author: CORTIÑAS, Judge.

text:
    Eduardo GIRALT, Appellant, v. The STATE of Florida, Appellee.
    Nos. 05-2457, 05-1961.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 2006.

      Kubiliun & Associates and David Kubili-un and Lynn Overmann, Miami, for appellant.

      Charles J. Christ, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before COPE, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

The defendant, Eduardo Giralt, appeals from the trial court’s denial of his motion for judgment of acquittal, and its subsequent denial of the defendant’s Rule 3.850 motion for post-conviction relief, which was based on an ineffective assistance of counsel claim. We affirm.

On September 13, 2001, Miami-Dade police officers secured a warrant for a residence where the defendant once resided with his wife, with whom he had separated. At that residence, the police discovered a marijuana hydroponics lab and documents indicating that the owners of the home were the defendant and his wife. The defendant was not at the home at the time the warrant was served.

On October 31, 2001, the defendant was charged with one felony count of trafficking marijuana in excess of 25 pounds but less than 2000 pounds, in violation of section 893.135(l)(a), Florida Statutes (2001). The defendant pled not guilty.

The case proceeded to trial. Prior to the jury verdict, the defendant made two motions for a judgment of acquittal. The trial court denied the first motion and reserved ruling on the second motion. The jury returned a verdict of guilty. Defense counsel again moved for a judgment of acquittal or, in the alternative, a judgment notwithstanding the verdict. The trial court denied the motions and sentenced the defendant to three years imprisonment followed by ten years probation, which is immediately terminable upon the payment of a $25,000 fine.

The defendant filed a notice of appeal of his judgment and sentence, and subsequently filed a motion for post-conviction relief in this court. We relinquished jurisdiction to the lower court for the defendant to pursue his motion for post-conviction relief. Thereafter, the defendant filed a Rule 3.850 motion for post-conviction relief in the trial court, alleging ineffective assistance of counsel. See Fla. R. Crim. P. 3.850. After an evidentiary hearing, the trial court denied the motion, and the defendant appealed. The defendant’s appeal from the judgment and sentence, as well as his appeal from the denial of his motion for post-conviction relief, have been consolidated.

On appeal, the defendant contends: 1) the trial court erred in denying his motion for judgment of acquittal based on the State’s failure to prove that he was in constructive possession of the marijuana found at the home; and 2) the trial court erred in denying his motion for post-conviction relief based on ineffective assistance of counsel. We affirm on both issues.

A trial court’s ruling on a motion for judgment of acquittal is reviewed de novo, and the conviction will not be reversed if it is supported by competent substantial evidence. Boyd v. State, 910 So.2d 167, 180 (Fla.2005) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). In considering a motion for judgment of acquittal in a circumstantial evidence ease, such as this ease, a special standard of review applies whereby the trial judge is tasked with reviewing the evidence to determine whether competent evidence exists “from which the jury could infer guilt to the exclusion of all other inferences.” Boyd, 910 So.2d at 180. The State is only required to introduce competent evidence which is inconsistent with the defendant’s theory of events, and is not required to conclusively rebut every possible variation of events which can be inferred from the evidence. Id. Once the State meets its threshold burden of creating an inconsistency with the defendant’s theory, the trial court should deny the motion for judgment of acquittal and allow the jury to resolve the inconsistency “to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.” Id. at 180-81.

The defendant contends that the State presented evidence which was purely circumstantial and insufficient to establish that the defendant had knowledge of the presence of marijuana in the house that he once occupied. The defendant further contends that the State did not produce evidence linking him to the marijuana, and did not rebut the reasonable hypothesis of innocence that either the defendant’s estranged wife or unknown third parties were actually the individuals linked to the marijuana.

However, in viewing the evidence in a light most favorable to the State, we find that the State met its burden of creating an inconsistency with the defendant’s theory that he was not in constructive possession of the marijuana. See Johnson v. State, 456 So.2d 923 (Fla. 3d DCA 1984) (viewing the evidence in a light most favorable to the State in considering a motion for judgment of acquittal). In order to establish constructive possession, the State must show: “(1) the defendant’s ability to exercise dominion and control over the contraband; (2) his knowledge of the presence of the contraband; and (3) his awareness of the illicit nature of the contraband.” Id. at 924 (citations omitted). The ability to control the contraband “will be inferred from the ability to exercise control over the premises where [it is] found.” Id.

In the instant ease, the State presented the following documents, among others, which were found in the house: an explanation of benefits from the Social Security Administration addressed solely to the defendant and dated August 2, 2001; an electric bill addressed solely to the defendant for the service dates of May 18, 2001 to June 19, 2001 in the amount of $326.01, plus $189.78 past due for the previous statement balance; and an electric bill addressed solely to the defendant for the service dates of July 19, 2001 to August 17, 2001 in the amount of $327.43, and indicating that the previous statement balance of $504.66 had been paid in full. Additionally, the State’s witness, Detective Robert Holleran, testified that it takes ninety (90) days for marijuana plants to grow to the size of the marijuana plants in question. The jury could reasonably infer, based on the documents solely in the defendant’s name and the testimony of Detective Hol-leran, that the defendant was in possession of the house within the 90-day growing period, and that he was paying to keep the electricity running at the house for the hydroponics lab.

There were also photographs of the defendant in the house, along with men’s clothing and grooming items. There were no women’s grooming items or clothing found in the home during the search. Furthermore, the defendant’s sister-in-law testified that, when the defendant and his wife separated, she helped his wife move out of the house. She testified that she did not know where the defendant was living at the time that the police searched the home.

Viewing this evidence in a light most favorable to the State, we find that the State met its burden of introducing competent evidence which was inconsistent with the defendant’s theory that his estranged wife or unknown third parties were actually the individuals linked to the marijuana. The State presented competent substantial evidence by which the jury could reasonably infer that the defendant had the ability to exercise control over the house where the marijuana was found and, therefore, could infer that he had the ability to control the contraband. See Johnson, 456 So.2d at 924. The State was not required to conclusively refute every possible variation of events which could be inferred from the evidence. See Boyd, 910 So.2d at 180; Francis v. State, 808 So.2d 110, 131 (Fla.2001) (quoting State v. Law, 559 So.2d 187, 188-89 (Fla.1989)).

We next address the trial court’s denial of the defendant’s motion for post-conviction relief on his ineffective assistance of counsel claim. Whether counsel was ineffective and whether the ineffective assistance of counsel prejudiced the defendant are mixed questions of law and fact reviewed de novo. Acker v. State, 787 So.2d 77, 83 (Fla. 2d DCA 2001). We afford great deference to the trial court’s factual findings, but conduct an independent review of the legal conclusions based on those findings. See Lee v. State, 899 So.2d 348, 352 (Fla. 2d DCA 2005).

In order to prevail on a post-conviction ineffective assistance of counsel claim, the defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must establish the deficiency of defense counsel’s performance, which “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. Second, the defendant must establish that counsel’s deficient performance caused prejudice to the defense. Id. To establish that he was prejudiced, the defendant must demonstrate that, “but for counsel’s errors, there is a reasonable probability that the outcome of his trial would have been different.” Dante v. State, 903 So.2d 293, 296-97 (Fla. 3d DCA 2005) (citing Valle v. State, 778 So.2d 960, 965-66 (Fla.2001)). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Unless the defendant satisfies both prongs of the Strickland test, it cannot be said that the conviction resulted from a dysfunction in the adversary process that rendered an unjust result. Id. at 687, 104 S.Ct. 2052.

The defendant contends that he was tainted by ineffective representation in that defense counsel failed to adequately investigate the case, failed to ascertain the witness’ availability for trial, and did not call exculpatory witnesses at trial. The defendant specifically contends that the defendant provided four defense witnesses to his counsel, two of which purportedly would have testified that they had seen three Latin males going in and out of the home where the marijuana was found in the months leading up to the discovery of the marijuana.

However, at the evidentiary hearing on the defendant’s motion for post-conviction relief for ineffective assistance of counsel, defense counsel testified that he was only informed of witnesses who would testify that they did not see the defendant at the house. Defense counsel further testified that he believed there was no evidence placing the defendant in the house and, thus, it would not make a difference if witnesses said they did not see the defendant at the house.

Moreover, defense counsel testified that he informed the defendant that the defense should bring the case to trial soon. Defense counsel also advised against seeking a continuance because he was unsure what the State might find when they subpoenaed the defendant’s bank accounts. The State contends that the subpoenas were directed at determining who was paying the bills at the house where the marijuana was found.

We find that the defendant did not establish that defense counsel engaged in deficient performance which prejudiced the defendant. In examining defense counsel’s performance, we adhere to a strong presumption that it is reasonable, and we consider defense counsel’s decisions from his perspective under the circumstances at the time of trial. See Lee, 899 So.2d at 352 (citing Downs v. State, 453 So.2d 1102, 1106 (Fla.1984)). In the instant case, the defendant and his counsel made strategic decisions under the impression that the court was going to grant a judgment of acquittal. Therefore, based on the record before us, we conclude that the defendant failed to demonstrate that defense counsel’s representation fell below the objective standard of reasonableness. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

Accordingly, we affirm the trial court’s denial of the defendant’s motion for judgment of acquittal, and its denial of the defendant’s motion for post-conviction relief.

Affirmed.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Renee BRASWELL, Appellant, v. A. Glenn BRASWELL, Appellee.
    No. 3D06-1268.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 2006.
    Elser, Foster-Morales & Kopco; Greene, Smith McMillan, and Cynthia L. Greene, Miami, for appellant.
    Cynthia J. Dienstag, Miami, for appel-lee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   RAMIREZ, J.

Renee Braswell appeals an amended order that granted appellee A. Glenn Bras-well’s “Emergency Motion for Order Allowing the Minor Child to Reside with Father.” We reverse because the trial court erred when it allowed the father to proceed on his motion in the absence of an emergency.

This is the nineteenth appellate proceeding dealing with the domestic relations of Renee and A. Glenn Braswell. This one deals with the father’s emergency motion, which he filed on January 9, 2006, and in which he requested that the court order the child to reside with him and designate him as the primary residential parent of the parties’ minor child. By motion to dismiss, the mother promptly objected to the father’s failure to file a proper pleading, citing Florida Family Law Rules of Procedure Rule 12.110, requiring that “proceedings to modify a final judgment in a family law matter shall be initiated only pursuant to rule 1.110(h) and not by motion.” The court denied the motion without explanation. At its first scheduled hearing on February 21, 2006, the mother renewed her objection to the proceeding because there was no emergency. The court again denied any relief, explaining that due to its vacation schedule, there would be several hearings that would stretch out past mid-March. Thus, the mother would have ample time to prepare her case.

This is precisely what occurred. The court conducted the hearing over six different sessions. On the second day of the trial, the court referred both parents to be tested for drugs and alcohol. The father tested negative for all substances, and the mother tested positive for cocaine and negative for alcohol. The father introduced affidavits from several personnel who previously worked at the Braswell’s residence who described the mother as being consistently drunk and under the influence of cocaine. The father concluded that the mother was not capable of caring for the couple’s minor child.

The court held the last hearing on April 17, 2006. The court’s order dated May 15, 2006, instructed the mother to make arrangements to be admitted to a hospital for a substance abuse evaluation. The court also ordered the mother to waive her confidentiality rights to the treating doctors’ reports and/or discharge summaries, and gave the father temporary custody of the parties’ minor child. The court specifically found that there was no showing that the parties’ minor child was ever in imminent danger and that the child was not in any dire emergency.

We hold that the court abused its discretion when it treated the father’s motion as an emergency and then ordered a temporary modification of custody. There was no evidence in this record of an actual emergency. As in Gielchinsky v. Gielchinsky, 662 So.2d 732 (Fla. 4th DCA 1995), the case relied upon by the trial court, where there was no evidence of an actual emergency, “once the court became apprised of that fact, it should not have proceeded.” Id. at 733. Here, it was clear to everyone that this “emergency” was going to be tried over a period of weeks. In fact, it took five months from the date of the father’s execution of the affidavit on December 19, 2005, in support of his emergency motion to the date of the court’s order modifying custody dated May 15, 2006. Additionally, the court specifically found that there was no showing that the child was in imminent danger. Courts have recognized that an emergency authorizes a court to act on a temporary basis and modify an existing custody judgment. See Smith v. Crider, 932 So.2d 393 (Fla. 2nd DCA 2006)(“Generally, a court may not modify a final judgment of dissolution of marriage on a temporary basis pending a final hearing on a petition for modification unless there is an actual, demonstrated emergency. Gielchinsky v. Gielchinsky, 662 So.2d 732, 733 (Fla. 4th DCA 1995). This rule is founded upon the principles of res judicata arising from the entry of a final judgment and upon the due process concerns raised by altering the rights of the parties affected by the judgment.”). These cases have also recognized the presence of a real emergency where a child is threatened with physical harm or is about to be improperly removed from the state. The record before us shows that no one treated the circumstances here as an emergency, except to deprive the mother of a proper proceeding by petition, with its concomitant rights to a witness list and discovery. In fact, two principal expert witnesses for the father, Dr. Deborah Mash and Dr. Oren Wunderman, testified with no prior notice to the mother.

It appears that the father’s motion was merely a post-judgment attempt to modify custody by way of an emergency motion. He specifically requested in his emergency motion that the court modify custody. Florida law unequivocally requires that dissolution judgment modifications assert any change of circumstances in the form of a petition. See Hagins v. McNeal, 647 So .2d 1052, 1053 (Fla. 5th DCA 1994)(where petitioner sought a change in the status quo, court found that this did not constitute an enforcement of the terms of the dissolution judgment, and instead constituted a modification of the judgment that required the court to consider a change of circumstances by way of a petition). See also Ventriglia v. Vaughan, 623 So.2d 836, 838 (Fla. 2d DCA 1993).

For the reasons stated, we reverse the order on appeal and remand this cause. Because we are reversing on the procedural issue, we need not reach the other issues raised by the mother on appeal. However, on remand, the trial court may again be confronted with the same issues. We thus note that the trial court did not make any factual findings in its order that it would be in the best interest of the child to change the temporary custody of the parties’ child to the father. Additionally, neither the trial court nor the father’s counsel have cited to any legal authority in support of the order compelling the mother to be admitted to a hospital for treatment. Likewise, we can find no support for ordering the mother to waive her rights as they relate to the confidentiality of the doctors’ reports and/or discharge summaries.

Reversed and remanded.

      . His affidavit in support of the motion was dated December 19, 2005. — hardly consistent with any exigent circumstances.

      . Paragraph 10 of the order states as follows: Even though Almon Glenn Braswell, Jr.’s mother was at times impaired when she was caring for her son, there is no showing in the evidence that the young boy was ever in imminent danger. Fortunately for him, Mrs. Braswell always had a nanny or a housekeeper or security guard or some combination of those personnel present at the house to care for Glenn. However, if Mrs. Braswell wishes to continue as the residential parent, she must make a choice between that role and any desire she may have to use alcohol or illicit substances. Because the court does not find that the child in [sic] any dire emergency, there is not a problem in the deferring the commencement of Mrs. Braswell's evaluation for a month until Glenn finishes his current school year. The facts described at trial evidently have gone on for years. On the other hand, this case does present a "real emergency” as that term is used in Gielchinsky v. Gielchinsky, 662 So.2d 732 (Fla. 4th DCA 1995). Having an impaired residential parent, even with a nanny or housekeeper speaking limited English present, is a type of emergency which cannot be countenanced or permitted to be continued long-term by the court.

      . The only support was suggested by the mother and is contained in chapter 397 of the Florida Statutes, but there was no attempt to follow such statutory authority. The father argues that the mother simply should disobey the court’s order, hardly a viable option.


author: PER CURIAM.

text:
    John ULBRICH, Appellant, v. Christina COOLIDGE, Appellee.
    No. 4D05-4328.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
   PER CURIAM.

Appellant, John Ulbrich, appeals a non-final order entered in favor of Appellee, Christina Coolidge, in a post-judgment enforcement proceeding. The parties were previously married and their divorce was made final on March 30, 1998. The final judgment of dissolution ratified a previously entered Marital Settlement Agreement, which is the basis for the action below. The Agreement contained a provision that in the event either party would have to take action to enforce the Agreement, the prevailing party would recover attorney’s fees. Despite this provision, the trial court awarded Coolidge $17,470.00 in interim fees and costs prior to trial, pursuant to section 61.16, Florida Statutes. We hold that the trial court abused its discretion in not applying the prevailing party provision found in the Agreement, and reverse.

“Provisions in ordinary contracts awarding attorney’s fees and costs to the prevailing party are generally enforced.” Lashkajani v. Lashkajani, 911 So.2d 1154, 1158 (Fla.2005). “It is well settled that a marital settlement agreement is to be interpreted like any other contract and is construed as a matter of law.” Coe v. Abdo, 790 So.2d 1276, 1279 (Fla. 4th DCA 2001). “Trial courts do not have the discretion to decline to enforce such provisions, even if the challenging party brings a meritorious claim in good faith.” Id. Further, in cases involving a marital settlement agreement with a prevailing party provision, section 61.16, Florida Statutes, cannot be used as a basis for an award of attorney’s fees. See Zakian v. Zakian, 837 So.2d 549, 551 (Fla. 4th DCA 2003); Dean v. Dean, 655 So.2d 243, 244 (Fla. 3d DCA 1995).

In this case, the Agreement provided that Ulbrich would pay Coolidge equitable distribution in the annual sum of $62,500.00 for eight (8) years. These payments were conditioned on Ulbrich’s continued visitation with his stepdaughter, Nicole. Ulbrich did not maintain the payments, and Coolidge brought an action to enforce the agreement. Ulbrich alleged that he had stopped paying because Coolidge had denied him access to Nicole. Coolidge filed a motion for interim fees and costs, and Ulbrich filed a motion in opposition, asserting that the prevailing party provision in the Agreement should be enforced. At a hearing on the motion, Coolidge asserted that she had sole parental responsibility for Nicole, and that Ul-brich was using “the court system to starve her out.” Coolidge asserted that the $62,000.00 was used to maintain Nicole’s life-style. The trial court stated:

My concern right now would be whether or not the former wife can meet her own interim fees, and then defer on the issue after there is a trial on the substantive issue and then determine the rights of the child, because what you are arguing over are basically the rights of the child, and I won’t know that until I have a full trial. So my concern at this hearing is whether or not there’s prejudice to mom being able to promote the interest of the child on an interim basis to pay this amount of interim fees.

The trial court awarded Coolidge interim fees, specifically relying on this court’s decision in Bernstein v. Bernstein, 498 So.2d 1270 (Fla. 4th DCA 1986) (en banc) (holding that a heavier burden cannot be placed on a party seeking upward modification of child support due to the presence of a settlement agreement).

In Bernstein, in which a party was seeking upward modification of child support, the trial court held, among other things, that in cases involving a Settlement Agreement with a prevailing attorney’s fees clause, it had no discretion to consider whether an award of attorney’s fees would be warranted. Id. at 1274. This court reversed and remanded to the trial court with instructions that it reconsider the application for attorney’s fees. Id. “The point of Bernstein is that if the parents cannot contract away a court’s ability to act in the best interest of their child, then they cannot contract away one party’s ability to obtain an advocate to see that the full story is developed in a child related proceeding.” Engelsen v. Landers, 699 So.2d 1031 (Fla. 4th DCA 1997).

We find that the trial court erred in its application of Bernstein to the instant case. In the instant case, the parties did not contract away their right to obtain an advocate, nor was a heavier burden of proof being imposed on either party. Further, this case does not involve a “child related proceeding” in the Engelsen sense of the phrase. Both parties were seeking enforcement of the original Agreement, and this court has previously upheld the application of prevailing party provisions in enforcement proceedings, even in proceedings to enforce the payment of child support, a much clearer instance of a “child related case.” See Hutchinson v. Hutchinson, 687 So.2d 912, 913 (Fla. 4th DCA 1997) (trial court erred in not awarding attorney’s fees to former wife who brought an enforcement action seeking child support arrearages).

Based on the above, we find the trial court abused its discretion in not applying the prevailing party provision found in the Agreement, and in awarding interim fees to Coolidge, and reverse.

STONE, POLEN and FARMER, JJ„ concur.


author: KLEIN, J.

text:
    Ebel GENEUS, Appellant, v. DEPARTMENT OF REVENUE o/b/o Claudie DAOUT, Appellee.
    No. 4D05-3827.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Alan R. Burton, Fort Lauderdale, for appellant.
    No brief filed for appellee.
   KLEIN, J.

This appeal involves a paternity action in which a judgment was entered against appellant based on a default. Appellant moved to vacate the judgment on the ground that service of process was insufficient because the paternity action named Ebel Shalom, but was served on appellant. Through his sworn motion to vacate the judgment, appellant asserted that he had never known the mother, had never been known as Ebel Shalom, and that he was not a party to this action. Although, after a series of unsuccessful attempts to serve Shalom, a return of service was filed stating that the “named person” had been served at an address where appellant resided, this service was insufficient to put appellant on notice that he was a defendant in this case. The paternity judgment is accordingly void for lack of personal jurisdiction and reversed.

WARNER and GROSS, JJ., concur.


text:
    Bradley J. WOELLMER, Appellant, v. Theresa E. WOELLMER, Appellee.
    No. 4D06-112.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Lewis Kapner of Law Offices of Lewis Kapner, P.A., West Palm Beach, for appellant.

      Eric C. Cheshire of Eric C. Cheshire, P.A., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the final judgment for dissolution in all respects except for two.

We affirm the trial court’s imputation of income to the husband because record evidence supported the court’s finding that the husband’s income from a second job “had been earned on a recurrent or steady basis” during the marriage. Mitzenmacher v. Mitzenmacher, 656 So.2d 178, 180 (Fla. 3d DCA 1995).

The trial court was within its discretion to award the wife a credit for the post-separation monies she spent to maintain and repair the marital home. When one spouse uses non-marital monies to “maintain the marital home[,]” the trial court has discretion to credit the paying spouse for the amount expended when “fashioning an equitable distribution in light of all relevant circumstances!.]” Grieco v. Grieco, 917 So.2d 1052, 1056 (Fla. 2d DCA 2006) (citing Stock v. Stock, 693 So.2d 1080, 1086 (Fla. 2d DCA 1997) (citing Knecht v. Knecht, 629 So.2d 883, 887 (Fla. 3d DCA 1993))). “Reimbursement or credit for a party’s payment of marital property-related expenses during separation is a matter of judicial discretion in light of all relevant circumstances.” Stock, 693 So.2d at 1086 (citing Knecht, 629 So.2d at 887).

The trial court recognized that the marital home was the parties’ most valuable asset, which would have to be sold as part of the equitable distribution. Repairs to the home were necessary to generate a higher sales price, which would be to the benefit of both parties. The trial court believed the wife’s testimony that she borrowed $27,000 and expended $24,415 to repair the marital home’s hurricane damage. Photographs admitted into evidence corroborated the wife’s claim that substantial hurricane damage to the home occurred and that she made necessary repairs. It was reasonable for the trial court to award the wife a credit for the monies expended. On remand, the amount of the credit shall be reduced to $24,415, which the wife testified she expended on hurricane repairs.

Concerning marital property that the wife sold at a post-dissolution yard sale, the final judgment is inconsistent. The wife testified that she sold a tractor and a generator at the yard sale. Relying on the testimony of the wife, the court found that the wife received $1,693.00 from the yard sale, and awarded the husband $846.50. However, in the equitable distribution reflected in Exhibit C to the final judgment, the court awarded the tractor and generator to the husband, valuing those items at $2,500. We reverse these aspects of the final judgment and remand to the trial court for clarification. See Holmes v. Holmes, 676 So.2d 506 (Fla. 1st DCA 1996).

Affirmed in part, reversed in part, and remanded.

WARNER, KLEIN and GROSS, JJ., concur.


author: SUAREZ, J.

text:
    The STATE of Florida, Petitioner, v. Diondrick GIBSON, Respondent.
    No. 3D06-203.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 2006.

      Charles J. Crist, Jr., Attorney General, and Maria T. Armas, Assistant Attorney General, for petitioner.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for respondent.
    Before SHEPHERD, and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

The State seeks a writ of certiorari, or in the alternative a writ of prohibition, quashing the trial court’s order placing conditions on a live lineup. We grant cer-tiorari and quash the order.

The defendant was arrested in the instant case for armed robbery with a firearm. At that time the State was also investigating the defendant’s involvement in a number of other offenses. The State issued a subpoena requiring the defendant to appear in a live lineup and explained to the trial court that the lineup related to the other criminal investigations and not the instant armed robbery. The defendant moved to quash the subpoena and argued that no lineup should proceed without a probable cause determination. He contended further that, if a lineup was to be conducted, the trial court should impose certain conditions to ensure its fairness. The trial court denied the motion to quash the subpoena but imposed conditions on how the lineup should be conducted. The court specified the number of participants, required notice to defense counsel, required “double-blind” and sequential procedures, and ordered that the lineup be videotaped with a soundtrack.

The Florida Constitution provides for the separation of powers among the three branches of the state government:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

Art. II, § 3, Fla. Const.

The decision to charge and prosecute criminal offenses is an executive responsibility over which “the state attorney has complete discretion.... ” State v. Bloom, 497 So.2d 2, 3 (Fla.1986). The state attorney “acts as a one-person grand jury in carrying out investigations into noncapital criminal conduct, and the state attorney must be granted reasonable latitude in that role.” State v. Investigation, 802 So.2d 1141, 1143-44 (Fla. 2d DCA 2001). The State “clearly has a strong interest in gathering information relevant to an initial inquiry into suspected criminal activity....” Doe v. State, 634 So.2d 613, 615 (Fla.1994). “A judicial limit to this discretion arises where constitutional constraints are implicated.” State v. J.M., 718 So.2d 316, 317 (Fla. 2d DCA 1998).

The trial court departed from the essential requirements of the law in this instance by injecting itself into the State’s investigative function where no constitutional constraints are implicated. The State simply seeks to conduct a lineup, which it is authorized to do as part of its investigative powers. § 27.04, Fla. Stat. (2005) (authorizing the state attorney to summon and examine witnesses). The State’s standard lineup procedure has been repeatedly upheld as constitutionally sound. Doe v. State, 634 So.2d at 613 (disapproving Saracusa v. State, 528 So.2d 520 (Fla. 4th DCA 1988), which held that a defendant could not be compelled to appear in a live lineup and submit to a blood test without a finding of probable cause). The defendant is free to attack the lineup by filing a pretrial suppression motion if he feels that it is conducted improperly. The trial court’s attempt to set conditions on the State’s investigative function is an encroachment on the State’s authority. State v. Investigation, 802 So.2d at 1141 (holding that the trial court departed from the essential requirements of the law by requiring the State to prove that the records it subpoenaed were relevant and material to an actual crime that had occurred and by finding the attorney-client privilege applicable to the records of a third party); State v. Bloom, 497 So.2d at 2 (holding that the circuit judge had no authority to interfere with the prosecutor’s discretion in choosing to proceed with the case as a death penalty case); State v. J.M., 718 So.2d at 316 (reversing the dismissal of petitions for delinquency that the trial court deemed “futile” because the juvenile was already committed to DJJ for another offense).

A writ of certiorari is appropriate here because the trial court departed from the essential requirements of the law by placing conditions on the State’s inherent investigative function. State v. Investigation, 802 So.2d at 1141; see also State v. Bloom, 497 So.2d at 3 (“A writ of prohibition is the appropriate remedy when a trial court attempts to interfere with the prose-cutorial discretion of a state attorney.”).

Accordingly, certiorari is granted and the trial court’s order placing conditions on the lineup is quashed.


author: WELLS, J.

text:
    Keith George CAMPBELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1994.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 2006.

      Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before, COPE, C.J., and WELLS, J., and SCHWARTZ, Senior Judge.
   WELLS, J.

Keith George Campbell appeals his convictions and sentences for conspiracy to traffic in cocaine with a firearm, attempted trafficking in cocaine with a firearm, and conspiracy to commit robbery with a firearm. On appeal, Campbell raises five issues claiming (1) that he could not be convicted for two conspiracies where only one conspiracy existed; (2) he could not be convicted of attempted trafficking in cocaine where no cocaine existed; (3) that his offenses could not be reclassified for possession of a firearm where he never actually possessed a weapon; (4) that he could not be sentenced as a violent career criminal where the crimes for which he was being sentenced are not forcible felonies; and (5) that the trial court erred in failing to give an objective entrapment jury instruction. We agree that some of these claims have merit and address each of them below.

Campbell’s convictions stem from a sting operation conducted by the Miami-Dade Police Department as part of S.T.O.P. — a multi-law enforcement task force designed, through the use of confidential informants, to proactively target individuals engaged in drug related “rip-offs.” In October 2000, a task force member was advised by a confidential informant that Campbell wanted to make some money and was interested in participating in a crime. Upon hearing this, the task force crafted a plan where a task force officer would pose as a disgruntled drug courier who needed help in ripping-off his employer’s cocaine.

Campbell thereafter participated in two meetings with task force members regarding this plan. The confidential informant brought Campbell to the first meeting in a parking lot where a task force officer posing as a drug courier told Campbell that he wanted to steal his employer’s cocaine but could not do it himself because other drug dealers would kill him. The officer stated that he “wanted to see if anybody would help him or not.” The second meeting took place at a fast food restaurant between the informant, Campbell, Campbell’s friends, and the task force officer, during which the plan to rip-off the “employer’s” cocaine was rehashed. Both of these meetings were videotaped.

Task force members thereafter contacted Campbell two additional times by telephone, each time providing Campbell with the opportunity to back out of the plan. Campbell wanted to proceed with the plan.

Thereafter, acting on the rip-off plan, the informant picked up Campbell and three of his friends, and the “tools” needed for the rip-off and brought them to a warehouse where the four (one of whom was carrying a blue bag) got into an SUV to be used in the rip-off. At that point, the police announced an arrest. Campbell’s friends fled; Campbell remained with the SUV. All were arrested.

The blue bag that was carried into the SUV by one of the men was recovered from behind the driver’s seat, the seat occupied by Campbell. It contained a 12-gauge shotgun. A .38 caliber gun was found close to where Campbell’s two friends were apprehended and a .25 caliber semiautomatic was found in one of the men’s pocket. An additional weapon, a .380 caliber semiautomatic, also was recovered from where one on Campbell’s friends had thrown it.

Campbell was charged with armed conspiracy to commit trafficking in cocaine, attempted armed conspiracy to traffic in cocaine, use or display of a firearm while committing a felony, armed conspiracy to commit robbery, and possession of a firearm or weapon by a convicted felon. Campbell testified at trial admitting that he committed the charged offenses and that he had a substantial criminal record. He claimed, however, that he acted under the influence of the confidential informant.

Campbell was found guilty of conspiracy to traffic in cocaine with a firearm, attempted trafficking in cocaine with a firearm, and conspiracy to commit robbery with a firearm. He was sentenced to life imprisonment for conspiracy to traffic in cocaine with a firearm and attempted trafficking in cocaine with a firearm and to 40 years imprisonment for conspiracy to commit robbery with a firearm. He was adjudicated a violent career criminal and received a 15 year minimum mandatory sentence on the conspiracy to traffic in cocaine with a firearm count, a life minimum mandatory sentence on the attempted trafficking in cocaine with a firearm count, and a 30 year minimum mandatory sentence on the conspiracy to commit robbery with a firearm count, all to run concurrently. He raises five challenges to these convictions and sentences.

First, Campbell argues, and the State agrees, that the trial court erred in convicting him of both conspiracy to traffic in cocaine with a firearm and conspiracy to commit robbery with a firearm, where only one conspiracy existed. “A criminal conspiracy is the agreement to commit a criminal act or acts, and if a single agreement exists, only one conspiracy exists even if the conspiracy has as its objectives the commission of multiple offenses. The conspiracy continues to exist until consummated, abandoned, or otherwise terminated by some affirmative act.” Durden v. State, 901 So.2d 967, 968 (Fla. 2d DCA 2005) (citing Doolin v. State, 650 So.2d 44, 44-45 (Fla. 1st DCA 1995)); see Epps v. State, 354 So.2d 441, 442 (Fla. 1st DCA 1978) (“[a] single conspiracy may have for its object the violation of two or more criminal laws or two or more substantive offenses. The conspiracy is still one offense, no matter how many repeated violations of the law may have been the object of the conspiracy”). Since only a single conspiracy with the dual goals of committing armed trafficking and armed robbery was proved to exist, one of the conspiracy convictions, and its accompanying sentence, must be vacated.

Second, Campbell argues that he cannot be convicted for attempted trafficking in cocaine where no cocaine existed. We disagree. While trafficking requires the existence of cocaine, attempted trafficking in cocaine does not. § 777.04(1), Fla. Stat. (2005) (“[a] person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but ... [is] prevented in the execution thereof, commits the offense of criminal attempt”); Brooks v. State, 762 So.2d 879, 897 (Fla. 2000) (confirming that to establish attempted trafficking in cocaine no actual cocaine must be proved to exist); State v. Cohen, 409 So.2d 64, 64-65 (Fla. 1st DCA 1982) (confirming that no cocaine need exist to support a conviction for attempted sale of cocaine because “[c]riminal attempt occurs when (1) there is intent to commit a crime, and (2) there is an overt act which (3) falls short of the ultimate design due to circumstances independent of the will of the attemptor”). Campbell admitted that he intended to and acted to traffic in cocaine. He cannot, therefore, avoid conviction for attempting to do so because the lack of cocaine thwarted his objective. See Cohen, 409 So.2d at 65 (holding that “the defendants should not be allowed to escape prosecution because an independent circumstance intervened to prevent the crime they intended to commit and acted to carry out”).

Third, Campbell argues that there was insufficient evidence that he possessed a firearm to reclassify the conspiracy to traffic in cocaine and attempted trafficking in cocaine charges under section 775.087(1), Florida Statutes (2000). We agree.

“[W]hen a defendant is charged with a felony involving the ‘use’ of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.” State v. Rodriguez, 602 So.2d 1270, 1272 (Fla.1992). The Florida Supreme Court has repeatedly held that “actual physical possession of a weapon during the commission of a crime is required for the offense to be reclassified under section 775.087(1).” Robins v. State, 602 So.2d 1272, 1273 (Fla.1992); see Williams v. State, 622 So.2d 456, 465 (Fla.1993) (“[i]n order for a defendant’s sentence to be enhanced pursuant to section 775.087(l)-(2), Florida Statutes (1991), the State must prove that the defendant had actual physical possession of the weapon”).

There is no evidence that Campbell had actual physical or personal possession of a weapon at any time during the conspiracy. The testimony was that the confidential informant, driving a van wired for sound, picked up Campbell, Campbell’s friends and the “tools” that had been discussed in prior phone conversations for use in the rip-off. On the way to the SUV that they were to use in the rip-off, the co-conspirators discussed the use of guns and gloves in the planned robbery. Although one of the task force officers saw one of the conspirators carrying a blue bag (in which a shotgun ultimately was found) as the conspirators got into the SUV, there is no testimony that it was Campbell who carried the bag. Because there is no evidence that Campbell had either actual physical or personal possession of a firearm or weapon, the conspiracy to traffic and attempted trafficking in cocaine charges were improperly reclassified under section 775.087(1) and Campbell must be resentenced on these convictions.

Fourth, Campbell argues that because conspiracy and attempt are not forcible felonies as defined by section 776.08 of the Florida Statutes, he could not be sentenced as a violent career criminal under section 775.084(l)(d)(l). We agree.

Section 775.084(l)(d)(l) in pertinent part provides:

(d) “Violent career criminal” means a defendant for whom the court must impose imprisonment pursuant to paragraph (4)(d), if it finds that:
1. The defendant has previously been convicted as an adult three or more times for an offense in this state or other qualified offense that is:
a. Any forcible felony, as described in s. 776.08;
b. Aggravated stalking ...
c. Aggravated child abuse ...
d. Aggravated abuse of an elderly person or disabled adult ...
e. Lewd or lascivious battery, lewd or lascivious molestation, lewd or lascivious conduct, or lewd or lascivious exhibition ...
f. Escape ...
g. A felony violation of chapter 790 involving the use or possession of a firearm.

Conspiracy and attempt obviously are not enumerated qualifying offenses under this provision. Nor are they “forcible felonies” expressly listed in section 776.08. They also do not fall within section 776.08’s “other felony which involves the use or threat of physical force or violence against any individual” rubric.

Such felonies are those “whose statutory elements include the use or threat of physical force or violence against an[ ] individual.” Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991). The elements of attempt are intent to commit a crime and an overt act in furtherance of that intent. See Brooks, 762 So.2d at 897 (“To establish attempted trafficking in cocaine, the State was required to present evidence establishing beyond a reasonable doubt that Brooks intended to commit the offense and committed an overt act toward its completion.”). The statutory elements of conspiracy are intent and agreement. See Montano v. State, 879 So.2d 1264, 1265 (Fla. 3d DCA 2004) (stating that the elements of the crime of conspiracy are “an agreement and an intention to commit an offense”).

Because the elements of conspiracy and attempt do not necessarily include the use or threat of physical force or violence against any individual, Campbell did not qualify as a violent career criminal. See Hudson v. State, 800 So.2d 627, 629 (Fla. 3d DCA 2001)(concluding that crime at issue, throwing a deadly missile into a hotel lobby, could not be a qualifying felony under the violent career criminal statute where it did not “necessarily involve physical force or violence against an individual”).

Fifth, Campbell argues that the trial court erred in refusing to give his requested jury instruction on objective entrapment. We disagree.

Objective entrapment, unlike subjective entrapment, focuses on the conduct of law enforcement and operates as a bar to prosecution in those instances where government conduct “so offends decency or a sense of justice” that it amounts to a denial of due process. State v. Blanco, 896 So.2d 900, 901 (Fla. 4th DCA 2005); State v. Taylor, 784 So.2d 1164, 1167 (Fla. 2d DCA 2001) (stating that the rule requiring dismissal where police conduct amounts to a denial of due process “is narrowly applied and is limited to those instances where the government’s conduct so offends decency or a sense of justice that the judicial power may not be exercised to obtain a conviction”); Munoz v. State, 629 So.2d 90, 98 (Fla.1993)(“[b]ecause the legislature cannot abrogate an accused’s due process rights, [statutory limitations on the defense of entrapment are] inapplicable whenever a judge determines as a matter of law that law enforcement personnel have violated an accused’s due process rights”). While “defining the limits of due process is difficult because due process is not a technical, fixed concept; ... it is a general principle of law that prohibits prosecutions brought about by methods offending one’s sense of justice.” Munoz, 629 So.2d at 98.

Where such conduct exists, the remedy is dismissal:

The due process defense based upon governmental misconduct is an objective question of law for the trial court, as opposed to the subjective predisposition question submitted to the jury in the usual entrapment defense....
Based upon the due process provision of article I, section 9 of the Florida Constitution, we agree ... that government misconduct which violates the constitutional due process rights of a defendant, regardless of that defendant’s predisposition, requires dismissal of criminal charges.

State v. Glosson, 462 So.2d 1082, 1084, 1085 (Fla.1985) (determining that the trial court had sufficient undisputed facts before it to warrant dismissal as a matter of law); Munoz, 629 So.2d at 99 (noting that “in the presence of egregious law enforcement conduct, an entrapment defense is to be evaluated under the due process provision of article I, section 9 of the Florida Constitution as in Glosson ”); Blanco, 896 So.2d at 901 (“[w]hen government conduct violates a defendant’s due process rights, the remedy is dismissal”); Taylor, 784 So.2d at 1167 (“[i]f the actions of a law enforcement officer amount to a denial of a defendant’s right to due process, dismissal of the charges may be warranted”).

In this case, Campbell never sought dismissal. Nor would dismissal have been appropriate. The testimony was that the police responded to a known felon with seventeen prior convictions who was in need of money, who had expressed an interest in participating in a crime, and who actively participated in the planning of a drug courier rip-off. Even considering Campbell’s declaration that he was acting under an informant’s influence because the informant had given him drugs and small amounts of money so that he and his girlfriend could rent a hotel room to do drugs away from his disapproving mother, no egregious law enforcement conduct of the ilk recognized as violating due process was demonstrated:

The type of conduct held to violate due process is that which so offends decency or a sense of justice that judicial power may not be exercised to obtain a conviction. See, e.g., State v. Glosson, 462 So.2d 1082 (Fla.1985) (law enforcement entering into a contingency contract with informants to obtain convictions); Cruz v. State, 465 So.2d 516 (Fla.), cert. denied, 473 U.S. 905, 105 S.Ct. 3527, 87 L.Ed.2d 652 (1985) (law enforcement officer appearing inebriated and hanging money from his pocket in high crime area); State v. Williams, 623 So.2d 462 (Fla.1993) (illegal manufacture of crack cocaine by law enforcement officials for use in reverse-sting operation); Soohoo v. State, 737 So.2d 1108 (Fla. 4th DCA 1999) (undercover agent’s consignment arrangement for sale of drugs).

Blanco, 896 So.2d at 901.

Having failed to demonstrate a violation of due process as a matter of law, dismissal would have been inappropriate even if it had been requested, thus, in this case, the standard jury instruction on entrapment was a correct statement of the law. Munoz, 629 So.2d at 99 (“the subjective test set forth in section 777.201 is the test to be applied on the issue of entrapment in the absence of egregious law enforcement conduct)”; see Guerra-Villafane v. Singletary, 729 So.2d 972, 974 (Fla. 3d DCA 1999)(observing that standard entrapment instruction “comportfe] with Munoz ”).

Accordingly, this matter is remanded to the trial court to permit the State to withdraw one of the conspiracy counts and for resentencing consistent with this opinion.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . This informant had been a registered informant with the police department for several years and ultimately was paid $3,000 for his work in this case.

      . The informant, who had met Campbell in jail, came into contact with Campbell during one of a number of visits to Campbell's mother regarding refinancing of a mortgage that was in default.

      .Each of these meetings and telephone conversations were recorded. The recordings were played for the jury at trial.

      . Section 775.087(1) provides:
      Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified....

      . This is so even though there were four co-conspirators, four guns were recovered, and that the blue bag holding the 12-gauge shotgun was found on the floor behind Campbell's seat in the SUV.

      . Section 778.06 defines the term forcible felony as "treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.” § 776.08, Fla. Stat. (2005).

      . A videotape of the first meeting between the informant, Campbell and the task force member/drug courier shows Campbell, without prompting or encouragement, aggressively pursuing the rip-off and personally detailing a rip-off plan while the informant remained virtually silent. This videotape, shown to the jury, unequivocally confirmed that Campbell was not under the influence of the informant or drugs.


author: CORTIÑAS, Judge. GREEN, J.

text:
    T.P., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D05-1508.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 2006.

      Karl E. Hall, Jr., Miami, for appellant.
    Guardian Ad Litem Program and Hillary S. Kambour, for appellee.
    Before GREEN, RAMIREZ, and CORTIÑAS, JJ.
   CORTIÑAS, Judge.

The father, T.P., appeals from a final judgment terminating his parental rights to his daughter, Z.K.P. We affirm.

T.P. is the father of a girl, Z.K.P, and twin babies, Z.K.G. and Z.K.G. (the “twins”). The twins, one of whom is a male and the other a female, were five weeks old and Z.K.P. was two and a half years old at the time they came into the custody of the Department of Children and Family Services (“DCF”).

In May 2003, the twins were examined at a hospital for a variety of physical abuse symptoms. The father was arrested and charged with two counts of aggravated child abuse. Thereafter, DCF filed a termination of parental rights petition against the father.

During the father’s termination of parental rights trial, Dr. Walter Lambert (“Dr. Lambert”), the Medical Director of the Child Protection Team for Miami-Dade and Monroe Counties at the University of Miami Department of Pediatrics, testified as to the injuries suffered by the twins as a result of “severe child abuse.” According to Dr. Lambert’s testimony, the male twin sustained a large fracture on the left side of his head, which resulted in brain swelling. The injuries caused him to be “profoundly developmentally delayed,” and resulted in “cortical blindness.” Dr. Lambert also testified that the male twin’s head injury was an “impact injury” from “blunt trauma to the head,” and that an injury of this type was consistent with an injury that may result from an infant’s head being hit against a piece of wood or thrown against the floor. The male twin also sustained fractures to multiple ribs and both of his femurs.

With respect to the female twin, Dr. Lambert testified that she suffered three episodes of child abuse, in which she sustained fractures to multiple ribs and both of her femurs, injuries to her liver and left lung, as well as facial bruising. Dr. Lambert opined that both twins’ rib fractures were either a result of being squeezed between two hands or direct impact blows to the ribs. As for the twins’ femur fractures, Dr. Lambert opined that such fractures could occur by shaking a child, or by pulling and yanking his/her thighs.

A recorded statement by the father, given to Detective Jackson, was also admitted into evidence. In explaining to Detective Jackson how the male twin’s injuries occurred, the father stated that he grabbed the male twin under the armpits and shook him in an attempt to stop him from crying. Then, the father shook him again, walked over to the bassinet, and “dropped” the male twin from the distance of his waist into the bassinet. The father was uncertain as to whether the male twin hit his head on the wood that was inside or on the sides of the bassinet. The father stated that he also shook the female twin to stop her from crying. He further stated that he shook the twins multiple times while they were sleeping to make sure that they were still alive. In describing to Detective Jackson how he shook the twins, the father stated, “[w]hen I didn’t hear from them at first, I grabbed them, I shake them up, and their little body weaving, that’s when they start the crying. I’m like okay, well I know that they’re okay.”

The Guardian ad Litem (“Guardian”) was also a witness at the trial. The Guardian testified that the male twin was blind, both twins required physical therapy, and the male twin also required occupational therapy. With respect to Z.K.P, the Guardian testified that Z.K.P. was not harmed by the father and did not sustain any injuries. However, Z.K.P. “would get into hysterics” when the twins would leave for supervised visits with family members. The Guardian also testified that, although Z.K.P. loved her father, she had stopped asking about him and had no bond with him.

The trial court entered a final order terminating the father’s parental rights as to all three children. The trial court concluded that the child abuse incidents committed by the father constituted egregious abuse and established a prospective risk of harm to all of the children. The trial court further concluded that it was in the manifest best interest of the children to terminate the father’s parental rights, and that there were no less restrictive means to protect the children.

The father only challenges the final judgment terminating his parental rights as to Z.K.P. He does not challenge the termination of his parental rights as to the twins.

The father contends that the trial court’s order terminating his parental rights as to Z.K.P. should be reversed because the trial court erroneously concluded that a finding of egregious abuse as to the twins under section 39.806(l)(f), Florida Statutes (2005), was sufficient to support a finding of prospective abuse as to the unharmed child, Z.K.P.

The standard of review for challenges to the sufficiency of the evidence supporting a termination of parental rights is whether the trial court’s order is supported by substantial competent evidence. See In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995); F.A.F. v. Dep’t of Children & Family Servs., 804 So.2d 616, 617 (Fla. 3d DCA 2002).

We recognize “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child.” Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 570 (Fla.1991). Accordingly, to protect the rights of the parents and children, the state bears the burden of showing “by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.” Id. at 571; see also Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 608 (Fla.2004). The state must also establish that the termination of parental rights “is the least restrictive means of protecting the child from serious harm.” Padgett, 577 So.2d at 571; F.L., 880 So.2d at 608; In re L.C., 908 So.2d 568, 571 (Fla. 2d DCA 2005); In re K.A., 880 So.2d 705, 706 (Fla. 2d DCA 2004). In determining whether terminating a parent’s rights is the least restrictive means of protecting the child, the trial court must base its decision on the totality of the circumstances. F.L., 880 So.2d at 608.

Although parental rights are fundamental, we emphasize that they are not absolute, as they are subject to the overriding principle that the best interests of the children must prevail. F.L., 880 So.2d at 608; Padgett, 577 So.2d at 571. As stated by the Florida Supreme Court:

While the parent’s interest in maintaining parental ties is essential, the child’s entitlement to an environment free of physical and emotional violence at the hands of his or her most trusted caretaker is more so. The state has a compelling interest in protecting all its citizens — especially its youth- — against the clear threat of abuse, neglect and death.

Padgett, 577 So.2d at 570.

Section 39.806(l)(f) provides a mechanism for protecting children from the threat of abuse. Section 39.806(l)(f) permits the trial court to terminate parental rights to a child who has suffered egregious abuse, and to any siblings of such child. § -39.806(1)©, Fla. Stat. (2005); K.A., 880 So.2d at 709. Section 39.806(1)© provides, in relevant part:

(1) The department, the guardian ad li-tem, or any person who has knowledge of the facts alleged or who is informed of those facts and believes that they are true may petition for the termination of parental rights under any of the following circumstances:
© When the parent or parents engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child’s sibling.

§ 39.806(l)(f), Fla. Stat. (2005) (emphasis added).

Under section 39.806(l)(f), egregious abuse directed at one sibling is sufficient, without more, to support termination of parental rights to another sibling. Dep’t of Children & Families v. B.B., 824 So.2d 1000, 1007 (Fla. 5th DCA 2002)(cit-ing In the Interest of B.S., 697 So.2d 914 (Fla. 2d DCA 1997)). Section 39.806(l)(f) “represents a legislative expression that parents who have committed egregious acts of abuse against one child pose an unacceptable risk that they will abuse their remaining children.” Id. The statute does not require additional proof to establish a likelihood that an abused child’s sibling will also be abused. Id. Furthermore, in some cases, a parent’s conduct toward one child may demonstrate a “substantial risk of significant harm” to another child. F.L., 880 So.2d at 608.

Based on the totality of the circumstances, we find that there was substantial competent evidence to support the trial court’s findings. The child abuse incidents committed by the father constituted egregious abuse as to the twins and established a prospective risk of harm to all of the children, including Z.K.P. The trial court heard the testimony of Dr. Lambert that the father committed severe child abuse on the five-week old twins, resulting in multiple injuries to both twins, and developmental delay and cortical blindness to the male twin. The egregious abuse on the twins was sufficient, standing alone, to terminate the father’s rights as to Z.K.P., and seíves as a basis to uphold the trial court’s decision. See B.B., 824 So.2d at 1007; F.L., 880 So.2d at 608.

Moreover, it is undisputed that Z.K.P. was present in the home at the time the father committed the egregious abuse on the twins, and that she became hysterical when the twins were separated from her to attend supervised family visits. Finally, the father’s statements regarding how he shook the infant twins showed a lack of regard to their well-being, which supports a finding that he poses a substantial risk of significant harm to Z.K.P. See, e.g., M.W. v. Dep’t of Children & Family Servs., 881 So.2d 734, 737 (Fla. 3d DCA 2004) (holding that the father’s statements denying responsibility for abuse on his stepdaughter were further evidence to support the trial court’s conclusion that the father posed a risk of potential harm to his natural children).

The trial court’s determination that it was in the manifest best interest of the children to terminate the father’s parental rights, and that there were no less restrictive means to protect the children, is supported by substantial competent evidence. Accordingly, we affirm the termination of the father’s parental rights as to Z.K.P.

Affirmed.

RAMIREZ, J., concurs.

GREEN, J.

(specially concurring).

On this appeal from a final judgment terminating his parental rights, the issue of whether the evidence was sufficient to support a finding of prospective abuse as to the unharmed.child, Z.K.P., was waived and is not properly before this court where the appellant father failed to specifically raise the same in his motion for judgment of dismissal at the conclusion of DCF’s case. See J.D. v. Dept. of Children and Fams., 825 So.2d 447 (Fla. 1st DCA 2002). Moreover, the father’s challenge to the insufficiency of the evidence does not-rise to the level of fundamental error so as to permit him to raise it for the first time on appeal. See F.B. v. State, 852 So.2d 226, 229-30 (Fla.2003) (“rarely will an error be deemed fundamental, and the more general rule requiring a contemporaneous objection to preserve an issue for appellate review will usually apply. We find that the interests of justice are better served by applying this general rule to challenges to the sufficiency of the evidence.”). I would therefore affirm the final judgment under review for this reason alone.

      . The petition alleged failure to protect as to the children's mother. However, the mother consented to a dependency determination and was reunified with the children.

      . The father remained incarcerated throughout the trial proceedings. At oral argument before this court, counsel for the father stated that the father is currently serving a prison sentence of twenty five (25) years to life.


author: BROWNING, J.

text:
    T.S., Mother of S.D.F., a Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D06-0393.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2006.
    Joseph A. Alldredge, Panama City, for Appellant.

      Paul E. Perrin, Panama City, for Appel-lee.
   BROWNING, J.

T.S., the mother of a child, S.D.F., appeals a final order adjudicating the child dependent as to the mother, and maintaining the child in the legal custody and care of a non-relative under the protective supervision of the appellee, the Florida Department of Children & Families (Department). The appellant contends it was inappropriate for the trial court to base the finding of dependency upon “a simple battery” inflicted on the child outside the mother’s presence. Concluding that competent substantial evidence supports the ruling, and that the trial court applied the correct law to the facts (as found by the court), we find no abuse of discretion and affirm the adjudication of dependency. See S.M. v. Dep’t of Children & Families, 832 So.2d 242, 245 (Fla. 5th DCA 2002).

In a dependency proceeding, the Department must establish its allegations by a preponderance of the evidence. See Fla. R. Juv. P. 8.330(a); M.F. v. Florida Dep’t of Children & Families, 770 So.2d 1189, 1192 (Fla.2000). The Supreme Court of Florida has described the standard of review as follows:

A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record, [footnote omitted] Competent substantial evidence is tantamount to legally sufficient evidence.

Id. “Great deference is afforded the finder of fact because it has the first-hand opportunity to see and hear the witnesses testify.” A.D. v. Dep’t of Children & Families, 837 So.2d 1078, 1080 (Fla. 5th DCA 2003). In the Department’s administration of a child protection system, “[t]he health and safety of the children served shall be of paramount concern.” § 39.001(l)(b)l., Fla. Stat. (2005). The Supreme Court of Florida has stated that “[t]he purpose of a dependency proceeding is not to punish the offending parent but to protect and care for a child who has been neglected, abandoned, or abused.” M.F., 770 So.2d at 1193.

Under this chapter, a “child who is found to be dependent” includes a child who is found by the trial court “[t]o have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians” under § 39.01(14)(a), Florida Statutes (2005); or “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” § 39.01(14)(f), Fla. Stat. (2005).

“Abuse” means 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.

§ 39.01(2), Fla. Stat. (2005). Section 39.01(30)(a), Florida Statutes (2005), states in pertinent part:

“Harm” to a child’s health or welfare can occur when any person:
(a) Inflicts or allows to be inflicted upon the child physical, mental, or emotional injury. In determining whether harm has occurred, the following factors must be considered in evaluating any physical, mental, or emotional injury to a child: the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted.

“As used in this subparagraph, the term “willful” refers to the intent to perform an action, not to the intent to achieve a result or to cause an injury.” Id. Furthermore, “ ‘harm’ to a child’s health or welfare can occur when any person ... [cjommits, or allows to be committed, ... lewd or lascivious acts, as defined in chapter 800, against the child.” § 39.01(30)(b), Fla. Stat. (2005). Under Florida law, “lewd or lascivious molestation” occurs when a person “intentionally touches in a lewd or lascivious manner the breasts, ... or the clothing covering them, of a person less than 16 years of age ....” § 800.04(5)(a), Fla. Stat. (2005). “Lewd or lascivious conduct” occurs when a person “[¡Intentionally touches a person under 16 years of age in a lewd or lascivious manner.” § 800.04(6)(a)l., Fla. Stat. (2005).

The Department’s petition alleged that the appellant had failed to protect the child from repeated, known acts of sexual abuse in the immediate past. “Sexual abuse of a child” can include “[t]he intentional touching of the genitals or intimate parts, including the breasts, ... or the clothing covering them,” subject to exceptions not pertinent to this record. § 39.01(63)(d), Fla. Stat. (2005).

The risk to be prevented in this case is the sexual abuse of the child, who was born on August 4, 1993 and, thus, was 11 years old during the month before the July 15, 2005, petition for delinquency was filed. It was during that “last month” when Mr. Ingersoll, the mother’s boyfriend then (who subsequently became her husband) was alleged by the Department to have sexually abused the child at least five times. The following competent substantial evidence supports the adjudication of dependency as to the child’s mother, who knew about Ingersoll’s alleged offensive touching of the child’s breast area but failed to protect the child from Ingersoll and, in fact, subsequently married him.

Ingersoll, the child’s stepfather, testified that during his horseplay with the child, his hands would come in contact with her breast area. He had apologized to the child and told her that they would not engage in such tickling activities anymore. Ingersoll admitted having a prior conviction of child molestation (of male children) in Michigan in 1983. Another incident in Virginia involved a child (age 3 or 4) and resulted in Ingersoll’s being ejected from the household.

Appellant, the child’s mother, testified that her daughter had informed her that Ingersoll touched her while they were play-wrestling and that the child was upset about being touched in a particular way. The child told her mother a couple of times that she (the child) did not want Ingersoll to touch her anymore. The mother acknowledged that other children of hers had been removed from her custody due to sexual abuse by the children’s father (not Ingersoll). The mother testified that she had observed Ingersoll and the child engaged in horseplay on multiple occasions at home and in public.

The child, age 12, testified she had become upset because Ingersoll was touching her, sometimes grabbing her in her breast area. At times, she believed his touching her was intentional; she had told other people that it was not accidental. After Ingersoll went to jail, causing her to feel guilty, the child decided his touching her must have been accidental. Without an objection, the child testified she “guessed” she had told Miss Earn that Ingersoll touched her five times within a month.

The evidence supports the trial court’s findings and conclusions that Ingersoll repeatedly committed at least a battery, ie., an actual, willful touching of the child against her will as defined in section 784.03(l)(a), Florida Statutes (2005), and that the touching sometimes involved her breast area, thereby constituting sexual abuse and exposing the child to a substantial risk of imminent abuse. Viewed in a light most favorable to supporting the trial court’s ruling, the evidence demonstrated that the mother neglected to protect her child from sexual abuse, as defined under Florida statutory law, and from a known harm. The child’s testimony supported conflicting conclusions that the offensive touching was either intentional or accidental. It was the duty of the trier of fact to resolve this conflict in the child’s own testimony. See D.J.W. v. Dep’t of Children & Family Servs., 764 So.2d 825, 826 (Fla. 2d DCA 2000). In carrying out its duty, the trial court was entitled to reject the child’s recantation testimony. Appellant misconstrues the standard of review in implying that the evidence should be re-evaluated, and the adjudicatory proceeding re-litigated, on appeal. See S.M., 832 So.2d at 244.

The final order adjudicating the child dependent as to the mother is AFFIRMED.

ERVIN and BENTON, JJ., concur.


text:
    Mark Anthony FRENCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1833.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2006.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender,■ Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, the appellant challenges convictions for various offenses, including two counts of resisting an officer with violence as proscribed by section 843.01, Florida Statutes. Only one conviction is permitted in connection with this single episode. Wallace v. State, 724 So.2d 1176 (Fla.1998). We, therefore, reverse and remand with instructions that the conviction for one of the counts for resisting an officer with violence be vacated. The remaining convictions are affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

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


text:
    Tirrell Tyrone PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1190.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2006.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the appellant’s judgment and sentence but remand for correction of a scrivener’s error contained in the written judgment. See Diaz v. State, 910 So.2d 894 (Fla. 1st DCA 2005) (remanding for correction of scrivener’s error in the judgment); Bolware v. State, 668 So.2d 200 (Fla. 1st DCA 1995) (same). The judgment erroneously recites that' the appellant was convicted of aggravated battery causing great bodily harm under section 784.045(l)(a), when the appellant entered a plea to the lesser included offense of felony battery. The judgment must be corrected to reflect the appellant’s conviction for felony battery, not aggravated battery.

AFFIRMED and REMANDED with instructions.

KAHN, C.J., DAVIS and BROWNING, JJ., concur.


author: WALLACE, Judge.

text:
    J.M.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-730.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.
    Rehearing Denied Aug. 11, 2006.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

After finding that J.M.W. had committed the first-degree misdemeanors of battery and affray, the juvenile court withheld adjudication and placed her on probation. On this appeal, J.M.W. challenges both the finding that she committed the offense of affray and the order placing her on probation. We affirm without comment the order finding that J.M.W. committed the offenses of battery and affray. However, because the juvenile court did not indicate its intention regarding the length of J.M.W.’s supervision, we reverse the order placing her on probation and remand for the entry of a corrected probation order.

The juvenile court found J.M.W. guilty of two first-degree misdemeanors. A misdemeanor of the first degree is punishable by a definite term of imprisonment not exceeding one year. § 775.082(4)(a), Fla. Stat. (2004). J.M.W. was sixteen years old at the time of sentencing. The juvenile court orally pronounced that it would “withhold adjudication on both charges and place [J.M.W.] on probation.” However, the juvenile court did not state the length of time that J.M.W. was to serve on probation, or whether the probation would be indefinite. In addition, the juvenile court did not make a notation of the length of probation time on the written probation order. The probation order read: “_ year(s); or until the date of the child’s nineteenth (19) birthday, whichever comes first.”

J.M.W. argues that the juvenile court improperly imposed an indeterminate period of probation that exceeds the statutory maximum penalty for the offenses for which she was found guilty. She points out that the probation order does not specify the length of time that she is to be on probation. J.M.W. filed a motion in the juvenile court to correct the probation order in accordance with Florida Rule of Juvenile Procedure 8.135(b)(2). Because the juvenile court did not properly dispose of the motion within the time provided in the rule, the motion is deemed denied. The State concedes that the probation order is unclear and that the order should be clarified.

A court with jurisdiction over “an adjudicated delinquent child” may place that child on probation for a period that “may not exceed the term for which sentence could be imposed if the child were committed for the offense.” § 985.231(l)(a)(l)(a), Fla. Stat. (2004); A.W. v. State, 787 So.2d 149, 149 (Fla. 2d DCA 2001). However, in a case such as J.M.W.’s, where the juvenile court has withheld an adjudication of delinquency and placed the juvenile on probation, section 985.228(4) controls. Section 985.228(4) permits a juvenile court to place a child who “has committed a delinquent act” in a probation program while withholding adjudication. Further, unlike section 985.231, this section does not provide for a limitation on the length of the probationary term. § 985.228(4); N.W. v. State, 767 So.2d 446, 450 (Fla.2000); T.J. v. State, 743 So.2d 1158, 1159 n. 4 (Fla. 2d DCA 1999).

Here, the maximum sentence reflected in the probation order — until J.M.W.’s nineteenth birthday — would be greater than the statutory maximum for her two misdemeanor offenses. Nevertheless, under section 984.228(4) the juvenile court could have ordered an indeterminate period of supervision for J.M.W. Our concern with this probation order is that the juvenile court did not clearly state its intention for the length of J.M.W.’s probation. On review of the order, we are unable to determine whether the juvenile court intended an indefinite period of probation for J.M.W. or whether by oversight it omitted to state the period of her probation. “[Bjecause the withholding of adjudication may subject the juvenile to the jurisdiction and control of the court for a longer period than if an adjudication of delinquency occurs, the juvenile courts are required to fully inform the juvenile of such facts.” N.W., 767 So.2d at 450. J.M.W. was entitled to be informed of the juvenile court’s intention concerning the length of the period of her probation.

Accordingly, we reverse the probation order, and we remand for the entry of a corrected probation order that specifies the juvenile court’s intention concerning the length of the period of J.M.W.’s probation.

Affirmed in part; reversed in part; and remanded with directions.

WHATLEY and SILBERMAN, JJ., Concur.

      . The statute provides an exception for juveniles who are adjudicated delinquent for misdemeanors of the second degree and equivalent offenses. For such persons, the period of supervision may be for a period not to exceed six months.


author: NORTHCUTT, Judge.

text:
    Charles Edward STINNETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-546.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.
    James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Charles Stinnett’s resort to gunplay after his ejection from a nightclub led to his convictions for aggravated assault and criminal mischief. He has appealed. We affirm the conviction for aggravated assault without discussion, but we reverse the conviction for criminal mischief.

In the waning hours of 2003, Stinnett and two friends, the Prescott brothers, went to the Buck Wild nightclub to celebrate New Year’s Eve. They began their observance before arriving at the club, consuming a twelve-pack of beer en route. At the Buck Wild the celebrants continued to drink, to the point that even before midnight one of the Prescotts threw in the towel and went outside to sleep in Stin-nett’s truck. Sometime after midnight, Stinnett and the remaining Prescott were asked to leave after they got into a fight with other revelers. Outside the club Stin-nett fell into another altercation, which was broken up by bouncers. As Stinnett and Prescott made their way to Stinnett’s truck, Prescott continued arguing with other men in the parking lot, including one named Sean Kerans.

Testifying at his trial, Stinnett claimed that the bouncers beat him up and choked him, although no one else saw this occur. He also maintained that someone fired a shot that hit his windshield, but no one else witnessed this. Stinnett admitted that, as he drove, he fired two shots from a revolver. He said that he fired the first shot in the air and that he fired the second shot by accident when his foot slipped off the clutch. Fortunately, no one was hit.

Of the witnesses to the shooting, only the club owner saw both shots fired. He recounted that Stinnett stuck the gun out of the truck’s window and fired the first shot without looking where he was shooting. The club owner and two other witnesses testified that Stinnett then aimed his gun directly at Sean Kerans and fired. The shot missed Kerans but hit a parked car. As it happened, the car belonged to a woman with whom Stinnett had danced during the festivities earlier in the evening. This woman had not been involved in Stinnett’s ouster from the Buck Wild or in the events that followed.

Based on the damage to the car, Stinnett was charged with and, ultimately, convicted of criminal mischief. Stinnett argues that this conviction was fundamental error because there was no proof of an essential element of the crime, that being his intent to injure another’s property. See F.B. v. State, 852 So.2d 226, 230 (Fla. 2003) (stating that fundamental error occurs “when the evidence is insufficient to show that a crime was committed at all”).

Criminal mischief occurs when one “willfully and maliciously injures or damages by any means any real or personal property belonging to another[.]” § 806.13(l)(a), Fla. Stat. (2003) (emphasis supplied). As explained in the standard jury instruction, the State must prove three elements to convict of criminal mischief:

1. (Defendant) injured or damaged (copy from charge).
2. The property injured or damaged belonged to (person alleged).
3. The injury or damage was done willfully and maliciously.
“Willfully” means intentionally, knowingly, and purposely.
“Maliciously” means wrongfully, intentionally, without legal justification or excuse, and with the knowledge that injury or damage will or may be caused to another person or the property of another person.

Fla. Std. Jury Instr. (Crim.) Criminal Mischief.

To be guilty of this crime the defendant must specifically intend to damage or destroy the property of another. Sanchez v. State, 909 So.2d 981, 985 (Fla. 5th DCA 2005) (tracing evolution of modern crime from common law offense). Moreover, an intent to damage the property of another does not arise by operation of law where the defendant’s true intention is to cause harm to the person of another. In re J.G., 655 So.2d 1284, 1285 (Fla. 4th DCA 1995); see also H.F. v. State, 927 So.2d 163, 164 (Fla. 3d DCA 2006) (reversing conviction for criminal mischief when State’s evidence was insufficient to support a finding that the defendant intended to damage or destroy the victim’s property). Failure to prove this element of the offense is fatal. Sanchez, 909 So.2d at 985 (reversing conviction for criminal mischief as fundamental error when evidence failed to show defendant’s specific intent to damage property).

Here, Stinnett’s second shot struck a car, thus damaging the property of another. The evidence showed either that Stin-nett fired the shot accidentally or that the shot hit the car when it missed the person Stinnett was attempting to shoot. Either way, there was no evidence that Stinnett intended to damage the car. Accordingly, we reverse the conviction for criminal mischief.

Affirmed in part, reversed in part, and remanded.

SALCINES and LaROSE, JJ., Concur.


text:
    Maurice D. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-894.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to Maurice Brown’s right, if any, to file a sufficient and timely motion for postconviction relief.

FULMER, C.J., and NORTHCUTT and CASANUEVA, JJ„ Concur.


author: LaROSE, Judge.

text:
    Jerry Lee PITTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2729.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.

      Frederick P. Mercurio of Law Offices of Frederick P. Mercurio, P.A., Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Jerry Lee Pitts appeals his conviction and sentence for lewd or lascivious battery and lewd or lascivious molestation. We find merit in but one of the six issues raised by Mr. Pitts. We reverse only as to that issue.

The trial court imposed a twenty-year prison sentence for lewd or lascivious battery (count I) and fifteen years of sex offender probation for lewd or lascivious molestation (count II). On Mr. Pitts’ motion to correct illegal sentence, the trial court reduced Mr. Pitts’ sentence on count I from twenty years to fifteen years. To maintain the original total prison time of twenty years, the trial court also modified Mr. Pitts’ sentence on count II to a consecutive five-year prison term followed by ten years of sex offender probation.

Mr. Pitts argues that the trial court violated his double jeopardy rights by increasing the sentence originally imposed for count II. We agree. A motion to correct an illegal sentence does not authorize the trial court to modify a legal sentence imposed on another count. Seago v. State, 627 So.2d 1316, 1316 (Fla. 2d DCA 1993); Wilhelm v. State, 543 So.2d 434, 435 (Fla. 2d DCA 1989). Therefore, we reverse and remand for the trial court to reinstate the original sentence on count II. We affirm as to the remaining issues without further comment.

Affirmed in part, reversed in part, and remanded with directions.

ALTENBERND and SALCINES, JJ., Concur.


text:
    Victor BUSCAINO, III, Appellant, v. Elisa M. YARBOROUGH, Appellee.
    No. 1D06-3071.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2006.
    Alexa K. Alvarez, Fernandina Beach, for Appellant.
    Elisa M. Yarborough, pro se, Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 5, 2006, the Court has determined that the order on appeal was rendered when it was filed in the lower tribunal on May 3, 2006. Fla. R.App. P. 9.020(h). Consequently, the appellant’s notice of appeal, which was filed on June 5, 2006, is untimely and the appeal is hereby dismissed for lack of jurisdiction.

DAVIS, POLSTON, and HAWKES, JJ., concur.


text:
    Carl BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0965.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2006.
    Bill White, Public Defender, Fourth Judicial Circuit, and Ward L. Metzger, Assistant Public Defender, Jacksonville, for Petitioner.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the November 12, 2004, judgment and sentence in Duval County Circuit Court case number 16-2004-CFM901-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

ERVIN, WEBSTER, and THOMAS, JJ., concur.


text:
    DEPARTMENT OF HEALTH, a state agency, and the Board of Medicine, a state board, Appellants, v. FRESENIUS MEDICAL CARE HOLDINGS, INC. d/b/a Fresenius Medical Care North America, a foreign corporation; National Medical Care, Inc., Bio-Medical Applications of Florida, Inc., Homestead Artificial Kidney Center, Inc., and Spectra Laboratories, Inc., its subsidiaries. Gambro Healthcare, Inc., a foreign corporation, Gambro Healthcare of East Orlando, LLP, Gambro Healthcare of Southwest Orlando, LLP, Gambro Healthcare of Central Florida, LLP, Gambro Health-Care of Plantation a/k/a Plantation Artificial Kidney Center, Inc., Gambro Healthcare of Temple Terrace, LLP, Gambro Healthcare Laboratory Services, Inc., its subsidiaries and joint venture entities, and Davita Inc., a foreign corporation, Total Renal Care, Inc., Crystal River Dialysis, LC, Flamingo Park Kidney Center, Inc., Renal Treatment Centers Southeast, LP, East Ft. Lauderdale LLC, Bay Area Dialysis Partnership, Total Renal Laboratories, Inc. d/b/a Davita Laboratory Services, its subsidiaries and joint venture entities, Appellees.
    No. 1D05-4144.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2006.
    Charlie Crist, Attorney General; Christopher M. Kise, Solicitor General; and Steven Todd Gold; Deputy Solicitor General, Tallahassee, for Appellants.
    Kelly Overstreet Johnson, Martin A. Fitzpatrick, and Kelly A. O’Keefe of Broad and Cassel, Tallahassee; Gabriel L. Im-perato of Broad and Cassel, Ft. Lauder-dale; George Meros, Jr. of Gray, Harris, and Robinson, Tallahassee; and Gray Robinson, Tallahassee for Appellees.
   PER CURIAM.

Upon consideration of the briefs and oral arguments of the parties, the court has concluded that appellants have no standing. Appellants have sought review of a wholly favorable order adopting the argument presented by appellants in the trial court and denying appellees’ motion for return of documents. An appeal of a wholly favorable judgment must be dismissed. See Fla. Comm’n on Hurricane Loss Projection Methodology v. State, Dep’t of Ins. & Treasurer, 716 So.2d 345, 346 (Fla. 1st DCA 1998)(dismissing petition for writ of certiorari in administrative law case, the outcome of which was favorable to appellant); Gen. Dev. Utils., Inc. v. Fla. Pub. Serv. Comm’n, Div. of Admin. Hearings, 385 So.2d 1050, 1051 (Fla. 1st DCA 1980)(dismissing appeal based on long-standing rule that judgment or decree wholly in favor of a party may not be appealed by that party). See also N. Shore Bank v. Town of Surfside, 72 So.2d 659, 661 (Fla.1954)(dismissing appeal of wholly favorable final decree, which held public improvement certificates, owned by appellants, to be legal and valid obligations of town); Credit Indus. Co. v. Remark Chem. Co., 67 So.2d 540, 541 (Fla.1953)(dismissing appeal of wholly favorable final order granting appellant’s motion for summary decree); Lovett v. Lovett, 93 Fla. 611, 112 So. 768, 782 (1927)(“[I]rregularities in chancery practice committed at the defendant’s instance and by his consent, are not available to reverse a final decree entered against him.”); Witt v. Baars, 36 Fla. 119, 18 So. 330, 330 (1895)(“The bill having been dismissed as to the appellant Mary Witt, no relief whatever having been granted against her, or any liability adjudged against her or her estate, she cannot appeal; and the appeal as to her should be dismissed.... ”).

DISMISSED.

KAHN, C.J., BARFIELD and ALLEN, JJ., concur.


text:
    Daniel L. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1635.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2006.
    Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Anne C. Conley, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Williams, convicted of three counts of sexual battery and one count of lewd and lascivious molestation, seeks reversal, raising three issues on appeal. We affirm the convictions and sentences and briefly address the first issue.

A state witness, Lila Choulat, testified as an expert witness regarding examinations in sexual assault cases. As part of her direct examination, Ms. Choulat read from a publication known as The Color Atlas of Sexual Assault in order to explain certain aspects of her testimony. Had the defense raised a timely and specific objection to this, the trial court would have erred in allowing Ms. Choulat to read from the publication. See Tallahassee Mem’l Reg’l Med. Ctr. v. Mitchell, 407 So.2d 601(Fla. 1st DCA 1981). Upon review of this record, however, we have determined that defense counsel failed to raise such a timely and specific objection. See § 924.051(l)(b), Fla. Stat. (2005) (requiring that objection to evidence be timely raised before, and ruled upon, by the trial court, and must sufficiently and fairly apprise the trial court of the specific legal argument or ground upon which it is based).

AFFIRMED.

KAHN, C.J., BARFIELD and ALLEN, JJ., concur.


text:
    David CURLS, Appellant, v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Appellee.
    No. 1D05-5085.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2006.
    David Curls, pro se, Appellant.
    James V. Antista, General Counsel, and Charles Shelter, Deputy General Counsel, Florida Fish and Wildlife Conservation Commission, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 2, 2006, the Court has determined that, because the administrative order on appeal, titled “Notice of Final Order,” entered on September 22, 2005, has not been filed with the agency clerk, it has not been rendered. See Hill v. Div. of Ret., 687 So.2d 1376, 1377 (Fla. 1st DCA 1997). Accordingly, the appeal is hereby dismissed as premature. This dismissal is without prejudice to the appellant’s right to file a timely appeal from this order once it has been rendered.

KAHN, C.J., BARFIELD, and ALLEN, JJ., concur.