author: VAN NORTWICK, J.

text:
    STATE of Florida, Appellant, v. Eric COLEMAN, Appellee.
    No. 1D05-2734.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2006.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellant.

      Mark E. Walker of Pelham, Andrews & Walker, Tallahassee, for Appellee.
   VAN NORTWICK, J.

The state appeals an order granting Eric Coleman’s motion to dismiss the information filed against him which charged him with three counts of felony child abuse under section 827.03(l)(a), Florida Statutes (2004). The attempted prosecution of Coleman under section 827.03(l)(a) was based upon his graphic comments to three minor girls, which the trial court characterized as “offensive and disturbing.” Relying upon State v. DuFresne, 782 So.2d 888 (Fla. 4th DCA 2001) (DuFresne I), the trial court ruled that appellant’s verbal conduct was not actionable under section 827.03(l)(a) based upon the holding in DuFresne I that section 827.03(l)(b) could withstand a constitutional overbreadth challenged only if it was narrowly construed to avoid its application to speech. Id. Although the trial court correctly followed DuFresne I, we do not agree that we are required to interpret section 827.03(1) in such a manner that speech can never constitute the basis for a child abuse prosecution. Accordingly, we reverse and remand for further proceedings consistent with the following opinion. We also certify conflict with DuFresne I and Munao v. State, 939 So.2d 125, 2006 WL 2519865 (Fla. 4th DCA Sept. 1, 2006).

Background

On April 15, 2005, the state filed an information charging Coleman with three counts of felony child abuse under section 827.03(l)(a). Count I alleged that on February 24, 2005, he drove by a fifteen year-old girl and asked her' “do you have hair on your pussy.” Counts II and III alleged that on February 23, 2005, he drove by two twelve year-old girls asking one “do you shave your pussy” and the other “do you have hair on your pussy.” According to the probable cause affidavit, the encounter caused the fifteen year-old girl to run crying to a family friend’s house. When he was contacted by law enforcement, Coleman stated that he licked his lips after making the statements.

Coleman filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190 arguing that the application of section 827.03(l)(a) to his conduct would be unconstitutional because it amounted to mere speech and, pursuant to DuFresne I, section 827.03(l)(a) must be narrowly construed as not being applicable to speech. The trial court granted the motion to dismiss, explaining:

The four corners of the information ... charges three counts of child abuse, all based on essentially verbal conduct. This Court finds that it is bound by the holding in State v. DuFresne, 782 So.2d 888 (Fla. 4th DCA 2001), appealed on other grounds, 826 So.2d 272 (Fla.2002). This case held section 827.03(l)(b) was not overbroad, and therefore not unconstitutional, because the court narrowed the construction of the statute as not being applicable to speech. This precedent is equally applicable to section 827.03(l)(a). Therefore, while the kind of speech alleged here may not be constitutionally protected speech, the appellate court has previously held this statute does not apply to any kind of speech.

This appeal ensued.

DuFresne and Section 827.03(1)

Section 827.03(1), Florida Statutes (2004) provides:

(1) “Child abuse” means:
(a) Intentional infliction of physical or mental injury upon a child;
(b) An intentional act that could reasonably be expected to result in physical and mental injury to a child; or
(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child. A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (emphasis added).

In DuFresne I, the defendant was charged with five counts of child abuse involving different children. Some of the counts were based solely on oral statements. The trial court granted Du-Fresne’s motion to dismiss on the grounds that section 827.03(l)(b) was both over-broad and vague. On appeal, the Fourth District Court of Appeal determined that section 827.03(l)(b) could withstand an overbreadth challenge if it was narrowly construed so as to avoid its application to speech. DuFresne I, 782 So.2d at 891. Further, the court rejected the trial court’s ruling that the term “mental injury” used in the statute was unconstitutionally vague because it was not defined in chapter 827. The court found that “mental injury” was defined in a closely related statute, section 39.01(44), Florida Statutes (Supp.1998), which under State v. Fuchs, 769 So.2d 1006, 1009 (Fla.2000), should be read in pari materia with chapter 827. Section 39.01(44) defines mental injury as follows:

“Mental injury” means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in his ability to function within his normal range of performance and behavior.

The Fourth District certified the question of whether the term “mental injury” in section 827.03(l)(b) was unconstitutionally vague.

On review by the Florida Supreme Court, the court agreed with the Fourth District that, even though section 827.03(1) did not define the term “mental injury,” the court could resort to the definition of mental injury in section 39.01(44) contained within chapter 39. See DuFresne v. State, 826 So.2d 272, 275 (Fla.2002) (DuFresne II). The court noted that the child protection provisions in chapter 39 and the criminal provisions of section 827.03 have similar underlying purposes. Id. at 278. Thus, for purposes of understanding the meaning of “child abuse” in section 827.03, the court relied upon the definition of “[ajbuse” in section 39.01(2), Florida Statutes (2001), which provides:

“ ‘[ajbuse’ means any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions .... ” (emphasis added).

In addition, the court noted that “harm” is defined in section 39.01(30) and includes infliction of injury on a child physically, emotionally, or mentally. The court reasoned that:

[tjhe fact that these statutes have essentially the same underlying purpose, i.e., the protection of children, lends further support to our conclusion that ... these provisions should be read in proper relation to one another. Furthermore, we note, the definition of “mental injury” now found in chapter 39 is a limiting definition, as opposed to a broad definition, which benefits the defendant. Thus, mental injury, as defined, will be present only in limited circumstances, thereby discouraging arbitrary and discriminatory enforcement. Accordingly, pursuant to the analytical framework set forth in [State v. Fuchs, 769 So.2d 1006 (Fla.2000) j, we conclude that the district court properly held that the challenged statute is not unconstitutionally vague because the term “mental injury” is adequately defined in another related statute. Chapter 39 ..; is sufficiently related to child abuse to put a citizen on notice that its provisions may be related to the child abuse provisions of section 827.03 .... (emphasis added).

Id. 826 So.2d at 278-79.

In Munao v. State, 939 So.2d 125, 2006 WL 2519865 (Fla. 4th DCA Sept. 1, 2006), the Fourth District recently reiterated its holding in DuFresne I that “section 827.03(l)(b) cannot be applied to speech of any kind ... to avoid overbreadth because the statute does not limit its application to any recognized exception to the First Amendment.” Id. at 128-29. In Munao, the defendant was convicted of child abuse and solicitation to commit aggravated battery based upon his verbal instructions to his six year-old son [N.M.] to “go in the kitchen, get a knife and stab [his mother].” Id. at 126. Expert witnesses testified at trial that the defendant’s directions to his son were “ ‘extremely damaging’ to a child with N.M.’s problems” and “could reasonably be expected to be the cause of substantial impairment in the ability of a child to function within the normal range of performance and behavior.” Based on its precedent in DuFresne I, the court reversed and remanded with directions to the trial court to enter a judgment of acquittal with respect to the child abuse charge. Id. at 129.

Analysis

“The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). As the Florida Supreme Court has explained, “because application of the facial overbreadth doctrine is ‘strong medicine,’ it should be employed sparingly by the courts. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on a challenged statute.” Suit v. State, 906 So.2d 1013, 1022 (Fla.2005)(citing Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). We do not agree with DuFresne I and Munao, however, that, to withstand an overbreadth challenge to section 827.03(1), we must construe the statute to avoid its application to all speech. If section 827.03(1) can be construed to be applicable only to specifically described unprotected speech, it can withstand an ’overbreadth challenge.

Although psychological injury is elusive to identify, psychological abuse of children by verbal assault has long been recognized and proscribed. See generally, Sana Loue, Redefining the Emotional and Psychological Abuse and Maltreatment of Children, 26 J. Legal Med. 311 (2005). We can envision limited circumstances in which speech alone could be used to intentionally inflict psychological injury on a child. See, e.g., Matter of Shane T., 115 Misc.2d 161, 164, 453 N.Y.S.2d 590, 593 (N.Y.Fam.Ct.1982)(recognizing that to constitute child abuse, mere words are sufficient provided their injury to the child falls within language of statute). Speech, which causes such mental injury as to constitute child abuse under chapter 39, is not constitutionally protected. See Munao, 939 So.2d at 129; compare U.S. v. Hornaday, 392 F.3d 1306, 1311 (11th Cir.2004) (speech attempting to arrange sexual abuse of children not constitutionally protected).

The rationale employed by the Florida Supreme Court in DuFresne II in analyzing the vagueness challenge to section 827.03(1) may be equally employed in determining the narrow class of speech to which section 827.03(1) can be applied and still withstand an overbreadth constitutional challenge. If in applying section 827.03(1) to speech, courts define the proscribed speech by construing the statute in pari materia with the definitions in chapter 39, constitutional speech will not be implicated. See Doe v. Mortham, 708 So.2d 929, 931 (Fla.1998)(eoncluding that statutes governing campaign advertising and financing were not constitutionally overbroad because infirmity could be cured by narrowing construction). Thus, speech will constitute proscribed “child abuse” under section 827.03(l)(a) only if it meets the definitions of “[a]buse” and “[mjental injury” in section 39.01, Florida Statutes (2004). The state will be required to demonstrate that, in pertinent part, the defendant’s comments intentionally caused a “discernible and substantial impairment in [the child’s] ability to function within [his or her] normal range of performance and behavior.” § 39.01(43), Fla. Stat. (2004). As the Supreme Court has noted, under this definition of “mental injury,” the state faces a substantial burden because the required injury “will be present only in a limited amount of cases, thereby discouraging arbitrary and discriminatory enforcement.” DuFresne II, 826 So.2d at 279. The trial court here was not asked to, nor did it, address the question whether the state’s information can withstand challenge on these grounds. Accordingly, we are remanding this cause for further proceedings.

Because this case is being remanded, we briefly address the state’s argument that reversal is also required by our decisions in Morris v. State, 789 So.2d 1032, 1036 (Fla. 1st DCA 2001)(en banc), and Smith v. State, 632 So.2d 644 (Fla. 1st DCA 1994). We find the state’s reliance on Morris and Smith to be misplaced. These cases did not involve prosecutions under section 827.03. Smith involved a conviction under section 800.04(1),' Florida Statutes (Supp. 1990), which proscribed handling, fondling or assaulting a child under sixteen years old in a lewd, lascivious, or indecent manner. Morris involved section 800.04(4), Florida Statutes (1997), which proscribed knowingly committing a lascivious act in the presence of a child under sixteen. In the case before us, the state has not sought to prosecute appellant under section 800.04.

In Smith, we affirmed two of Smith’s convictions for attempted assault under section 800.04(1), because we concluded that the nature of his language and conduct fell within the proscription of section 800.04(1). We found that “[t]he appellant’s command to the girls to ‘give [him] some pussy’ demonstrated the specific desire to handle or fondle the girls, and the appellant’s act of repeatedly driving back by the girls can properly be viewed as a direct act in furtherance of this specific intent.” 632 So.2d at 646. However, at the same time, we reversed two of Smith’s convictions based upon his statement “[h]ey, girls, show me your pussy,” because “the appellant’s request to the girls to expose themselves ... did not evince the specific intent to handle, fondle, or assault the girls required under subsection (1) [of section 800.04].” Id.

In Morris, we affirmed a conviction under section 800.04(4), based upon the defendant “telling a child that he desired to engage her in oral sex, using language which described this in a graphic manner.” Morris, 789 So.2d at 1033. We reasoned that, even though the defendant’s act involved only speech, “the statutory reference to a prohibited ‘act’ is commonly understood as encompassing conduct or behavior which involves only verbal statements or speech.” Id. Because Morris’ comments constituted lewd or lascivious solicitation, see, e.g., section 800.04(6)(a)2, Florida Statutes (2004), however, the factual circumstances of Morris are substantially dissimilar from the case before us. Thus, we find that neither Smith nor Morris offer guidance here.

REVERSED and REMANDED for further proceedings consistent with this opinion; conflict certified with DuFresne I and Munao.

ALLEN and POLSTON, JJ., concur.

      . Because neither this court nor the Supreme Court had taken a position contrary to the decision of the Fourth District Court of Appeal in DuFresne I, that decision was binding on the trial court. Pardo v. State, 596 So.2d 665, 666 (Fla.1992).

      . While the state has argued that the motion is a "(c)(4)” motion, see Florida Rule of Criminal Procedure 3.190(c)(4), and that it was technically deficient for failure to comply with .that rule, we agree with Coleman, that his motion can and should be construed as having been brought under rule 3.190(b). Hudson v. State, 745 So.2d 997, 999 (Fla. 2d DCA 1999). See also State v. Globe Communications Corp., 622 So.2d 1066, 1069-70 (Fla. 4th DCA 1993)(accepting the reasoning of the trial court that constitutional challenges can be brought pursuant to rule 3.190(b) rather than rule 3.190(c)(4)).

      . The difference between the overbreadth and vagueness doctrines was explained succinctly in Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), as follows:
      First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 612-615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).

      . Section 800.04 was substantially revised by chapter 99-201, § 6, at 1187-89, Laws of Florida.


source: Caselaw Access Project

author: PER CURIAM. VAN NORTWICK, J.,

license: Public Domain

text:
    Emory R. PARRISH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2162.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2006.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, Attorneys for Appellants.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

Appellant, Emory R. Parrish, Jr. appeals his conviction for possession of cannabis, possession of a controlled substance without a prescription, and resisting arrest without violence. Because we find that the trial court did not err in denying Appellant’s motion to suppress, we affirm.

Appellant was detained and ultimately arrested in a Wal-Mart parking lot by an Okaloosa County sheriffs deputy who was working as a security guard for the store. The deputy testified at the suppression hearing that Appellant came to his attention after the deputy saw a ear lurch forward. Believing a minor collision had occurred in front of the store, the deputy investigated. As he approached the two vehicles involved, the deputy noticed a male leaning into the driver’s window of the front vehicle. The driver of the vehicle, a female, and the man, Appellant, were arguing. The deputy saw that the bumper of the rear vehicle was touching the bumper of the front vehicle, although there did not appear to be any damage. The deputy testified that he asked the two if everything was “okay,” and he was told that everything was in fact okay. In addition, the deputy testified that he saw no physical contact between the two and that the argument was not loud.

Nevertheless, the deputy was unwilling to accept this representation and separated the two; the deputy explained that victims of domestic violence often say that no problem exists when the situation is in fact problematic. The deputy testified that he acted the way he did because “there is always two stories. There is the person that we’re talking to and the truth, and I wanted to get to the truth.” On cross-examination, the deputy testified that he detained Appellant because of the possibility of domestic violence rather than to investigate a minor crash.

The deputy testified that he proceeded to question the female first. She told the deputy her name and produced identification. She explained that she and Appellant “were just arguing,” but the deputy remained concerned. The deputy then asked Appellant for identification, which Appellant could not produce. Appellant provided a name to the deputy, which the deputy was unable to verify. The deputy then arrested Appellant and conducted a search incident to the arrest, where contraband was found.

Appellant moved to suppress all the evidence seized, arguing that the deputy had no legal justification to detain him, or once detained, the deputy had no legal justification to continue to detain Appellant. The trial court denied Appellant’s motion to suppress, explaining that it was reasonable for the deputy to require each party to produce identification before being released. When Appellant failed to produce any identification and lied about his name, the deputy was authorized to arrest Appellant and to conduct a search incident to the arrest. After the denial of his motion to suppress, Appellant pled no contest to two counts of possession of a controlled substance and one count of resisting arrest without violence, and preserved his right to appeal the trial court’s denial of his dispositive motion to suppress.

“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810-11, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996) (citing Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). To determine whether a police officer had probable cause to believe that a traffic violation has occurred requires application of an objective test which “asks only whether any probable cause for the stop existed.” Holland v. State, 696 So.2d 757, 759 (Fla.1997). Therefore, as long as the officer has sufficient probable cause for the stop, the officer’s subjective motivation for the stop does not render the stop unconstitutional and require suppression of evidence seized during a search incident to the arrest. Whren, 517 U.S. at 819, 116 S.Ct. 1769.

Here, the deputy had probable cause to believe that a traffic violation had occurred. Under Chapter 316, Florida Statutes, local police authorities are authorized to investigate an accident which has occurred in a shopping center irrespective of any injury or death to a person. Op. Att’y Gen. Fla. 72-383 (1972). The deputy testified that he saw the female’s car lurch forward, and when he walked over to investigate, he saw that Appellant’s bumper was touching her bumper. Because the deputy had probable cause to detain Appellant, it is irrelevant that his primary concern during his investigation was the prevention of domestic violence.

Accordingly, the trial court’s denial of Appellant’s motion to suppress is AFFIRMED.

HAWKES and THOMAS, JJ., concur.

VAN NORTWICK, J„ dissents with written opinion.

VAN NORTWICK, J.,

dissenting.

Because I conclude that the evidence is undisputed that the deputy lacked an objective basis to detain appellant, I would hold that the trial court erred in denying the motion to suppress. Accordingly, I respectfully dissent.

To detain a person for investigation, an officer must have a reasonable suspicion, based on objective, articulable facts, that the person has committed, is committing, or is about to commit a crime. § 901.151(2), Fla. Stat. (2004); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Whether an officer has a founded suspicion for a stop depends on the totality of the circumstances, in light of the officer’s knowledge and experience. State v. Marrero, 890 So.2d 1278, 1281-2 (Fla. 2d DCA 2005); Ippolito v. State, 789 So.2d 423, 425 (Fla. 4th DCA 2001). A bare suspicion or “mere ‘hunch’ that criminal activity may be occurring is not sufficient.” Ippolito, 789 So.2d at 425. As the Florida Supreme Court has explained, a citizen “may not be detained even momentarily without reasonable, objective grounds for doing so”, and the “scope of the detention must be carefully tailored to its underlying justification.... [A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” State v. Diaz, 850 So.2d 435, 438 (Fla.2003) (quoting Florida v. Royer, 460 U.S. 491, 498, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). Here, the detention of appellant lasted longer than was necessary.

The majority is correct that under Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), and Holland v. State, 696 So.2d 757 (Fla.1997), an officer may stop a vehicle where the officer has probable cause to believe that a traffic violation has occurred. “Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). As the Florida Supreme Court has explained, “[t]he correct test to be applied is whether the particular officer who initiated the traffic-stop had an objectively reasonable basis for making the stop.” Dobrin v. Fla. Dep’t of Highway Safety & Motor Vehicles, 874 So.2d 1171, 1174 (Fla.2004). In the case before us, however, the deputy did not make a traffic stop, and the record contains no reasonable basis for the detention of appellant on the grounds stated by the officer. In addition, the facts known to the officer do not support an objectively reasonable basis for making a traffic stop.

While the deputy here testified that he initially thought a minor collision might have occurred, he did not issue a traffic citation or contend that a possible collision was the basis for detaining appellant. The deputy testified that he was investigating a “possible domestic violence incident.” Yet, as the deputy admitted, he did not observe a physical confrontation and was twice told that everything was okay. In fact, after the female was separated from appellant, she volunteered that everything was “okay.” The deputy did not articulate any objective basis for continued detention of appellant, and thus, the continued detention was improper. See Bordelon v. State, 908 So.2d 543 (Fla. 1st DCA 2005).

The facts in the record also do not provide an objectively reasonable basis for a traffic stop. The officer stated that he saw a car lurch forward and, therefore, he investigated. When he arrived outside of the store, he observed that the bumper of the rear vehicle was touching the bumper of the front vehicle, but he found no damage. The deputy testified that he did not observe the vehicles come into contact and that he was never told a collision occurred. Thus, the record does not contain the objective bases supporting a conclusion that an accident had occurred or providing any reasonable basis for a traffic citation.

Because I conclude the detention of appellant was unlawful, I would hold that the trial court erred in denying the motion to suppress. See Belsky v. State, 831 So.2d 803 (Fla. 4th DCA 2002).


author: PER CURIAM.

text:
    Linwood James IVEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1756.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2006.
    Linwood James Ivey, pro se, Petitioner.
    Charlie Crist, Attorney General, and Diego Puig, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Upon consideration of the state’s response to our order to show cause, the petition for writ of mandamus is granted. The lower tribunal is directed to enter an order on petitioner’s pending motion to correct illegal sentence within 30 days of the date of issuance of mandate herein.

KAHN, C.J, BENTON, and LEWIS, JJ., concur.


text:
    DEPARTMENT OF REVENUE, Child Support Enforcement Program, on behalf of: Regina Gardner, Petitioner, v. Tyler LONG, Respondent.
    No. 1D06-925.
    District Court of Appeal of Florida, First District.
    Sept. 25, 2006.

      Charlie Crist, Attorney General, and William H. Branch, Assistant Attorney General, Child Support Enforcement, Tallahassee, for Petitioner.
    No appearance for Respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

This cause is before us on Petitioner’s motion for rehearing. We grant the motion and, accordingly, withdraw our former opinion of June 29, 2006, and substitute in its place this corrected opinion.

In this petition for writ of certiorari, the Department of Revenue (“DOR”) seeks review of the Division of Administrative Hearing’s (“DOAH”) order directing Respondent, Mother, and Child to submit to DNA testing to establish paternity even though Respondent previously signed an acknowledgment of paternity. The hearing below was conducted under section 409.2563, Florida Statutes (2005). Because the Administrative Law Judge (ALJ) departed from the essential requirements of law and an irreparable harm will result, we grant the petition.

After receiving a proposed administrative order from DOR, Respondent timely requested a hearing by letter. As part of his request, Respondent wrote, “Need DNA test.” Respondent received no response from DOR regarding circuit court action. Instead, his case was referred to DOAH and, subsequent to a hearing, DOAH issued a temporary administrative support order requiring Respondent to pay child support pending the results of genetic testing, which DOAH also ordered.

Initially, we relied on Mendez v. Department of Revenue, 898 So.2d 1060 (Fla. 2d DCA 2005), and section 409.2563(2)(f), Florida Statutes (2005), in determining that DOR was required to halt the administrative process and continue in circuit court once the request for paternity testing was made. On rehearing, we have determined that our reasoning was misplaced because a request for paternity determination is different from “issues concerning custody or rights to parental contact” that trigger a termination of the administrative proceedings under section 490.2563(2)00. Therefore, section 490.2563(2)00 is inapplicable.

We find that neither DOR nor DOAH has jurisdiction to hear or determine issues of disputed paternity under section 409.2563(2)(b), Florida Statutes (2005). A proceeding under this statute presumes that paternity has already been established or is being established in a separate administrative proceeding pursuant to section 409.256, Florida Statutes (2005). This is evidenced by the use of the term “non-custodial parent” in the statutory language of section 409.2563, as opposed to “putative father, which means “an individual who is or may be the biological father of a child whose ‘paternity has not been established and whose mother was unmarried when the child was conceived and born.” See Section 490.256(l)(g), Florida Statutes (emphasis added).

The ALJ departed from the essential requirements of law when she ordered genetic testing under section 409.2563, Florida Statutes (2005). See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003) (explaining that failure of a court to follow a controlling statute can be a departure from the essential requirements of law and a basis to grant a petition for certiorari). Section 409.2563(2)(b) clearly establishes that DOAH does not have jurisdiction to determine disputed paternity. We find that subjecting Mother and Child to a potentially intrusive test that is outside the court’s jurisdiction is enough to constitute irreparable harm.

It should be noted that this opinion in no way precludes Respondent from contesting paternity in any other legally cognizable manner. Our holding is simply that for the purposes of this proceeding, paternity is established.

We, therefore, GRANT the petition for writ of certiorari and QUASH the order for genetic testing. We also REMAND and instruct the ALJ below to enter a final administrative order regarding support.

ALLEN, DAVIS, and THOMAS, JJ., concur.

      . Section 409.2563(2)(f), Florida Statutes (2005), states, "The department [DOR] shall terminate the administrative proceeding and file an action in circuit court to determine support if within 20 days after receipt of the initial notice the noncustodial parent ... states in writing the noncustodial parent's intention to address issues concerning custody or rights to parental contact in court...." (Emphasis added.)


text:
    Glendon Michael GOELZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2472.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2006.
    Glendon Michael Goelz, Miami, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Glendon Michael Goelz appeals the denial of his rule 3.800(a) motion to correct an illegal sentence.

Pursuant to a negotiated plea, Goelz pleaded guilty as charged to one count of lewd and lascivious molestation and one count of aggravated stalking, and the State agreed to nolle pross a third count. He was sentenced in accordance with the plea agreement to four years in prison as a youthful offender for aggravated stalking and to a consecutive term of fifteen years sex offender probation with the first two years to be served on community control for lewd and lascivious molestation.

Appellant argues, and the State agrees, that his sentence is illegal.

The trial court could not impose a youthful offender sentence on one count, but not another, even as part of a plea agreement. Kahrs v. State, 816 So.2d 157 (Fla. 2d DCA 2002); Kelly v. State, 739 So.2d 1164 (Fla. 5th DCA 1999). Once the court declared him a youthful offender, pursuant to section 958.04(2)(e), Florida Statutes, the combined sentence could not exceed four years in prison followed by two years probation. Louissaint v. State, 727 So.2d 403 (Fla. 3d DCA 1999). A sentence that exceeds the maximum allowed by the youthful offender statute is an illegal sentence that can be challenged in a rule 3.800(a) motion. See Bryant v. State, 859 So.2d 1269 (Fla. 4th DCA 2003); Kelly; Louissaint; Schebel v. State, 721 So.2d 1177 (Fla. 1st DCA 1998).

The circuit court’s order is reversed. On remand, appellant has the option of withdrawing his plea. If he elects not to withdraw his plea, the court must decide whether to sentence him as an adult without reference to the youthful offender statute or to limit his sentence to a total of no more than four years in prison followed by two years probation. See Kahrs; Kelly. If the court decides to impose a youthful offender sentence or any sentence lower than the negotiated sentence, the state should have the option of withdrawing the negotiated plea and proceeding on the original charges. State v. Swett, 772 So.2d 48, 51 (Fla. 5th DCA 2000); Hawes v. State, 712 So.2d 834, 835 (Fla. 4th DCA 1998). Appellant also has the option of entering an open plea to the original charges.

STONE, SHAHOOD and MAY, JJ., concur.


text:
    Toriano ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-303.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2006.
    Toriano Roberts, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s order denying appellant relief under Florida Rule of Criminal Procedure 3.850, as to the single ground referenced in our April 4, 2006, order to show cause. That ground pertains to appellant’s claim his trial counsel was ineffective for failing to pursue a motion to disqualify the assistant state attorney on his case. Appellant argued the A.S.A. had previously represented him as a defense lawyer in a prior criminal case, and thereby received privileged information which would be prejudicial to appellant in the present case. Appellant’s entry of pleas to the present charges does not negate this claim. See Reaves v. State, 574 So.2d 105 (Fla.1991), and State v. Fitzpatrick, 464 So.2d 1185 (Fla.1985). We remand for an evidentiary hearing, or for attachment of those portions of the record which conclusively show appellant is not entitled to relief.

STONE, POLEN and MAY, JJ., concur.


author: ROTHENBERG, Judge.

text:
    ATLANTIC SHORES RESORT, LLC, Petitioner, v. 507 SOUTH STREET CORPORATION and City of Key West, Respondents.
    No. 3D06-245.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 2006.

      Morgan & Hendrick, Key West, and James T. Hendrick, for Petitioner.
    Lee Robert Rohe, Tallahassee; Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, Fort Lauderdale, and Michael Burke and Cindy A. Williams, for Respondents.
    Before SHEPHERD, SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The petitioner, Atlantic Shores Resort, LLC (“the Developer”), petitions for a writ of certiorari, seeking to quash a decision of the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County (“Circuit Court”). We grant the petition and quash the Circuit Court’s decision granting cer-tiorari, as the Circuit Court departed from the essential requirements of law by considering issues barred by collateral estop-pel.

The Developer seeks to redevelop a hotel property located in the Historic District of the City of Key West. 507 South Street Corporation (“the Objector”) opposes the redevelopment. As the property in question is located in the Historic District of the City of Key West, it is subject to a particular regulatory structure, and governed by the Historic Architectural Review Commission (“HARC”). See City of Key West, Fla., Charter § 1.06(a); City of Key West, Fla., Code of Ordinances § 90-126. In order to erect a new structure in a historic district, a developer must first obtain a certificate of appropriateness from HARC. See City of Key West, Fla., Code of Ordinances § 102-152. HARC evaluates applications for certificates of appropriateness based upon guidelines that it issues concerning factors including design, scale, massing, and appearance. See City of Key West, Fla., Code of Ordinances § 102-155(a). One of the guidelines that HARC issued for new construction in the historic district is that a building’s height may not exceed 2.5 stories. See City of Key West Historic Architectural Guidelines at 38. HARC’s decisions regarding certificates of appropriateness are final and such decisions may be appealed to a special master. See City of Key West, Fla., Code of Ordinances § 90-428; City of Key West, Fla., Charter § 1.06(b). The special master’s decision, in turn, is reviewable by the circuit court. See City of Key West, Fla., Code of Ordinances § 90-434.

As the property the Developer wishes to redevelop is located in the Historic District of the City of Key West, the Developer applied for a certificate of appropriateness from HARC. The Objector, however, sought to block the redevelopment, arguing that because the redevelopment plan calls for one of the buildings to be elevated, the redevelopment plan violates HARC guidelines limiting building height to 2.5 stories. Specifically, the Objector asserts that the open space beneath the building constitutes a story, and if the property is constructed as designed, that particular building would be 3.5 stories, and thus, violate the 2.5 story height restriction. The Developer’s position is that many of the buddings in Key West are required to be elevated for flood safety, the open space beneath the building is not a story, the building in question is only 2.5 stories, and thus, the redevelopment plan is in compliance with the applicable HARC guidelines. HARC found in favor of the Developer and issued a certificate of appropriateness. The Objector unsuccessfully appealed the issuance of the certificate to the special master, based upon the same arguments it had made to HARC, that the redevelopment plan violates the 2.5 story guideline because .the open space beneath the building is a story. Instead of appealing the decision of the special master to the Circuit Court as provided in section 90-434 of the Key West Code of Ordinances, the Objector waited until the Developer presented its redevelopment plan to the City Commission, once again raising the same objections it had made to HARC and the special master: that the building exceeded the 2.5 story limitation because the open space beneath the building should be considered a story. The City Commission was equally unpersuaded by the Objector’s arguments and passed a resolution approving the proposed plan.

The Objector filed a petition for writ of certiorari with the Circuit Court, challenging the City Commission’s resolution, arguing that the redevelopment plan violated the 2.5 story limitation because the open space beneath one of the buildings should be considered a story. The Developer, however, claimed that the Objector’s arguments were barred by res judicata and/or collateral estoppel; the open space beneath the building is not a story; and the redevelopment plan does not violate the 2.5 story limitation. The Circuit Court initially denied the petition for writ of cer-tiorari, but after a motion for rehearing, granted the writ and quashed the City Commission’s resolution approving the redevelopment plan. The Circuit Court found that the issues before it were not precluded by res judicata or collateral es-toppel, and that the redevelopment plan violates the 2.5 story limitation. The Developer now seeks quashal of the writ of certiorari granted by the Circuit Court.

As the petition before this court seeks quashal of a writ of certiorari issued by the Circuit Court, our review is limited to determining whether the Circuit Court afforded procedural due process and applied the correct law, or in other words, whether it departed from the essential requirements of the law. Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003); Peachtree Cas. Ins. Co. v. Prof l Massage Servs., Inc., 923 So.2d 548, 550 (Fla. 1st DCA 2006); Ferrara v. Cmty. Dev., Ltd., 917 So.2d 907, 908 (Fla. 3d DCA 2005). The Developer claims the Circuit Court departed from the essential requirements of the law by considering issues barred by res judicata and/or collateral estoppel and by refusing to defer to HARC’s interpretation of its own 2.5 story guideline. We agree.

Collateral estoppel precludes consideration of an issue when the identical issue has previously been fully litigated and determined between the same parties in a contest that resulted in a final decision by a court of competent jurisdiction. State v. McBride, 848 So.2d 287, 290-91 (Fla.2003); Husky Indus., Inc. v. Griffith, 422 So.2d 996, 999 (Fla. 5th DCA 1982)(ex-plaining that when its elements are met, collateral estoppel bars the consideration of issues that were actually adjudicated in a prior litigation). The Objector claims that while the height restriction was previously raised, it was not raised in “previous litigation.” He also argues that the special master’s order was not a final decision, and that the special master is not a court of competent jurisdiction.

In determining whether the claims raised by the Objector in its petition before the Circuit Court were previously litigated, one must understand the City of Key West’s regulatory system. As previously stated, before property located within the City of Key West’s Historic District may be redeveloped, a developer must obtain a certificate of appropriateness from HARC. Any objections to HARC’s issuance of a certificate must be appealed to the special master and then to the Circuit Court sitting in its appellate capacity. The Commission cannot issue a certificate and may only approve a plan if a certificate is issued by HARC. The Objector argues that the hearing before HARC, the appeal before the special master, the City Commission hearings, and the appeal to the Circuit Court were a continuation of a single case and, thus, one litigation. The Developer argues that the issuance of the certificate of appropriateness by HARC and the special master’s review of that issuance are separate and distinct from the City Commission’s approval of the Developer’s redevelopment plan and the Circuit Court’s review of that approval.

We agree with the Developer that the litigation concerning the certificate of appropriateness issued by HARC and the approval by the special master are separate from the litigation concerning the redevelopment plan approved by the City Commission and reviewed by writ of cer-tiorari to the Circuit Court. Because the Objector has raised and has litigated the height restriction claim in its objection to the issuance of the certificate of appropriateness and subsequent appeal to the special master, its arguments before the Commission are, in fact, arguments previously litigated and satisfy the “previous litigation” requirement of collateral estoppel.

We also find the Objector’s argument, that the special master’s affirmance of HARC’s issuance of the certificate of appropriateness was not a final decision, equally unpersuasive. The Objector claims that the findings of the special master on appeal was not a final order because the City Commission had not yet approved the redevelopment plan. While the City Commission may approve, modify, or reject a redevelopment plan, it lacks the power to review or modify a certificate of appropriateness issued by HARC and approved by a special master, or to analyze whether a redevelopment plan complies with HARC guidelines as it has conveyed that power to HARC. Thus, the special master’s decision was not subject to the decision of the City Commission, and constitutes a final decision. The City of Key West Code of Ordinances makes it clear that HARC’s decision as to a certificate of appropriateness is a final decision, subject to review only by the special master and then by the circuit court. See City of Key West, Fla., Code of Ordinances § 90-428; City of Key West, Fla., Code of Ordinances § 90-434; City of Key West, Fla., Charter § 1.06(b). As the special master affirmed the issuance of the certificate of appropriateness and the Objector did not appeal that decision to the Circuit Court, the decision regarding the certificate of appropriateness was final. Furthermore, as the City Commission is required to ensure that a redevelopment plan complies with historic structure design guidelines by ascertaining whether the developer has obtained a certificate of appropriateness, the issuance of a certificate of appropriateness is a condition precedent to obtaining the approval of a redevelopment plan from the City Commission. Accordingly, the decision regarding the certificate of appropriateness must necessarily be final prior to the City Commission approving a site plan.

The Objector’s final argument against collateral estoppel is that the appeal to the special master was not an appeal to a “court of competent jurisdiction.” We find no merit to this argument as quasi-judicial entities, as is the special master in the instant case, are considered “courts of competent jurisdiction” for the purposes of collateral estoppel. See Paresky v. Miami-Dade County Bd. of County Comm’rs, 893 So.2d 664, 666 (Fla. 3d DCA 2005); City of Tampa v. Lewis, 488 So.2d 860, 862 (Fla. 2d DCA 1986); U.S. Fid. Guar. Co. v. Odoms, 444 So.2d 78, 80 (Fla. 5th DCA 1984).

As all of the elements of collateral estop-pel were met and the issue of whether the redevelopment plan violates the 2.5 story limitation set forth in the HARC guidelines was previously fully litigated and determined between the Developer and the Objector, resulting in a final decision by the special master, which was not appealed, the Objector is collaterally estopped from relitigating the same issue in the appeal it took after its unsuccessful attempt to block the redevelopment plan before the City Commission. Because the Objector was collaterally estopped from relitigating the height restriction, we conclude that the Circuit Court departed from the essential requirements of the law when it considered the issue and granted the Objector’s petition. Accordingly, we grant the Developer’s petition for writ of certio-rari and quash the decision of the Circuit Court.

We also find that the Circuit Court, acting in its appellate capacity, departed from the essential requirements of the law when it relied on an incorrect standard of review regarding the height restriction. As noted previously, HARC issues guidelines which it utilizes to evaluate whether to grant certificates of appropriateness. See City of Key West, Fla., Code of Ordinances § 102-155(a). One of the guidelines issued by HARC is that a newly constructed budding in the historic district may not exceed 2.5 stories. See City of Key West Historic Architectural Guidelines at page 38, paragraph 2. In the instant case, HARC determined that the redevelopment plan did not violate the 2.5 story limitation because it found that the open space beneath the building in question did not constitute a story.

An agency’s interpretation of the guidelines that it is charged with administrating is entitled to judicial deference, and should not be overturned as long as the interpretation is in the range of permissible interpretations. See Paloumbis v. City of Miami Beach, 840 So.2d 297, 298-99 (Fla. 3d DCA 2003)(explaining that “administrative interpretation is entitled to judicial deference as long as it is within the range of possible permissible interpretations”)(footnote omitted); Bd. of Trustees of the Internal Improvement Trust Fund v. Levy, 656 So.2d 1359, 1363 (Fla. 1st DCA 1995)(“If an agency’s interpretation of its governing statutes is one of several permissible interpretations, it must be upheld, despite the existence of reasonable alternatives.”); Metro. Dade County v. P.J. Birds, Inc., 654 So.2d 170, 175 (Fla. 3d DCA 1995)(explaining that a “reviewing court must defer to an agency’s interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial competent evidence”)(quoting Pub. Employees Relations Comm’n v. Dade County Police Benevolent Ass’n, 467 So.2d 987, 988 (Fla.1985)).

HARC’s determination that the building in question does not violate its 2.5 story limitation was a reasonable interpretation, within the range of permissible interpretations of the limitation, and thus, should not have been overturned by the Circuit Court. HARC’s interpretation was permissible because whether or not the redevelopment project in the instant case violates the 2.5 story guideline depends upon the definition of the word “story,” and it was reasonable for HARC to determine that the open space beneath the building in question is not a “story.” This is because the guidelines set forth by HARC define “story,” in pertinent part, as “[t]hat portion of a building included between the upper surface of any floor and the upper surface of the floor next above.... ” City of Key West Historic Architectural Guidelines at 74. Section 34-26 of the City of Key West Code of Ordinances, in turn, defines “floor” as “the top surface of an enclosed area in a building,” and provides that “[t]he term does not include the floor of a garage used solely for parking.” Under the redevelopment plan in question, the area under the planned building is both unenclosed and an area used solely for parking vehicles. Therefore, it was reasonable for HARC to determine that the surface of the open space beneath the building does not fit within the definition of “floor.” Once it determined that the surface of the open space beneath the building is not a “floor,” it reasonably follows that the space between that surface and the floor above it is not a story. Under this interpretation, since the open space beneath the building is not a story, the building is only 2.5 stories high, and does not violate the 2.5 story limitation. Because this interpretation is reasonable, the Circuit Court erred in substituting its own interpretation of “story” for HARC’s.

By failing to defer to HARC’s reasonable interpretation of its own guidelines, the Circuit Court departed from the essential requirements of the law. Accordingly, even if we did not grant the Developer’s petition for writ of certiorari based upon the collateral estoppel issue, we would grant it based upon the Circuit Court’s failure to defer to HARC’s interpretation of its own guidelines.

Petition granted; writ quashed.

      . Section 1.06 of the Charter provides that "[t]here shall be an Historic Architectural Review Commission whose duties shall be prescribed by ordinance.”

      . Section 90-126 of the Code provides:
      The city commission finds that the preservation of the character and appearance of the historic preservation districts of the city, as well as buildings, structures, and properties listed in the local register of historic places and the National Register of Historic Places, and buildings, structures, archaeological sites, or districts classified as "contributing” or "contributing but altered” on the city historic preservation survey is a public purpose benefiting the educational, cultural, and economic welfare of the citizens of the city. The city commission further finds that this public purpose can be best achieved through a city agency having the authority and responsibility to review and regulate certain changes in such areas. The city commission hereby creates the historic architectural review commission (HARC), which shall use the power and authority conferred upon it by this Code to further such public purpose.

      . Res judicata does not apply to the instant case. Res judicata applies only when there is “[a] judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction....” Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984)(quoting Wade v. Clower, 94 Fla. 817, 114 So. 548 (1927))(emphasis added). "The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.” Albrecht v. State, 444 So.2d 8, 12 (Fla.1984), superseded on other grounds by statute. Here, the "cause of action" litigated before the City Commission and the Circuit Court was not the same as the "cause of action” litigated before HARC and the Special Master. This is because the City Commission evaluates a development plan based upon a completely different set of criteria than the criteria HARC considers in deciding whether or not to issue a certificate of appropriateness. As previously noted, HARC evaluates applications for certificates of appropriateness based upon guidelines that HARC itself issues. See City of Key West, Fla., Code of Ordinances § 102-155 (directing HARC to formulate and publish regulations to govern its evaluation of certificates of appropriateness). The City Commission, however, evaluates development plans based upon land development regulations and the comprehensive plan. See City of Key West, Fla., Code of Ordinances § 108-198 (requiring development plans to be reviewed by the city commission and providing that the commission shall approve or disapprove a development plan “based on specific development review criteria contained in the land development regulations and based on the intent of the land development regulations and the comprehensive plan”). As the criteria used by HARC to determine whether to issue a certificate of appropriateness and the criteria used by the City Commission to determine whether to approve a development plan analyze different facts, the causes of action are different. See Albrecht, 444 So.2d at 12.


text:
    Orett KERR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-524.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 2006.
    John H. Lipinski, Pembroke Pines, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GREEN and CORTIÑAS, JJ.
   PER CURIAM.

Orett Kerr appeals his convictions and sentences. We affirm in part and reverse in part.

Kerr was charged by information with, inter alia, one count of attempted first degree murder of a law enforcement officer. He was convicted on that count, however, of the lesser included offense of aggravated assault on a law enforcement officer. On appeal, Kerr asserts that it was fundamental error for him to be convicted and sentenced for aggravated assault where the information failed to allege that the victim had a well-founded fear of imminent violence, a required element of aggravated assault. See §§ 784.011, .021, Fla. Stat. (2003). Although defendant is correct as to the information’s deficiency, his conviction and sentence for aggravated assault do not constitute fundamental error because it is lesser in degree and penalty from the charged offense of attempted first degree murder of a law enforcement officer. See Ray v. State, 403 So.2d 956, 961 (Fla.1981) (“it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense.... ”).

In the instant case, the offense charged in the information (i.e., attempted first degree murder of a law enforcement officer) is a first degree felony. § 782.04(l)(a), Fla. Stat. (2003). The offense for which Kerr was convicted and sentenced (i.e., aggravated assault) is a third degree felony, § 784.021(2), Fla. Stat. (2003), reclassified to a second degree felony because the victim is a law enforcement officer. § 784.07(2)(c), Fla. Stat. (2003). Moreover, the charged offense carried a greater penalty than the offense for which Kerr was convicted. Hence, although the charge on the lesser included offense should not have been given to the jury, we cannot conclude that it was fundamental error to do so in this case. Ray; Sanders v. State, 912 So.2d 1286 (Fla. 2d DCA 2005), review granted, 919 So.2d 436 (Fla.2006); James v. State, 845 So.2d 996 (Fla. 5th DCA 2003); Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983) (en banc).

Defendant’s second issue asserts that the court erred when, in instructing the jury on the resisting an officer with violence charge, it included an instruction that defendant’s detention and arrest was a lawful execution of a legal duty. As the State properly conceded at argument, this was error. See Perry v. State, 861 So.2d 462 (Fla. 1st DCA 2003). We therefore reverse this conviction and remand for a new trial on this count.

Appellant’s remaining point lacks merit.

Affirmed in part; reversed in part.


text:
    Barbara Ann JACKSON, Appellant, v. Ladon ECHOLS, Appellee.
    No. 3D05-2375.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 2006.

      Lámelas & Carballo and Gustavo J. Lamelas, Miami, for appellant.
    Ladon Echols, in proper person.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   ON APPELLANT’S MOTION FOR CLARIFICATION

ROTHENBERG, Judge.

On July 19, 2006, we issued an opinion affirming the trial court’s order granting the appellee’s petition for a permanent injunction. Based upon the appellant’s timely filed motion for clarification filed pursuant to Florida Rule of Appellate Procedure 9.330, we withdraw our previously filed opinion and submit this opinion in its stead.

Ladon Echols (“Ms. Echols”) filed a Petition for Injunction for Protection Against Domestic Violence (“Petition”), pursuant to section 741.30, Florida Statutes (2005). On September 6, 2005, the trial court held a hearing to determine whether a permanent injunction should be imposed. As required by section 741.30(6)(h), Florida Statutes (2005), the hearing was recorded. Following the hearing, the trial court granted the Petition, thereby imposing a permanent injunction. This appeal followed.

In preparation of this appeal, the appellant requested the hearing transcript from the designated reporter. In response, the designated reporter filed an affidavit, stating that the hearing was recorded, but that the audio recording was “missing due to technical difficulties.” As the transcript was unavailable through no fault of the appellant, we relinquished jurisdiction to afford the appellant an opportunity to obtain, if possible, a statement of the evidence, as provided in Florida Rule of Appellate Procedure 9.200(b)(4), which provides as follows:

If no report of the proceedings was made, or if the transcript is unavailable, the appellant may- prepare a statemeht of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments to it within 10 days of service. Thereafter, the statement and any objections or proposed amendments shall be submitted to the lower tribunal for settlement and approval. As settled and approved, the statement shall be included by the clerk of the lower tribunal in the record.

In compliance with this court’s order, the appellant submitted her proposed statement of the evidence. As did the appellee, Ms. Echols, the trial court disagreed with and disputes appellant’s recollection of the proceedings.

The appellant argues in this appeal that the trial court abused its discretion in imposing a permanent injunction. The trial court is afforded broad discretion in granting, denying, dissolving, or modifying injunctions, and unless a clear abuse of discretion is demonstrated, an appellate court must not disturb the trial court’s decision. Wise v. Schmidek, 649 So.2d 336, 337 (Fla. 3d DCA 1995). As the transcript of the hearing or á statement of the evidence is necessary to provide meaningful appellate review of this issue, and the appellant has been unable to provide one, we are unable to determine whether the trial court abused its discretion, and, therefore, we must affirm. See Miguez v. Miguez, 824 So.2d 258, 259 (Fla. 3d DCA 2002) (“[BJecause there is neither a transcript of the evidentiary hearing nor a stipulated statement of the evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(4), we are unable to determine whether the trial court abused its discretion. We must, therefore, affirm.”).

The appellant additionally contends that the trial court erred by issuing the permanent injunction where the face of the Petition demonstrates that there was no factual basis for the imposition of the permanent injunction. As the transcript of the hearing or a statement of the evidence is not necessary for the determination of this issue, we will address it.

Specifically, the appellant argues that the trial court could not have imposed the domestic violence permanent injunction because the Petition indicates that the parties were no longer living together when the alleged violence occurred and because the Petition does not indicate that the parties lived together “as if a family.” We disagree.

“Domestic violence” is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” § 741.28(2), Fla. Stat. (2005). In addition, “family or household member” is defined, in part, as follows: “persons who are presently residing together as if a family or who have resided together in the past as if a family .... With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.” § 741.28(3), Fla. Stat. (2005)(emphasis added). Based on these definitions, the fact that the parties were no longer living together at the time when the alleged violence occurred is irrelevant because the Petition clearly indicates that the parties resided together in the past. Further, we also find that the Petition sufficiently alleges that the parties lived together “as if a family,” where the petitioner asserted that the respondent is “any other person who is or was residing within a single dwelling unit with the Petitioner, as if a family,” and further specified that the respondent was the petitioner’s “ex live-in girlfriend.” We find that an “ex live-in girlfriend” satisfies the “as in a family” requirement. Therefore, we conclude that the face of the Petition sufficiently demonstrates that there was a factual basis for the imposition of the permanent injunction. Accordingly, we affirm the order under review.

Affirmed.

      . Section 741.30(6)(h), Florida Statutes (2005), provides as follows: "All proceedings under this subsection shall be recorded. Recording may be by electronic means as provided by the Rules of Judicial Administration.”


text:
    HONEYWELL INTERNATIONAL, INC., f/k/a Allied Signal; Genuine Parts Company; Mack Trucks, Inc.; International Truck and Engine Corporation; Ford Motor Company; General Motors Corporation; Daimler-Chrysler Corporation; Freightliner, LLC; Borg-Warner Corporation; and Pneumo Abex LLC, Appellants, v. James C. PARSONS, Appellee.
    Nos. 4D05-4717, 4D05-4719, 4D05-4814, 4D05-4815, 4D06-1377.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2006.
    Jack Reiter, Anthony Upshaw and Julie Feigeles of Adorno & Yoss LLP, Miami, for Appellant-Honeywell International, Inc.
    Steven L. Brannock and Maegen Peek Luka of Holland & Knight LLP, Tampa, and Thomas M. Burke, Chris N. Kolos, and Chris Annunziato of Holland & Knight LLP, Orlando, for Appellants-Mack, Inc. and International Truck and Engine Corporation.
    Nancy W. Gregoire of Bunnell, Woulfe, Krischbaum, Fort Lauderdale, and M. Stephen Smith of Rumberger, Kirk & Caldwell, P.A., Miami, for Appellants-Ford Motor Corporation and General Motors Corporation.

      Jeffrey M. Bell and Timothy Ferguson of Bell & Melamed, L.L.C., Fort Lauder-dale, for Appellant-DaimlerChrysler Corporation.
    Virginia Easley Johnson of Foley & Mansfield, Miami, for Appellant-Borg-Warner Corporation.
    Evelyn M. Fletcher, Brenda Godfrey and France Spinthourakis of Hawkins & Parnell, LLP, Atlanta, for Appellant-Pnuemo Abex LLC.
    David A. Jagolinzer and Case A. Dam of The Ferraro Law Firm, Miami, for appel-lee.
   PER CURIAM.

Upon review of the record, we cannot conclude that there was reversible error or an abuse of trial court discretion. We have considered the cases cited by Appellants, but deem them distinguishable. Therefore, the non-final order is affirmed.

STONE, SHAHOOD and HAZOURI, JJ., concur.


text:
    Bearley RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4362.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2006.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The trial court’s order denying Appellant’s motion to withdraw plea is affirmed without prejudice to pursue post-conviction relief.

Affirmed.

GUNTHER, FARMER and Gross, JJ., concur.


text:
    Lazaro Rubina PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1109.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 2006.

      Lazaro Rubina Perez, in proper person.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   CONFESSION OF ERROR

ROTHENBERG, Judge.

The defendant, Lazaro Rubina Perez (“Perez”), appeals from the trial court’s denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Based upon the State’s proper confession of error, we reverse and remand for a reduction of the defendant’s sentence in count 2 for attempted burglary of an unoccupied dwelling in case number 92-13630(A).

On August 3, 1992, Perez entered into a negotiated plea with the trial court wherein he agreed to plead guilty to criminal mischief (count 1) and attempted burglary of an unoccupied dwelling (count 2) in exchange for a suspended sentence on count 1 and a ten-year sentence on count 2, which would be mitigated to three and one-half years upon his surrender from an agreed upon seven-day furlough. When Perez failed to surrender and absconded, the ten-year sentence became self-executing.

After Perez was arrested in the State of New York and extradited to Florida to serve his sentence, he filed a 3.800(a) motion, contending that his sentence was unlawful for reasons not relevant to this appeal. That motion was denied on July 13, 2003. Thereafter, on April 22, 2005, Perez filed the instant motion wherein he argued that the ten-year sentence imposed for attempted burglary of an unoccupied dwelling was illegal as it exceeds the statutory maximum. We agree. While burglary of an unoccupied dwelling is a second degree felony, Perez was charged with and convicted of an attempted burglary of an unoccupied dwelling, which pursuant to section 777.04(4)(e), Florida Statutes (1991), reduces the offense to a third degree felony, carrying a maximum sentence of five years incarceration. Accordingly, we reverse the trial court’s March 24, 2006 order denying relief and remand for a reduction in the sentence imposed in count 2 for attempted burglary of an unoccupied dwelling from ten years to five years. The defendant need not be present.

Reversed and remanded.


text:
    Z.C., Mother of L.M., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-1468.
    District Court of Appeal of Florida, Fifth District.
    Sept. 28, 2006.

      Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   PER CURIAM.

Z.C., the mother, timely appeals the trial court’s order terminating her parental rights to her daughter, L.M. It would serve no useful purpose to recite the tragic facts of this case that demonstrate egregious abuse inflicted upon L.M.’s siblings. Suffice it to say that our review of the record supports the trial judge’s conclusion that the termination of Z.C.’s parental rights is in the manifest best interests of L.M. and is the least restrictive means of preventing harm to the child. See M.H. v. Dep’t of Children & Families, 866 So.2d 220 (Fla. 1st DCA 2004). Accordingly, we affirm the judgment.

AFFIRMED.

PLEUS, C.J., GRIFFIN and ORFINGER, JJ., concur.


text:
    Lionel D. BOWDEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2491.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 2006.
    Lionel Bowden, Perry, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Because an issue regarding a sentence that purportedly exceeds the terms of a plea is not a sentencing error that is subject to relief under rule 3.800(a), Florida Rules of Criminal Procedure, we affirm. Cf. Barber v. State, 901 So.2d 364 (Fla. 5th DCA 2005).

AFFIRMED.

GRIFFIN, SAWAYA and MONACO, JJ., concur.


author: CANADY, Judge.

text:
    Michael GOLDSMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2756.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2006.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

Michael Goldsmith appeals the trial court’s order denying his Florida Rule of Criminal Procedure 3.170(i) motion to withdraw plea. Goldsmith contends the trial court erred both in denying his motion and in denying — without conducting a Faretta inquiry — his request to represent himself. Because we conclude that the trial court erred by denying Goldsmith’s request for self-representation without conducting the appropriate inquiry, we need not reach Goldsmith’s argument that the trial court wrongfully denied his motion to withdraw plea.

I. Background

Goldsmith was charged with robbery, attempted robbery, possession of cocaine, and resisting an officer without violence. During the time leading up to trial, Goldsmith was found incompetent to proceed. However, at the change of plea hearing, the trial court determined Goldsmith’s competency had been restored and vacated the prior order of incompetency. The trial court then accepted Goldsmith’s plea, adjudicated him guilty, and imposed sentence.

Eight days after sentencing, Goldsmith filed a pro se pleading titled “Motion to Withdraw Plea and Notice of Appeal.” A few weeks later, Goldsmith filed an amended pro se motion to withdraw his plea in which he asserted that his medication had been changed just two days prior to the change of plea hearing and he had been experiencing side effects from the medication, including nausea and confusion. Goldsmith also alleged that his trial counsel, Brent Armstrong, (1) knew about the side effects but failed to inform the trial court, (2) never informed Goldsmith about the change of plea motion, (3) coerced Goldsmith to go through with the change of plea and threatened him with the possibility of a long prison sentence if he did not change his plea, and (4) failed to file a motion to suppress and a motion to dismiss the charges. Finding the motions to be facially sufficient, the trial court appointed conflict-free counsel, Serbo Simeoni.

At the hearing on the motions to withdraw plea, Simeoni informed the court that Goldsmith wished to speak against Si-meoni’s advice. When the court asked Goldsmith if he was ready to proceed, Goldsmith stated he was not. Instead, Goldsmith asserted that he needed a handwriting expert to prove his claim that Armstrong had forged Goldsmith’s initials on the change of plea form. Goldsmith further asserted that Simeoni misled him to believe that a motion for appointment of a handwriting expert had already been filed. Goldsmith then asked the court to remove Simeoni and appoint different counsel. When the court denied Goldsmith’s request, Goldsmith stated he would proceed pro se and he began to ask the court aboüt his motion for a continuance to obtain a handwriting expert. From the record, it appears the trial court interrupted Goldsmith by stating, “That motion is denied.” However, the trial court apparently did not directly address Goldsmith’s request to proceed pro se.

The hearing continued with Simeoni continuing to represent Goldsmith. After Armstrong testified, Goldsmith again asserted his right to self-representation, but the trial court informed him that his attorney was handling the case. When Goldsmith argued that he had a right to self-representation, the trial judge stated: “Sir, I’m not in a position to be arguing with you. If you have a question, have your attorney ask it.” Goldsmith continued to argue that he had a right to handle his case pro se, but the trial court ignored the request and stated, “Apparently, there are no further questions.”

At the conclusion of a brief recess, Si-meoni once more informed the trial court that Goldsmith was dissatisfied with Si-meoni’s handling of the case and that Goldsmith wanted to proceed pro se. The trial judge stated: “I understand what his desire is. We are proceeding with counsel at this time.”

After testimony from an examining psychiatrist, Simeoni advised the trial court yet again that Goldsmith “does not feel I’m adequately representing his interests and wishes to proceed pro se.” The trial court noted the request, and Goldsmith then asserted his own competency and his desire to represent himself. The trial judge then stated: “Sir, I have already ruled on your request to represent yourself. It’s been denied.”

At the end of the hearing, the trial court instructed the attorneys to submit written closing argument. The following day, Goldsmith submitted a written pleading again asserting his desire to waive counsel and proceed pro se in the closing argument stage. The trial court took no action on the request. Instead, after the attorneys submitted their memoranda, the trial court entered a written order denying Goldsmith’s motion to withdraw plea.

In seeking a new evidentiary hearing, Goldsmith argues that he was forced to utilize the services of Simeoni despite his repeated requests to represent himself and that this error was compounded by the fact that the trial court failed to conduct a Faretta inquiry — that is, an inquiry concerning whether the waiver of assistance of counsel was made knowingly and intelligently — thereby violating his constitutional rights.

The State asserts that Goldsmith failed to initially ask to represent himself and failed to allege that Simeoni’s representation was inadequate, thereby precluding the need for a Nelson inquiry — that is, an inquiry concerning “whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant.” Nelson v. State, 274 So.2d 256, 259 (Fla. 4th DCA 1973). The State does not attempt to justify the trial court’s failure to conduct a Faretta inquiry and instead suggests that this court must determine whether that omission was erroneous.

II. Analysis

“The United States Supreme Court has determined that a'defendant in a state criminal trial has the constitutional right of self-representation and may forego the right of assistance of counsel.” State v. Young, 626 So.2d 655, 656 (Fla.1993) (relying on Faretta v. California, 422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). The right to self-representation is personal, and a defendant’s choice “must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ ” Faretta, 422 U.S. at 834, 95 S.Ct. 2525 (citing Illinois v. Allen, 397 U.S. 337, 350-351, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring)). “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).

The right to self-representation applies at any critical stage in the proceedings, see Kearse v. State, 858 So.2d 348 (Fla. 1st DCA 2003), and a motion to withdraw plea constitutes such a critical stage, see Mattia v. State, 907 So.2d 683 (Fla. 2d DCA 2005).

Following the decision in Faretta, the Florida Supreme Court adopted Florida Rule of Criminal Procedure 3.111(d)(2), which provides that when a defendant seeks to waive assistance of counsel,- the trial court must conduct a thorough inquiry “into both the accused’s comprehension of that offer and the accused’s capacity to make a knowing and intelligent waiver.” Trial courts are also required to instruct defendants about the disadvantages and dangers associated with self-representation. See id. Most importantly, however, “[r]egardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent himself ... if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel.” Fla. R.Crim. P. 3.111(d)(3) (emphasis added).

Accordingly, both ease law and the rule require a trial court to inquire whether the defendant is knowingly and intelligently waiving the right to court-appointed counsel; a trial court’s failure to do so constitutes reversible error. See Young, 626 So.2d at 657. Reversal is required where a defendant unequivó-cally requests to represent himself and the trial court denies the request without determining — after conducting a proper Faretta inquiry — that the choice of self-representation was not made knowingly and intelligently. See Hutchens v. State, 730 So.2d 825, 826-27 (Fla. 2d DCA 1999); Kearse, 858 So.2d at 349.

Here, the record is clear that the trial court failed to conduct any inquiry despite the fact that Goldsmith repeatedly requested to represent himself four times at the motion hearing and made a subsequent written request. “Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis. The right is either respected or denied; its deprivation cannot be harmless.” McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); see also Young, 626 So.2d at 657 (holding that harmless error doctrine does not apply when court omits Faretta inquiry); Hutchens, 730 So.2d at 826 (same).

III. Conclusion

We therefore hold that the trial court committed reversible error by denying Goldsmith’s request to represent himself. Without conducting a proper Faretta inquiry, the trial court had no basis for determining that Goldsmith should not be permitted to exercise his constitutional right of self-representation. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and CASANUEVA, JJ., Concur.

      . Faretta v. California, 422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: FULMER, Chief Judge.

text:
    In the Interest of C.R., a child. G.R., Appellant, v. Department of Children and Family Services, Appellee. In the Interest of J.A., J.A., and C.R., children. G.R., Appellant, v. Department of Children and Family Services, Appellee.
    Nos. 2D05-1192, 2D05-1323.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2006.

      Norman A. Palumbo, Jr., Tampa, for Appellant G.R., the Father.
    James F. Cummins, Tampa, for Appellant, G.R., the Mother.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Christopher Perone, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Chief Judge.

In case number 2D05-1192, the Father, G.R., appeals an adjudication of dependency as to his daughter, C.R. In case number 2D05-1323, the Mother, whose initials are also G.R., appeals an adjudication of dependency as to C.R. and her two sons, J.A. and J.A., by her former husband, who is not a party. For clarity, the older and younger sons will be designated Je.A. and Jo.A., respectively. Because we conclude that the evidence was legally insufficient to support the adjudications, we reverse the trial court’s Corrected Order of Dependency Adjudication and Disposition as to both the Father and the Mother.

Facts and Procedural History

According to the Father’s testimony, he and the Mother had been married since September or October 2003. The Father, the Mother, and the Mother’s two sons, Je.A. and Jo.A., were residing together in late February 2004, when the events giving rise to this dependency action took place. One evening the younger son, Jo. A., who was three years old at the time, was put in his bedroom for crying. After a few minutes, the Mother asked the Father to cheek on Jo.A. The Father testified that he noticed that Jo.A. had wet his pants, so he lifted the child up off the bed, swung him around, and pointed him to the door, to get him to go into the bathroom and change clothes. As he was placing or about to place Jo.A. on the floor, the Father said he heard a loud pop. He knew something was wrong, so he took Jo.A. out to the other room where the Mother was. The Mother did not witness what happened in the bedroom. The Father and Mother immediately drove Jo.A. to a Plant City hospital where the emergency room staff determined Jo.A. suffered a spiral fracture to his left femur. The nature of the injury required Jo.A. to be transferred to St. Joseph’s Hospital in Tampa for treatment. There, he was seen by a pediatric orthopedic surgeon, put in a cast, and released.

At the Plant City hospital, the Father and Mother were interviewed by a Department of Children and Family Services child protective investigator (CPI). A sheriffs deputy also talked to the Father, who declined to speak post-Miranda, and the Mother. The Father testified that he was later charged with aggravated child abuse but the charge was dropped. Jo.A. and Je.A. were sheltered as a result of the incident. C.R., who was born several months after the incident, was also sheltered shortly after birth.

The Department filed a First Amended Petition for Adjudication of Dependency alleging that the Father abused and used inappropriate or excessively harsh discipline against his stepson Jo.A., that the Mother negligently failed to protect Jo.A., that the Mother knew of the Father’s violent tendencies but “chose to ignore the potential hazards to the children,” and that the children were in danger of threatened harm from the Father. At the adjudicatory hearing, testimony was elicited from the Father and the Mother, the intake nurse at the first hospital, the sheriffs deputy, the treating physician at St. Joseph’s hospital, a successor CPI not directly involved in the investigation of the case, the Father’s former probation officer, and a nurse with the Child Protection Team (CPT). Also received into evidence was a deposition taken of the regional medical director of the CPT. Following the hearing, the three children were adjudicated dependent — C.R. as to the Father and Mother, and Jo.A. and Je.A. as to the Mother only.

In its Corrected Order of Dependency; the trial court found that the Father “used excessive and inappropriate punishment on [Jo.A.]” and that the Mother “failed to protect [Jo.A.] from excessivé and inappropriate punishment or abuse by her husband.” With respect to the threatened-harm allegation, the court found, as to the Mother, that “[d]ue to the failure to protect and the failure to cooperate with the Department, the other children are at risk for prospective abuse or harm.” As to the Father, the court found that “[d]ue to the severity of the injury to the child and the failure to cooperate with the Department, the other children are at risk for prospective abuse or harm.”

Discussion

The Department is required to establish a child’s state of dependency by a preponderance of the evidence. § 39.507(l)(b), Fla. Stat. (2003); Fla. R. Juv. P. 8.330(a). “A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record.” In re M.F., 770 So.2d 1189, 1192 (Fla.2000).

We conclude that the trial court properly found that the Father abused Jo.A. in the incident in which Jo.A.’s femur was broken. Key testimony was provided in a deposition by the CPT’s regional medical director, who opined that none of the explanations of the incident provided by the Father could explain an injury as severe as a spiral fracture to the child’s femur.

However, we must also conclude from our review of the record that the evidence presented by the Department was not legally sufficient to support the trial court’s finding that the Mother failed to protect Jo.A. or the other children from the Father’s abuse. A “[c]hild who is found to be dependent” is one found by the court “[t]o have been abandoned, abused, or neglected by the. child’s parent or parents or legal custodians[.]” § 39.01(14)(a). “ ‘Abuse’ means any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes acts or omissions.” § 39.01(2). In turn, “ ‘[h]arm’ to a child’s health or welfare can occur when any person ... [njegligently fails to protect a child in his or her care from inflicted physical, mental, or sexual injury caused by the acts of another.” § 39.01(30)(j) (emphasis added).

Although somewhat mixed, the case law addressing failure-to-protect findings in the dependency context indicates that the Department must demonstrate that the parent who allegedly failed to protect the child knew or should have known that the abusive person was engaging, in the abuse. In In re J.A.H., 876 So.2d 647, 648 (Fla. 2d DCA 2004), for example, we concluded that the trial court’s adjudication of dependency was proper when “competent, substantial evidence was presented that the mother knew of the grandfather’s propensity to abuse the child but nonetheless permitted them to be together without direct and continuous supervision” (emphasis added). In A.B. v. Florida Department of Children & Family Services, 901 So.2d 324 (Fla. 3d DCA 2005), the court affirmed a finding of dependency as to the mother for failing to protect her teenage daughter from the stepfather’s sexual abuse when the daughter had informed the mother of the situation and the mother’s response was to suggest prayer, fasting, and locking the bedroom door. In A.R. v. Department of Children & Families, 784 So.2d 622 (Fla. 5th DCA 2001), in which two children were adjudicated dependent as to their mother after the mother’s youngest child died of shaken baby syndrome at the hands of the child’s father while the mother was at work, the court reversed, stating:

The Department concedes that no evidence was presented that [the mother] knew or should have known that [the father] constituted a danger to [the baby] and that [the mother] failed to protect [the baby]. The Department was relegated to showing that [the other two children] were at substantial risk of imminent abuse, abandonment or neglect by the mother.

Id. at 623.

Even in the absence of direct proof that a parent knew of the abuse of a child, courts have affirmed findings that the abuse could not possibly have occurred without the parent’s knowledge. For example, in S.P. v. Department of Children & Families, 866 So.2d 1253 (Fla. 5th DCA 2004), one of the mother’s two children suffered numerous injuries caused by a sharp instrument. The mother claimed that, after hearing screams from this child, she found the other child, who was only four years old, holding a coat hanger. Expert testimony disclosed that the latter child could not have caused the injuries. Notwithstanding the mother’s argument that there was no evidence that it was she who caused the injuries, the appellate court concluded that the trial court’s finding that “the abuse could not have occurred without the mother’s knowledge” was supported by the evidence. Id. at 1254-55.

Also instructive is R.S. v. Department of Children & Families, 831 So.2d 1275 (Fla. 4th DCA 2002), a termination of parental rights case in which the court wrote:

In order for the father to have failed to protect, there must have been evidence that he had the capability to prevent the abuse. This by necessity requires proof that he knew or should have known of the mother’s conduct [dropping their four-month-old child on his head and hitting him on the face with her hand] and resulting injury to [the child].

Id. at 1278. This statement is based on section 39.806(l)(f), which lists as a ground for termination the situation in which a parent “had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child_” “Egregious conduct” includes abuse, abandonment, and neglect. § 39.806(l)(f)(2). Although the definition of failure to protect applicable to dependency proceedings is worded differently, see § 39.01(30)®, we believe that it is logical in the dependency context as well to require proof that the parent who is alleged to have failed to protect the child knew or should have known that the offender would engage in the abusive conduct.

Our review of the trial court’s finding that the Mother failed to protect Jo.A. is made difficult by the lack of evidence that could provide a context to the incident. The Department presented evidence of only one incident of abuse, albeit a serious incident. There was no testimony concerning any abuse of the older son, Je.A., or of any signs of other abuse on the body of Jo.A., such as bruising or old fractures that had healed. The Department presented no testimony from anyone who might have observed the family’s mode of living, the parents’ disciplinary practices, and so forth. In short, there was no evidence that the Mother knew or should have known whether the Father had a propensity toward abuse. As such, we believe that the trial court lacked a basis for finding that the Mother failed to protect Jo.A. from the Father.

The Department’s appellate brief addresses the failure-to-protect issue in cursory fashion, citing no case law on this issue and focusing on supposed inconsistencies in the Mother’s statements regarding the cause of Jo.A.’s injury, thus calling into question the Mother’s credibility. The trial court’s Corrected Order of Dependency also states that the Mother’s statements were inconsistent, but does not specify how. Moreover, neither the court nor the Department explains how such inconsistencies would necessarily compel the finding that the Mother failed to protect Jo.A. The Mother and Father consistently stated that the Mother was not in the bedroom when the incident with Jo.A. occurred; she knew what she knew only from what the Father reported to her. The treating physician at St. Joseph’s Hospital testified that the Mother’s story was that the Father “moved the child from the bed to the floor.” The physician acknowledged that he was not given any more detail from the Mother on the child’s movement. The Father’s probation officer testified that the Mother’s version of the incident was that the Father “laid [Jo.A.] down gently by the hip area and then there was a pop sound.” These stories are not inconsistent; rather, they complement each other. We conclude that the evidence presented was legally insufficient to support the trial court’s finding that the Mother failed to protect Jo.A.

As for the trial court’s findings that the children would be at risk of prospective abuse or harm from the Father and the Mother, the relevant statutory provision is that a “[c]hild who is found to be dependent” includes one who is found by the court “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” § 39.01(14)(f) (emphasis added). Dependency can be found in the context of prospective abuse based on proof of abuse of other children, Denson v. Dep’t of Health & Rehabilitative Servs., 661 So.2d 934, 935 (Fla. 5th DCA 1995), in particular siblings, In re C.M., 844 So.2d 765, 766 (Fla. 2d DCA 2003). However,

the evidence must demonstrate a nexus between the abuse and any prospective abuse to another sibling. O.S. v. Dep’t of Children & Families, 821 So.2d 1145 (Fla. 4th DCA 2002); D.H. v. Dep’t of Children & Families, 769 So.2d 424 (Fla. 4th DCA 2000). Generally, this nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness, drug addiction, or pedophilia, and which will make it highly probable that in the future the parent will abuse or neglect another child. D.H., 769 So.2d at 427. See Gaines v. Dep’t of Children & Families, 711 So.2d 190 (Fla. 5th DCA 1998) (stating that to establish nexus the Department must produce evidence that the parent’s behavior was beyond his control, was likely to continue, and placed the children at risk).

C.M., 844 So.2d at 766; see also M.F., 770 So.2d at 1194 (“A simple showing by [the Department] that a parent committed a sex act on one child does not by itself constitute proof that the parent poses a substantial risk of imminent abuse or neglect to the child’s sibling, as required by the statute.”). In short, the mere fact that a parent has abused one child does not, alone, constitute sufficient evidence for a finding of dependency as to another child with respect to that parent.

In D.H. v. Department of Children & Families, 769 So.2d 424 (Fla. 4th DCA 2000), the appellant had a daughter with his girlfriend and also took care of the girlfriend’s other child. On one occasion the appellant kicked the girlfriend’s child in the head. The trial court found that this incident constituted abuse and that the appellant’s daughter was dependent as to the appellant based on a prospective-abuse theory. Id. at 425-26. On appeal, however, the Fourth District concluded that no nexus was proven between the act of abuse to the girlfriend’s child and any prospective abuse to the appellant’s daughter, and reversed the adjudication of dependency. The court based its conclusion on the fact that there was only a single incident of abuse and on the lack of testimony that the appellant had a mental or emotional condition indicating a probability that he would be abusive toward his own daughter. Id. at 427-28.

Here, the situation surrounding the Father and C.R. is similar. The trial court properly found that the Father abused Jo.A. on the one occasion. However, there was no evidence of the nexus factors listed in Gaines v. Department of Children & Families, 711 So.2d 190, 193 (Fla. 5th DCA 1998): that the behavior of the Father was beyond his control, that the behavior was likely to continue, and that the single incident of abuse to Jo.A. placed C.R. at risk. The Department presented no evidence on any psychological condition that the Father might have that would indicate a likelihood of ongoing abuse. Indeed, as noted previously, there was no evidence of any other incidents of abuse to any of the children.

Because the Department failed to establish a nexus between the Father’s abuse of Jo.A. and prospective abuse by the Father against C.R. and to adduce evidence of the Mother’s failure to protect Jo.A., it follows that any prospective-abuse theory as to the Mother and the children must fail. We therefore reverse the trial court’s Corrected Order of Dependency Adjudication and Disposition as to the Father and C.R., and as to the Mother and Je.A., Jo.A., and C.R.

Reversed and remanded.

CASANUEVA and STRINGER, JJ., Concur.

      . Over objection, the probation officer testified that the offense underlying the Father's probation was driving while license suspended.

      .Jo.A. and Je.A. could not be found dependent as to the Father because of the way in which dependency is defined in the statute. See § 39.01(14)(a), (f), Fla. Stat. (2003) (defining dependency in terms of abuse, imminent abuse, etc., by a child's parents or legal custodians) and § 39.01(33), (49) (defining "legal custody” and "parent”). Here, the Father was neither the parent nor the legal custodian of his two stepsons.

      . The trial court made no specific finding on the allegation that the Mother knew of the Father’s violent tendencies but chose to ignore the potential hazards to the children.

      . Such a knowledge requirement is consistent with the general principles of negligence in the tort context. See, e.g., Springer v. Morris, 74 So.2d 781, 785 (Fla.1954) ("The prime foundation of liability in negligence cases is knowledge — or what is deemed to be in law the same thing, opportunity by the exercise of reasonable diligence to acquire knowledge of the peril which subsequently results in injury. Fault on the part of the defendant is to be found in his action or nonaction accompanied by knowledge, actual or implied, of the probable results of his conduct contemporaneous with the infliction of injury[.]” (citation and internal quotation marks omitted)).

      . Because the only child found dependent as to the Father was C.R., we need not discuss the prospective-abuse theory as it might apply to the relationship between the Father and his stepsons Je.A. and Jo.A.