedman, P.A., Fort Lauder-dale, for appellee.
   MAY, J.

The State appeals the trial court’s dismissal of a count against the defendant for conspiracy to traffic in cocaine. It argues the trial court erred in weighing the evidence in rendering the decision and that it sufficiently established a prima facie case. We agree and reverse.

The State charged the defendant and others with trafficking in cocaine and conspiracy to traffic in cocaine. The defendant filed a motion to dismiss the conspiracy count and argued that the State could not prove an agreement between the defendant and the co-defendants to commit the offense. Specifically, the motion alleged that the facts failed to establish that the defendant was either involved in any conversations concerning the deal or had any knowledge of the co-defendant Reno Green’s existence or Green’s prior contact with the undercover officers. Rather, the evidence supported only that the defendant had been a middleman in a transaction where he acquired the drugs from a van and entered another automobile where he gave the drugs to Reno Green, who then provided them to the detective.

At the hearing on the motion to dismiss, two detectives testified. The first detective testified that he spoke to Reno Green on several occasions before the day of the transaction. Reno Green never mentioned the defendant and the detective did not know that anyone else was going to be there. Reno Green had simply referred to his supplier as “his homeboy.”

On the day of the transaction, the first detective arrived alone while a second detective conducted surveillance. Reno Green arrived in the parking lot by foot after being dropped off by a third co-defendant who was driving what would become the exchange vehicle. The defendant arrived as a passenger in a van.

The detective testified that Reno Green was on the phone with the defendant, who told Reno to meet him in the back seat of the exchange vehicle in which Reno had been a passenger. The defendant exited the front passenger seat of the van carrying a clear plastic bag of powder cocaine, and got in the back seat of the exchange car. Reno met him in the back seat where the exchange took place. Reno then left the vehicle with the same plastic bag the detective saw the defendant carry to the exchange vehicle. The detective alerted the “arrest team” and the arrests took place.

Another detective conducting surveillance also saw the defendant arrive in the second vehicle, exit that vehicle carrying a plastic bag, and enter the exchange vehicle. When Reno exited the exchange vehicle, he was carrying the plastic bag of cocaine. Another co-defendant Kevin Kendrick, who drove the exchange vehicle, gave law enforcement a statement indicating that the defendant had agreed to sell four ounces of cocaine to Reno. In a later deposition, Kendrick denied knowing anything about the defendant and admitted that, in order to receive favorable treatment, he had lied to the detective about the defendant’s involvement.

At the hearing, the trial court stated: [T]he Court will consider ... the testimony that was given by the officers versus the testimony that was given— and the Court recognizes that as a part of this decision making process, it can weigh the circumstances of the individuals who are providing the statement in determining credibility and anything else the Court needs to address.

In its order, the trial court concluded that, “having heard the testimony of each witness, having carefully observed and weighed the credibility and demeanor of each witness, [and] having read the deposition of Kevin Kendrick,” no evidence supported the defendant’s knowledge “of the co-defendant’s plan to deliver cocaine to the undercover officers,” and there “is no evidence that the Defendant had a prior agreement with another person to commit the alleged offense, and therefore dismissal of the conspiracy count is proper.” The State timely appealed the dismissal order.

We review orders on motions to dismiss de novo. State v. Santiago, 938 So.2d 603, 605 (Fla. 4th DCA 2006). A motion to dismiss “is well taken only if no material facts are in dispute and the most favorable construction of the undisputed facts in favor of the State would not establish a prima facie case of guilt.” State v. Sammons, 889 So.2d 857, 858 (Fla. 4th DCA 2004). A “trial court may not try or determine factual issues nor consider either the weight of the conflicting evidence or the credibility of the witnesses.” State v. Hargrove, 552 So.2d 281, 282 (Fla. 4th DCA 1989).

Here, the trial court expressed both verbally and in writing that it “weighed” the evidence in rendering its decision to dismiss the conspiracy count. It did not adhere to the stringent standard of reviewing the evidence in the light most favorable to the State and resolving all inferences against the defendant. State v. Ortiz, 766 So.2d 1137, 1142 (Fla. 3rd DCA 2000). By failing to adhere to this standard, the trial court erred.

Secondarily, the trial court erred in reaching its conclusion that the State failed to establish a prima facie case to defeat the defendant’s motion to dismiss. “To make a prima facie case, the State may rely on circumstantial evidence; all inferences from facts revealed by the motion and related papers are resolved in favor of the State.... The motion is well taken only if no material facts are in dispute and the most favorable construction of the undisputed facts in favor of the State would not establish a prima facie case of guilt.” Sammons, 889 So.2d at 858 (citations omitted).

Here, a detective testified that he had numerous conversations with Reno Green about the purchase of cocaine. The detective overheard Reno Green call the defendant and tell him to meet in the back seat of Kevin Kendrick’s exchange vehicle. Two detectives saw the defendant exit the van, carrying a clear plastic bag that appeared to contain cocaine, and get into the exchange vehicle with Reno Green. The exchange took place, and Reno Green brought the same bag of cocaine to the participating detective. In addition, another co-defendant initially confirmed the defendant’s participation in the deal. This was sufficient evidence taken in the light most favorable to the State to establish a prima facie case. See Leigh v. State, 967 So.2d 1102, 1104 (Fla. 4th DCA 2007) (quoting Arguelles v. State, 842 So.2d 939, 944 (Fla. 4th DCA 2003)) (“Direct proof of the agreement is not necessary; it may be inferred from the circumstances.”).

The trial court erred by impermissibly weighing the evidence and finding that the State had failed to establish a prima facie case. For these reasons, the order of dismissal is reversed and the case remanded for reinstatement of the conspiracy to traffic in cocaine charge.

Reversed and remanded.

STONE and POLEN, JJ., concur.


author: KLEIN, J.

text:
    Casey STEIL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3296.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of aggravated fleeing or eluding an officer, a second degree felony, and argues that the trial judge should have granted his motion for judgment of acquittal. We agree and reverse for his conviction to be reduced to simple fleeing or eluding, a third degree felony.

Section 316.1935, Florida Statutes (2005) defines the more serious crime, the second degree felony, in subsection (3):

Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding:
(a) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Appellant argues that there was no proof that he was driving at “high speed” or in a manner demonstrating a “wanton disregard for the safety of persons or property.” In a light most favorable to the state, the standard for reviewing a motion for judgment of acquittal, Pagan v. State, 830 So.2d 792 (Fla.2002), the facts are as follows.

At around 4:00 a.m., three officers in a restaurant went outside after hearing there was going to be a fight in the parking lot. One of the officers held out his hand and yelled “stop” to appellant, who made eye contact with the officer, but did not stop his vehicle as he was leaving the parking lot. The officer testified that he was attempting to stop appellant in order to determine if he had been involved in the reported disturbance. He had no reason to believe appellant may have been involved in a crime.

The officer testified that appellant squealed his tires as the car left the parking lot at about fifteen to twenty miles an hour. Another officer in a car followed appellant, but did not get closer than within a block, and as that officer turned on his siren and blue lights, appellant was a block away turning onto another street. When the officer turned onto that street, he turned off his siren. Then, after observing appellant run two stop signs, the officer also turned off his blue lights and took a parallel road, thinking appellant would come back to U.S. 1. The officer estimated that he was driving fifteen to twenty miles an hour over the thirty-five mile an hour speed limit and appellant was driving a little faster. He then again encountered appellant, saw him run a stop sign with a red flashing light, and appellant then stopped at a red light. At that point, the officer activated his blue lights and appellant pulled over.

The officer testified that he had arrested appellant for reckless driving, but he had not actually clocked appellant’s speed. Nor did he observe any other vehicles affected by appellant’s driving. Appellant argues that the trial court should have granted his motion for judgment of acquittal of aggravated fleeing, because he was not driving at “high speed” or with a “wanton disregard for the safety of persons or property.” § 316.1935.

In State v. Barnes, 686 So.2d 633 (Fla. 2d DCA 1996), the court held that the phrase “high speed” in the statute was not unconstitutionally vague, and in that case, in which the defendant was driving eighty to one hundred miles an hour in a forty-five mile an hour speed zone, there was sufficient evidence to support aggravated fleeing.

In Miller v. State, 636 So.2d 144 (Fla. 1st DCA 1994), the defendant was driving fifty to fifty-five miles an hour in a thirty-five mile an hour zone, but his vehicle was under control and traffic was light to moderate. After noting that defendant would slow down at intersections, the court concluded that this did not demonstrate a wanton disregard for the safety of persons or property. See also Nat’l Car Rental Sys., Inc. v. Holland, 269 So.2d 407 (Fla. 4th DCA 1972) (running a stop sign with a blinking light did not constitute willful and wanton disregard).

Aggravated fleeing requires that the pursuing officer has lights and sirens on. In this case the officer testified that he did not have them on during most of the pursuit. We conclude that there was insufficient evidence of “high speed” or “wanton disregard,” while the lights and siren were on, to support the conviction of aggravated fleeing. We accordingly reverse and remand for the court to reduce the conviction to fleeing as defined in section 316.1935(1) or (2), Florida Statutes, a third degree felony.

Reversed.

HAZOURI and DAMOORGIAN, JJ„ concur.


text:
    Craig Ward WISENBAUGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4656.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Craig Ward Wisenbaugh, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant challenges the imposition of his drug-offender probation after entering a plea to burglary of a conveyance and grand theft. The lower court denied relief without the attachment of any records conclusively refuting the allegation. While the lower court order quotes a portion of the record that would appear to refute the allegations, showing the appellant specifically requested this sanction, the records were not attached. See Epperson v. State, 955 So.2d 642 (Fla. 4th DCA 2007). While relief would not be forthcoming if the appellant “specifically agreed to such probation in a plea agreement,” Ackermann v. State, 962 So.2d 407, 408 (Fla. 1st DCA 2007), the lack of any record attachments requires us to reverse. As we did in Ep-person, we send the case back to the lower court for the attachment of any records that conclusively refute the allegations, or for the court to grant relief if no such records exist.

Reversed and Remanded for Further Proceedings.

POLEN, KLEIN and MAY, JJ., concur.


text:
    Jose M. ARCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-198.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Jose M. Arce, Chipley, pro se.
    No appearance required for appellee.
   PER CURIAM.

Upon our review of the most recent order denying Jose M. Arce’s rule 3.800(a) motion, we reverse and remand with directions that Arce be resentenced without habitual offender designation. Within his initial motion Arce alleged that one of the predicate offenses used to support his habitual offender sentence was not his offense. Arce v. State, 946 So.2d 645 (Fla. 4th DCA 2007). We reversed the denial of relief and remanded. Arce, 946 So.2d at 654. Two additional opportunities have been afforded to refute that claim or to otherwise demonstrate that Arce qualified for habitual offender sentencing. See Arce v. State, 936 So.2d 651 (Fla. 4th DCA 2006). None of the documents furnished as part of the appellate record accomplish either. Consequently, the case is remanded and Arce is to be resentenced without the designation.

TAYLOR, MAY and DAMOORGIAN, JJ., concur.


author: SILBERMAN, Judge.

text:
    Robert E. BALSINGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-947.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2008.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Robert Balsinger appeals the revocation of his probation and sentence in trial court case number 05-12719 for one count of robbery and driving under the influence and the revocation of his probation and sentence in trial court case number 05-22136 for two counts of robbery with a deadly weapon. Because Balsinger was not afforded due process at his probation revocation hearing, we reverse the order revoking his probation in both cases and the resulting sentences and remand for a new revocation hearing.

The affidavit of violation of probation asserted that Balsinger failed to report to the probation officer in September 2006 and that he changed his residence without his probation officer’s consent. At the revocation hearing held on February 13, 2007, defense counsel stated that Balsinger had trouble doing probation because he did not have a stable residence. Counsel indicated that Balsinger was asking if the court would consider a sentence of “a year and a day in order to get rid of the probation.”

The court asked about the facts of the underlying offenses, and the assistant state attorney provided a brief background without addressing the alleged violations. Defense counsel again raised the fact that Balsinger had no home or transportation and was unable “to really do the probation.” Counsel added that “[a] year and a day with credit would probably be appropriate.” The trial court responded, “All right, revoke, adjudicate, he will be sentenced to 60 months in the Florida State Prison” on the felonies and time served on the misdemeanor DUI.

The record reflects that defense counsel did not discuss the accuracy of the allegations in the affidavit of violation or the entry of a plea. Further, the State presented no evidence of the alleged violations, and the court did not inform Bal-singer of the alleged violations. In fact, the court never spoke to Balsinger during the hearing, and at no point did Balsinger make any statements or admit to the alleged violations.

The revocation order states that Bal-singer violated the conditions of his probation but also states “CONDITION(S) NOT STATED, VOP ADMITTED[.]” In addition, the record reflects that the affidavit of violation of probation only lists case number 05-12719. No affidavit regarding case number 05-22136 appears in our record.

In a probation revocation proceeding a trial court need not comply with Florida Rule of Criminal Procedure 3.172, which governs the acceptance of a guilty or nolo contendere plea; however, section 948.06(2), Florida Statutes (2006), requires that the trial court advise the probationer of the alleged violation. See Edwards v. State, 721 So.2d 744, 745 (Fla. 4th DCA 1998). If the probationer does not admit to the violation and the charged violation is not dismissed, the court must give the probationer an opportunity to be fully heard. § 948.06(2)(d). The Edwards court added that “[t]he probationer should also be told of the potential consequences of a guilty plea, the right to counsel, and the right to a final hearing on violation of probation, at which time a probationer has the ‘opportunity to be fully heard on his or her behalf in person or by counsel.’ ” 721 So.2d at 745 (quoting § 948.06, Fla. Stat. (1997)).

Due process requires that the State prove an alleged violation of probation at a hearing or that the defendant enter a knowing admission to a violation before the trial court revokes the defendant’s probation. See Randall v. State, 741 So.2d 1183, 1184 (Fla. 2d DCA 1999). In Randall this court reversed and remanded for the trial court to conduct an adequate hearing on the revocation of Randall’s community control. 741 So.2d at 1184. This court described the circumstances in Randall as follows:

At the start of the hearing on these alleged violations, Randall’s attorney announced that Randall was admitting to two of the violations, and proceeded to explain to the trial judge what can best be described as the circumstances as to why these violations were not willful. Very limited conversation occurred between Randall and the trial court, with nothing in this record approaching a knowing waiver of hearing or a knowing admission to the alleged violations of probation.

Id.

Similar to Randall, defense counsel here appeared to be addressing the circumstances as to why the violations were not willful. Also as in Randall, the trial court did not advise Balsinger of the alleged violations, and nothing in the record shows that Balsinger made a knowing waiver of hearing or a knowing admission of any violation.

Therefore, because Balsinger was not afforded due process we reverse the revocation order and the resulting sentences in case numbers 05-12719 and 05-22136 and remand for an adequate revocation hearing.

Reversed and remanded.

CASANUEVA and VILLANTI, JJ, Concur.


author: WALLACE, Judge.

text:
    William Paul THOMPSON, a/k/a William Paul Thomson, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3978.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2008.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

William Paul Thompson appeals the order that revoked his probation and his resulting sentences. Because the State failed to prove by competent, substantial evidence that Mr. Thompson had either willfully failed to pay court-ordered costs or that he had changed his approved residence without permission, we reverse.

I. FACTS AND PROCEDURAL HISTORY

A. Background

In October 2004, Mr. Thompson pleaded no contest to the charges of aggravated battery, section 784.045, Florida Statutes (2003), a second-degree felony; and felony child abuse, section 827.03, Florida Statutes (2003), a third-degree felony. The circuit court adjudged Mr. Thompson to be guilty of these crimes and sentenced him to two years’ probation on each charge. The two-year probationary terms were designated to run concurrently. In pertinent part, condition twelve of Mr. Thompson’s conditions of probation required him to pay $1074 in court costs.

After Mr. Thompson’s initial sentence was imposed, he relocated to Philadelphia, Pennsylvania. The supervision of Mr. Thompson’s probation was transferred to Pennsylvania in accordance with the Interstate Compact for Adult Offender Supervision, sections 949.07-08, Florida Statutes (2004). Thus Pennsylvania, as the receiving state, became responsible for supervising Mr. Thompson during his two-year probationary term. See § 949.07(2); Fla. Admin. Code R. 23-4.001 (repealed 2006); Kolovrat v. State, 574 So.2d 294, 296 (Fla. 5th DCA 1991). The Pennsylvania authorities subsequently reported that Mr. Thompson had absconded from supervision, and a warrant was issued for his arrest.

After Mr. Thompson’s return to Florida, the State filed an amended affidavit for violation of probation charging Mr. Thompson with violating conditions three, twelve, and five of his probation. The alleged violation of condition twelve was for Mr. Thompson’s failure to pay the $1074 in court-ordered costs. Condition three of the standard conditions provided: “You will not change your residence or employment or leave the county of your residence without first procuring the consent of your supervising officer.” Condition five related to new violations of the law. However, the State subsequently dropped its claim of a new law violation.

B. The Evidence Presented at the Revocation Hearing

At the revocation hearing held in July 2006, the State presented the testimony of Mr. Thompson’s probation supervisor in Philadelphia. She testified that Mr. Thompson had an initial visit with her on November 19, 2004. At that time, the probation supervisor instructed Mr. Thompson on the terms and conditions of his probation, including the requirement that he make weekly reports and that he was required to obtain her permission before changing his residence. During this initial visit, Mr. Thompson informed his probation supervisor of the address in Philadelphia where he said that he was residing.

After Mr. Thompson’s initial visit with his probation supervisor, he did not report to her and she did not see him again until April 27, 2005, when she visited the address that he had designated as his Philadelphia residence. The probation supervisor testified that her purpose in going to the address was “to make sure [Mr. Thompson] still lived there.” At the designated address, the probation supervisor found a house that was under renovation. Mr. Thompson, who was present during the probation supervisor’s visit, told her that his uncle was letting him stay at the house while it was being repaired. The probation supervisor testified that the house had a single bedroom on the second floor that “looked okay, but the rest of the house was just — was not livable.” With the exception of the second-floor bedroom, the floor of the house was cluttered with debris. The walls lacked sheetrock, and the electrical wiring was exposed. Another major impediment to living at the house was the absence of running water. When questioned about this deficiency, Mr. Thompson explained to his probation supervisor that he used the bathroom at a friend’s residence around the corner.

Before leaving, the probation supervisor instructed Mr. Thompson again about his weekly reporting requirement. In fact, she also had him sign a form acknowledging that he had been instructed to report to his probation supervisor weekly and that a “[f]ailure to do so [would] be a violation of [his probation].” The probation supervisor might have entertained doubts that Mr. Thompson had been living without running water in a house that was undergoing a major renovation through a Philadelphia winter. Nevertheless, she testified that upon returning to her office from the April 2005 home visit, she had “verified that [Mr. Thompson] was there.”

The April 2005 home visit was the last time that the probation supervisor had any contact with Mr. Thompson. When he failed to report after the April 2005 home visit, the probation supervisor visited the house again. On this occasion, she testified, no one answered the door, and there was no indication that anyone was living there. Afterward, the probation supervisor made one more effort to contact Mr. Thompson by leaving a message for him on his mother’s telephone answering machine. Mr. Thompson did not return the call. The probation supervisor also testified that she drove by the house frequently, but she had never seen anyone entering or leaving it. In the absence of any further contacts by Mr. Thompson, the probation supervisor filed a violation report and closed the case.

At the July 2006 revocation hearing, Mr. Thompson testified that he had lived at the address he had given to his probation supervisor since the transfer of his probation to Philadelphia. He said that he was leasing a room in the house at a reduced rental amount in exchange for his assistance with the ongoing renovation project. According to Mr. Thompson, while the house lacked running water, it did have electricity. With regard to the lack of running water, Mr. Thompson repeated his explanation that he had a key to a friend’s house nearby where he could use the bathroom. Mr. Thompson claimed that he may have been working on the day that the probation supervisor knocked on the door and no one answered. He said that the probation supervisor did not leave a , notice on the door notifying him of the attempted visit.

It was undisputed that Mr. Thompson had never notified his probation supervisor of any change of residence. Mr. Thompson conceded that he had not yet paid the $1074 in court-ordered costs.

C. The Circuit Court’s Ruling and the Sentences Imposed

Básed on the evidence presented at the hearing, the circuit court found that Mr. Thompson had violated conditions twelve and three and revoked his probation. In its oral pronouncement of sentence, the circuit court sentenced Mr. Thompson to ten years’ imprisonment for the aggravated battery, a second-degree felony, and five years’ imprisonment for felony child abuse, a third-degree felony. The sentences were designated to run concurrently. The circuit court’s oral pronouncement of sentence provided further:

Eight years of this sentence will be suspended upon your completion of a successful term of probation.
Therefore, the judgment is that you serve two years at this time, credit for time served, and the balance of eight years you’ll be on probation.

The written sentences differed slightly from the ones that were orally pronounced. The written sentences provided that Mr. Thompson would serve a term of two years’ imprisonment followed by eight years’ probation on both charges. Once again, the sentences were designated to run concurrently.

II. PRELIMINARY CONSIDERATIONS

In order for the circuit court to revoke Mr. Thompson’s probation, the State was obligated to prove by the greater weight of the evidence that he had willfully and substantially violated a specific condition of his probation. See Conhagen v. State, 942 So.2d 444, 445 (Fla. 2d DCA 2006) (citing Hicks v. State, 890 So .2d 459 (Fla. 2d DCA 2004)). Thus the circuit court was required to consider whether the charged violations were willful and substantial and whether they were supported by the greater weight of the evidence. See State v. Carter, 835 So.2d 259, 261 (Fla.2002). Our review of the circuit court’s determination is for abuse of discretion. See id. at 262; Robinson v. State, 907 So.2d 1284, 1286 (Fla. 2d DCA 2005).

III. DISCUSSION

A. Condition Twelve — The Failure to Pay Court Costs

The circuit court found that Mr. Thompson had violated condition twelve of his probation by failing to pay $1074 in court costs. On appeal, Mr. Thompson argues that the circuit court abused its discretion by finding him in violation of condition twelve because the State failed to prove that he had the ability to pay the court costs. “[W]here the violation alleged is a failure to pay costs or restitution, there must be evidence and a finding that the probationer had the ability to pay.” Shepard v. State, 939 So.2d 311, 314 (Fla. 4th DCA 2006) (citing Warren v. State, 924 So.2d 979, 980-81 (Fla. 2d DCA 2006)). With commendable candor, the State concedes that there was no evidence presented at the hearing concerning Mr. Thompson’s ability to pay the court costs and that the circuit court failed to make the required finding. Consequently, the circuit court abused its discretion in finding that Mr. Thompson had violated condition twelve.

B. Condition Three — Changing Residence without Permission

Mr. Thompson also argues that the evidence presented at the hearing was insufficient to support a finding that he had violated his probation by changing his residence without first obtaining his probation supervisor’s consent. In response, the State relies on the purported improbability of Mr. Thompson’s housing arrangements. As the State puts it: “Where [Mr. Thompson] actually lived is anybody’s guess, but it defies logic to believe he could live at [the house in question] continuously where there was no running water.”

In considering the State’s argument based on the unsuitable living conditions at Mr. Thompson’s designated address, we note initially that condition three did not require that Mr. Thompson live in any particular kind of residence. While we agree that Mr. Thompson’s living arrangements were less than ideal, a court may not revoke probation based on conduct that does not constitute a violation of the probationer’s conditions of probation. See Meade v. State, 799 So.2d 430, 433 (Fla. 1st DCA 2001). More important, on April 27, 2005, the probation supervisor met Mr. Thompson at the house that he had designated as his residence. Thus she was able to see for herself the conditions under which he was living. If the probation supervisor did not believe that Mr. Thompson was actually living at the house, she could have determined that his claimed living arrangement was a sham and immediately violated his probation. She did not. Instead, upon returning to her office from the home visit, the probation supervisor “verified that [Mr. Thompson] was there.” Thus the State’s argument that Mr. Thompson’s claimed residential arrangement “defies logic” to such an extent that the circuit court could infer that he was not actually living there is unpersuasive.

The State’s alternative argument that the probation supervisor’s subsequent visit to Mr. Thompson’s address was sufficient to support a finding that he had violated condition three is equally unconvincing. Two weeks after the April 27 visit to the residence, the probation supervisor returned to the residence and found no one there. She testified further that there was no indication that anyone was living there. However, the probation supervisor did not testify that she had .checked with neighbors or done anything else to verify that Mr. Thompson had moved. Instead, she left a message for Mr. Thompson on his mother’s telephone answering machine. We note that Mr. Thompson did not have a curfew and that he was not on community control. Evidence that Mr. Thompson was not at home during a single visit and that he failed to return a telephone message left on a relative’s telephone answering machine was not sufficient to prove that he had changed his residence. See Singleton v. State, 891 So.2d 1226, 1227-28 (Fla. 2d DCA 2005), disapproved of on other grounds by Lawson v. State, 969 So.2d 222 (Fla.2007); see also Gauthier v. State, 949 So.2d 326, 327 (Fla. 5th DCA 2007) (holding that evidence showing that a probationer was absent from his residence for thirteen nights was insufficient to support a finding that the probationer had changed his residence without permission because the probationer did not have a curfew). Furthermore, the State did not present any evidence that Mr. Thompson was actually living at a different address. For these reasons, the circuit court erred in finding that Mr. Thompson had violated condition three.

C. The Failure to Report

In support of the order of revocation, the State also argues that Mr. Thompson was “an absconder.” The record contains competent, substantial evidence that would have supported a finding that Mr. Thompson failed to report to his probation supervisor as required by the conditions of his probation. Granted, a probationer’s repeated failure to make required reports will support the revocation of probation. See Oates v. State, 872 So.2d 351, 354 (Fla. 2d DCA 2004); Robinson v. State, 773 So.2d 566, 567-68 (Fla. 2d DCA 2000). Nevertheless, as the circuit court noted, the Staté omitted to charge Mr. Thompson with failure to report. A revocation of probation based on a violation not alleged in the charging document is a deprivation of the right to due process of law. See Davis v. State, 891 So.2d 1186, 1187 (Fla. 4th DCA 2005); Perkins v. State, 842 So.2d 275, 277 (Fla. 1st DCA 2003). As the circuit court recognized, it could not revoke Mr. Thompson’s probation based on a failure to report because this conduct was not charged in the amended affidavit for violation of probation. See Grimsley v. State, 830 So.2d 118, 120 (Fla. 2d DCA 2002); Perkins, 842 So.2d at 277. It follows that the State may not rely on evidence of Mr. Thompson’s failure to report to sustain the revocation order.

D. Sentencing Errors

We agree that some of Mr. Thompson’s arguments concerning errors in his sentences appear to have merit. However, based on our disposition of this case, we need not address these issues.

IV. CONCLUSION

The record in this case does not establish that Mr. Thompson violated the terms and conditions of his probation as charged in the amended affidavit for violation of probation. For. this reason, we reverse the order of revocation of probation and the sentences that were imposed as a result of the revocation order. The sentences imposed by the circuit court required Mr. Thompson to serve two years in prison. At this time, it appears that Mr. Thompson has been released from prison, and he is now serving his two concurrent eight-year probationary terms. Mr. Thompson was originally placed on probation for two concurrent two-year probationary terms on October 11, 2004. These two-year probationary terms would have expired on October 10, 2006. For this reason, we do not direct that Mr. Thompson be restored to supervision under the terms and conditions of his original probationary sentence. Instead, on remand, the circuit court shall discharge Mr. Thompson from supervision. See Davis v. State, 867 So.2d 608, 612 (Fla. 2d DCA 2004).

Reversed and remanded with instructions.

WHATLEY, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


text:
    Jean MARKOVICH, Appellant, v. Bridgette MARKOVICH, Appellee.
    No. 2D06-4434.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2008.
    Jean Marie Henne, Winter Haven, for Appellant.
    Sara-Jean Palmer of The Sutton Law Firm, Bartow, for Appellee.
   PER CURIAM.

Jean Markovich, the former husband, challenges the trial court’s final order of dissolution of marriage in which the trial court awarded bridge-the-gap alimony and attorney fees to the former wife, Bridgette Markovich. We reverse the award of attorney’s fees but affirm the trial court’s order in all other respects.

With regard to the award of attorney’s fees, the trial court’s final judgment contains no indication of the hours worked by the former wife’s attorney or the hourly rate accompanied by the trial court’s determination of the reasonableness of the hours worked and the rate charged. The former husband’s motion for rehearing in which he raised this error was denied. Absent specific written findings regarding the basis for determination of the amount awarded, we are compelled to reverse and remand for further proceedings. See Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985); Burnham v. Burnham, 884 So.2d 390, 392 (Fla. 2d DCA 2004).

The former husband also argues that the alimony award was not supported by specific findings and that the trial court failed to make findings with regard to the valuation of the couple’s marital assets and debts. The former husband has provided no transcript of the proceedings. In the absence of a transcript, the former husband cannot overcome the presumption of correctness of the trial court’s determinations. See Esaw v. Esaw, 965 So.2d 1261, 1264-65 (Fla. 2d DCA 2007) (holding that the lack of findings supporting an alimony award and equitable distribution of marital property was not reversible error where the appellant failed to provide a transcript of the hearing or an acceptable substitute).

Accordingly, we reverse the trial court’s order of dissolution of marriage solely with respect to the award of attorney’s fees and remand for a new hearing so that the trial court may set forth specific findings as to the reasonableness of the hours expended and the hourly rate, as required by Rowe. The trial court’s final order of dissolution of marriage is affirmed in all other respects.

Affirmed in part; reversed in part.

ALTENBERND and DAVIS, JJ., and GALLEN, THOMAS M., Associate Senior Judge, Concur.