author: BENTON, J.

text:
    Timothy D. JOHNSON, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, on behalf of Daishai D. LAMONTAGNE, Appellee.
    No. 1D07-3302.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2008.

      Timothy D. Johnson, pro se, Appellant.
    Albert Thornburn, Department of Revenue, Child Support Enforcement, Tallahassee, for Appellees.
   BENTON, J.

Timothy Johnson appeals the order denying his motion to vacate a default final judgment of paternity entered against him in 1994, which adjudicated him the father of a child born in 1991. The sworn motion and attached affidavit alleged that appellant was never served with process and did not learn of the action until after the trial court entered judgment. Without a hearing, the trial court denied the motion, on grounds that the appellant had made a voluntary appearance by filing various motions relating to the 1994 paternity judgment between 1995 and 2006. We reverse and remand for further proceedings.

We have jurisdiction because the order below was “entered on [a] motion [ ] filed under Florida Rule of Civil Procedure 1.540 ... and Florida Family Law Rule of Procedure 12.540.” Fla. R.App. P. 9.130(a)(5) (2007). In the trial court, the rule provides that “Florida Rule of Civil Procedure 1.540 shall govern.” Fla. Fam. L.R.P. 12.540. According to the order under review, at no previous time since “the inception of this case ... has defendant sought to have the final judgment vacated,” so the matter is not res judicata.

On proper motion, trial courts must set aside void judgments pursuant to Florida Rule of Civil Procedure 1.540(b)(4). See Dep’t of Transp. v. Bailey, 603 So.2d 1384, 1386-87 (Fla. 1st DCA 1992) (“If it is determined that the judgment entered is void, the trial court has no discretion, but is obligated to vacate the judgment.”). Although a motion to set aside a judgment must be filed “within a reasonable time,” see Fla. R. Civ. P. 1.540(b) (2007), because the mere passage of time cannot make a void judgment valid, a motion to vacate a judgment as void may “reasonably” be filed many years after the judgment was entered. See M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d 1079, 1082 (Fla. 4th DCA 2000) (citing Ramagli Realty Co. v. Craver, 121 So.2d 648, 654 (Fla.1960)). See also DeClaire v. Yohanan, 453 So.2d 375, 379 (Fla.1984) (stating that no time limitation exists for a motion filed under rule 1.540(b) to vacate a void judgment), superseded by rule on other grounds as stated in Lefler v. Lefler, 776 So.2d 319, 322 n. 1 (Fla. 4th DCA 2001); Greisel v. Gregg, 733 So.2d 1119, 1121 (Fla. 5th DCA 1999); Del Conte Enters. v. Thomas Publ’g Co., 711 So.2d 1268, 1269 (Fla. 3d DCA 1998).

The record does not refute appellant’s claims that he was not served with process and had no knowledge that a paternity action had been commenced against him until after the court adjudged him the father of the child. If appellant can carry his burden of proof, his failure to move for relief from judgment until 2007, standing alone, is no bar to his obtaining such relief. See, e.g., Greisel, 733 So.2d at 1121 (holding that a party’s failure to move to vacate a default judgment until six years after learning of entry of the judgment did not preclude challenge to the judgment as void because a void judgment “creates no binding obligation on the parties, is legally ineffective and is a nullity,” and “may be attacked at any time ”). Because a judgment entered by a court lacking jurisdiction over the person of the party against whom the judgment purports to run is a legal nullity, it may be set aside as void at any time. See Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 663-66 (Fla. 2d DCA 2007); M.L. Builders, 769 So.2d at 1082; Del Conte, 711 So.2d at 1269 (“It is well settled that a judgment entered without due service of process is void.”).

The trial court denied the motion below on the ground that appellant had made appearances in 1995 and 1997 — albeit after the court had entered the 1994 paternity judgment — and filed “numerous pleadings, motions and written requests in this matter” between 1997 and 2006, but never in any of them “sought to have the final judgment vacated.” Appellant concedes that he appeared after entry of the judgment and filed “mis-advised pleadings in 2005 relating to his not being the father of the child,” but argues that all of his prior positions are consistent with his current jurisdictional argument and that he should not be deemed to have waived his right to challenge the judgment as void. Although appellant failed to file a motion to vacate earlier, neither the order under review nor the record on appeal demonstrates that he failed to raise the issue of service of process in a timely and consistent manner.

A party may forfeit the right to seek relief even from a void judgment if the party’s actions or statements have had the effect of ratifying the judgment or conceding its propriety. See Starks v. Howard, 611 So.2d 52, 53-54 (Fla. 3d DCA 1992) (holding party alleging he never received notice of paternity action waived right to challenge final judgment of paternity on grounds of insufficiency of process by admitting paternity in subsequent proceedings). See also MacDougall v. Kutina, 798 So.2d 30, 32 (Fla. 4th DCA 2001) (holding former husband waived any challenge to default final judgment of marital dissolution on grounds of defective service of process by failing to raise the issue in later contempt proceedings arising out of his failure to pay alimony, at which he stated that “he had no problem with paying the rehabilitative alimony” and asked for additional time in which to pay). Apellant can prevail only if he has not previously “manifested an intention to treat the judgment as valid,” assuming as we do that “[gjranting the relief would impair another person’s substantial interest of reliance on the judgment.” Restatement (Second) of Judgments § 66 (1980). But the trial court has not found and the record before us does not reveal any intention on Mr. Johnson’s part to treat the paternity judgment as valid.

We have held, moreover, that, although a court has already entered judgment, a party waives the right to contest personal jurisdiction by entering a general appearance without contesting personal jurisdiction at the same time. See Caldwell v. Caldwell, 921 So.2d 759, 760 (Fla. 1st DCA 2006) (holding party lost right to contest default final judgment on grounds of defective service of process by entering general appearance without simultaneously contesting service of process or raising issue of personal jurisdiction); Dep’t of Revenue ex rel. King v. Blocker, 806 So.2d 607, 609-10 (Fla. 4th DCA 2002) (holding party waived insufficient service of process as grounds to challenge a final judgment of paternity by appearing in subsequent contempt proceedings (for non-payment of child support) at which, while contesting paternity, he did not deny receiving process, conceding instead that he “[cjould have been” served). See also Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005). On the record before us, we find no general appearance or other action conceding even by implication the validity of service of process on Mr. Johnson, nor did the trial court find otherwise.

In sum, absent record refutation of allegations in the motion for relief from judgment, allegations which “if proven, would establish that the judgment is void,” the trial court must conduct an evidentiary hearing. Leipuner v. Fed. Deposit Ins. Corp., 860 So.2d 1027, 1028 (Fla. 5th DCA 2003); see also Pallai v. Dep’t of Revenue ex rel. Tipton, 955 So.2d 1205, 1206 (Fla. 2d DCA 2007) (reversing trial court’s order denying a motion to vacate a 1992 paternity judgment alleged to be void and remanding the matter to the trial court for an evidentiary hearing on, among other things, issues of personal service and jurisdiction). Nothing in the record refutes appellant’s contention that the trial court lacked personal jurisdiction over him when it entered the paternity judgment in 1994. Nor does this record show that appellant “manifested an intention to treat the judgment as valid” in any appearance he made before filing the present motion. See Restatement (Second) of Judgments § 66 (1980).

Reversed and remanded.

WOLF and PADOVANO, JJ., concur.

      . Appellee Department of Revenue neither responded to appellant's motion below nor filed an answer brief in this court. Accordingly, pursuant to our order of October 19, 2007, we consider this appeal without benefit of appel-lee's answer brief.

      . In his brief, appellant asserts that he "consistently” argued in his past pleadings that he was not "served with the complaint and initially had no idea of the [paternity action's] existence,” but simply had not been aware "of the ‘specific’ legal language or pleading to file.” But none of those documents appear in the record on appeal, and the appellant argued in the trial court not that he raised the issue of service consistently, but only that his prior appearances "support his contention of a void judgment” and do not constitute “any acceptance or waiver of jurisdiction.”


source: Caselaw Access Project

author: COPE, J.

license: Public Domain

text:
    Alberto FERNANDEZ and Susana Fernandez, Appellants, v. BARRY UNIVERSITY, INC., Sister Jeanne O’Laughlin, and J. Patrick Lee, Appellees.
    No. 3D06-2595.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2008.
    Alberto Fernandez, in proper person; and Susana Fernandez, in proper person.
    Jorden Burt, LLP, and Julianna Thomas McCabe, and Irma Reboso Solares and Richard J. Ovelmen, Miami; Coffey Burlington and Jeffrey B. Crockett, for appel-lees.
    Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   COPE, J.

Mberto Fernandez and Susana Fernandez appeal an order dismissing their first amended complaint with prejudice. We reverse to allow the plaintiffs to amend their complaint.

Mr. Fernandez was terminated from his position as Assistant Dean of Information Technology at Barry University. Mr. Fernandez, through counsel, filed a complaint against defendants asserting claims for tort, contract and quasi-contract damages. The complaint consisted of seventeen pages with narrative-style facts, and thirty-seven pages of exhibits. Defendants filed a motion to dismiss the complaint for failure to state a cause of action and to strike the complaint for failure to comply with the Florida Rules of Civil Procedure. At the hearing on defendants’ motion to dismiss, the trial court addressed Mr. Fernandez’s attorney as to the rule requirements for the complaint allegations. The court entered an order dismissing the complaint without prejudice because the complaint did not contain a short and plain statement of the ultimate facts and many of the factual allegations were irrelevant.

Mr. Fernandez’s counsel subsequently withdrew and Mr. Fernandez and Ms. Fernandez, his sister, who also had been employed at Barry University, filed a notice of self-representation. The trial court held a case management conference and entered an order striking Ms. Fernandez from the notice’s case style and giving Mr. Fernandez ten days to file an amended complaint.

The plaintiffs filed their pro se first amended complaint which added Ms. Fernandez as a plaintiff, and consisted of thirty-two pages containing sixteen counts, and more than 185 exhibit pages. In addition to the original counts, Mr. Fernandez asserted several new counts and Ms. Fernandez asserted claims for constructive discharge, and intentional infliction of emotional distress based upon defendants’ actions against her after Mr. Fernandez was terminated. Defendants filed another motion to dismiss and to strike portions of the amended complaint. Following a hearing on the motions, the trial court dismissed the amended complaint with prejudice finding that the amended complaint was subject to dismissal because it contains the same narrative style and includes many of the same irrelevant factual allegations. In addition, the court found that Mr. Fernandez impermissibly added Ms. Fernandez as a plaintiff and that he did not, cannot, and does not intend to comply with the court’s instructions. The court denied the plaintiffs’ motion for rehearing, and the plaintiffs have appealed.

We reverse the dismissal with prejudice as to Mr. Fernandez. The amended complaint was the first time the complaint had been amended and, more importantly, was Mr. Fernandez’s first attempt to amend his complaint as a pro se litigant. Barrett v. City of Margate, 743 So.2d 1160, 1162 (Fla. 4th DCA 1999) (“In the history of jurisprudence, pro se litigants have frequently been granted leniency in technical matters. Dismissing an action with prejudice due to defective pleading is not proper unless the plaintiff has been given an opportunity to amend.”) (citations omitted). In its dismissal, order the trial court cited Beckler v. Hoffman, 550 So.2d 68, 71 (Fla. 5th DCA 1989), but in that case the appellate court granted a pro se litigant another opportunity to amend after the dismissal of a second amended complaint.

While it appears that the amended complaint, like the original complaint, may have contained lengthy narrative allegations, and voluminous and extraneous exhibits, dismissal is the ultimate sanction in the adversarial system and should be reserved for those aggravating circumstances in which a lesser sanction would fail to achieve a just result. Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). No abuse of the amendment process was shown, or could be shown here, where this was the first amendment to the complaint. It appears that the amended complaint contains viable claims that could be made to state a cause of action, including counts I, II, and XIV, related to unpaid compensation. Therefore, Mr. Fernandez should be permitted to amend the complaint to allege ultimate facts necessary to properly state a cause of action against defendants.

We also reverse the trial court’s order of dismissal with prejudice as to Ms. Fernandez. Under the Florida Rules of Civil Procedure, Mr. Fernandez was allowed to add Ms. Fernandez as a plaintiff. “If amendment by leave of court or stipulation of the parties is permitted, parties may be added without further order of court.” Fla. R. Civ. P. 1.250(c). While the trial had stricken Ms. Fernandez from the case caption at the time of the case management conference, that order was proper because Ms. Fernandez was not a party to the original complaint. The rules did, however, allow her to join as a plaintiff at the time of the filing of the amended complaint. Accordingly, Ms. Fernandez may join as a plaintiff in the second amended complaint or file her own separate lawsuit.

For the stated reasons, we reverse the order now before us and remand for further proceedings consistent herewith.

LAGOA, J., concurs.

SCHWARTZ, Senior Judge (dissenting).

This is an appeal from an order of dismissal which contains the following:

Rather than comply with the Court’s First Dismissal Order requiring that the Amended Complaint contain a short, plain, concise statement of the ultimate facts that support each of the Plaintiffs claims, Plaintiff filed an Amended Complaint which contained the same narrative style and many of the same irrelevant factual allegations pled in the original Complaint. The Amended Complaint is properly subject to dismissal on this basis alone. Beckler v. Hoffman, 550 So.2d 68 (Fla. 5th DCA 1989) (affirming dismissal of complaint which failed to plead ultimate facts entitling plaintiff to relief).
The Amended Complaint also attaches 191 pages of exhibits, most of which are unnecessary and improper. The Amended Complaint is so voluminous that the clerk would not even place it in the court file, but had to file it in a separate location.
Furthermore, after the Court ordered Susana Fernandez stricken from the case caption, Plaintiff added her to the caption of the Amended Complaint without leave of court. The Amended Complaint also adds new claims related solely to Susana Fernandez.
The Court finds that Plaintiff has not complied with the Court’s instructions, cannot comply with the Court’s instructions, and does not intend to comply with the Court’s instructions. Accordingly, the Court dismisses this cause with prejudice.

Because (a) even considering the appellants’ pro se status, but see Kohn v. City of Miami Beach, 611 So.2d 538 (Fla. 3d DCA 1992), the amended complaint does not come close to stating a viable claim, see Redland Estates, Inc. v. Lynn, 920 So.2d 1218, 1219 (Fla. 3d DCA 2006) (“Although it is extraordinarily rare that a complaint is dismissed with prejudice on the first pleading, ... we find that the counts against Lynn were properly dismissed here because there is no version of the facts which will support a claim against her.”), and (b) the trial court’s conclusion that “Plaintiff has not complied with the Court’s instructions, cannot comply with the Court’s instructions, and does not intend to comply with the Court’s instructions,” is well supported by the record, see Kozich v. Kozokoff, 945 So.2d 533 (Fla. 4th DCA 2006); Barrett v. City of Margate, 743 So.2d 1160 (Fla. 4th DCA 1999); Kohn, 611 So.2d at 538; Dismuke v. Univ. of S. Fla. Bd. of Trs., No. 8:05-CV-340-T-17, 2006 WL 166547 (M.D.Fla. Jan. 23, 2006) (unreported), I believe that there was no abuse of discretion in dismissing without leave to amend further. See generally Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993).


author: WARNER, J.

text:
    Wendy J. NOLAN, Appellant, v. James NOLAN, Appellee.
    No. 4D06-2665.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.
    Jeanne C. Brady of Brady & Brady, P.A., and Joel H. Feldman of Feldman & Schneiderman, PL, Boca Raton, for appel-lee.
   WARNER, J.

The wife appeals various aspects of a final judgment of dissolution of marriage and the equitable distribution of property. We affirm all awards except one — the award to the husband of all of the marital furnishings of the home.

Both parties agreed that the marital home furnishings were a marital asset to be divided. In its ruling, the trial court adopted the husband’s accountant’s equitable distribution plan. That plan showed an equal division of the marital household furnishings, which were not appraised by the parties. This was also consistent with the way the wife’s accountant handled the furnishings and how the parties addressed them in closing argument. Nevertheless, the court awarded the furnishings to-the husband in the written final judgment yet attached the schedule of distribution which showed the home furnishings to be equally divided. In its oral ruling, the court referred to the schedule and noted, incorrectly, that it assigned the furnishings to the husband alone. It appears that the trial court simply made a mistake in reading the equitable distribution schedule.

In dividing marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution.... ” § 61.075(1), Fla. Stat. (2006). See also Melvik v. Melvik, 669 So.2d 328, 329-30 (Fla. 4th DCA 1996) (“asset distribution should be equal unless there is justification for a disparity in treatment”). The award of all of the furnishings to the husband would result in an unequal division without justification, and it is apparent from the distribution that the court did not intend an unequal distribution of assets. Although the parties did not appraise them, evidence of their value ranged from $36,800 to $500,000, neither of which constitutes de minimis value in this case. It appears that the parties did not appraise this asset, because both sides contemplated the equal division of the furnishings, as reflected in both of their accountants’ proposed distribution of assets.

We conclude that the court abused its discretion in awarding the furnishings solely to the husband, which is contrary to its intent to follow the schedule prepared by the husband’s accountant. We reverse and remand for the trial court to equally divide the furnishings in accordance with the equitable distribution plan of the husband’s accountant, which the trial court adopted in its final judgment, and for further proceedings to effectuate the equitable division of these assets. In all other respects we affirm the final judgment.

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

FARMER, J., and CONNER, BURTON C., Associate Judge, concur.


author: LEVIN, STEVEN J„ Associate Judge.

text:
    Robert R. KRILICH, individually and doing business as the RK Company, Donna Krilich, and Oakbrook Realty & Investments II, LLC, Appellants, v. Michael THOMAS; Lola Thomas; Oakridge Hotel I, Ltd.; Oakridge Hospitality, Inc.; Excel Hotel Management, Inc.; Atlantic Point, Inc. and Oakridge Hotel II, Ltd., Appellees.
    No. 4D07-1260.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.
    Rehearing Denied March 3, 2008.

      Gregory G. Olsen and Brian D. Gottlieb of Morgan, Olsen & Olsen, LLP, Fort Lauderdale, for appellants.
    Thomas F. Luken, Fort Lauderdale, for appellees Michael Thomas, Lola Thomas, Oakridge Hospitality, Inc., Excel Hotel Management, Inc., and Atlantic Point, Inc.
   LEVIN, STEVEN J„ Associate Judge.

Appellants, Robert R. Krilich, individually and doing business as the RK Company, Donna Krilich, and Oakbrook Realty & Investments II, LLC (collectively referred to as “the Krilichs”), appeal the trial court’s dismissal with prejudice of their amended complaint against Appellees, Michael Thomas, Lola Thomas, Oakridge Hotel I, Ltd., Oakridge Hospitality, Inc., Excel Hotel Management, Inc., Atlantic Point, Inc., and Oakridge Hotel II, Ltd. (collectively referred to as “Thomas”). The Krilichs also appeal the trial court’s denial of their request for leave to amend.

We affirm the trial court’s ruling dismissing the Krilichs’ complaint for specific performance. However, we remand the matter for the trial court to allow the Krilichs to amend their complaint, as the lower court abused its discretion in denying their request to amend. “ ‘[RJefusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.’ ” Video Indep. Med. Examination, Inc. v. City of Weston, 792 So.2d 680, 681 (Fla. 4th DCA 2001) (quoting Spradley v. Stick, 622 So.2d 610, 613 (Fla. 1st DCA 1993)). An amendment would not prejudice Thomas. In addition, the privilege to amend has not been abused, as the complaint has been amended on only one occasion and “[gjenerally, a trial court is within its discretion to dismiss a complaint with prejudice after three opportunities to amend.” Horton v. Freeman, 917 So.2d 1064, 1066 (Fla. 4th DCA 2006) (citation omitted) (emphasis added). Finally, the amendment would not be futile.

Therefore, this matter is remanded to allow the Krilichs to amend their complaint, and affirmed in all other aspects of the opinion.

Affirmed in Part; Reversed and Remanded in Part.

SHAHOOD, C.J. and TAYLOR, J., concur.


author: PER CURIAM.

text:
    Antonio James PRYOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1563.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2008.

      Nancy A. Daniels, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his convictions and sentences for two counts of resisting arrest with violence and one count of resisting arrest without violence. Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm appellant’s convictions and sentences, but reverse and remand for correction of a scrivener’s error contained in the written judgment. In case number 06-2022, the written judgment reflects that appellant was convicted of aggravated battery upon a law enforcement officer, firefighter, or emergency medical care provider, a first-degree felony in violation of section 784.07(2)(d), Florida Statutes. However, appellant entered a plea of nolo contendere to resisting arrest with violence, a third-degree felony in violation of section 843.01, Florida Statutes. The trial court is directed to correct the judgment accordingly. See Grandison v. State, 691 So.2d 591 (Fla. 1st DCA 1997).

AFFIRMED.

ALLEN, KAHN, and DAVIS, JJ., concur.


text:
    A.C.P., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1873.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2008.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982).

PALMER, C.J., MONACO and LAWSON, JJ., concur.


text:
    Bonnie PHELAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2934.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2008.

      James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Oliver v. State, 899 So.2d 1195 (Fla. 5th DCA 2005).

PALMER, C.J., GRIFFIN and MONACO, JJ., concur.


author: STRINGER, Judge.

text:
    Lois WEISS n/k/a Lois Cole, Appellant, v. Donald WEISS, Appellee.
    No. 2D07-417.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2008.

      Toni A. Butler of Toni A. Butler, P.A., Naples, for Appellant.
    Karen S. Beavin of McGowan, Lucarelli & Quinn, P.A., Naples, for Appellee.
   STRINGER, Judge.

Lois Weiss (“the Former Wife”) seeks review of the trial court’s order granting Donald Weiss’ (“the Former Husband”) motion to dismiss her petition to domesticate and enforce an Illinois judgment and contempt orders concerning the judgment. We reverse because the trial court erred in concluding that domestication was not proper under either chapter 88 or 55, Florida Statutes (2005).

In this action filed twenty-five years after the parties were divorced in Illinois, the Former Wife seeks to enforce the provision of the modified divorce decree that required the Former Husband to maintain two life insurance policies for the benefit of the Former Wife. The Former Wife filed a petition to domesticate and enforce two postdissolution enforcement orders: (1) an order enforcing the modified divorce decree that was entered in October 2005 and (2) an order on a petition for rule to show cause that was entered in November 2005. In the October 2005 order, the Illinois court found that the Former Husband had borrowed against both insurance policies, ordered the Former Husband to repay the amount borrowed into the policies, and found that the Former Wife was entitled to attorney’s fees. In the November 2005 order, the Illinois court reduced the amount to a final judgment and awarded the Former Wife $7500 in attorney’s fees. The Illinois court also awarded the Former Wife a claim against the Former Husband’s estate in the amount of any deficiencies in the policies if he failed to abide by the order.

The Former Husband filed a motion to dismiss the Former Wife’s petition to domesticate and enforce. The magistrate heard evidence on both the Former Wife’s petition and the Former Husband’s motion to dismiss. The magistrate recommended granting the Former Husband’s motion to dismiss for three reasons: (1) domestication is not proper under chapter 88, Florida Statutes (2005), because the Former Wife has not established that the orders are support orders; (2) domestication is not proper under the Full Faith and Credit Clause because the modified divorce decree is not a money judgment and is not payable to the Former Wife; and (3) the October 2005 order provided the Former Wife with a method to collect the amounts intended to be preserved' by the life insurance policies. The Florida court adopted the report and recommendations of the magistrate and granted the Former Husband’s motion to dismiss.

On appeal, the Former Wife argues that the trial court erred in adopting the magistrate’s recommendation. The Former Wife contends that domestication was proper under chapter 88 because the provision at issue in the modified divorce decree concerned support. The Former Wife alternatively contends that domestication was proper because the postdissolution orders were entitled to full faith and credit. Finally, the Former Wife argues that the fact that the modified divorce decree provided a method to collect the amounts intended to be preserved does not affect the Former Wife’s right to domesticate the modified divorce decree and the postdissolution enforcement orders.

First, we address the Former Wife’s argument that domestication was proper under chapter 88. Section 88.6031(1) provides that a “support order” that was issued in another state may be registered by filing the order in the proper court in Florida. Once the order is registered, it is enforceable in the same manner as an order issued by a court of this state. § 88.6031(2). It is undisputed that the Former Wife filed the Illinois judgment and contempt orders in the proper court in Florida. The Former Wife argues that the trial court erroneously refused to enforce the orders at issue because it erroneously determined that the Former Wife failed to prove that the orders are support orders.

The modified divorce decree incorporates a marital settlement agreement, which is divided into eleven “articles.” Article III is entitled “Support and Maintenance.” In this provision, the court awarded the Former Wife $2000 monthly “for her support and that of the three minor children ... until further order of [the] Court” and determined that the award would be reduced fifty percent in the event the Former Wife remarried after a divorce. Article VII is entitled “Property Settlement.” It awards the marital residence to the Former Wife, awards each party a vehicle, awards the Former Wife the household furniture and furnishings, and awards the Former Husband his personal property. Neither the Support and Maintenance nor the Property Settlement provisions provide any security for the awards in the form of an insurance policy.

The provision at issue is found in article VI, which is entitled “Insurance,” and reads:

1. That the Husband has had issued on his life certain paid up policies of insurance, to-wit: New York Life Insurance in the amount of $100,000.00 and Mutual of New York Insurance in the amount of $50,000.00. The total face value and coverage of these policies is $150,000.00. The Wife shall remain the irrevocable beneficiary of said policies and the minor children shall be contingent beneficiaries as now provided in said life insurance policies. A list of the policies is set forth and described in schedule A, attached hereto and made a part hereof.
2. In connection with said policies, the Husband shall deposit duplicate policies with the Wife; that duplicate premium notices and receipts be sent to the Wife; pay off any outstanding liens on the policies and not borrow in the future; do all acts to keep the policies in full force and effect.

The provision is ambiguous in that it does not specify whether it is intended as security for support or equitable distribution. The provision does not award the Former Wife any payments during the Former Husband’s life; payment would only be made upon the Former Husband’s death. However, the award does not mention security for unpaid payments of support. Additionally, in the order granting the Former Husband’s motion to dismiss, the trial court found that “[t]here is no ongoing alimony and there are no minor children.” Therefore, it would be difficult to characterize the provision at issue as security for a support award that no longer exists. On the other hand, the provision does not award the Former Wife any present value of the policy and does not appear to equitably distribute the policy in any other manner.

The magistrate concluded that domestication was not proper under chapter 88 because the Former Wife had not proven that the provision was intended for support. We cannot say that the magistrate’s finding was erroneous because the Former Wife did not present any evidence before the magistrate that would resolve the ambiguity in the contract. Thus, the trial court did not err in granting the motion to dismiss on this basis.

We next address the Former Wife’s argument that domestication was proper because the postdissolution orders were entitled to full faith and credit. Under Article IV, Section 1, of the United States Constitution, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” Florida courts recognize this requirement. See Stewart v. Stewart, 115 Fla. 158, 155 So. 114, 115 (1934); Barnett v. Barnett, 787 So.2d 946, 946 (Fla. 2d DCA 2001). In order to trigger the Full Faith and Credit Clause, the judgment must be valid and final and consistent with statutory and case law in the state where rendered. Sistare v. Sistare, 218 U.S. 1, 26, 30 S.Ct. 682, 54 L.Ed. 905 (1910); Bennett v. Gibson, 510 So.2d 1234,1236 (Fla. 2d DCA 1987). Therefore, a Florida court must give full faith and credit to those valid provisions of a foreign divorce decree that are not subject to modification. Sackler v. Sackler, 47 So.2d 292, 293 (Fla.1950); Gutz v. Manser, 498 So.2d 597, 597-98 (Fla. 2d DCA 1986).

Chapter 55 sets forth the procedure for the domestication of orders entitled to full faith and credit. Section 55.503(1) provides that “[a] copy of any foreign judgment certified in accordance with the laws of the United States or of this state may be recorded in the office of the clerk of the circuit court of any county.” When such a judgment is recorded, it has the same effect as a judgment of a Florida circuit or county court. Id. A “foreign judgment” is defined as “any judgment, decree, or order of a court of any other state or of the United States if such judgment, decree, or order is entitled to full faith and credit in this state.” § 55.502(1).

If the provision at issue in this ease is not a support order, then it is an award of equitable distribution and is not subject to modification. See Braswell v. Braswell, 881 So.2d 1193, 1199 (Fla. 3d DCA 2004). It is therefore entitled to domestication under chapter 55 and the Full Faith and Credit Clause. The Former Wife correctly argues that the trial court erroneously concluded that the judgment and orders at issue were not enforceable under the Full Faith and Credit Clause because they are not money judgments. There is no requirement that the judgment and orders at issue be money judgments to be enforceable in Florida under chapter 55 or the Full Faith and Credit Clause.

Finally, we address the Former Wife’s argument regarding the fact that the October 2005 order provided a method to collect the amounts intended to be preserved. We agree that this remedy fashioned by the Illinois court does not affect the Former Wife’s right to domesticate the modified divorce decree and the postdisso-lution orders enforcing the decree. The Former Husband has relocated to Florida, and the Former Wife is not attempting to pursue two separate actions in two separate states. Instead, the Former Wife is seeking to enforce a valid foreign divorce decree and postdissolution enforcement orders in the state where the Former Husband is located. The trial court’s decision regarding whether to domesticate the modified divorce decree and postdissolution orders does not confer any new rights on the Former Wife; it merely provides a forum in which the Former Wife may seek to enforce the rights already conferred on her by the Illinois court.

We therefore reverse the trial court’s order granting the Former Husband’s motion to dismiss. We decline to direct the Florida court to domesticate the modified divorce decree and postdissolution orders because there is an issue regarding whether the Former Wife has complied with the procedural requirements of chapter 55. The Former Husband raised this issue in arguing his motion to dismiss, but the trial court did not reach this argument in the order on the motion. On remand, the Former Husband is not precluded from again raising this argument in the trial court.

Reversed and remanded.

ALTENBERND, J., and THREADGILL, EDWARD F., JR.,

Senior Judge, Concur.

      . We note that this opinion does not constitute a ruling on whether the provision at issue is indeed a support provision. Our holding is that the trial court did not err in adopting the magistrate's conclusion that the Former Wife failed to prove that the provision concerned support under Illinois law. Our holding should not foreclose the Former Wife from pursuing this argument in the trial court when she seeks to enforce the Illinois judgment on remand.


author: WHATLEY, Judge.

text:
    Ray Donovan NEVELS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1600.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2008.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

We consider Nevels’ appeal as a petition for writ of certiorari and deny the petition. See Woods v. State, 969 So.2d 408 (Fla. 1st DCA 2007).

NORTHCUTT, C.J., and FULMER, J., Concur.


text:
    James Robert ISHAM, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4920.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.
    James Robert Isham, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Homer v. State, 617 So.2d 311 (Fla.1993) (holding that statute precluding a gap in probationary split sentence does not prohibit a separation between incarceration and probation as to each case of a multiple-case sentence, but merely bars a period of freedom between portions of an overall sentence); Jackson v. State, 615 So.2d 850 (Fla. 2d DCA 1993) (holding that jail term for second count of two-count conviction, to be served between jail term and probationary period for first count, was not impermissible gap in sentencing, but merely interrupted probationary term).

STONE, STEVENSON and HAZOURI, JJ., concur.


text:
    Carl ROMAIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2792.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2008.
    Bart Schneider of Bart Schneider, P.A., Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

On double jeopardy grounds, Appellant challenges his convictions for both cocaine possession and trafficking in cocaine based on cocaine found in his automobile. The cocaine was in different forms (crack and powder) and was separately packaged. We agree with Appellant that his conviction for both crimes constitutes a double jeopardy violation. Godfrey v. State, 947 So.2d 565 (Fla. 1st DCA 2006). Accordingly, we reverse the conviction and sentence on Count II (Possession of a Controlled Substance) and remand this cause with instruction that Appellant’s conviction on Count II be vacated. The lower court need not re-sentence Appellant on Count I. Jones v. State, 711 So.2d 633 (Fla. 1st DCA 1998).

Appellant’s other point on appeal, as it relates to Count I is affirmed without discussion.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

PALMER, C.J., PLEUS and TORPY, JJ., concur.


text:
    Michael HARTH, Appellant, v. Salem R. TOWNE, Appellee.
    No. 5D06-4469.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2008.
    Linda Bellomio Commons, Tampa, for Appellant.
    Derrill L. McAteer, of The Hogan Law Firm, Brooksville, for Appellee.
   PER CURIAM.

AFFIRMED. See Schwab & Co. v. Breezy Bay, Inc., 360 So.2d 117, 118 (Fla. 3d DCA 1978) (“The discretion reposed in the trial judge by Fla. R. Civ. P. 1.540 is of the broadest scope and in order to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion.”).

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    Hamp O. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1300.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2008.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Walker v. State, 965 So.2d 1281, 1284 (Fla. 2d DCA 2007) (holding that resisting an officer with violence is a forcible felony for purposes of the prison releasee reoffender statute).

TORPY, LAWSON, JJ., and THOMPSON, E., Senior Judge, concur.


author: NORTHCUTT, Chief Judge.

text:
    J.J.D., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4155.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2008.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Chief Judge.

J.J.D. and a friend entered a house belonging to Jairo Vargas and his wife and took a bank bag containing Mr. Vargas’s wallet and other personal effects. In the ensuing delinquency proceeding, the circuit court determined that J.J.D. had committed a burglary. The court withheld adjudication and placed J.J.D. on probation. J.J.D. appeals and challenges the denial of his motion for judgment of dismissal. We reverse.

According to the evidence, at the time of the incident the Vargases’ house was vacant. J.J.D. and the other boy were runaways who had been staying in the house without the Vargases’ knowledge for several days. One day, while the boys were away from their hideaway, the Vargases came to check on the property. Mr. Vargas left his bag in the house when he and his wife went to dinner; it was gone when they returned.

To prove burglary in this case, the State was required to show that J.J.D. entered the dwelling “with the intent to commit an offense therein.” § 810.02(l)(b)(l), Fla. Stat. (2005). J.J.D. argues that the State failed to prove his intent to commit an offense in the house and, therefore, the charge should have been reduced to trespass. We agree because there was no evidence that the boys entered the house intending to steal the bag or anything else. In fact, there was no evidence that the boys could have expected to find anything to take upon returning to a house they believed to be vacant.

The supreme court has emphasized that “a proper analysis of the offense of burglary must focus both on the act constituting the entry and the intent to commit an offense therein.” Drew v. State, 773 So.2d 46, 52 (Fla.2000). “[Cjourts must be careful not to end the analysis once it is determined that an entry has occurred .... [s]uch a limited analysis would render meaningless that portion of the burglary statute requiring an intent to commit an offense within....” Id. As in R.C. v. State, 793 So.2d 1078 (Fla. 2d DCA 2001), here there was no evidence to support an inference that J.J.D. entered the house for the purpose of committing an offense inside. Nor was there evidence that J.J.D. entered in a stealthy manner and thus triggered the presumption of intent under section 810.07(1) (stating that “proof of the entering of such structure ... at any time stealthily and without consent of the owner ... is prima facie evidence of entering with intent to commit an offense”). See J.A.S. v. State, 952 So.2d 638 (Fla. 2d DCA 2007) (concluding that evidence failed to show the stealth necessary for the statutory presumption).

Still, the evidence was sufficient to support a finding that J.J.D. committed the necessarily lesser included offense of trespass, and he admits as much. Accordingly, we reverse and remand for a reduction of the charge to trespass and for a new disposition hearing.

Reversed and remanded.

KELLY and LaROSE, JJ., Concur.


text:
    Warren Lee BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4886.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2008.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, Donna A. Gerace, Assistant Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Warren Lee Berry (“Appellant”) pleaded nolo contendere to possession of marijuana and possession of drug paraphernalia but expressly reserved his right to appeal the trial court’s denial of his dis-positive motion to suppress. Appellant argues that the trial court should have suppressed marijuana, a pipe, and prescription pills seized from his person because they were obtained by police as a result of an illegal stop. The State concedes error. We agree, and for the reasons expressed below, we reverse.

Appellant and his sixteen-year-old companion were walking behind a closed store in the Santa Rosa Mall parking lot on March 10, 2006, at approximately 8:30 p.m., when they were approached by Officer Homer. Officer Homer asked them what they were doing, and they responded that they were walking to the movie theater. Officer Homer then asked them for identification. Appellant provided a valid driver’s license, but his companion provided a false name. Once Officer Homer ascertained the companion’s correct name and age, he patted her down. Officer Homer then patted Appellant down and found prescription pills, a small amount of marijuana, and a pipe.

Appellant was arrested and charged with possession of marijuana and possession of drug paraphernalia. Appellant filed a motion to suppress, alleging that all evidence seized from Appellant should be suppressed because Officer Homer did not have reasonable suspicion he was committing a crime or was armed and dangerous.

At the suppression hearing, Officer Homer testified that he stopped Appellant and his companion because they were walking behind a closed store at approximately 8:30 p.m. Officer Homer further testified that he attempted to identify Appellant and his companion because their explanation of why they were behind a closed store in the dark did not make sense. He further testified that Appellant’s companion was acting very nervous and that he patted her down after seeing cigarettes in her pocket. Homer stated that he patted down Appellant and felt something hard in his pocket. When asked what it was, Appellant responded that he did not know. Homer testified that he then removed the object and discovered that it was a phone. Homer also found a jewelry bag commonly used to carry narcotics in Appellant’s pocket. Homer testified that he continued his search of Appellant’s person and found a marijuana pipe, another jewelry bag containing marijuana, and prescription pills.

On cross-examination, Officer Homer stated that there was a movie theater and a parking lot in the vicinity of where he made contact with Appellant. He admitted he did not know what crime he thought Appellant was going to commit and stated “that’s why they have a loitering and prowling statute.” Officer Homer testified that Appellant and his companion were not being rowdy or fighting.

On appeal, Appellant contends the officer lacked a lawful reason to perform an investigatory stop. We agree. Section 901.151(2), Florida Statutes (2006), provides as follows:

Whenever any law enforcement officer ... encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state ... the officer may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding the person’s presence abroad which led the officer to believe that the person had committed, was committing, or was about to commit a criminal offense.

When determining whether an officer’s suspicion of crime is reasonable, the trial court “must consider the totality of the circumstances as viewed by an experienced police officer.” Dewberry v. State, 905 So.2d 963, 966 (Fla. 5th DCA 2005). A “mere ‘hunch’ that criminal activity may be occurring” is insufficient to constitute reasonable suspicion to justify stopping an individual. J.P. v. State, 855 So.2d 1262, 1264 (Fla. 4th DCA 2003). The officer stopping the individual “must articulate in particular and objective terms his reasonable suspicion of criminal activity.” Daniels v. State, 543 So.2d 363, 365 (Fla. 1st DCA 1989).

Case law indicates that walking behind a closed business in the evening is insufficient to justify a reasonable suspicion of criminal activity. See, e.g., L.N.D. v. State, 884 So.2d 515, 515 (Fla. 2d DCA 2004) (holding that the officer lacked reasonable suspicion to stop the car in which the defendant was a passenger when the officer saw the vehicle come out from behind a closed building at 3:30 a.m. and the building had been recently burglarized); Errickson v. State, 855 So.2d 700 (Fla. 4th DCA 2003) (holding that no founded suspicion existed for a stop of a defendant seen sitting on a curb next to a bicycle and a payphone in front of a closed gas station which had been burglarized several times); Lester v. State, 754 So.2d 746, 748 (Fla. 1st DCA 2000) (finding police did not have a reasonable suspicion of criminal activity to justify a stop when the officer saw the defendant “seemingly intoxicated,” walking down the road in a high crime area with a beer in her hand); State v. Robinson, 740 So.2d 9, 14 (Fla. 1st DCA 1999) (holding that the fact the defendant matched an anonymous tip’s description, was seen in a high crime area, and walked away when police approached, was insufficient to provide reasonable suspicion).

Accordingly, because the State did not carry its burden of showing that Officer Homer had a reasonable suspicion of criminal activity necessary to justify an investigatory stop of Appellant, we REVERSE.

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


text:
    Verla and Lamar MAYO, Appellants, v. Bob ALLEN, Edda Allen, and R & E Allen Properties, Inc. d/b/a Sportsman’s Lodge/Marina and Restaurant, Appellees.
    No. 1D06-4514.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2008.
    Rehearing Denied Feb. 11, 2008.

      Randall Denker of Denker Law Offices, Bradfordville, for Appellants.
    Clifford W. Sanborn and Steven M. La-Sota of Barron, Redding, Hughes, Fite, Sanborn, Kiehn & Dickey, P.A., Panama City, for Appellees.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the appellees’ motion for rehearing, withdraw our opinion filed on August 23, 2007, and substitute the following opinion in its place.

The appellants, Verla and Lamar Mayo (the Mayos), appeal the trial court’s final judgment in favor of the appellees, Bob and Edda Allen and R & E Allen Properties, Inc. Of the Mayos’ seven issues on appeal, we will only address the Mayos’ argument that the trial court erred in finding that Mr. Allen did not commit conversion. We disagree and affirm on all issues.

It is well settled that a conversion is an unauthorized act which deprives another of his property permanently or for an indefinite time. See Star Fruit Co. v. Eagle Lake Growers, Inc., 160 Fla. 130, 33 So.2d 858 (1948); see also Gen. Fin. Corp. of Jacksonville v. Sexton, 155 So.2d 159 (Fla. 1st DCA 1963). Conversion may be demonstrated by a plaintiffs demand and a defendant’s refusal. See Goodrich v. Malovmey, 157 So.2d 829, 832 (Fla. 2d DCA 1963) (“The purpose of proving a demand for property by a plaintiff and a refusal by a defendant to return it in an action for conversion is to show the conversion. The generally accepted rule is that demand and refusal are unnecessary where the act complained of amounts to a conversion regardless of whether a demand is made.”).

The Mayos argue that Mr. Allen committed conversion by keeping the Overland RV, the downpayment, the personal belongings, and the value of repairs to the Overland RV. With respect to the down-payment and the value of repairs, those claims were not raised by the Mayos in their complaint and will not be addressed on appeal. See Mapoles v. Mapoles, 332 So.2d 373 (Fla. 1st DCA 1976) (holding that issues not raised in the pleadings may not be addressed on appeal).

With respect to the Overland RV, the trial court found that the Mayos defaulted under the terms of the sales agreement when they failed to make the payments due. The trial court also found that Mr. Allen had the right to repossess the Overland RV upon the Mayos’ default on the sales agreement. These findings are supported by competent, substantial evidence. The Overland RV was not the Mayos’ property. The Mayos had possession of the Overland RV only as long as they made the payments due under the sales agreement. It is undisputed that the Mayos failed to make the payments due and defaulted under the terms of the sales agreement. It is also undisputed that the title to the Overland RV was in Mr. Allen’s, not the Mayos’, name. Additionally, even if they were somehow entitled to possession of the Overland RV, the Mayos did not demand its return or demonstrate that such a demand would have been futile. The “demand letter” referred to by the Mayos in their complaint and on appeal was not a demand letter, but rather a letter attempting to negotiate a settlement with Mr. Allen for monetary damages, not for the return of the Overland RV.

With respect to the personal belongings, the trial court found that the Mayos did not demonstrate that Mr. Allen committed conversion. This finding is supported by competent, substantial evidence. Although the Mayos testified that Mr. Allen kept the personal belongings, Mr. Allen testified that he did not. The Mayos presented no other evidence to prove that Mr. Allen had kept the personal belongings. Additionally, even if Mr. Allen had kept the personal belongings as alleged, the Mayos did not demand their return or demonstrate that such a demand would have been futile. As stated above, the Mayos’ letter was not a demand letter, but rather a letter attempting to negotiate a settlement, not for the return of the personal belongings.

AFFIRMED on all issues.

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


author: ORFINGER, J.

text:
    STATE of Florida, Appellant, v. Malik Garcia STEPHENSON, Appellee.
    No. 5D07-921.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellee.
   ORFINGER, J.

The State of Florida appeals the downward departure sentence imposed on Malik G. Stephenson after he pled no contest to aggravated fleeing and eluding in violation of section 316.1935(3), Florida Statutes (2006), and one count of resisting an officer without violence, in violation of section 843.02, Florida Statutes (2006). The trial court determined that a downward departure sentence was appropriate because Mr. Stephenson (1) expressed remorse for his crimes; (2) had several family members dependent upon him for support; and (3) had not reoffended during the fourteen-month period since being released from prison. The State argues that the departure grounds relied on by the trial court were either legally insufficient or factually unsupported, and consequently, the downward departure sentence was error. We agree and reverse.

On the night of his arrest, Mr. Stephenson was sitting in a parked car when he was approached by a police officer who detected a strong odor of marijuana coming from the car. The officer identified himself, and asked Mr. Stephenson to step out of the car. Mr. Stephenson refused and quickly drove away, almost hitting the police officer in the process. After running several red lights and sideswiping another car, Mr. Stephenson was forced to stop when his front tires began to separate from the rims. He then jumped from the vehicle and fled on foot, only to be eap-tured a short time later. As the police moved in to capture him, Mr. Stephenson stabbed himself in the neck, requiring extensive medical treatment.

After Mr. Stephenson pled no contest to the charges, a sentencing hearing was conducted at which the State sought habitual felony offender sentencing. The court declined to impose an habitual felony offender sentence, finding that although Mr. Stephenson qualified as an habitual offender, an extended sentence was not necessary for the protection of the public. Mr. Stephenson then presented mitigating evidence to the court, hoping for a downward departure sentence. That evidence demonstrated that since his last conviction in 2001 (coincidently for aggravated fleeing and eluding and leaving the scene of an accident with injury), he had not been arrested or charged with any offenses other than those then before the court for sentencing. While true, the State observed that Mr. Stephenson had only been out of prison for fourteen months when the current charges arose. Mr. Stephenson and his family and friends testified that since his release from prison, he had purchased a home, gotten married, had a baby, and maintained a full-time job. Mr. Stephenson was also responsible for supporting his wife, child, step-child and disabled mother.

Over the State’s objection, the trial court imposed a downward departure sentence, reasoning:

The court is impressed that Mr. Stephenson has kept his nose clean for the past fourteen months and has demonstrated remorse and is supporting his family, but that doesn’t take away from the fact that the offense that he committed put the community in jeopardy.
Anytime someone runs from a police officer in such a reckless manner, there is any number of bad things that can happen. That’s why it’s a second degree felony because the State recognizes that it puts innocent people at risk. Unfortunately, we hear all too often about innocent people who are killed in crashes that occur during high speed chases.
So much so that the police have had to undergo some real serious soul searching about who they chase and don’t chase and Mr. Stephenson has to pay a price for the very, very poor judgment that he exercised on January 18, 2006.
The court does find that he qualifies as a habitual felony offender and I am going to enter the order finding that he qualifies as a habitual felony offender. I am going to find that he does not — it is not necessary to protect the public in this case to sentence him as a HFO.
I’m instead going to downward depart under 921.0026. I believe that the court can consider not only the enumerated mitigating factors, but inherent in the language is anything else that the court deems to be significant.
The fact that Mr. Stephenson has had a child since he committed this offense, the fact that he supports not only his child and his wife but his mother are factors that convince the court that Mr. Stephenson should get a downward departure sentence.
I am going to sentence him to one year in the Seminole County Jail and authorize that he be granted work release so that he can continue working and continue providing for his family followed by three years supervised probation with no early termination.

The trial court adjudicated Mr. Stephenson guilty of the charged offenses, and sentenced him to one year in the county jail followed by three years of probation. As reasons for the departure sentence, the trial court noted on the sentencing score-sheet that Mr. Stephenson was remorseful, was supporting a new baby, and had a disabled, dependent mother. This appeal followed.

At the outset, Mr. Stephenson argues that the State failed to properly preserve the issue for appellate review. We disagree. At the sentencing hearing, the State offered evidence of Mr. Stephenson’s significant prior criminal history, the aggravated circumstances of this offense and objected to the court’s downward departure. While the State could have been more specific in its objection, an issue is preserved for appeal if the articulated concern is sufficiently specific to inform the court of the perceived error. State v. Paulk, 813 So.2d 152, 154 (Fla. 3d DCA 2002) (citing Williams v. State, 414 So.2d 509 (Fla.1982)). We conclude the State satisfied that standard. State v. Henderson, 766 So.2d 389, 390 (Fla. 2d DCA 2000).

In State v. Tyrrell, 807 So.2d 122, 125 (Fla. 5th DCA 2002), this Court recognized the specific limitations placed on a trial court’s authority to depart from the Criminal Punishment Code, explaining:

At a minimum, the trial court must impose the lowest permissible sentence calculated according to the Criminal Punishment Code unless the court finds that the evidence supports a valid reason for a downward departure. See e.g., § 921.002(l)(f) & (3), Fla. Stat. (1999); State v. Henderson, 766 So.2d 389, 390 (Fla. 2d DCA 2000). The decision to depart from the minimum sentence mandated by the Criminal Punishment Code is a two part process. Banks v. State, 732 So.2d 1065 (Fla.1999); State v. Schillaci 767 So.2d 598 (Fla. 4th DCA 2000). First, the trial court must decide whether it can depart by determining whether “there is a valid legal ground and adequate factual support for that ground” in the case pending before it. Banks, 732 So.2d at 1067. That decision will be affirmed on appeal if any reason provided by the trial judge is valid and supported by competent substantial evidence. State v. Clay, 780 So.2d 269, 270 (Fla. 5th DCA 2001). The second step requires the trial court to determine “whether departure is ... the best sentencing option for the defendant.... In making this determination, the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors.” Banks, 732 So.2d at 1068. “This second aspect of the decision to depart is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion. Discretion is abused only where no reasonable person would agree with the trial court’s decision.” Id. An appellate court will uphold a departure sentence if any reason given by the trial judge is a valid reason for departure.

Section 921.0026(1) and (2)(j), Florida Statutes (2006), which governs mitigating circumstances justifying a downward departure from the lowest permissible sentence, provides in relevant part:

(1) A downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Mitigating factors to be considered include, but are not limited to, those listed in subsection (2). The imposition of a sentence below the lowest permissible sentence is subject to appellate review under chapter 924, but the extent of downward departure is not subject to appellate review.
(2) Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to:
(j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.

However, the list of statutory departure reasons provided in section 921.0026(2) is not exclusive. State v. Randall, 746 So.2d 550, 552 (Fla. 5th DCA 1999). Therefore, the trial court may impose a downward departure for reasons not delineated in section 921.0026, so long as the reason given is supported by competent, substantial evidence and not otherwise prohibited. State v. Laroe, 821 So.2d 1199, 1201 (Fla. 5th DCA 2002); State v. Barnes, 753 So.2d 605, 607 (Fla. 2d DCA 2000). Here, the trial court gave three reasons for downward departure: Mr. Stephenson’s remorse, his family support obligations, and the fact that he had “kept his nose clean” since being released from prison in 2004.

The first reason, remorse, is specifically authorized under section 921.0026(2)(j), Florida Statutes. However, section 921.0026(2)(j) requires, in addition to remorse, that the crime be committed in an unsophisticated manner and constitute an isolated incident. State v. Bleckinger, 746 So.2d 553, 554 (Fla. 5th DCA 1999). While it is true that Mr. Stephenson expressed remorse for his conduct, clearly this offense was not an “isolated incident.” Mr. Stephenson had a substantial criminal record prior to the current offense. The State submitted evidence of prior felony convictions of grand theft in the third-degree, use of an anti-shoplifting device countermeasure, battery on a law enforcement officer, resisting an officer with violence, grand theft of a motor vehicle, aggravated fleeing and eluding, leaving a scene of an accident with injury, felony failure to appear, and dealing in stolen property. Mr. Stephenson’s sentencing scoresheet also included prior convictions for attempted possession of cocaine, tampering with evidence, possession with intent to sell, aggravated battery with a deadly weapon, petit theft, possession of paraphernalia, battery, and assault, among other things. Based on Mr. Stephenson’s extensive criminal record, it cannot be said that the crimes at issue here were isolated incidents. Compare State v. Tice, 898 So.2d 268 (Fla. 5th DCA 2005) (holding that crimes of burglary of dwelling and resisting officer without violence were not isolated incidents when defendant was previously convicted of resisting officer without violence, two violations of probation, aggravated battery with deadly weapon, and fleeing or attempting to elude police officer), and State v. Jordan, 867 So.2d 635 (Fla. 5th DCA 2004) (determining that convictions of burglary of dwelling and theft were not isolated incidents when defendant had ten felony and four misdemeanor prior convictions), with State v. Merritt, 714 So.2d 1153 (Fla. 5th DCA 1998) (concluding that charged crimes were isolated incidents when they were activities defendant had never engaged in before, they took place in a relatively short span of time, and defendant did not have prior criminal history). Further, the record contains no competent, substantial evidence that would support a finding that the charged offense was committed in an unsophisticated and isolated manner. See Tyrrell, 807 So.2d at 126 (“Simply saying ‘I’m sorry’ at sentencing is not enough to satisfy the requirements of section 921.0026(2)(j).”). Therefore, a downward departure under section 921.0026(2)(j) was unjustified.

The trial court also cited family support concerns as a reason for granting Mr. Stephenson a downward departure sentence. “Florida courts have consistently held that family support concerns are not valid reasons for downward departure.” See State v. Walker, 923 So.2d 1262, 1265 (Fla. 1st DCA 2006); see also Rafferty v. State, 799 So.2d 243, 248 (Fla. 2d DCA 2001) (determining that “it would not be good policy for the legislature to punish those with families to support less than those without families”). Specifically, the fact that a defendant has an elderly parent in need of support has been held to be an insufficient reason for downward departure. State v. Warren, 629 So.2d 1014 ,1015 (Fla. 4th DCA 1993) (concluding that defendant’s need to support his elderly mother, among other things, was not sufficient reason for downward departure). Likewise, the courts have held that a defendant’s need to support his child is an invalid reason for downward departure. See State v. Chapman, 805 So.2d 906, 907-OS (Fla. 2d DCA 2001) (holding that fact that defendant’s need to support his child outweighs his need for prison has been rejected as reason for downward departure); State v. Bray, 738 So.2d 962, 963 (Fla. 2d DCA 1999) (concluding that defendant’s custody of and need to support his daughter was not valid basis for downward departure).

Finally, the trial court noted that Mr. Stephenson had “kept his nose clean” for fourteen months since his release from prison in October 2004. We find that reason unpersuasive. The trial court lacks discretion to grant a downward departure sentence based on factors already taken into account by the sentencing guidelines. State v. Sachs, 526 So.2d 48, 50 (Fla.1988) (citing State v. Mischler, 488 So.2d 523, 525 (Fla.1986)). A defendant’s prior criminal record, or lack thereof, is one such factor. Id. That a defendant refrains from criminal activity for a short time is an insufficient reason for a downward departure. See, e.g., Chapman, 805 So.2d at 908 (concluding that fact that defendant had no arrests for several years prior to charged offense is not valid reason for departure); State v. Nathan, 632 So.2d 127, 128 (Fla. 1st DCA 1994) (holding that defendant’s refraining from criminal activity for two years after he escaped from prison is invalid reason for downward departure); see also Paulk, 813 So.2d at 154 (holding that defendant’s good work in the community is invalid reason for downward departure). But see Bleckinger, 746 So.2d at 556-57 (upholding downward departure when defendant had married, held two jobs, and “gone straight” since being released from prison). Accordingly, Mr. Stephenson’s short crime-free period is an insufficient basis to support a downward departure sentence.

For these reasons, we conclude that the grounds utilized by the trial judge for the downward departure sentence were either legally insufficient or not supported by competent, substantial evidence. Accordingly, we vacate Mr. Stephenson’s sentence and remand this matter for resen-tencing. On resentencing, the sentences imposed shall be equal to, or greater than, the lowest permissible sentence mandated by the Criminal Punishment Code. See State v. White, 755 So.2d 830 (Fla. 5th DCA 2000) (holding that sentence must be vacated and case remanded for resentenc-ing within guidelines because valid reasons for departure were not established).

SENTENCES VACATED; REMANDED FOR RESENTENCING.

MONACO and LAWSON, JJ., concur.

      . The sentence for this offense is not challenged on appeal.

      . § 775.084(3)(a)(6), Fla. Stat. (2006).

      . According to Mr. Stephenson's sentencing scoresheet, the lowest permissible sentence was 30.45 months in prison.


author: FULMER, Judge.

text:
    Mary Ruth SCHREIBER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2529.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2008.

      James Marion Moorman, Public Defender, and Christopher Desrochers, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Mary Schreiber appeals from her conviction for grand theft, $300 or more, following a jury trial. Because the trial court erred by receiving testimony that Schreiber was on probation, we reverse and remand for a new trial.

Schreiber worked at the front desk of a retail auto dealership known as TNT Auto Sales. The dealership was owned by Ann Hamilton. Shortly before the trial, Hamilton had married Mike Floridino, part owner of an entity known as TNT Wholesale Liquidation. It was Floridino who had originally hired Schreiber and later sent her to work at the dealership when business at the wholesale company became slow. The dealership engaged in its own financing, using a procedure in which the buyer would make periodic payments directly to the dealership. One of Schreiber’s tasks was to collect and process payments from customers.

One customer testified that he arrived at the dealership late in the afternoon of Friday, June 10, 2005, to make a payment, just as Schreiber was closing up. Schreiber was the only person there. She reopened the dealership for the customer, collected his $300 cash payment, signed a receipt, and gave him a copy. Schreiber’s story to the detective who interviewed her was that she stapled together the cash and the dealership’s copy of the receipt and placed the bundle in the dealership’s safe. Hamilton testified that the usual procedure, when Hamilton was absent, was for Schreiber to bring collected payments to Hamilton or Floridino at the wholesale company or at their home. Hamilton said that the safe was used only to hold the keys of the cars for sale on the lot, not payments from customers. Hamilton acknowledged that she, Floridino, at least one of Floridino’s sons, Schreiber, and a former employee no longer at the dealership at the time of the incident knew the combination to the safe.

A month or so later, Hamilton realized— or so she thought — 'that the customer had not made his June payment. When she phoned him, he insisted that he had paid and faxed over his copy of the receipt. Hamilton confronted Schreiber about the missing cash. Hamilton testified that Schreiber responded that no one bearing the customer’s name had come to the dealership and made a payment and that she never took money from such a person. Hamilton later contacted the police. Mike Floridino testified that when he learned of the missing $300, he, too, asked Schreiber on two or three occasions if she had taken the money and offered to “work through it” with her if she had. Floridino said that Schreiber denied knowing anything about the transaction with the customer. Schreiber was eventually arrested. A jury found her guilty of grand theft.

Schreiber raises three issues on appeal. We conclude that one of the issues requires that we remand for a new trial because the underlying error was not harmless.

Prior to trial, the court granted Schreiber’s motion in limine requesting that no mention be made of the fact that Schreiber was on probation at the time of the incident at issue here. At trial, during Schreiber’s cross-examination of the detective who had interviewed her, the following question, answer, and objection took place:

Q. [Defense counsel]: Did [Schreiber], in fact, tell you about the fact that— or make some statement to the effect of — that Ms. Hamilton had really poor money management skills?
A. Yes, ma’am, she did.
[Prosecutor]: Objection. Hearsay.
The Court: Overruled. Doctrine of completeness.

After two more questions and answers in the same vein, the prosecutor objected again:

Objection, Your Honor. This is all self-serving hearsay.
The Court: Overruled. It’s allowed as a complete statement.

The detective went on to testify that Schreiber had told him that Hamilton caused $22,000 worth of checks to bounce in her checking account; in short, it was Schreiber’s theory that the $300 went missing because Hamilton was a poor money manager.

Before he began his redirect examination, the prosecutor requested a bench conference and stated to the court:

Judge, I believe [defense counsel’s] questioning of [the detective] as far as other statements the defendant made has opened the door to some statements she made that you’ve already ruled to be inadmissible. Specifically, she told the detective that she was on probation, she informed [Hamilton] that she was, and that she was up front with them from the beginning, and that she was always honest with them and would never steal from them.

Defense counsel replied that the fact that Schreiber was on probation “has nothing to do with anything” and was more prejudicial than probative. The court responded that testimony about Schreiber’s probation would not be irrelevant because it would “complete [Schreiber’s] explanation of why she would not do it”; after all, the court had applied the “doctrine of completeness” to let Schreiber, via the detective’s testimony, give an exculpatory explanation of how the money went missing. After some additional argument, the court concluded that the information to be elicited by the prosecutor “now completes the exculpatory explanation” that defense counsel had elicited.

On redirect, the prosecutor began, “Detective [ ], during the taped statement that the defendant gave, she gave other — other reasons for why she wouldn’t have taken the money, isn’t that true?” The detective responded in the affirmative, and the prosecutor ascertained that Schreiber had informed the detective that she had disclosed to both Hamilton and Floridino that she was on probation. Defense counsel objected when the prosecutor attempted to elicit whether Schreiber had mentioned what she was on probation for. The judge overruled the objection, stating, “Doctrine of completeness. I’m going to allow it.” As it turned out, there was nothing in Schreiber’s statement to the detective that identified the underlying offense for which she was on probation.

The “doctrine of completeness,” or “rule of completeness,” to which the trial court was referring is apparently that of section 90.108(1), Florida Statutes (2005), which reads, in pertinent part, as follows:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.

See also Larzelere v. State, 676 So.2d 394, 401 (Fla.1996) (noting that section 90.108 is known as the “rule of completeness”). The purpose of the rule is “to avoid the potential for creating misleading impressions by taking statements out of context.” Id. (citing Charles W. Ehrhardt, Florida Evidence § 108.1 (1995 ed.)). Although the plain language of the statute requires the adverse party to introduce the other part of the statement at the time that the first party introduces the statement, Florida courts have generally allowed the adverse party to delay introducing the other part of the statement until cross-examination. See, e.g., Vazquez v. State, 700 So.2d 5, 8-9 (Fla. 4th DCA 1997); cf. Ehrhardt, Florida Evidence at § 108.1 nn. 4-5 (2007 ed.). Likewise, although the language of the statute does not refer to oral statements, the courts have applied the rule of completeness to such statements. See Eh-rhardt, Florida Evidence at § 108.1 n. 7 (2007 ed.). The fairness determination noted in the rule “falls within the discretion of the trial judge.” Larzelere, 676 So.2d at 402.

Although not dispositive of our determination that a new trial is required, we examine first the trial court’s invocation of the rule of completeness to allow Schreiber to cross-examine the detective as to the exculpatory statements made to him by Schreiber concerning Hamilton’s alleged money mismanagement. We note first that Schreiber’s statements were not admissible as an admission under section 90.803(18) because she was not offering the statement against a party. See Lott v. State, 695 So.2d 1239, 1243 (Fla.1997) (“Self-serving statements are not admissible under section 90.803(18).”); Cotton v. State, 763 So.2d 437, 439 (Fla. 4th DCA 2000). However, even if we assume that the rule of completeness can be used to introduce otherwise inadmissible hearsay in appropriate circumstances, here the scope of the rule does not allow for the introduction of Schreiber’s exculpatory statements. Rather, “[t]he opposing party is entitled to have a portion of the [statement] introduced only insofar as it tends to explain or shed light upon the part already admitted.” Ehrhardt, Florida Evidence at § 108.1 (2007 ed.) (emphasis added); see also Evans v. State, 808 So.2d 92, 104 (Fla.2001) (concluding that the rule of completeness did not entitle the defendant to elicit a detective’s hearsay testimony on cross-examination when the jury was not misled or confused by the detective’s direct examination testimony and the detective did not testify about a specific witness’s partial statement that required further clarification); United States v. Pendas-Martinez, 845 F.2d 938, 944 (11th Cir.1988) (“While there are conflicting Circuit Court decisions on whether the rule makes admissible parts of a document that otherwise would be inadmissible under the [federal] Rules of Evidence, it is consistently held that the rule permits introduction only of additional material that is relevant and is necessary to qualify, explain, or place into context the portion already introduced.” (footnote and citations omitted)); United States v. Marin, 669 F.2d 73, 84 (2d Cir.1982) (“The completeness doctrine does not, however, require introduction of portions of a statement that are neither explanatory of nor relevant to the admitted passages.”).

Here, the entirety of the substantive examination of the detective by the prosecutor on direct examination was as follows:

Q. What did the defendant say when you asked her about [the customer]?
A. I’d asked her about if she’d taken a payment from [the customer], and she told me that she took the payment and gave him a receipt.
Q. Did she tell you what she did with that payment?
A. She told me that she took the cash and I guess a copy of the receipt and stapled it together and placed it in the safe in the business.
Q. Did she tell you where she went after she left the business that day?
A. Says she' went to TNT Auto Sale [sic] to see Mike.

The statements just quoted describe a simple sequence of events: how Schreiber handled the transaction and where she put the money. The prosecutor apparently limited his direct examination to these statements to bring to the jury’s attention the significant discrepancy between Schreiber’s denials to Hamilton and Flori-dino and her statement to the detective. In contrast, the exculpatory statements brought out by Schreiber on cross-examination concerning Hamilton’s alleged money mismanagement did nothing to explain, shed light on, qualify, or place into context the statements brought out on direct examination. Furthermore, we do not believe that the jury would have been confused or misled by the statements elicited on direct examination standing alone. See Evans, 808 So.2d at 104. As such, and notwithstanding the relatively permissive abuse-of-discretion standard of review, we conclude that the trial court improperly relied on the rule of completeness to allow Schreiber’s exculpatory statements to be introduced during cross-examination.

The issue on appeal concerns the trial court’s second invocation of the rule of completeness, that is, whether the trial court abused its discretion in allowing Schreiber’s statements concerning her probation status to be introduced during the State’s redirect examination of the detective. As noted above, the State sought and the court permitted the introduction of the statements to “complete! ] the exculpatory explanation” elicited by defense counsel during cross-examination. We conclude that the rule of completeness was improperly invoked to introduce the statements on redirect. To the extent that Schreiber’s statements concerning probation were exculpatory, they represented an exculpatory theory independent of her other theory that Hamilton’s money mismanagement caused the $300 to go astray. Indeed, the prosecutor’s question to the detective on redirect characterized the statements he was eliciting as “other reasons.” They were therefore neither explanatory of nor relevant to the money mismanagement theory. See Marin, 669 F.2d at 84. Furthermore, there was nothing misleading or confusing about the testimony concerning the money mismanagement theory that testimony concerning probation could have clarified. See Evans, 808 So.2d at 104. Finally, the introduction of the probation testimony did nothing to enhance fairness, as contemplated by section 90.108(1). As such, there was no justification for the admission of the testimony concerning Schreiber’s probation status. We are therefore compelled to conclude that the trial court abused its discretion in allowing the testimony to be introduced.

The only matter remaining for us to determine is whether the error was harmless. After a thorough review of the record, we “cannot say beyond a reasonable doubt that the error did not affect the verdict.” See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). We reach this conclusion because, given the minimal substantive evidence pointing directly to Schreiber and ruling out others as the thief, the jury was being asked to decide a credibility contest between Schreiber and Hamilton.

Schreiber’s credibility suffered from the contrast between her denials to Hamilton and Floridino of any knowledge of the transaction with the customer and her ready admission to handling the transaction when she spoke with the detective. Two aspects of Hamilton’s testimony could have reflected adversely on her credibility. First, on cross-examination Hamilton stated that she had never seen the $300 in question. Defense counsel then brought to Hamilton’s attention an affidavit prepared by a police officer and sworn to by Hamilton stating that she saw the money on June 10, 2005, the date of the transaction. Hamilton acknowledged that “[tjhat’s what it says,” but insisted that she never saw the money and that the affidavit was “mi-sinformative.” Second, on direct examination, Hamilton denied having seen the dealership’s copy of the receipt and stated that when the customer faxed her his copy, which bore a serial number, she noticed that the dealership’s copy was missing from the receipt book. However, Floridi-no on cross-examination acknowledged, with reference to an earlier deposition, “I don’t remember how [Hamilton] really found it, but I knew she came across a receipt that contradicted [Schreiber’s] story about not being paid.”

With the credibility of both Schreiber and a key State witness at issue, we cannot say beyond a reasonable doubt that disclosure of a matter as potentially damaging as Schreiber’s probation did not affect the jury as it reached a verdict. Because the error in allowing Schreiber’s probation status to be disclosed was harmful, we reverse and remand for a new trial.

Reversed and remanded for a new trial.

DAVIS and WALLACE, JJ., Concur.

      . Section 90.803, Florida Statutes (2005), reads, in pertinent part:
      The provision of s. 90.802 to the contrary notwithstanding, the following [is] not inadmissible as evidence, even though the de-clarant is available as a witness: ... (18) ... A statement that is offered against a party and is: (a) The party’s own statement in either an individual or a representative capacity....

      . The authorities and Florida case law are not unanimous on this issue. See Ehrhardt, Florida Evidence at § 108.1 nn. 11-15 (2007 ed.).


author: SILBERMAN, Judge.

text:
    Stacy Lee WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2264.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2008.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Stacy Lee Watts challenges his convictions and sentences for various crimes and raises several issues. We conclude that a fine and certain costs that the trial court imposed must be stricken. In all other respects, we affirm the convictions and sentences without comment.

Watts preserved his challenge to a fine and several costs by filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Because the court did not rule on the motion within sixty days, it is deemed denied. Fla. R.Crim. P. 3.800(b)(2)(B); Howard v. State, 920 So.2d 764, 765 (Fla. 2d DCA 2006).

Watts argues that the trial court erred in imposing a $65 county court cost pursuant to section 939.185(l)(a), Florida Statutes (2004). This statute authorizes the imposition of county court costs to crimes committed after July 1, 2004. Navicky v. State, 949 So.2d 1047, 1048 (Fla. 2d DCA 2006). We strike this cost because Watts committed the subject crimes on February 7, 2003, before the statute became effective.

Watts also challenges a $15 court facilities surcharge authorized by section 318.18(13)(a), Florida Statutes (2004). We strike this surcharge because the statute came into effect in 2004, after Watts had committed the subject crimes. See Ch. 04-265, § 60, at 677, Laws of Fla.

Next, Watts argues the trial court erred in imposing a $50 crime prevention fine pursuant to section 775.083(2), Florida Statutes (2002). We strike this fine because the trial court failed to conduct an inquiry and determine Watts’ ability to pay it. See § 775.083(2)(b); Gonzalez v. State, 939 So.2d 224, 225 (Fla. 2d DCA 2006) (noting that section 775.083(2)(b) requires the court to conduct an inquiry into a defendant’s ability to pay the fine before imposing it). On remand, this fine may be reimposed after the trial court conducts the necessary inquiry and finds that Watts has the ability to pay the fine. See Gonzalez, 939 So.2d at 225.

Finally, Watts argues the trial court erred in imposing investigative costs of $218.75 because the State failed to provide required documentation as to the amount. See § 938.27(1), Fla. Stat. (2002); Phillips v. State, 942 So.2d 1042, 1044 (Fla. 2d DCA 2006) (concluding that before a court imposes an order for investigative costs, the court must have competent evidence of those costs). However, Watts acknowledges that he agreed to the State’s request for investigative costs of $218.75. Further, the record reflects that before imposing the costs the trial court offered to have a hearing on the issue. Because Watts stipulated to the costs and waived a further hearing, we affirm as to this issue. See Jackson v. State, 529 So.2d 320, 320 (Fla. 2d DCA 1988); Mitchell v. State, 678 So.2d 1362, 1365 (Fla. 1st DCA 1996).

Accordingly, we affirm Watts’ convictions and sentences except as to the fíne and costs that are stricken as stated above. On remand, the trial court may reimpose the $50 crime prevention fine after conducting the requisite inquiry and shall enter corrected sentencing documents consistent with this opinion.

Affirmed but remanded for corrections as to a fine and costs.

CASANUEVA and VILLANTI, JJ., Concur.

      . The 2002 version of section 775.083(2) was in effect when Watts committed his crimes in February 2003. See Ch. 03-25, § 1, at 144, Laws of Fla.


text:
    STATE of Florida, Appellant, v. Delcia Maria SUAZO, Appellee.
    No. 2D07-2503.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2008.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellant.
    Leslie M. Sammis of Escobar, Ramirez & Associates, Tampa, for Appellee.
   STRINGER, Judge.

The State appeals the dismissal of an information filed against Delcia Suazo. Because Suazo never filed a written motion to dismiss, we reverse.

On November 1, 2006, the State filed an information charging Suazo with one count of driving while her license was revoked as a habitual offender. At a change of plea hearing, Suazo intended to plead guilty to a reduced charge of driving with no valid license as part of a plea agreement with the State. However, after hearing the factual basis for the charge, instead of accepting Suazo’s plea the trial court asked Sua-zo if she wanted to move to dismiss the charge against her. Suazo accepted the trial court’s offer and orally moved to dismiss. Over the State’s objection that dismissal would be improper because no written motion to dismiss had been filed, the trial court dismissed the charge with prejudice. The State then brought this appeal.

Florida Rule of Criminal Procedure 3.190(a) requires that a motion to dismiss be in writing. This court has repeatedly held that it is improper for a trial court to dismiss charges when the defendant has not filed a written motion to dismiss. State v. Reedy, 862 So.2d 941, 942 (Fla. 2d DCA 2004); State v. Alexander, 831 So.2d 1252, 1253 (Fla. 2d DCA 2002); State v. Pope, 674 So.2d 901, 901 (Fla. 2d DCA 1996). These cases hold that the remedy for the improper dismissal is reversal and remand for further proceedings. Reedy, 862 So.2d at 942; Alexander, 831 So.2d at 1253; Pope, 674 So.2d at 901.

In this case, Suazo did not file a written motion at any time prior to the dismissal of the charge against her. As Suazo properly concedes in this appeal, it was error for the trial court to grant her oral motion to dismiss. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded for further proceedings.

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