author: PER CURIAM. BENTON, J.,

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. C.M., Father in the Interest of: A.A., A Child, Appellant,
    No. 1D05-5351.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.

      Michael P. Eng, Jacksonville, for Appellant.
    Stacey L. Hill, Assistant General Counsel, Jacksonville, for Appellee.
    Thomas Wade Young and Patricia M. Propheter, Orlando, Attorneys for Guardian ad Litem.
   OPINION ON APPELLEE’S MOTIONS FOR REHEARING, REHEARING EN BANC, CLARIFICATION AND/OR CERTIFICATION

PER CURIAM.

We have for review the motions of ap-pellee Florida Department of Children & Families (Department) and the Guardian Ad Litem (GAL) program seeking rehearing, rehearing en banc, clarification and/or certification of question of great public importance. Because we grant the motion for rehearing and clarification, the opinion herein is substituted for our opinion in C.M. v. Department of Children & Families, 31 Fla. L. Weekly D2186, 2006 WL 2366420 (Fla. 1st DCA Aug. 17, 2006). The motions for rehearing en banc and for certification are denied.

C.M. (Appellant), the biological father of a 2-1/2-year-old daughter, A.A., appeals a final judgment terminating his parental rights over the child pursuant to sections 39.806(l)(b), 39.806(l)(d)l„ 39.806(l)(d)3., 39.806(l)(f), and 39.810, Florida Statutes (2004), and permanently committing the child to the Department for subsequent adoption. Appellant contends, first, that given the presence of a willing, available relative for placement, the termination of Appellant’s parental rights is not the least restrictive means available to the trial court to protect the child; and, second, that no competent, substantial evidence supports the trial court’s finding that the child’s paternal aunt, Ms. Fisher, is not a suitable relative placement. We affirm the order terminating Appellant’s parental rights. However, because the trial court’s decision to commit the child to the Department for subsequent adoption was made before the Department completed its ongoing home study of Ms. Fisher, we remand for further proceedings relating to whether the child’s manifest best interests would allow the child to be placed for adoption by the paternal aunt. See Interest of K.W. v. Dep’t. of Children & Family Servs., 891 So.2d 1068 (Fla. 2d DCA 2004).

It is at the adjudicatory hearing that the trial court considers the elements required for termination of parental rights; due process requires that each element be proved by clear and convincing evidence. See § 89.809(1), Fla. Stat. (2004); Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995) (defining “clear and convincing” evidence as “an intermediate level of proof’); L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1194 (Fla. 1st DCA 2002). Given the well-established precept that “parental rights constitute a fundamental liberty interest,” the Department had the burden to establish that termination of parental rights is the least restrictive means of protecting the child from serious harm. See Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991); Dep’t of Health & Rehabilitative Servs. v. M.B., 701 So.2d 1155, 1163 n. 13 (Fla.1997); M.H. v. Dep’t of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004) (on clarification); Interest of D.A., 846 So.2d 1250, 1252-53 (Fla. 2d DCA 2003); L.B., 835 So.2d at 1195; Gaines v. Dep’t of Children & Families, 711 So.2d 190, 194 (Fla. 5th DCA 1998). “The least restrictive means test in the context of termination of parental rights requires those measures short of termination be utilized if such measures will permit the safe reestablishment of the parent-child bond.” M.H., 866 So.2d at 223; L.B., 835 So.2d at 1196. “A trial court’s determination that evidence is clear and convincing will not be overturned unless it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing.” Id. at 1194. The trial court’s findings of fact are presumed to be correct and will not be overturned, absent a showing they are not supported by competent, substantial evidence. See id. at 1195; Interest of D.J.W., 764 So.2d 825, 826 (Fla. 2d DCA 2000).

The judicial decision whether to terminate parental rights involves two key determinations under section 39.802, Florida Statutes (2004): 1) whether the Department has proved at least one of the grounds for termination set forth in section 39.806, Florida Statutes (2004); and 2) whether the child’s manifest best interests would be served by granting the petition to terminate parental rights. See § 39.810, Fla. Stat. (2004). Given the fundamental liberty interest accorded to parental rights, the Department had the burden to show that the termination of parental rights is the least restrictive means of protecting the child from serious harm. See M.H., 866 So.2d at 223 (finding no evidence that termination of parental rights was least restrictive means of protecting children, where at least five relatives were willing to take the children); L.B., 835 So.2d at 1195; Gaines, 711 So.2d at 194 (concluding that termination of mother’s parental rights was not least restrictive means of protecting child and was not proper, where termination occurred on same day as adjudication of dependency, no voluntary protective services were provided to family, and trial court failed to consider placing child with adult relatives).

In their pending motions, the Department and the GAL contend, first, that our original opinion misapprehended the Florida Legislature’s intent regarding the extent to which relative placements should be considered in parental termination eases. The motions assert, second, that our original opinion impermissibly expanded the definition of “least restrictive means” and grafted the “least restrictive means” analysis onto the statutory “manifest best interests” analysis so as to elevate “least restrictive means” to a “super factor” that trumps the paramount concern for the child’s best interests. Third, the motions contend that our original decision conflicts with Interest ofKW., 891 So.2d at 1068.

As to the first and second concerns, the movants note several recent statutory amendments. Section 39.810, Florida Statutes (2004), begins with the following language:

39.810 Manifest best interests of the child. — In a hearing on a petition for termination of parental rights, the court shall consider the manifest best interests of the child. This consideration shall not include a comparison between the attributes of the parents and those of any persons providing a present or potential placement for the child. For the purpose of determining the manifest best interests of the child, the court shall consider and evaluate all relevant factors, including, but not limited to:

(1) Any suitable permanent custody arrangement with a relative of the child. Section 39.810, Florida Statutes (2006), opens with this identical language, but after the above-quoted first sentence in subsection (1), the Florida Legislature has added the following language:

However, the availability of a nonadop-tive placement with a relative may not receive greater consideration than any other factor weighing on the manifest best interest of the child and may not be considered as a factor weighing against termination of parental rights. If a child has been in a stable or preadoptive placement for not less than 6 months, the availability of a different placement, including a placement with a relative, may not be considered as a ground to deny the termination of parental rights.

Chap. 2006-86, § 26, Laws of Fla. (effective July 1, 2006). Rather than argue that this 2006 amendment applies retroactively to Appellant’s 2005 termination proceedings, the movants contend that this amendment is relevant because it simply reiterates the Legislature’s prior intent and, therefore, does not represent a change in legislative preference. The movants note also that the Legislature amended other provisions of Chapter 39 to conform our state statutes to the requirements of the federal Adoption and Safe Families Act, effective July 1, 2006. See, e.g., Chap. 2006-86, §§ 1 & 19, Laws of Fla. (adding language in §§ 39.01(51) & 39.621(2), Fla. Stat. (2006), redefining “permanency goals” under this chapter and stating a preference for “[r]eunification” followed by, in descending order of preference, “[a]doption when a petition for termination of parental rights has been or will be filed,” “[pjermanent guardianship of a dependent child ...,” and “[permanent placement with a fit and willing relative under s. 39.6231”).

Because our prior opinion might have been construed broadly to suggest a legislative preference for placing a child with a relative even under circumstances where the manifest best interests of the child compel a different placement option, we have deleted the confusing language in accordance with the long-established principle that “it is the ultimate welfare or best interest of the child which must prevail [over the parental or other familial rights].” Interest of Camm, 294 So.2d 318, 320 (Fla.1974); Padgett, 577 So.2d at 570. Additionally, we have stricken any language from the original opinion so as to clarify that the elements of the “least restrictive means” test are separate from, and not to be confused with, the “manifest best interests” test. Finally, we have conformed our opinion to comport with the Second District Court’s acknowledgment in K.W., 891 So.2d at 1068, that adoptive placement of a child with a suitable relative is one option following the termination of parental rights.

The movants’ motion for certification of conflict alleges a conflict between our original opinion and K.W., 891 So.2d at 1068. In that case, S.S., the mother, tested positive for marijuana, Valium, and Xanax at the time of delivery; her newborn child, K.W., tested positive for marijuana. At five weeks, the child was sheltered, a petition for dependency was filed soon after that, and the Department placed the child in the joint custody of a maternal aunt and maternal cousin a month and a half later. After the trial court entered an order finding dependency based on the mother’s consent, a ease plan was adopted with the goal of reunification. Absent the mother’s substantial compliance with the case plan, the Department petitioned the court to terminate her parental rights. Her rights were terminated, and the child was committed to the Department. See id. at 1069. On appeal, the mother argued, first, that given the child’s current residency with a relative, the trial court had failed to consider, pursuant to the “manifest best interests” test in section 39.810(1), Florida Statutes (2002), whether a suitable long-term placement existed with a relative in lieu of termination of parental rights. Although the trial court considered the potential of a long-term custody arrangement with the maternal cousin (who had cared for the child for more than two years), the court concluded that the child’s manifest best interests called for an adoptive placement in light of the child’s very young age, the fact that the child had been in the maternal cousin’s home almost since birth, and the fact that the cousin wanted to adopt the child. The Second District Court determined that the trial court had properly considered the child’s manifest best interests, given that the scheme allowed the child to be adopted by the cousin, achieved permanency for the child, and was supported by “the facts and the record,” including the mother’s failure to comply with the case plan. See id. at 1070. Second, the mother in K.W. argued that because long-term relative placement is a less restrictive means of protecting the child, the trial court erred in terminating the mother’s parental rights. See id. at 1070. Acknowledging that terminating parental rights infringes upon a fundamental liberty interest and requires the Department to demonstrate that termination is the least restrictive means of protecting the child pursuant to Padgett, 577 So.2d at 571, the Second District Court recognized nonetheless that “[t]he clear purpose of the use of the least restrictive means is the ‘reestablishment of the parent-child bond.’ ” K.W., 891 So.2d at 1070 (quoting M.H., 866 So.2d at 223).

In that the record in K.W. established that the mother had been given a case plan and adequate time to satisfy the requirements for reunification but failed to do so, that the child had resided with the maternal cousin from the time of the child’s infancy, and that the child had formed a parental bond with the cousin while having minimal or no emotional ties with the mother due to limited contact, the appellate panel found no error in the trial court’s conclusion that the least restrictive means test did not compel a long-term relative custody arrangement. In other words, the appellate decision affirmed the termination of parental rights and upheld the trial court’s determination that the child’s manifest best interests called for an adoptive placement with the cousin who wished to adopt the child. See 891 So.2d at 1070.

A review of the record in the instant case shows that K.W. does not conflict with our revised opinion. Clear and convincing evidence presented by family services counselor Ann Mack and GAL Michelle Buckley, and summarized by Department’s counsel at the conclusion of the adjudicatory hearing, supports the trial court’s findings 1) that Appellant engaged in egregious conduct that endangered the child’s life, safety, or physical, mental, or emotional health pursuant to section 39.806(1)00, Florida Statutes (2004); 2) that he abandoned the child pursuant to sections 39.01(1) & 39.806(l)(b), Florida Statutes (2004); and 3) that Appellant is expected to be incarcerated for a period of time that will constitute a substantial portion of the time before the child will attain age 18, pursuant to section 39.806(l)(d)l., Florida Statutes (2004). Appellant, appearing by telephone from prison, “did not know” why he had failed to inform his family sooner about the existence of his baby daughter. Appellant’s current prison release date is April 9, 2018, when the child will be 14-1/2 years old. Appellant provided no suitable explanation for his acts and/or omissions, on the basis of which the Department had properly alleged “egregious conduct” and “abandonment.”

■ Having proved the initial grounds for termination of Appellant’s parental rights, the Department had the burden to demonstrate that termination is the least restrictive means of protecting the child from serious harm, for parental rights are a fundamental liberty interest. See M.H., 866 So.2d at 223; L.B., 835 So.2d at 1195. One of the factors to be considered in determining the manifest best interests of the child is “[a]ny suitable permanent custody arrangement with a relative of the child.” See § 39.810(1), Fla. Stat. (2004). The trial court had the duty to consider “all relevant factors” before determining whether termination of Appellant’s parental rights is in the manifest best interests of the child. See § 39.810, Fla. Stat. (2004). As the child’s mother was found to have consented to the termination of her parental rights, and she is not a party to this appeal, we do not disturb the ruling terminating her parental rights over the child.

The child has been in foster care since May 2004. The testimony presented at the adjudicatory hearing established that no relative of the child was willing, available, and suitable for placement, with the possible, but notable, exception of Ms. Fisher. This paternal aunt testified without contradiction that although she had maintained some communications over the years with Appellant, who is her incarcerated brother, Appellant had never even disclosed to her the existence of his baby daughter until around the time when the Department petitioned to terminate Appellant’s parental rights over the child in June 2005, when Appellant (by letter) explained his situation and asked if Ms. Fisher would be willing to get involved. Ms. Fisher testified that she was available and willing to adopt Appellant’s child and to provide a loving home for her, on a long-term basis if necessary. The witness understood that given Appellant’s anticipated prison release date in 2018, she might have custody of the child for a very long time. Ms. Fisher presented unrefuted testimony that immediately after learning of the child’s existence, she contacted the appropriate family services authorities to inquire about “the process,” of which she had no prior involvement or knowledge.

Ms. Mack’s unrefuted testimony at the July 18, 2005, adjudicatory hearing indicated that Ms. Fisher had come forward about two months earlier, after which they had several telephone conversations regarding the possible placement of the child with Ms. Fisher. As of the date of the hearing, the authorities had conducted a background report on Ms. Fisher, which Ms. Mack’s supervisor was reviewing. Significantly, the investigation was ongoing, and no final decision had been made yet by the Department regarding Ms. Fisher. Ms. Mack testified that family services would have to look into the circumstances to determine whether Ms. Fisher’s home would provide a suitable placement option. The witness opined that until the background report was considered further, no clear legal reason existed to preclude placement of the child with a relative. Given that any other relatives who might have been considered had records that rendered placement of the child with them unsuitable, Ms. Fisher was, on this record, the only relative available for possible placement. Ms. Mack testified it was not until the preceding week that Ms. Fisher had first asked to visit the child. Without contradiction, Ms. Fisher testified that she had not sought contact with the child earlier because she (Ms. Fisher) had no familiarity with the termination process and did not know she could request visitation with the child, who had been in foster care since May 2004. Upon realizing she could seek visitation, Ms. Fisher scheduled a visit with the child, which was scheduled to occur later in the day of the hearing. Ms. Mack testified that as of the hearing date, the Department had not performed a positive approved home study. In fact, no home study of any kind was done.

Among the family service authorities’ concerns about Ms. Fisher’s family were reports that her teenage daughter had a record for “some type of battery” or “affray” that occurred somewhere other than in the family home. Ms. Fisher testified that another girl at her daughter’s “magnet” school had harassed her, resulting in a physical confrontation. Ms. Fisher testified that she and the school principal were communicating to try to resolve the situation. The witness testified also that her 15-year-old son, while hanging out with “the wrong group of guys,” had been arrested for shoplifting after someone picked up something in Wal-Mart. As to herself, Ms. Fisher conceded having been arrested for driving with a suspended license some time ago. She had been investigated also for a “returned check” problem. She explained that after she showed the judge a receipt indicating payment of her debt, the charge was dropped, and she was released. Ms. Fisher denied ever saying that her intent was to get custody of Appellant’s child until Appellant’s release from prison, whereupon she would transfer custody to him. Other than a speculative question being asked of this witness, no evidence was presented bearing on such an intention. ,

Ms. Fisher testified she had been working in reimbursements/accounting at a children’s hospital for about six months, prior to which she had worked six years at Shands Medical Center. Ms. Fisher said she maintained contact with her children’s fathers, none of whom had a criminal background. Ms. Fisher testified she was about to close on a new, larger residence for herself and three of her children in Orange Park. The oldest child had just graduated from high school and would be moving out of the home altogether.

The GAL testified she had accepted Appellant’s case in late May 2004 and had reviewed the Department’s file, the previous GAL’s file, and police and court reports. When asked whether any suitable relative was available to provide a permanent home for Appellant’s child, the GAL testified that Ms. Fisher had come forward and was a possible placement. The GAL had visited Ms. Fisher’s residence very recently and found it “very appropriate.” The GAL noted, however, that Ms. Fisher had no history of contact with the child, and that the background checks and home study were not yet completed. The GAL recommended that Appellant’s parental rights be terminated, with the goal of outside adoption, unless some relative could pass the home study and background check. The GAL described Ms. Fisher’s current residence as a small apartment with two or three bedrooms. The GAL testified that Ms. Fisher told her that she had only recently learned of the child’s existence and availability for placement when her brother, Appellant, wrote her about his pending termination proceedings.

After the family services counselor and the GAL testified and the Department rested its case, the trial court orally expressed its concern that the GAL had “waffled on the stand” and had acknowledged the possibility that a suitable placement with a relative would be investigated. After the hearing, the trial court found that no approved home study of any relatives was conducted. The court summarily concluded that the home environment of the paternal aunt, Ms. Fisher, was “inappropriate for the child,” given “a pattern of Ms. Fisher having problems with children.” The court orally found, without any explanation, that Ms. Fisher was “evasive” on cross-examination.

We affirm the trial court’s determination that termination is the least restrictive means of protecting the child from serious harm, and that it is in the child’s manifest best interests for parental rights to be terminated. No prospect for “the safe reestablishment of the parent-child bond” was shown. See M.H., 866 So.2d at 223. We remand this case to the trial court to consider the possibility of an adoptive placement, whether with Ms. Fisher or someone else. Like the maternal cousin in K.W., Appellant’s sister indicated that she is available and willing to adopt Appellant’s child. K.W. and the laws of Florida provide for the trial court to determine whether an adoptive placement would be in the child’s manifest best interests. Current law establishes a legislative preference for adoption (when a petition for termination is filed) next, where reunification is inappropriate. See §§ 39.01(51) & 39.621(2), Fla. Stat. (2006).

It goes without saying that, as in K.W., 891 So.2d at 1070, “the facts and the record” must support the trial court’s findings. At the adjudicatory hearing in Appellant’s termination proceedings, it was clear that the record was incomplete. We conclude from this record that the trial court erred as a matter of law by prematurely excluding Ms. Fisher from consideration for a meaningful role in the life of Appellant’s child. The Department admittedly had not completed its review of Ms. Fisher’s background check, nor had it conducted any type of home study. No valid reason was provided by the Department for not performing a home study or other appropriate review to determine the paternal aunt’s suitability. Immediately upon being notified of the child’s existence, Ms. Fisher got involved and communicated with the appropriate individuals. The family services counselor testified she had maintained communications with Ms. Fisher about possible placement of the child with her. Ms. Mack acknowledged that her supervisor was still reviewing the background report. The witness testified that until the report was finalized, no legal reason existed for denying the child’s placement with a willing, available, and suitable relative. The GAL’s testimony indicated that termination of Appellant’s parental rights would be appropriate otherwise, but that relative placement.is a matter to be investigated further. Ms. Fisher notified the appropriate state authorities as soon as she discovered the child’s existence and before the trial court ruled on the petition to terminate parental rights. By noting the incompleteness of the background check of Ms. Fisher, as well as certain “red flags” raised by the authorities, we offer no opinion as to whether or not the paternal aunt ultimately should be found suitable to adopt the child. K.W. stands for the proposition that the termination of parental rights does not, of itself, exclude the possibility of adoptive placement with a suitable relative. See 891 So.2d at 1070. Because the evidentiary record was incomplete in this case, the trial court was not yet ready to make an informed determination as to the child’s ultimate manifest best interests relating to the child’s post-termination circumstances. Accordingly, we AFFIRM the termination of Appellant’s parental rights and REMAND for further proceedings after the Department has finalized its background home study and presented its findings and recommendations to the trial court. See M.H., 866 So.2d at 223-24; cf. Dep’t of Children & Families v. R.G., 821 So.2d 477 (Fla. 4th DCA 2002) (finding trial court erred in changing child’s legal and physical custody without a home study), and Dep’t of Children & Families v. T.L., 854 So.2d 819 (Fla. 4th DCA 2003) (addressing dependency proceedings and holding that trial court could not place child in out-of-court placement with maternal aunt, absent completion of a home study).

BROWNING, C.J., ERVIN, III, RICHARD W., Senior Judge, concur; BENTON, J., concurs in judgment in part and dissents in part with opinion.

BENTON, J.,

concurring in the judgment in part and dissenting in part.

I concur in affirming the termination of C.M.’s parental rights with regard to his daughter, A.A. The Department carried its burden to show by clear and convincing evidence that grounds for termination existed under sections 39.01(1) and 39.806(l)(b), (d) and (f), Florida Statutes (2004), and that termination, in order to commit the child to the Department for subsequent adoption, was in the best interests of A.A., within the meaning of section 39.810, Florida Statutes (2004). See N.L. v. Dep’t of Child. & Fam. Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003) (“We are obliged to affirm the termination of parental rights if DCFS has met its burden to present clear and convincing evidence of a statutory ground for terminating parental rights, along with clear and convincing evidence that terminating parental rights is in the best interests of the child.”).

Even though Ms. Fisher was not a party below and is not a party on appeal, I also concur to the extent the judgment overturns the part of the decision below that can be read as disqualifying her from adopting A.A. Cf. Stefanos v. Rivera-Berrios, 673 So.2d 12, 13 (Fla.1996) (stating that even a parent whose rights have been terminated may later petition to adopt, if rehabilitated). I am unable to join the judgment, however, and respectfully dissent from it, insofar as it embodies a directive to the lower court or to the department to do more than give due consideration to any application to adopt A.A. that (a) potential adoptive parent(s) may file, so “that all adoptions are handled in accordance with the requirements of law,” § 63.022(4)(a), Fla. Stat. (2006), with due regard to any statutory priorities that may pertain. See, e.g., § 63.0425, Fla. Stat. (2006) (“Grandparent’s right to adopt”). See generally §§ 39.812, 63.037-.235, Fla. Stat. (2006); Y.H. v. F.L.H., 784 So.2d 565, 573 (Fla. 1st DCA 2001) (discussing limitations on right of intervention in adoption proceedings). As A.A.’s paternal aunt, Ms. Fisher enjoys no special status or priority as a potential, adoptive parent and, if she did, it might “significantly undermine the stability of legal proceedings dealing with the termination of parental rights and adoption proceedings.” Stefanos, 673 So.2d at 15 (Harding, J., concurring).


source: Caselaw Access Project

author: LEWIS, J. BENTON, J.,

license: Public Domain

text:
    CITY OF GAINESVILLE, (the “City”), Appellant/Cross-Appellee, v. Ed CRAPO, as Property Appraiser for Alachua County, Florida, Von Fraser; as Tax Collector for Alachua County, Florida; Jim Zingale, as Director of the Florida Department of Revenue, Appellees/Cross-Appellant.
    No. 1D05-4253.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2007.
    Rehearing Denied April 12, 2007.

      Elizabeth A. Waratuke, Litigation Attorney, and Marion J. Radson, City Attorney, Gainesville, for Appellant/Cross-Appellee.
    Steven L. Brannock of Holland & Knight, LLP, Tampa, Amicus Brief of the Florida League of Cities, Inc. and the Cities of Lakeland, Orlando, St. Petersburg, and West Palm Beach.
    Bill McCollum, Attorney General, and Nicholas Bykowsky, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant the Florida Department of Revenue; Sherri L. Johnson and John C. Dent, Jr. of Dent & Johnson, Chartered, Sarasota, for Appellee/Cross-Appellant Ed Crapo.
    Donna E. Blanton and Susan F. Clark of Radey, Thomas, Yon & Clark, P.A., Tallahassee, Amicus Curiae Brief of the Florida Telecommunications Industry Association Supporting the Appellees/Cross-Appel-lant(s).
   LEWIS, J.

Appellant/Cross-Appellee, the City of Gainesville (“City”), appeals the trial court’s order granting final summary judgment partially in favor of appellees/cross-appellants, Ed Crapo, as Property Appraiser for Alachua County, Florida, Von Fraser, as Tax Collector for Alachua County, Florida, and Jim Zingale, as Director of the Florida Department of Revenue (“Department”), arguing that the trial court erred in finding that nine of its communication towers and its “Deerhaven Property” were subject to ad valorem taxation. On cross-appeal, Crapo and the Department argue that the trial court erred in granting final summary judgment in favor of the City with regard to its fiber optic network and internet equipment because that property is not exempt from ad valorem taxation pursuant to article VII, section 3(a) of the Florida Constitution. For the reasons expressed herein, we affirm the trial court’s ruling as to the communication towers and Deerhaven Property but reverse its conclusion as to the fiber optic network and internet equipment and remand for further proceedings consistent with this opinion.

On December 8, 2003, and December 6, 2004, the City filed suit against appel-lees/cross-appellants, seeking a declaratory judgment that certain property was exempt from ad valorem taxation. Specifically, the City asserted that in 2003 and 2004, ad valorem taxes were erroneously imposed on nine of its communication towers, its fiber optic network and internet service provision equipment, and its “Deerhaven Property.” The City contended that all of the property at issue was exempt pursuant to article VII, section 3(a) Florida Constitution and section 196.199, Florida Statutes, because it was used for a municipal or public purpose. The cases were eventually consolidated for purposes of summary judgment. On May 11, 2005, the City filed a Motion for Summary Judgment, arguing that it was entitled to judgment as a matter of law because there was no genuine issue of material fact “that the City’s property is used by it for a municipal or public purpose and thus is exempt from ad valorem taxation.” In support of the motion, the City filed affidavits of David Richardson, Edward J. Regan, Jr., Ann Mullins, and Ed Hoffman.

The affidavits of David Richardson, the System Planning Director for the City’s utility system, which does business as Gainesville Regional Utilities (“GRU”); Edward J. Regan, the Assistant General Manager for Strategic Planning for GRU; and, Ann Mullins, a land rights coordinator who represented the City in the purchase of the Deerhaven Property, indicate that the City purchased the property to serve as a buffer between its Deerhaven Generating Plant and residential development in the surrounding area and to accommodate future retrofitting or expansion of the plant. Mullins’ affidavit further indicates that the City’s staff decided that it did not need to purchase a timber operation that existed on the property because the timber did not interfere with the use of the land as a buffer or with the City’s plans for future expansion of the plant. Thus, the City purchased the Deerhaven Property in fee simple but did not purchase the timber or timber rights on it, although it retained the first right to do so in the deed and can do so when the timber and timber operation become inconsistent with its use. Although the City was aware the timber company leased hunting rights on the property to a local hunt club, it did not ask the timber company to break the lease because it also did not interfere with the City’s use of the property as a buffer.

The affidavit of Ed Hoffman, the acting director of the City’s communication utility, which operates under the name “GRU-Com,” indicates because the City’s communication towers can hold more antennas than those required “for City purposes” and to foster the availability of personal communication services, the City entered into lease agreements with several private Personal Communication Service (“PCS”) providers that allow them to place antennas on the towers. The affidavit describes the uses of each of the towers as follows:

(1) the “Depot Tower” holds one public use antenna that is used by the City’s Regional Transit System, is of strategic importance for future public safety uses because of its location, and holds antennas of one PCS provider; (2) the “Sugarfoot Tower” holds two public use antennas that are used by the City’s fire and police departments and antennas of two PCS providers; (8) the “Ft. Clarke Tower” supports one public use antenna, which is not currently used by the City but will be reactivated in the future, and antennas of two PCS providers; (4) the “Parker Road Tower” holds one public use antenna that is used by the City’s fire rescue department and antennas of one PCS provider; (5) the “Millhop-per Tower” is the prime switching site for the City’s Trunked Radio System (“TRS”), the primary radio communication system for various public safety and government agencies, and holds the Electric System Control Center, which performs energy management activities, five TRS antennas, five other public use antennas, and antennas of six PCS providers; (6) the “Spring-hill Tower” supports five public use antennas, three of which are used by the City’s fire department and two of which are used by its police department, and antennas of seven PCS providers; (7) the “39th Avenue Tower” does not currently support any public use antennas; although it is planned that a repeater antenna will be installed on it as a backup for the TRS and for other miscellaneous functions, is located in a strategic area near the airport, which makes it an important asset for future expansion of communications capacity, and holds antennas of three PCS providers; (8) the “UF Foundation Tower” supports two public use antennas used by GRU and antennas of five PCS providers and contains space reserved for use by the University of Florida; and (9) the “McMichen Tower” does not support any public use antennas as the public antenna located on the original tower was damaged and removed after the original tower was replaced in 2001 with a tower capable of more antenna loading, is located close to the airport and the City’s primary water plant and well fields, and holds antennas of one PCS provider. There are also future plans to install an antenna “to provide improved [TRS] communications capabilities for public safety aviation units” on the McMichen Tower. Hoffman’s affidavit further indicates that the City’s fiber optic network and internet service provisioning equipment were used both to provide critical municipal services to the City and other government agencies and to provide telecommunication services to the public at a cost.

Crapo subsequently filed a Motion for Final Summary Judgment, asserting that he was entitled to judgment as a matter of law because there was no genuine issue of material fact that the property at issue was not being used exclusively by the City for a municipal or public purpose on January 1 of 2003 or 2004. The Department also filed a Motion for Summary Judgment, arguing that the City’s commercial and proprietary use of the property conclusively established that it did not qualify for the article VII, section 3(a) exemption because it was not exclusively used for a municipal or public “governmental-governmental” purpose.

Along with its motion, the Department filed the transcript of the deposition of Ed Hoffman, wherein he testified that the antennas of the private PCS providers took up more of the usable space on the communication towers than the City’s antennas and that some of the towers had been rebuilt to hold the antennas of PCS providers. Hoffman acknowledged that if they only needed to hold the City’s antennas, the towers would not need to be as structurally sound as they had to be to hold the PCS antennas.

Following a hearing on the motions for summary judgment, the trial court issued the Order on Motions for Final Summary Judgment and Final Judgment that is at issue on appeal. The court granted in part and denied in part each of these motions for summary judgment. With regard to the fiber optic network and internet equipment, the court found “that in today’s highly technological society, the communications services provided by the City, just as with electricity and water, constitute a basic and essential utility service,” noting the provision of utility services by a municipality has long been held to serve a public purpose and Florida courts have consistently found the property of a municipal electric utility exempt from ad valorem taxation. Because it found “no real difference” between the provision of electricity and water and the provision of telecommunications services, the trial court found that the City was using the fiber optic network and internet equipment exclusively for a public purpose as defined in article VII, section 3(a) of the Florida Constitution. The order sets forth that the trial court believed that such ruling was consistent with this Court’s opinion in Department of Revenue v. City of Gainesville, 859 So.2d 595 (Fla. 1st DCA 2003) (“Gainesville I ”).

With regard to the communication towers, the trial court found that the “governmental-governmental/governmental-proprietary test” set forth in Sebring Airport Authority v. McIntyre, 783 So.2d 238 (Fla.2001), was applicable and that the undisputed facts established that the use of the towers by the City was not solely governmental-governmental but, rather, governmental-proprietary. Thus, the court concluded that the City was not using the towers exclusively for a municipal or public purpose as defined in article VII, section 3(a), making them subject to ad valorem taxation. The trial court applied the same test to the Deerhaven Property and found the City was not using it exclusively for a municipal or public purpose as defined in article VII, section 3(a) because the use of it was also governmental-proprietary. Therefore, it concluded that the Deerha-ven Property was also subject to ad valo-rem taxation.

In accordance with its findings, the trial court entered a Final Declaratory Judgment in favor of the City with regard to the fiber optic network and internet equipment and in favor of appellees/cross-appel-lants with regard to the towers and Deer-haven Property. This appeal and cross-appeal followed.

“ ‘Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law.’ ” Selim v. Pan Am. Airways Corp., 889 So.2d 149, 153 (Fla. 4th DCA 2004) (quoting Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)). A trial court’s ruling on a motion for summary judgment that poses a purely legal question is subject to de novo review on appeal. Major League Baseball v. Morsani, 790 So.2d 1071,1074 (Fla.2001).

Article VII, section 3(a) of the Florida Constitution.provides, in pertinent part, “All property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation.” Because this constitutional provision is self-executing, it does not require legislative authorization to activate the exemption for property owned and used exclusively by the municipality for municipal or public purposes. Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 259 (Fla.2005) (“Gainesville II”). Stated differently, the exemption is not contingent on the Legislature declaring that an activity serves a municipal purpose and is, therefore, tax exempt. Id. However, “[a] tax exemption for portions of property used ‘predominantly’ for municipal purposes, regardless of ownership, still requires legislative authorization under the express terms of article VII, section 3(a).” Id. at 260.

The issue on cross-appeal, which we address first, is whether the trial court erred in finding that the City’s fiber optic network and internet equipment were tax exempt pursuant to article VII, section 3(a). In reaching that conclusion, the trial court relied on our opinion in Gainesville I. There, we affirmed the trial court’s determination that section 2 of chapter 97-197, Laws of Florida, which created section 166.047, Florida Statutes, and a portion of section 3 of chapter 97-197, which amended section 196.012, Florida Statutes, to provide that a municipality’s provision of two-way telecommunications services to the public is not an exempt use for ad valorem tax purposes unless the services comply with certain conditions, were facially unconstitutional because they contravened article VII, section 3(a). Gaines-ville I, 859 So.2d at 596-97. We reasoned that the City was using the property at issue for a municipal purpose and that the Legislature’s attempt to condition the provision of municipal services on the payment of an amount equal to ad valorem tax liability directly conflicted with article VII, section 3(a). Id. at 597. In rejecting the Department’s argument that municipal purpose should be narrowly defined where property is owned and operated by a municipality, we noted that we were unaware of any public policy reason why municipal purpose should not be given its generally accepted meaning in accordance with article VIII, section 2(b) of the Florida Constitution under such circumstances. Id. at 598-99. We concluded that “the provision of telecommunication services for the benefit of city residents constitutes a valid municipal purpose pursuant to any reasonable interpretation of the term ‘municipal purpose,’” noting that the provision of such services was regulated by the Public Service Commission just like water, sewer, and electricity, that “[tjelecommunication providers like utilities provide essential public services,” and that in analyzing whether the provision of services serves a municipal purpose under article VII, section 3(a), “the focus is whether the function promotes comfort, convenience, safety, and happiness” of the municipality’s citizens. Id. at 601.

However, in Gainesville II, which was issued after the trial court entered its Order on Motions for Final Summary Judgment and Final Judgment in this case, the supreme court reversed Gainesville I, finding that a municipality’s provision of telecommunications services does not as a matter of law always serve municipal or public purposes and, thus, that ad valorem taxation of a municipality’s telecommunications facilities is not facially unconstitutional. 918 So.2d at 253. In doing so, the supreme court did not dispute that telecommunications services are essential but determined that in providing such services, regardless of circumstances like the availability of the same services through other providers, a municipality does not as a matter of law engage in an activity that is essential to the welfare of the community. Id. The court made clear that the definition of municipal purposes in article VIII, section 2(b) is distinct from and broader than the definition of municipal or public purposes in article VII, section 3(a). Id. at 262-63. Therefore, an activity may serve valid municipal purposes under article VIII, section 2(b) and constitute a permissible municipal function but still not serve a municipal or public purpose under article VII, section 3(a). Id. at 263. The supreme court set forth that the municipal or public purposes for which municipally owned property must be exclusively used to qualify for the exemption in article VII, section 3(a) “encompass activities that are essential to the health, morals, safety, and general welfare of the people within the municipality.” Id. at 264. It noted that while the provision of electricity is essential in that municipally owned power companies have legally protected monopolies within their territorial boundaries and have traditionally provided such services, telecommunications services have historically been provided by the private sector. Id. at 264-65. The court further pointed out that although the Legislature’s reason for opening telecommunications services to competition by various entities, including municipalities, was to promote the goals set forth in section 364.01(3), Florida Statutes, municipalities can enter a market in which a high level of service and competition already exists without furthering any of those goals. Id. at 265. The court concluded that where municipal telecommunications services do not promote any of those goals for the benefit of the municipal population, property used to provide the services does not serve municipal or public purposes and is not exempt under article VII, section 3(a). Id. at 265-66.

Contrary to Gainesville II, the trial court erroneously concluded that the City’s use of the fiber optic network and internet equipment to provide telecommunications services to the public served municipal or public purposes as a matter of law without considering whether the services promoted the goals set forth in section 364.01(3). While the trial court found that the fiber optic network and internet equipment were exempt because the provision of telecommunications services is no different from the provision of utilities like electricity and water, the supreme court made clear in Gainesville II that telecommunications services are distinct in that they have traditionally been provided by the private sector. Accordingly, we reverse the trial court’s ruling as to the fiber optic network and internet equipment. However, because the record before us does not contain adequate facts for us to determine whether the City’s provision of telecommunications services did, in fact, serve municipal or public purposes pursuant to Gainesville II, we remand the cause to the trial court to make that determination.

In its first issue on appeal, the City argues that the trial court erred in finding its communication towers subject to ad valorem taxation. According to the City, the towers were exempt pursuant to Gainesville II because they were used to provide telecommunication services that promoted the goals of section 364.01(3), Florida Statutes. However, the City did not use the towers to provide services directly to the public but, rather, leased space on the towers to private PCS providers, who then sold telecommunications services to customers for a profit. We do not view this leasing of space on the towers to private companies in the business of providing telecommunications services as the type of provision of telecommunications services that may serve a municipal or public purpose pursuant to Gainesville II. Rather, because the private PCS providers held leasehold interests in the towers, the trial court properly applied the governmental-governmental test for determining whether the article VII, section 3(a) exemption applied. See Gainesville II, 918 So.2d at 260 (stating that for private leaseholds of municipal property, the governmental-governmental test governs eligibility for the ad valorem tax exemption in article VII, section 3(a)). Pursuant to that test, municipal property leased to private entities for governmental-proprietary ae-tivities is not exempt. Sebring Airport Auth, 783 So.2d at 248. “A governmental-proprietary function occurs when a nongovernmental lessee utilizes governmental property for-proprietary and for-profit aims.” Sebring Airport Auth. v. McIntyre, 642 So.2d 1072,1074 (Fla.1994).

Here, the private PCS providers used the space they leased on the towers to provide telecommunications services, which have historically been provided by the private sector, see Gainesville II, 918 So.2d at 265, in order to make a profit. Thus, the trial court properly found that the leased portions of the towers were used for governmental-proprietary functions. Although the City also used the towers for governmental communications that undisputedly serve a municipal or public purpose, the fact that private providers leased and used space on the towers in conducting private business contradicts article VII, section 3(a)’s requirement that property be used exclusively by the municipality for municipal or public purposes in order to be eligible for the exemption. See id. at 255 (“To qualify for the exemption in article VII, section 3(a), the property must be both owned by a municipality and used exclusively by the municipality for municipal or public purposes.”)

The City also argues that the incidental use of excess space on the towers by private PCS providers did not destroy their tax exempt status. However, its reliance on cases in which private use of property is truly incidental to a primary municipal or public purpose is misplaced. See, e.g., Northcutt v. Orlando Utils. Comm’n, 614 So.2d 612, 618 (Fla. 5th DCA 1993) (finding that because electrical generating and transmission plant was being used exclusively for the municipal purposes of producing and supplying electricity, the incidental sale of sixteen to seventeen percent of the electricity to a private utility company did not detract from the property’s use for public purposes); City of Tampa v. Walden, 323 So.2d 58, 61 (Fla. 2d DCA 1975) (holding that the fact that portions of a municipally owned park are leased to private entities and operated for profit does not impair the City’s right to an ad valorem tax exemption as long as the leaseholds are accessory to the overall public purpose of the park and serve a function that could otherwise be accomplished with municipal funds). The use of the towers by the private PCS providers was more than incidental to the City’s use of the towers for governmental communications. Hoffman’s affidavit indicates that each of the nine towers at issue held multiple antennas of at least one private PCS provider, while two of the towers held only two public use antennas, three held only one public use antennas, and two did not hold any antennas being used for public purposes. In his deposition, Hoffman acknowledged that the antennas of the PCS providers took up more of the usable space on the towers than the City’s antennas. Furthermore, some of the towers were rebuilt specifically to accommodate the PCS antennas, which required more structurally sound towers than the City’s antennas. Because the private PCS providers’ leasehold interests in the towers were used for governmental-proprietary functions and the private use of the towers was not incidental to an overall public purpose served by the towers, the trial court properly concluded that the towers were subject to ad valorem taxation.

In its second issue on appeal, the City argues that the trial court erred in finding that its Deerhaven Property was subject to ad valorem taxation because the property was being used for the public purposes of providing a buffer between the generating plant and residential development and accommodating future plant retrofitting and/or expansion. In support of this argument, the City relies on City of Sarasota v. Mikos, 374 So.2d 458 (Fla.1979). While recognizing that “property owned by a municipality is not exempt from taxation if it is used for a private purpose,” the supreme court held that “vacant land held by a municipality is presumed to be in use for a public purpose [under article VII, section 3(a) ] if it is not actually in use for a private purpose on tax assessment day.” Mikos, 374 So.2d at 460-61 (emphasis added). The supreme court explained that a municipality’s holding of vacant land to meet future public needs and to preserve natural open spaces was not a private use and that municipalities are not required to dedicate land for a particular purpose, construct buildings, or otherwise be active on their property in order to maintain its tax exempt status. Id. at 460.

This case is distinguishable from Mikos. There, the vacant property at issue was not actively being used in any manner on tax assessment day; it was simply being held by the municipality either as open spáee or in reserve to meet future public needs. Id. at 459. Here, although the City purchased one-hundred percent of the fee simple interest in the Deerhaven Property to provide a buffer between the plant and surrounding residential development and for potential future retrofitting and/or expansion of the plant, it is undisputed that a private timber company, which retained the rights to timber on the property, was conducting a for-profit timber operation on January 1 of 2003 and 2004, the relevant tax assessment days. A lease between the timber company and a private hunt club that allowed members of the club to hunt on the Deerhaven Property was also in effect on those days. Because the Deerhaven Property was actually in use for private purposes on both assessment days, thé trial court correctly concluded that it was not tax exempt under article VII, section 3(a).

In conclusion, for the reasons expressed above, we AFFIRM the trial court’s rulings with regard to the communication towers and Deerhaven Property but REVERSE its ruling as to the fiber optic network and internet equipment and REMAND for further proceedings consistent with this opinion.

THOMAS, J., concurs; BENTON, J., concurs in part and dissents in part with opinion.

BENTON, J.,

concurring in part and dissenting in part.

I concur in the judgment of the court insofar as it sends the case back for reconsideration of whether the fiber optic network and internet equipment remain exempt in light of the supreme court’s decision in Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250 (Fla.2005). Even though cross motions for summary judgment were filed below, the parties and the learned trial judge alike were proceeding under the law as they (and we) understood it before the supreme court’s decision.

Otherwise, I respectfully dissent from today’s decision. With regard to the “communication towers,” if the fiber optic network and internet equipment are exempt, the towers should also be exempt, despite the City’s leasing space on them to competing cellular telephone companies, “as long as such leaseholds are accessory to the overall public [communications] purpose.” City of Tampa v. Walden, 323 So.2d 58, 61 (Fla. 2d DCA 1975). Any part of a tower not leased, moreover, is owned and used by the City (or held by the City for future use).

In addition, the City’s locating and building such towers itself, rather than contending with the anticipated proliferation if each company built its own towers, serves a public purpose on aesthetic grounds alone. Leasing to all entities that need space on a tower thus serves a purely municipal purpose, gives nobody a competitive advantage, and, by saving private enterprise the expense of building (redundant) towers itself, is fully consonant with the “Legislature’s rationale for opening telecommunications services to competition by various entities including municipalities.” City of Gainesville, 918 So.2d at 265.

Finally, with regard to the City’s buffer around its electric generating plant, City of Sarasota v. Mikos, 374 So.2d 458 (Fla.1979), controls. There the supreme court held

that vacant land held by a municipality is presumed to be in use for a public purpose if it is not actually in use for a private purpose on tax assessment day. This holding eliminates the need for a city to designate a use and prove a public purpose for all vacant land each year,, as demanded by the property appraiser. In this case, our holding requires a finding that.the vacant land set aside by the City, of Sarasota for parks and open spaces or held in reserve for future public needs met the use test for public or municipal purposes on January 1, 1977, as required by the constitution.

Id. at 460-61. Although the City of Sarasota owned an unencumbered fee interest, the Mikos rationale applies with equal force to any lesser interest in land a municipality owns and holds in reserve for future public needs.

Here, the City acquired its interest in the 2,276-acre tract from a timber company as a buffer between the plant and development in the area, existing and anticipated, with a view toward retrofitting the plant with pollution control equipment, and against any possible need to expand the plant to serve its residents. The buffer itself protects people from some pollution effects.

5. City staff had discussed internally the ongoing timber operation on the property and that there was no need for the City to purchase the timber operation at this time. The timber was not inconsistent with the use of the land as a buffer, and until the property is actually needed for plant expansion, was not inconsistent with the City’s plans for future plant expansion. From the beginning of my discussions and negotiations with the timber company representative, the price negotiations were only for the land itself, not the timber on the land.
6. The City purchased Parcel A in fee simple in November 2001 and Parcel B in fee simple in December 2002, a total of 2,276 acres. The City did not purchase the timber or timber rights on either parcel although it retained the first right to do so in the deed, and can do so when the existence of the timber and timber operation becomes inconsistent with the City use as a buffer or for future expansion of Deerhaven.
7. During the negotiations, the City was aware that the timber company leased hunting rights on the 2,276 acres in Parcels “A” and “B” to a local hunt club as part of overall 14,400 acre hunting lease with the hunt club. Because the hunt lease did not interfere with the City’s use as a buffer and aided in maintaining the overall security of the property, the City did not ask the timber company to break the lease.

(Ann Mullins’s Aff. ¶¶ 5-7.) The timber company, not the City, still receives annual lease payments from the hunt club. By purchasing an interest in the land that did not include the right to receive these lease payments and did not interfere with the timber company’s right to continue timber operations, the City was presumably able to acquire the land and reserve it for future municipal use for significantly less cost to the citizens of Gainesville than if it had purchased the unencumbered fee interest.

Since the City never acquired hunting or timbering rights (or the right to receive lease payments in lieu thereof), the ruling below denied the City a tax exemption not because of any use the City made of its own property, but because of the use the timber company made of property interests the City never acquired. See generally Schultz v. Crystal River Three Participants, 686 So.2d 1391, 1393 (Fla. 5th DCA 1997) (rejecting the “property appraiser[’s] argu[ment] that there can be no ‘partial’ tax exemptions for property and that the courts cannot ‘unbundle’ and separate out the respective interests of the owners of property”). Evidence of record suggests that plans for plant improvement and expansion are in the works.

Obtaining the land needed for these purposes on favorable terms served a public or municipal purpose. Even if viewed analytically as creating leaseholds — instead of as what actually (and for non-tax reasons) occurred historically, producing the arrangements that in fact obtain — the parties’ agreements should not render the City’s resulting interest taxable, “as long as such [deemed] leaseholds are accessory to the overall public [electric utility] purpose.” Walden, 323 So.2d at 61.

      . Section 166.047, Florida Statutes (2002), provides in part:
      A telecommunications company that is a municipality or other entity of local government may obtain or hold a certificate required by chapter 364, and the obtaining or holding of said certificate serves a municipal or public purpose under the provision of s. 2(b), Art. VIII of the State Constitution, only if the municipality or other entity of local government:

      (3) Notwithstanding any other provision of law, pays, on its telecommunications facilities used to provide two-way telecommunications services to the public for hire and for which a certificate is required pursuant to chapter 364, ad valorem taxes, or fees in amounts equal thereto, to any taxing jurisdiction in which the municipality or other entity of local government operates. Any entity of local government may pay and impose such ad valorem taxes and fees.

      . Article VIII, section 2(b) provides in part, "Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law."

      . Section 364.01(3), Florida Statutes (2002), provides in part, “The Legislature finds that the competitive provision of telecommunications services, including local exchange telecommunications service, is in the public interest and will provide customers with freedom of choice, encourage the introduction of new telecommunications service, encourage technological innovation, and encourage investment in -telecommunications infrastructure."

      . As Gainesville II was issued after the trial court issued its ruling, the parties understandably did not develop the record to include facts relevant to the issue of whether the City's provision of telecommunications services was essential to the general welfare of its residents and, thus, served municipal or public purposes, such as all of the telecommunications services that the City provides, the private providers that the City competes with, and the telecommunications services that are offered by each of those private providers. While Crapo and the Department repeatedly assert on appeal that the City is merely one of many providers of telecommunications services in a highly competitive market, that assertion is not supported by any record evidence.


author: PER CURIAM. WOLF, J.,

text:
    James MASSERY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0637.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2007.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING OR CLARIFICATION

PER CURIAM.

We grant appellant’s motion for rehearing or clarification, withdraw the original opinion, and substitute the following modified opinion.

James Massery pled nolo contendere to felony battery in 2004, and the trial court sentenced him to 47 months in prison, which was suspended if he were to complete three years of probation, a “true split sentence” under Poore v. State, 531 So.2d 161,- 164 (Fla.1988). After subsequently finding that Massery had violated probation, the lower court revoked his probation and sentenced him to prison for the remainder of the time outstanding in the original 47 months. On appeal, Massery contends the lower court erred by admitting the results of a lab report, over his objection that the report was hearsay and violated his right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,158 L.Ed.2d 177 (2004).

We affirm the order of revocation, in which the lower court determined that Crawford did not apply to Massery’s probation-revocation proceeding. Because Massery’s prosecution was completed once the trial court imposed a true split sentence following his conviction, it is clear that the Sixth Amendment right to confrontation did not apply to the probation-revocation proceeding.

We certify the following question to be of great public importance, slightly modified from the questions in Peters v. State, 919 So.2d 624 (Fla. 1st DCA), review granted, 924 So.2d 809 (Fla.2006); Ramsey v. State, 921 So.2d 779 (Fla. 1st DCA 2006):

DOES THE “TESTIMONIAL HEARSAY” RULE SET FORTH IN CRAWFORD V. WASHINGTON, 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177] (2004), APPLY IN A PROBATION-REVOCATION PROCEEDING INVOLVING A DEFENDANT WHO RECEIVED A TRUE SPLIT SENTENCE?

ALLEN, J., and ERVIN, III, RICHARD W., Senior Judge, concur.

WOLF, J., concurs with opinion.

WOLF, J.,

Concurring.

I concur in affirming the order of revocation. I also concur in the certified question because it accurately reflects the facts in this case.

I write only to respond to any implication which may be drawn from the certified question that our holding in Peters v. State, 919 So.2d 624 (Fla. 1st DCA 2006), is not applicable to all revocation proceedings. The reasoning of this court in Peters as to the application of Crawford to lab reports is equally applicable to all revocation proceedings.

Finally, a decision by this court declaring Crawford applicable in community supervision revocation proceedings would result in prejudice to the State far outweighing any perceived confrontation violations suffered by an accused probation or community control violator. This is true because in the .overwhelming majority of such cases the nature of the illegal substance is not at issue. Under the present system affidavits are accepted without objection. Were we to accept appellant’s position, defense attorneys would object to the admission of written lab reports in revocation proceedings, even when there was no dispute concerning the nature of the substance, if the analyst who prepared the report was not present to testify as to the findings set forth in the report. As a result, the State would be put to great expense even though in most cases the defendant would suffer no prejudice from the admission of the written report. In those cases where there is a true dispute concerning the nature of the substance, and the defense can show some lack of trustworthiness in the lab report, the report will be inadmissible. See § 90.803(6)(a), Fla. Stat.

Id. at 627-28.

In fact, we have applied the Peters reasoning in a probation revocation case not involving a true split sentence. . See Ramsey v. State, 921 So.2d 779 (Fla. 1st DCA 2006). There is no valid basis for treating other types of probation revocation cases differently than those involving true split sentencing.

      . Massery v. State, 32 Fla. L. Weekly D122 (Fla. 1st DCA Dec. 27, 2006).


author: SHAHOOD, J.

text:
    Jesus VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4411.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.
    Rehearing Denied May 9, 2007.

      Jesus Vazquez, Immokalee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, Jesus Vazquez, was charged with and found guilty by a jury of two counts of attempted murder with a firearm, one count of aggravated stalking, and one count of burglary while armed with a dangerous weapon. Appellant raises two issues on appeal. Initially, he argues that the trial court erred by failing to conduct an adequate Nelson inquiry on his pretrial motions to discharge his court-appointed counsel. We affirm as to this issue without discussion.

As his second issue, appellant argues that the trial court’s decision to allow the State to amend the aggravated stalking count in the information to include events occurring on November 18 and 19, 2002, violated double jeopardy. Appellant argues this violated double jeopardy because his actions on those dates, consisting of harassing telephone calls, formed the basis of a stalking charge for which he had already been charged, convicted, and sentenced. We agree.

The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Double Jeopardy Clause of the Florida Constitution provides that “[n]o person shall be ... twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const. “Under the Blockburger test, separate convictions for different offenses arising from a single act are permissible where each separate offense contains an element that the other lacks.” Gresham v. State, 725 So.2d 419, 420 (Fla. 4th DCA 1999) (citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). The Blockburger test is set forth at section 775.021(4)(a), Florida Statutes (2002), which provides that “offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory-pleading or the proof adduced at trial.”

The State argues in opposition that “simple” stalking and aggravated stalking each contain one element that the other does not and so are different under the Blockburger test. An analysis of the offenses under Blockburger reveals that appellant is correct.

Stalking, as defined in section 784.048(2), Florida Statutes (2002), is committed when a person “willfully, maliciously, and repeatedly follows or harasses another person.” Aggravated stalking, as defined by section 784.048(4), Florida Statutes (2002), is committed by “[a]ny person who, after an injunction for protection against repeat violence or dating violence pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that person’s property, knowingly, willfully, maliciously, and repeatedly follows or harasses another person. ...”

The State notes that the felony charge contains the additional requirement that the conduct occur after an injunction is issued. To prove stalking, the State had to show the conduct described in the statute above. To prove aggravated stalking, the State had to show the same conduct plus knowledge of the injunction. If stalking equals certain conduct, aggravated stalking equals that certain conduct plus the injunction element. The two are not separate offenses under the Blockburger test because stalking does not contain an element that aggravated stalking does not. Stalking is a category one lesser included offense of aggravated stalking and was included as such on the jury verdict form in this case. See Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (holding auto theft conviction after prior conviction for lesser included offense of joyriding violated double jeopardy because “[wjhatever the sequence may be, Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense”); see also Ashman v. State, 886 So.2d 1079 (Fla. 5th DCA 2004) (reversing appellant’s conviction for kidnapping on double jeopardy grounds where appellant had previously been tried and convicted of the greater offense of armed kidnapping in another county based on same actions); Fla. Std. Jury Instr. (Crim.) 8.6 & 8.7(b) (4th ed. 2002).

The record in this case shows that the two convictions rest upon the same factual basis. The charging document for the simple stalking charge on which appellant was previously convicted alleges that on November 18 and 19, 2002, appellant “repeatedly telephone [sic], harassed, and threatened Ms. Atencio.” The information charging appellant with aggravated stalking, as amended, alleges that “between 11-16-02 and 12-4-02” appellant “did knowingly, willfully, maliciously, and repeatedly follow or harass another person, to-wit: Ysamis Atencio after an injunction for protection.” Atencio and her daughter testified at trial about the harassing phone calls made by appellant on November 18 and 19, 2002. Those calls, upon which the simple stalking charge was based, were used by the prosecution at trial in this case to prove the aggravated stalking charge. Appellant was therefore convicted of stalking and later aggravated stalking based on the same actions.

Based on the foregoing, we vacate appellant’s conviction for aggravated stalking and remand to the trial court for resen-tencing.

Affirmed in part; Reversed in part, and Remanded.

STEVENSON, C.J., and KLEIN, J., concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


author: PER CURIAM.

text:
    Leroy D. KELLAR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6649.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2007.
    Rehearing Denied April 17, 2007.
    Rayl Lynn Kellar, on behalf of Leroy D. Kellar, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Cf. Baker v. State, 878 So.2d 1236 (Fla.2004).

BARFIELD, BENTON, and POLSTON, JJ., concur.


text:
    Daniel J. MATOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3917.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Daniel J. Matos, Doral, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s November 14, 2004, Florida Rule of Criminal Procedure 3.850 motion to withdraw plea. On January 9, 2006, appellant, through counsel, filed a Supplemental Motion for Post Conviction Relief attacking his June 2003 plea on several, new grounds. The trial court struck the Supplemental Motion as a nullity for the reasons stated in the State’s response, which referenced the limited nature of the relinquishment of jurisdiction.

The Supplemental Motion was filed before the trial court had entered a ruling on the 2004 motion but after the two-year time limit under the rule had expired. Fla. R.Crim. P. 3.850(b). If the Supplemental Motion had been filed within the two-year time limit, then the trial court would have been required to address the motion and could not dismiss it as successive. See Gaskin v. State, 737 So.2d 509, 517-18 (Fla.1999), receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla.2004).

The Supplemental Motion was under oath and in it counsel alleged that he was retained to file the Supplemental Motion and failed to timely file the motion because of neglect. The motion stated a sufficient claim of an exception to the time limitation. Fla. R.Crim. P. 3.850(b)(3).

The trial court did not address counsel’s allegation of an exception to the time limitation. Accordingly, we remand this case with instructions for the trial court to address the claim that counsel was retained to file the Supplemental Motion but failed to timely do so because of neglect. Steele v. Kehoe, 747 So.2d 931 (Fla.1999). The trial court shall hold an evidentiary hearing on the issue if necessary. If the trial court determines that the exception to the time limitation has been established, then it must address the Supplemental Motion on its merits.

KLEIN, TAYLOR and MAY, JJ., concur.


text:
    Glenn SCHOFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0079.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2007.
    Rehearing Denied April 17, 2007.
    Glenn Schofield, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied as premature. See Johnson v. State, 871 So.2d 294 (Fla. 1st DCA 2004).

BARFIELD, BENTON, and POLSTON, JJ., concur.