author: ALTENBERND, Judge.

text:
    Donald Bradford MEEKS, Appellant, v. Michele McCoy MEEKS, Appellee.
    No. 2D06-4505.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 2007.

      Edward C. Royer of Florida Law Group, L.L.C., Tampa, for Appellant.
    Michele McCoy Meeks, pro se.
   ALTENBERND, Judge.

Donald Bradford Meeks appeals the final judgment of dissolution of his marriage to Michele McCoy Meeks. We affirm and write only to discuss language placed in the judgment improperly opining on the future dischargeability of certain obligations owing by Mr. Meeks to his wife.

This divorce involves a twenty-three-year marriage with no minor children and limited assets. It should have been a relatively simple proceeding. Unfortunately, Mr. Meeks unilaterally liquidated a retirement account worth $77,643.87. He moved to Georgia and did not fully comply with the discovery process or with an order prohibiting the dissipation of marital assets.

In the final judgment, the trial court awarded Mrs. Meeks $10,000 that had been in a joint AmSouth bank account and which Mr. Meeks claimed he had transferred to a Wachovia checking account in Georgia. He was ordered to pay this amount to his wife by August 4, 2006. The final judgment states that this amount is lump sum alimony and that the “Lump Sum Alimony is not Dischargeable in bankruptcy.”

Mr. Meeks was also ordered to pay Mrs. Meeks $35,000 as her share of the retirement account. Because he had dissipated this account and earns approximately $60,000 annually, the trial court permitted Mr. Meeks to pay the $35,000 in monthly installments of $500 including interest. Again the judgment opines: “Said debt by the husband to the wife is not Discharaga-ble [sic] by the Husband in bankruptcy.”

Mr. Meeks challenges the trial court’s authority to declare these amounts nondischargeable and claims that they should be dischargeable. We conclude that the trial court did not have the authority to make any binding legal ruling concerning the dischargeability of these debts in any future bankruptcy proceeding that might be filed by Mr. Meeks. The trial judge’s predictions might be an accurate statement of current federal law in light of recent changes in bankruptcy law, but the statements are premature and advisory, at best. As such, we order these provisions stricken from the final judgment on remand.

Bankruptcy law concerning the dis-chargeability of obligations created in dissolution of marriage judgments is complex. The bankruptcy code allows certain debts to be excepted from bankruptcy discharge, including some domestic support obligations. 11 U.S.C. § 523(a) (2000 & Supp. V. 2005). Prior to the 2005 amendments to the bankruptcy code, true support obligations owing to a spouse or family member were generally not dischargeable, but obligations relating to equitable distribution were dischargeable. De Lapouyade v. De Lapouyade, 711 So.2d 1202, 1205 (Fla. 2d DCA 1998) (citing to 11 U.S.C. § 528(a)(5), (15)).

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPC-PA), Pub.L. No. 109-8, § 215, 119 Stat. 23, 54 (Apr. 20, 2005), significantly changed the rules concerning the dischargeability of obligations created in dissolution judgments under § 528(a)(5) and (a)(15). It eliminated the former exceptions to non-dischargeability in those sections and expanded the scope of support obligations to include all domestic support obligations. Id. Though the interplay of these revised sections has not yet been interpreted in the case law, some commentators have stated that

[ejssentially, the combination of amended § 523(a)(5) and (15) would be to exclude from discharge all marital and domestic relations obligations, whether support in nature, property division, or hold-harmless, provided that they were incurred in the course of a divorce decree, or other order of a court of record or a determination made in accordance with state or territorial law by a governmental unit.

Hon. William Houston Brown and Lawrence R. Ahern, III, 2005 Bankruptcy Reform Legislation with Analysis, 63 (Thomson/West 2005); see generally Lynne F. Riley and Maria C. Furlong, The Complex Intersection of Divorce and Bankruptcy in the 21st Century, 16 J. Bankr. L. & Prac. 2 Art. 1 (2007).

We are not holding that § 523(a)(5) or (15) prevents the discharge of equitable distribution obligations in Florida or in this specific case. We highlight these changes primarily to caution Florida lawyers that earlier Florida case law may no longer accurately portray current federal bankruptcy law.

The problem with the trial court’s judgment is that it reached an issue of federal law that is not yet ripe for consideration. See Thompson v. Thompson, 811 N.E.2d 888, 912 (Ind.Ct.App.2004) (stating that determinations of discharge-ability may only be answered after a bankruptcy petition is filed). A state trial court is free to place language in a judgment to memorialize factual determinations or legal rulings on questions of state law that may later assist a bankruptcy court in deciding, as a matter of federal law, the dischargeability of obligations created by the judgment. However, the law does not allow a state court to decide the federal issue of discharge prior to the filing of any bankruptcy proceeding. Id. Accordingly, we order those determinations stricken from this judgment.

Affirmed with instructions.

KELLY and CANADY, JJ., Concur.

      . We note that Mr. Meeks is challenging the dischargeability of a $10,000 obligation that he was required to pay to Mrs. Meeks more than a year ago. Had he complied with the judgment — and he testified that he had the ability to pay this amount — the issue of dis-chargeability would be moot. From our record and from Mrs. Meeks’ representations at oral argument, it would appear likely that Mr. Meeks has not complied with any of his obligations under this final judgment, including his obligation to pay monthly permanent periodic alimony for Mrs. Meeks' support. If Mrs. Meeks were represented by an attorney, it is likely that her attorney would have sought the dismissal of this appeal for Mr. Meeks’ failure to comply with this support obligation within the judgment. See Gazil v. Gazil, 343 So.2d 595, 597 (Fla.1977); Keidaish v. Smith, 400 So.2d 90, 91 (Fla. 2d DCA 1981).

        . The bankruptcy court is not necessarily obligated to accept a state court’s findings of fact or conclusions of law. See In re McNierney, 97 B.R. 648, 650 (Bankr.S.D.Fla.1989) (stating state court dissolution order "containing the word 'support obligation’ is neither binding upon nor persuasive to” the bankruptcy court in determining nondischargeability). This is yet another complex bankruptcy issue that is beyond the scope of this opinion.

      . If a bankruptcy proceeding has actually been filed and a related state court proceeding is pending, the state trial court can have concurrent jurisdiction with a bankruptcy court to determine the dischargeability of debts. Huey v. Huey, 643 So.2d 1141, 1142 (Fla. 4th DCA 1994) (citing Fortner v. Fortner, 631 So.2d 327, 329 (Fla. 2d DCA 1994)). This case, however, does not involve an issue of concurrent jurisdiction.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Edward DOLANSKY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1875.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2007.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant, and Edward Dolansky, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his conviction and sentence on three grounds. We affirm two of those grounds without discussion. However, we agree with Appellant’s argument that the trial court reversibly erred by sentencing him to life in prison as a prison releasee reoffender (PRR) and to 40 years in prison as a habitual felony offender (HFO) on the same count. Consequently, for the reasons discussed below, Appellant’s sentence as an HFO is reversed and remanded.

Section 775.082(9)(a)3, Florida Statutes (2004), provides that once a defendant is determined to be a PRR, he must be sentenced in accordance to .the sentencing scheme set out in subsections (a) through (d). See id.; see also Walls v. State, 765 So.2d 783, 734 (Fla. 1st DCA 2000). Section 775.082(9)(e) provides: “Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law.” Id. (emphasis added); see also Walls, 765 So.2d at 734. Thus, trial courts retain discretion to deviate from the PRR statutory sentencing scheme by imposing greater sentences under the HFO statute. See Walls, 765 So.2d at 734.

Here, Appellant was convicted of armed robbery, a first-degree felony punishable by life in prison. See § 812.13(2)(a), Fla. Stat. (2004). The PRR sentence for that crime is life in prison. See § 775.082(9)(a)(3)(a), Fla. Stat. (2004). Under the HFO statute, section 775.084(4)(a)(l), Florida Statutes (2004), life and first-degree felonies are punishable by a term of life imprisonment. See id.

Appellant was sentenced to life in prison as a PRR, and 40 years in prison as an HFO. However, because section 775.082(9)(e) only authorizes the court to deviate from the PRR sentencing scheme to impose a greater sentence of incarceration, and a 40-year term under the HFO statute is not greater than a life term under the PRR statute, the trial court was without authority to sentence Appellant as an HFO to a term less than or equal to that required under the PRR statute. See Walls, 765 So.2d at 734; Palmore v. State, 790 So.2d 444 (Fla. 1st DCA 2000) (reversing HFO sentence where defendant sentenced as PRR to life and HFO statute does not authorize sentence longer than life).

Appellant’s sentence is REVERSED and REMANDED with directions to strike that portion of Appellant’s sentence reflecting his adjudication as an HFO. See Walls, 765 So.2d at 734; Lee v. State, 917 So.2d 376 (Fla. 1st DCA 2005); Morris v. State, 910 So.2d 306 (Fla. 1st DCA 2005). Appellant’s convictions and sentences are AFFIRMED in all other respects.

BENTON, HAWKES, and THOMAS, JJ., concur.


author: LAWRENCE, JR., L. ARTHUR, Senior Judge.

text:
    Daryl SMITH, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-4321.
    District Court of Appeal of Florida, First District.
    Aug. 21, 2007.
    Daryl Smith, pro se, Petitioner.
    Connie Lynn Beach, Assistant General Counsel, Tallahassee, for Respondent.
   LAWRENCE, JR., L. ARTHUR, Senior Judge.

After Petitioner’s probation was revoked, he filed a petition for writ of habeas corpus, alleging that the Florida Parole Commission (Commission) violated the ex post facto clause by placing him on community control as a condition of probation. The petition was denied, and Petitioner seeks certiorari review of that ruling. We deny the certiorari petition in part, without comment except to note that the circuit court did not err in treating the petition filed below as one for mandamus relief, and grant the certiorari petition as to liens imposed by the circuit court.

Petitioner’s challenge to his revocation of parole constitutes a collateral criminal proceeding. See Crosby v. Fla. Parole Comm’n, 949 So.2d 1181, 1183 (Fla. 1st DCA 2007). Therefore, his indigency determinations were to be made under section 57.081, Florida Statutes, rather than section 57.085, Florida Statutes. See Wagner v. McDonough, 927 So.2d 216 (Fla. 1st DCA 2006). Because section 57.081 does not contain the language authorizing imposition of a lien, no lien should have been imposed here. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

Accordingly, we DENY the petition in part, GRANT it in part, QUASH both lien orders, and REMAND with directions that the circuit court order the Department of Corrections to dissolve both liens and direct reimbursement of any monies already removed from Petitioner’s account towards payment of either lien.

DAVIS and POLSTON, JJ., concur.


author: TAYLOR, J.

text:
    David CASSELL, Appellant, v. John INDIA and City of Pompano Beach Police Department, Appellees.
    No. 4D06-1716.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2007.
    Rehearing Denied Oct. 8, 2007.

      Alain E. Boileau and Robert H. Schwartz of Adorno & Yoss LLP, Fort Lauderdale, for appellant.
    Jacqueline G. Emanuel of Riley, Knoerr & Emanuel, Fort Lauderdale, for appellee John India.
   TAYLOR, J.

David Cassell, a police lieutenant for the Pompano Beach Police Department, appeals a final judgment of $50,000 entered in favor of John India, a police officer supervised by Cassell. The final judgment was based on India’s claim against Cassell for defamation and intentional infliction of emotional distress. Lieutenant Cassell argues on appeal that his motions for directed verdict should have been granted because he was entitled to absolute immunity for these claims. We agree and reverse the judgment.

John India worked under Lieutenant David Cassell’s supervision at the Pompano Beach Police Department from 1987 to 1997. On October 10, 1997, India was on road patrol when he attempted to arrest a suspect for possession of a stolen vehicle. The suspect fought with India and during the scuffle India injured his back. The next day India went to the hospital emergency room. The doctors recommended light duty work, with instructions to abstain from any bending, standing, lifting for prolonged periods, and lifting more than ten to twenty pounds. Cassell placed India on light duty status at the front desk. At that time, the police department had too many people on light duty. Cas-sell, as shift commander, was thus under pressure from the Chief of Police and the City Manager to ensure that everyone who was on light duty was properly placed there.

Before his injury, India had been an amateur bodybuilder for many years. He was used to working out with heavy weights. He discussed his weight training exercises and machines with his doctors. Although they did not tell him to stop lifting weights at the gym, they did caution him to be careful and not to use too much weight. India continued to work out, using lighter weights. Based on his knowledge of anatomy and body mechanics and his experience in bodybuilding, he felt that the exercise would help strengthen his lower back.

Cassell testified that on several occasions he had observed that India was “pumped up” at work and appeared to have been working out. Cassell believed that this was inconsistent with India’s light duty assignment and contrary to his restriction against lifting anything over ten to twenty pounds. Cassell reported his observations to his superior officer, Captain Bill Wimer, and was told to report the matter to the city’s insurance department. The insurance department then placed India under surveillance. Surveillance videos taken while India was on light duty showed him lifting weights in a gymnasium. Daniel Murray, a captain at the police department, discussed the surveillance video with India’s orthopedic surgeon. The surgeon said there was no problem with India’s activities as depicted on the videotape. Nevertheless, the city’s insurance department contacted the Florida Department of Insurance (DOI) to request a fraud investigation.

Officer Hankz, who had witnessed the altercation with the suspect that injured India, heard rumors that India was going to be arrested. He approached Cassell, who was his lieutenant, and asked him if the rumors were true. Cassell said that he could neither confirm nor deny the rumors. Later, after the rumors became more widespread, Hankz again questioned Cassell about the rumors, and Cassell told him that India’s status there was questionable. On a third occasion, Hankz asked Cassell about these same rumors and also asked him about a rumor that India was going to be arrested on a specific date. Cassell responded, “Yeah, and there is a Dr. Shapiro involved in it, too.”

Charles Scibilia was a detective and a PBA representative at the Pompano Beach Police Department in 1997. He heard that India had been hurt, but India never approached him about a disability pension. On January 31, 1998, Scibilia was having a discussion with Brian McDonald, a Pompano Beach officer and elected member of the pension board. India’s name came up in the conversation. They were discussing India’s back injury and wondering whether he might need a disability pension. Cas-sell approached them, interrupted their conversation, and interjected that India had a lot of personal problems. He said that he knew for a fact that India did not get hurt- on duty. Scibilia interpreted Cas-sell’s statement as accusing India of a felony fraud. Cassell denied accusing India of fraud, but admitted suggesting that India was going to be arrested. He acknowledged that he never actually believed that India would be arrested; he said his remarks were “off-the-cuff.” But, because Scibilia thought that Cassell was trying to influence him to deny India a disability pension, Scibilia complained to Internal Affairs. He believed he had a responsibility, as both a police officer and a PBA representative, to report that India’s superior officer was accusing a fellow officer of committing a felony.

By May 27, 1998, India had returned to full-duty work. On September 4, 1998, DOI closed its investigation of India. Captain Murray denied telling Cassell to call John Landry at DOI to have the case reopened. However, he did give Cassell a “chain of command” form, instructing him to contact Landry and find out why they were declining prosecution. Cassell spoke to Landry two or three times. Cassell asked him why he had not investigated the case more thoroughly. Landry responded that it was none of his business. On October 9, 1998, Cassell asked to speak to Landry’s superior to try to get the investigation reopened. Internal Affairs closed its investigation in July 1999. No charges were ever filed, and India was never arrested.

India sued both Cassell and the City of Pompano Beach. The second amended complaint alleged that Cassell had made false statements to several individuals suggesting that India was fraudulently obtaining workers’ compensation benefits. Paragraph 19 of the second amended complaint alleged:

The Defendant, LIEUTENANT DAVID CASSELL, was within the course and scope of his employment with the Defendant, CITY OF POMPANO BEACH, during the time of the above described actions.

In his answer to the second amended complaint, Cassell denied the wrongful conduct, but admitted that he was in the course and scope of his employment at all material times.

At the close of the plaintiffs case, Cas-sell moved for a directed verdict based upon absolute immunity. The trial judge denied the motion. He conceded that he was having a great deal of difficulty with the issue, but was sending the case to the jury in an abundance of caution. The jury returned a verdict finding Cassell liable on theories of defamation and intentional infliction of emotional distress. The jury awarded damages in the amount of $50,000. Cassell renewed his motion for directed verdict and moved for judgment notwithstanding the verdict, a new trial and/or remittitur. The trial court denied the motions and entered final judgment for India.

Cassell argues that the trial court erred as a matter of law in denying his motions for directed verdict because he was entitled to absolute immunity from India’s defamation and intentional infliction of emotional distress claims. Specifically, he argues that his alleged defamatory statements were made within the course and scope of his duties and employment as a police officer, as a lieutenant in the chain of command, and as India’s supervisor. Cassell contends that he was authorized to make statements regarding the veracity of his subordinate’s alleged injury, not only to the chain of command, but to the insurance department, representatives from the PBA and the Pension Board, and to another subordinate who witnessed the incident causing the alleged injury and who questioned Cassell directly about the matter. For these same reasons, Cassell argues he is entitled to absolute immunity from India’s claim for intentional infliction of emotional distress.

Our standard of review of a trial court’s ruling on a motion for directed verdict is de novo. See Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006), review denied, 954 So.2d 28 (Fla.2007). The question of whether an alleged defamatory statement is absolutely privileged is a question of law for the court. See Resha v. Tucker, 670 So.2d 56, 57 (Fla.1996).

An absolute privilege has been explained, as follows:

“These ‘absolute privileges’ are based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests. To accomplish this, it is necessary for them to be protected not only from civil liability, but also from the danger of even an unsuccessful civil action. To this end, it is necessary that the propriety of their conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for misconduct in their position. Therefor the privilege, or immunity, is absolute and the protection that it affords is complete. It is not conditioned upon the honest and reasonable belief that the defamatory matter is true or upon the absence of ill will on the part of the actor.”

Fridovich v. Fridovich, 598 So.2d 65, 68 (Fla.1992) (quoting Restatement (Second) of Torts § 584, at 243) (emphasis omitted).

In Florida, “[pjublic officials who make statements within the scope of their duties are absolutely immune from suit for defamation.” Stephens v. Geoghegan, 702 So.2d 517, 522 (Fla. 2d DCA 1997). An absolute privilege protects the statements of all public officials, regardless of the branch of government or the level of the official. See Hauser v. Urchisin, 231 So.2d 6, 8 (Fla.1970); Stephens, 702 So.2d at 522. The privilege extends to police officers. Id.; see also Stewart v. Sun Sentinel Co., 695 So.2d 360, 361 (Fla. 4th DCA 1997).

The controlling factor in deciding whether the absolute privilege applies is “whether the communication was within the scope of the officer’s duties.” City of Miami v. Wardlow, 403 So.2d 414, 416 (Fla.1981). The scope of an officer’s duties is to be liberally construed. Goetz v. Noble, 652 So.2d 1203, 1205 (Fla. 4th DCA 1995). The term “duties” is not confined to those things required of the officer, but rather extends to all matters which he is authorized to perform. See Stephens, 702 So.2d at 523; Restatement (Second) of Torts § 591, Comment f, at 256. Because the balancing of interests favors the public official, it is considered better “‘to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.’ ” Barr v. Matteo, 360 U.S. 564, 572, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) (quoting Judge Learned Hand, writing for the court in Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949)).

Cassell points out that India’s complaint affirmatively alleged that at all material times Cassell was acting within the “course and scope of his employment” with the city, an allegation which India has not disavowed. In Stephens, the second district placed great reliance on a similar allegation in upholding a summary judgment on absolute privilege grounds. The court stated that the record revealed no attempt by the plaintiffs to disavow the allegation, “which seems, by itself, to foreclose any argument that these statements were made during anything but the normal course of the defendants’ duties.” 702 So.2d at 522-23.

India’s answer brief concedes that Cas-sell was acting within the course and scope of his employment, but argues that this is different from acting within the scope of his duties. According to India, Cassell’s own trial testimony that he was not involved in the investigation of India demonstrates that his statements were not within the scope of his duties or powers and thus are not protected by absolute immunity. These statements include: (1) Cassell’s statements to his superior officer and the insurance department; (2) Cassell’s statements to the pension board member and PBA representative that he knew for a fact that India did not get hurt on the job and his comment during the same discussion about India’s impending arrest; and (3) Cassell’s responses to a subordinate officer that he could not confirm or deny rumors that India was going to be arrested and his later comments that India was going to be arrested and that a Dr. Shapiro was involved.

With respect to the statements Cassell made to his superior officers and representatives of the insurance department, we have no difficulty determining that these were absolutely privileged. Cassell was authorized to report what he suspected was fraud and a potential crime to his own superiors and, at their request, to the insurance department. See Forman v. Murphy, 501 So.2d 640, 642 (Fla. 4th DCA 1986) (holding that the filing of a report by a superior officer about a conversation which violated the police department’s policies was within the scope of the superior officer’s duties and therefore absolutely immune). Likewise, Cassell was authorized to comment on the veracity of his subordinate’s claim of injury to representatives from the PBA and the Pension Board, as they were contemplating India’s potential claim for pension benefits. As India’s direct supervisor, Cassell could reasonably inform these officers that he believed any such claim would be fraudulent. That Cassell misrepresented his belief or suspicion of fraud as a fact or reported India’s impending arrest without any foundation does not change the fact that he was acting within the scope of his authority in cautioning them about his subordinate’s potential claim.

The more difficult question appears to be whether Cassell was authorized to address the inquiry from a subordinate, Officer Hankz, by falsely confirming that the arrest rumor was true. The best answer to this question comes from Judge Learned Hand, who stated:

“The decisions have, indeed, always imposed as a limitation upon the immunity that the official’s act must have been within the scope of his powers; and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment’s reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him.”

Barr, 360 U.S. at 572, 79 S.Ct. 1335 (quoting Gregoire, 177 F.2d at 581); see also McNayr v. Kelly, 184 So.2d 428, 432 (Fla.1966) (quoting and characterizing Judge Hand’s statement as an “excellent dissertation” on the subject). Thus, the fact that Cassell had the authority to address a department rumor of worker’s compensation fraud in direct response to an inquiry from a subordinate officer, who had personal knowledge of the circumstances surrounding India’s injury, is sufficient to bring the statement within the scope of Cassell’s duties, without regard to the fact that the substance of the statement was unsupported and turned out to be false. The fact that Cassell’s statement may be viewed as having an unworthy or nonpublic purpose does not destroy the privilege. Barr, 360 U.S. at 575, 79 S.Ct. 1335; Restatement (Second) Torts § 591, comment d (privilege exists irrespective of officer’s purpose in making statement).

Two factually similar cases in Florida that support application of the privilege in this case are Wardlow and Stephens. In Wardlow, a police captain called a potential employee’s former employer at another police department to inquire about the employee’s background. The officer with the former employer allegedly defamed the employee. The Florida Supreme Court held that the officer’s response to the inquiry was clearly within the scope of his duties and entitled him to absolute immunity. Wardlow, 403 So.2d at 416.

Similarly, in Stephens, the police officers were alleged to have falsely represented the outcome of a “shooting board” review in a memorandum sent to all officers and by one officer’s statements to police personnel. The second district applied absolute immunity, finding the fact that the officers had disseminated information to fellow officers “clearly lies within the ambit of each s duties in the police department.” Stephens, 702 So.2d at 523.

India relies on Albritton v. Gandy, 531 So.2d 381 (Fla. 1st DCA 1988), for an affirmance. There, a county commissioner tried to get a low-level county employee fired due to a personal vendetta. The court held that the county commissioner’s statements resulting in the county employee’s discharge were not privileged because the county commissioner was not in charge of hiring and firing and, thus, “there was no official purpose” for his statements. Id. at 387. However, India’s reliance upon Albritton is misplaced because the county commissioner’s actions were found to have fallen outside the scope of his duties, such that his statements were not absolutely privileged. In contrast, Cassell’s statements were part and parcel of his duties as India’s supervisor and as a ranking officer accountable to other officers either in the chain of command or in positions of responsibility over potential claims for benefits.

We further hold that absolute immunity bars India’s claim of intentional infliction of emotional distress. This claim is simply a recast of the defamation claim; it too is barred by the privilege. Stephens, 702 So.2d at 525 (holding that “the defendants’ writings and comments, for which they are immune from suit for defamation, are likewise protected against a retooling of the claim couched in terms of intentional infliction of emotional distress”).

Accordingly, we reverse and remand with directions to enter judgment for appellant, David Cassell.

Reversed.

WARNER and GROSS, JJ„ concur.

      . The judge granted the City of Pompano Beach’s motion for directed verdict.


text:
    Thomas J. EDWARDS, Appellant, v. Troy HARRIS d/b/a Harris Business Machines, Inc., Appellee.
    No. 1D06-4832.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2007.

      Charles F. Beall, Jr., and George R. Mead, II, of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant.
    Russell K. Ramey of Ramey Law Offices, Panama City, for Appellee.
   PER CURIAM.

The appellant challenges the entry of a temporary injunction upholding a covenant not to compete. The record reflects that the appellee proved a substantial business interest that required protection but the order of temporary injunction does not contain any factual findings and was not reasonably necessary to protect the business interest. We reverse.

The order of temporary injunction must contain more than conclusory legal aphorisms if it is to be subject to meaningful appellate review. See City of Jacksonville v. Naegele Outdoor Adver. Co., 634 So.2d 750, 753 (Fla. 1st DCA 1994). Florida Rule of Civil Procedure 1.610(c) requires the trial court to specify the reasons for entry of the temporary injunction and do more than mirror each tine of the four-prong test. See Seashore Club of Atl. City, Inc. v. Tessler, 405 So.2d 767, 768 (Fla. 4th DCA 1981). Furthermore, this Court has consistently required trial courts to make findings of fact that address the four criteria necessary to support the temporary injunction. See generally Milin v. N.W. Fla. Land, L.C., 870 So.2d 135, 136-37 (Fla. 1st DCA 2003) (reversing temporary injunction because the trial court failed to make findings to support the order); Tom v. Russ, 752 So.2d 1250, 1251 (Fla. 1st DCA 2000) (remanding temporary injunction because the trial court failed to address the likelihood of success on the merits or considerations of public interest).

In the instant case, the trial court failed to make any findings of fact to support the order of temporary injunction. The order simply states that the parties had entered into a covenant not to compete and that the factors set forth in section 542.335, Florida Statutes (2005), were satisfactorily met. There were no factual findings that applied the factors in section 542.335 to the instant case. Therefore, the trial court erred in failing to make findings of fact to support the order of temporary injunction.

Section 542.335 also provides that the appellant had the burden of establishing that the covenant was overbroad or not otherwise reasonably necessary to protect the established legitimate business interest. The covenant cannot be used as a tool simply to eliminate competition. See Hapney v. Cent. Garage, Inc., 579 So.2d 127, 131 (Fla. 2d DCA 1991). Furthermore, the covenant may be unreasonable when it inflicts an unduly harsh or unnecessary result upon the employee. See Auto Club Affiliates, Inc. v. Donahey, 281 So.2d 239, 241 (Fla. 2d DCA 1973); see also Austin v. Mid State Fire Equip, of Cent Fla., Inc., 727 So.2d 1097, 1098 (Fla. 5th DCA 1999).

In the instant case, the trial court upheld the covenant and enjoined the appellant from working with a competing employer in any capacity. There was no evidence that the appellee would be harmed simply by the appellant’s employment with a competitor. Instead, the injunction should have only prevented the appellant from engaging in activities harmful to the legitimate business interest. See generally Hapney, 579 So.2d at 130-31 (Fla. 2d DCA 1991) (discussing that employer may not prohibit ordinary competition and that special facts over and above ordinary competition must exist before protection will be granted). Based upon these facts, the order under review unnecessarily restricted competition by enjoining the appellant from working with another competitor in any capacity.

Accordingly, the order granting temporary injunction is hereby REVERSED, and this case REMANDED to the trial court.

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


author: GRIFFIN, J.

text:
    Samuel McMAHON, III, Appellant, v. Janice M.A. RYAN, etc. et al., Appellee.
    No. 5D06-1211.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.

      Lawrence M. Kosto, of Kosto & Rotella, P.A., Orlando, for Appellant.
    Elizabeth M. Ryan, of Kass, Shuler, Solomon, Spector, Foyle & Singer, P.A., Tampa, for Appellee.
   GRIFFIN, J.

Samuel McMahon, III [“McMahon”] appeals the trial court’s order denying his motion to quash service of process in a suit brought against him by Janice M.A. Ryan [“Ryan”], on behalf of Internet Group, Inc., a Florida Corporation, and herself, individually. We reverse.

On August 20, 1992, an involuntary petition for bankruptcy was filed for McMahon. Subsequently, on or about March 29, 1993, Ryan filed this lawsuit, naming McMahon as one of the defendants. In her complaint, Ryan alleged that she, McMahon, and two others had worked together to form a company called Internet Group, Inc. [“Internet Group”] in May of 1989. She alleged that McMahon, acting in concert with others, illegally took control of Internet Group, forced her out, misappropriated corporate assets, and dissolved the corporation.

On May 4, 1993, McMahon’s attorney filed a notice of bankruptcy in the trial court. The notice advised that “[fjurther proceedings involving [McMahon] are stayed pursuant to the provisions of 11 U.S.C. Sections 362,1201 and 1301.” Nevertheless, on May 6, 1993, McMahon, through his wife, was formally served with process.

On June 27, 1996, a federal court imposed a 135-month sentence against McMahon for a variety of financial crimes. Then, on March 18, 1997, the bankruptcy court entered an order denying McMahon discharge in the bankruptcy proceeding. The order denying discharge apparently terminated the automatic stay, pursuant to 11 U.S.C. § 362(c)(2)(C). A week later, Ryan filed a motion for a default judgment against McMahon. She argued that she was entitled to a default judgment because the automatic stay in the case had been lifted and no responsive pleading had been filed. The trial court granted Ryan’s motion and entered a default judgment against McMahon on April 29,1997.

Years later, in February 2005, McMahon filed a motion to quash service of process and set aside the default that the trial court had entered against him on April 29, 1997, claiming that he was not properly served because he was in bankruptcy and the automatic stay applied when service of process was purportedly effected. On February 24, 2006, the trial court issued its order on McMahon’s motion. The order set aside the default judgment, but declined to quash the service of process.

The filing of a bankruptcy provision immediately triggers an automatic stay, applicable to all entities, of

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;

11 U.S.C. § 362(a) (1993) (emphasis added). See also 3 Alan N. Resnick & HenRy J. SommeR, Collier on Bankkuptcy § 362.02 (15th ed. rev.2007). Accordingly, as a general rule, the automatic stay prohibits a plaintiff from initiating or proceeding with a lawsuit against the debtor after a petition for bankruptcy has been filed, when the suit seeks to recover on a pre-petition claim. See Lampe v. Xouth, Inc., 952 F.2d 697, 700 (3d Cir.1991). This includes service of process. In re Weber, 283 B.R. 630, 633 (Bankr.D.Mass.2002). Subsection (b) of section 362 provides a list of exceptions to the general rule; however, none of these appears to be applicable in this case.

“Actions taken in violation of the automatic stay are void and without effect.” Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982); see also Barton-Malow Co. v. Gorman Co., 558 So.2d 519, 521 (Fla. 5th DCA 1990); Personalized Air Conditioning, Inc. v. C.M. Sys., Inc., 522 So.2d 465, 466 (Fla. 4th DCA 1988). This is true even if there is no actual notice of the stay. Personalized Air Conditioning, Inc., 522 So.2d at 466. “A void judgment may be attacked at any time because the judgment creates no binding obligation on the parties, is legally ineffective and is a nullity.” Fisher v. State, 840 So.2d 325, 331 (Fla. 5th DCA 2003); Great Am. Ins. Co. v. Bevis, 652 So.2d 382, 383 (Fla. 2d DCA 1995).

Although a defendant may waive a timely objection to personal jurisdiction by seeking affirmative relief because requesting such relief is inconsistent with an initial defense of a lack of personal jurisdiction, there was no waiver in this case. See Alvarado v. Cisneros, 919 So.2d 585, 587 (Fla. 3d DCA 2006); see also Mason v. Hunton, 816 So.2d 234, 235 (Fla. 5th DCA 2002).

While it is true that actions taken in violation of the automatic stay are void, bankruptcy courts are authorized to validate such actions by retroactively annulling the stay when the circumstances warrant such relief. See In re Barr, 318 B.R. 592, 598 (Bankr.M.D.Fla.2004). In part, the Bankruptcy Code, 11 U.S.C. section 362(d) (2007), provides:

(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest;

(Emphasis added). In explaining the effect of the word “annulling,” the U.S. Court of Appeals for the Eleventh Circuit has said:

[Section] 362(d) expressly grants bankruptcy courts the option, in fashioning appropriate relief, of “annulling” the automatic stay, in addition to merely “terminating” it. The word “annulling” in this provision evidently contemplates the power of bankruptcy courts to grant relief from the stay which has retroactive effect; otherwise its inclusion, next to “terminating”, would be superfluous.... Accordingly, we hold that § 362(d) permits bankruptcy courts, in appropriately limited circumstances, to grant retroactive relief from the automatic stay.

In re Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir.1984); see also In re Barr, 318 B.R. at 598. In Barr, the court observed:

Several factors have been identified by Courts when determining whether circumstances are sufficiently compelling to warrant retroactive annulment of the stay. Such factors include (1) whether the creditor had actual or constructive knowledge of the bankruptcy filing, (2) whether the debtor acted in bad faith, (3) whether grounds would have existed for modification of the stay if a motion had been filed before the violation, (4) whether the denial of retroactive relief would result in unnecessary expense to the creditor, and (5) whether the creditor has detrimentally changed its position on the basis of the action taken.

318 B.R. at 598. Thus, if Ryan wants to rehabilitate the service of process, she must attempt to do it in a federal forum.

REVERSED and REMANDED.

ORFINGER and TORPY, JJ., concur.

      . The petition was filed pursuant to Chapter 11 of the bankruptcy code. McMahon later converted the proceeding to one under Chapter 7.


text:
    EYEMED VISION CARE, LLC, a corporation organized under the laws of the State of Delaware, Petitioner, v. STATE of Florida, DEPARTMENT OF MANAGEMENT SERVICES, and Spectera, Inc., Respondents. CompBenefits Company, Petitioner, v. Department of Management Services, Division of State Group Insurance, and Spectera, Inc., Respondents.
    Nos. 1D07-4098, 1D07-4120.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2007.

      Melissa J. Copeland of Nelson, Mullins, Riley & Scarborough, LLP, Columbia, SC; Robert N. Clarke, Jr., and Martin B. Sip-ple of Ausley <& McMullen, P.A., Tallahassee, for Petitioner EyeMed Vision Care, LLC; Orion G. Callison, III, and Diane Lindstrom Beach of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for Petitioner CompBenefits Company.
    Clifford A. Taylor, Chief of Litigation, and Barbara M. Crosier, Associate General Counsel, Office of General Counsel, Tallahassee, for Respondent State of Florida, Department of Management Services; Frederick J. Springer and Barbara D. Auger of Bryant, Miller & Olive, P.A., Tallahassee, for Respondent Spectera, Inc.
   PER CURIAM.

In these consolidated proceedings, Ey-eMed Vision Care and CompBenefits Company seek review of nonfinal administrative action of the Department of Management Services calling for the continuation of a contract award process notwithstanding the pendency of petitioners’ protests of the proposed award. We conclude that the agency’s order fails to satisfy the burden imposed by statute to justify overriding the otherwise mandatory statutory stay resulting from the filing of petitioners’ protests, and therefore quash the order.

On April 25, 2007, DMS issued an Invitation to Negotiate, seeking a vendor to provide group vision insurance benefits to state employees for a term commencing on January 1, 2008. After evaluation of the written submissions, the top four vendors, which included EyeMed, CompBenefits, and Spectera, engaged in further negotiations with the agency, and on July 9, 2007, DMS posted its notice of intent to award the contract to Spectera. EyeMed and CompBenefits thereafter filed timely formal written protests of the proposed award pursuant to section 120.57(3), Florida Statutes (2006), and those protests are currently pending before an Administrative Law Judge of the Division of Administrative Hearings.

Upon filing of the formal written protests, the automatic statutory stay of the contract award process set forth in section 120.57(3)(c), Florida Statutes (2006), became operative. That statute provides:

Upon receipt of the formal written protest that has been timely filed, the agency shall stop the solicitation or contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the solicitation or contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare.

Pursuant to section 110.123(3)(d)4., Florida Statutes (2006), the provisions of section 120.57(3) apply to DMS’s contracting process for the provision of state group insurance benefits. However, section 110.123(3)(d)4.b states that:

As an alternative to any provision of s. 120.57(3), the department may proceed with the bid selection or contract award process if the director of the department sets forth, in writing, particular facts and circumstances which demonstrate the necessity of continuing the procurement process or the contract award process in order to avoid a substantial disruption to the provision of any scheduled insurance services.

Invoking section 110.123(3)(d)4.b, DMS issued a statement on August 3, 2007, that it would proceed with the contract award process concerning the provision of group vision insurance benefits. That statement, which is the subject of the petitions for review herein, recites the following:

STATEMENT OF CONTRACT AWARD PROCESS PURSUANT TO CHAPTER 110.123(3)(d)4b, FLORIDA STATUTES
The State of Florida, Department of Management Services, (“Department”) hereby makes the determination that in order to avoid a substantial disruption to the provision of scheduled insurance services.
1. On April 25, 2007, the Department posted its Invitation to Bid, No. 06/07-134, for Vision Benefits Insurance. The purpose of the solicitation was to establish a contract for voluntary Group Vision Benefits Insurance to be offered to state employees.
2. On July 9, 2007, the Department posted its Notice of Intent to Award the contract for group vision benefits insurance to Spectera, Inc.
3. Pursuant to Chapter 110.123(3)(d)4b, Florida Statutes, the department may proceed with the contract award process if the “director of the department sets forth, in writing, the particular facts and circumstances which demonstrate the necessity of continuing the procurement process or the contract award process in order to avoid a substantial disruption to the provision of any scheduled insurance services.”
4. The facts and circumstances which demonstrate the necessity of continuing the contract award process are:
a. Group vision insurance is offered to state employees as a voluntary benefit. During the open enrollment period, the state employee has the opportunity to elect to participate in this benefit.
b. The open enrollment period for state employees to make any additions, deletions or changes to their insurance coverage beginning January 1, 2008, takes place during the month of October 2007.
c. In order to ensure timely distribution of materials, the Department is required to have all information pertaining to insurance coverage options available for consideration by state employees during the open enrollment period.
d. Spectera, Inc. is not the current provider of group vision insurance benefits to state employees. In order to avoid a substantial disruption to the provision of any scheduled insurance service, time is of the essence to continue the contract award process.
5. Therefore, based on the foregoing facts and circumstances, the department will proceed with the contract award process for group vision insurance.

As the parties acknowledge, the validity of a DMS action taken pursuant to section 110.123(3)(d)4.b has not previously been addressed in Florida case law. However, we find that cases interpreting the general stay override provision of section 120.57(3)(c) are instructive since although the two statutes describe different conditions that will justify overriding the stay, both require a written statement of the agency head detailing “particular facts and circumstances” showing that the requisite condition exists.

In Cianbro Corp. v. Jacksonville Transportation Authority, 473 So.2d 209 (Fla. 1st DCA 1985), we recognized that, “[t]he legislature has provided a comprehensive scheme for resolving protests arising from the contractual bidding process” and that “[t]his scheme envisions that all contract awards will be stayed until the protest is resolved.” Id. at 212. Given the sound policy reasons for staying the contract award process during the pen-dency of an administrative protest, “this scheme should be upset in only the most compelling circumstances.” Id. Moreover, as is the case in other contexts where an agency takes action without the benefit of allowing aggrieved parties the opportunity to be heard, we conclude that every element necessary to the validity of DMS’s action under section 110.123(3)(d)4.b must appear on the face of its written statement. See Bio-Med Plus v. Dep’t of Health, 915 So.2d 669 (Fla. 1st DCA 2005); Witmer v. Dep’t of Bus. & Prof'l Regulation, 631 So.2d 338- (Fla. 4th DCA 1994); Commercial Consultants Corp. v. Dep’t of Bus. Regulation, 363 So.2d 1162 (Fla. 1st DCA 1978). Thus, in order to be valid, DMS’s statement must articulate “in writing, the particular facts and circumstances which demonstrate the necessity of continuing the procurement process or the contract award process in order to avoid a substantial disruption to the provision of any scheduled insurance services.”

Turning to the agency statement at issue here, we conclude that it falls well short of stating “particular facts and circumstances” demonstrating the “necessity” required by the statute. Although DMS indicates that it is necessary for the contract award process to continue in order to accommodate the scheduled open enrollment period, it does not meaningfully explain why this is the case. “Necessity” is not synonymous with “expedient” or “efficient,” and in determining whether the necessity for continuing the contract award process has been shown, the agency bears some burden of showing, through the articulation of particular facts and circumstances, that proceeding with the process is the only reasonable alternative to assure that the provision of insurance services will not be substantially disrupted. Cf. Premier Travel Int’l, Inc. v. State, Dep’t of Agric. & Consumer Servs., 849 So.2d 1132 (Fla. 1st DCA 2008) (discussing, as an element of the “necessity” of an immediate final order, the agency’s failure to address the availability of less harsh remedies). Similar to one of the defects found in the agency action challenged in Cianbro, the statement likewise does not explain why DMS was constrained to adopt a procurement schedule that seemingly did not allow the time required to resolve any protest of the proposed award.

The deficiencies in DMS’s statement are made apparent when it is compared to the similar administrative action upheld by the court in AvMed Inc. v. State, Sch. Bd. of Broward County, 790 So.2d 571 (Fla. 4th DCA 2001). In AvMed, a disappointed bidder filed a formal protest of the school board’s decision to award a contract for employee health insurance to a competitor. Despite the pendency of that protest, the board issued a notice pursuant to section 120.57(3)(e) overriding the statutory stay of the contract award process. In its notice, the board explained that it had been informed by one of the two current carriers that despite its contractual obligation to do so, it would no longer provide coverage for board employees. The board had also determined that the other carrier would be unable to assume coverage for the affected employees. Because of these circumstances beyond its control, it was necessary for the board to install a replacement provider, and the time remaining to do so before the defaulting incumbent provider would cease providing coverage made it necessary to award the contract immediately despite the pending protest.

In contrast, DMS’s statement fails to set forth the same sort of particularized facts and circumstances demonstrating that overriding the stay is necessary in this case. Instead, like the agency action invalidated in Cianbro, DMS has set forth only conclusory allegations, without any explanation as to why these circumstances could not reasonably have been prevented, or that other, less drastic measures might suffice to avoid a substantial disruption in the provision of insurance services.

Accordingly, we grant the petitions for review and quash the agency’s “Statement of Contract Award Process.” In so doing, we do not reach the question of whether overriding the stay and continuing the contract award process is necessary. Rather, we hold only that DMS has failed to satisfy its statutory obligation to articulate, in writing, “the particular facts and circumstances which demonstrate the necessity of continuing ... the contract award process in order to avoid a substantial disruption to the provision of any scheduled insurance services.”

PETITIONS FOR REVIEW GRANTED; AGENCY STATEMENT QUASHED.

ALLEN, LEWIS, and ROBERTS, JJ., concur.


author: EVANDER, J.

text:
    Daniella TREPP, Appellant, v. Mark TREPP, Appellee.
    No. 5D06-3465.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.
    Horace Smith, Jr., of Smith, Hood, Perkins, Loucks, Stout, Bigman, Lane & Brock, P.A., Daytona Beach, for Appellant.
    No Appearance for Appellee.
   EVANDER, J.

Daniella Trepp (“the wife”) appeals from a final judgment of dissolution of marriage. Specifically, she contends the trial court abused its discretion in denying her request for permanent, periodic alimony. We find the trial court erred in failing to reserve jurisdiction to award permanent alimony.

The parties were married to each other twice. Their first marriage was from December, 1975 — February, 1991. They recommenced living with each other a few days after their first divorce became final. They remarried in August, 1995.

The parties had one child together. That child reached the age of majority in 2001. The parties separated in December, 2004, and the husband filed his petition to dissolve the parties’ second marriage on August 1, 2005. The wife filed a counter-petition, seeking, inter alia, temporary, rehabilitative, permanent, and lump sum alimony.

At the time of the final hearing (held in August, 2006), the husband was 54 years of age. He had been the primary breadwinner throughout both marriages. The husband had been in the United States Merchant Marines for 30 years and was a member of the Seafarer’s International Union. His gross income in 2004 was approximately $58,000 and was over $68,000, in 2005. He had earned $25,300 through June, 2006, before suffering work-related injuries. He was attempting to return to work as of the date of the final hearing.

The wife was 57 years of age and had completed one year of commercial art school prior to the parties’ first marriage. During the course of the marriages, she had worked part-time as a home-care provider. In her most recent job, she had been paid $6.00 an hour. She acknowledged that during the parties’ separation she had made little effort to become self-sufficient.

The parties had few marital assets to be distributed by the court — a house located in Lakewood, Ohio, a mobile home located in Florida, a truck, and the husband’s two pension plans. At the time of the final hearing, the wife was living in the Lakewood house, while the husband had possession of the mobile home and the truck. The evidence reflects the mobile home had a value of $3,000 to $4,000 and the truck had a value of $5,000. These two assets were awarded to the husband. The trial court also required the husband to pay the parties’ credit card debts of approximately $18,500.

The husband’s money purchase pension plan had a value of $10,814. His Seafarer’s pension plan would provide a pension benefit of $866.23/month if he were to retire at age 55. The court reserved jurisdiction to determine the marital portion of these plans and to enter orders distributing the respective portions to each party.

The Lakewood home was awarded to the wife. The trial court valued this residence at $140,000. It was encumbered by a mortgage of approximately $60,000. It would initially appear, from the face of the final judgment, that the wife would receive net assets of $80,000, while the husband would receive assets of $8,000 to $9,000, as well as the obligation to pay over $18,000 of credit card debt. It would also appear that the trial court’s intent in distributing the assets and debts in this manner was to alleviate the need for an award of permanent alimony.

In dissolution proceedings, a trial judge has broad discretionary authority to do equity between the parties. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). If we were confident that the wife would, in fact, receive approximately $80,000 from the sale of the Lakewood residence, we would affirm the final judgment. However, the record reflects a significant likelihood that the wife will receive sale proceeds of far less than $80,000.

At some time after their separation, the parties agreed to sell the Lakewood property. The husband contends the house had not sold because of the wife’s lack of cooperation with the Realtor. The wife claims the house remained unsold because of a depressed housing market in Lakewood. She further testified that a neighbor had offered her between $80,000 and $90,000 to purchase the home, but then had rescinded the offer because of the home’s electrical problems. Regardless of the reason for the non-sale of the Lakewood residence, it is undisputed that the property was in foreclosure as of the date of the final hearing.

The husband had voluntarily made the $1,050/month mortgage payments through November, 2005. At that time, he ceased making any contributions towards the mortgage. In April, 2006, the trial court ordered the husband to pay temporary alimony in the amount of $2,000/month. The husband failed to comply with the court order, resulting in a temporary alimony arrearage in the amount of $10,000. As a result of the husband’s failure to comply with the court’s temporary order, the wife was unable to make the mortgage payments.

Although a trial court does not need to equalize the financial position of the parties, it must ensure that neither spouse passes automatically from prosperity to misfortune. Canakaris, 382 So.2d at 1204. The trial court found that other than her interest in the Lakewood home, the wife had “negligible assets and no income.” Thus, if the house is foreclosed upon, or sold for little more than the mortgage balance, the wife will likely pass from limited prosperity to impoverishment. The trial court should have reserved jurisdiction to award permanent alimony so as to prevent this potential result.

We find support for our decision from our opinion in Christmas v. Christmas, 419 So.2d 1149 (Fla. 5th DCA 1982). In Christmas, the parties had been married for eight years at the time of the dissolution of marriage. The wife was a college graduate with prior experience as a Spanish teacher. The husband was a medical doctor, earning significant income. The wife was awarded custody of the parties’ two young children, child support, and alimony (not designated rehabilitative or permanent). Upon the youngest child obtaining school-age, the former husband filed a petition to terminate alimony, alleging that the former wife was willfully failing to seek employment. The unrefuted evidence reflected that the former wife had suffered a disabling back injury during the course of the marriage. The record further reflected that the former wife’s medical condition might seriously hamper her physical ability to perform adequately on the job. Notwithstanding such evidence, the trial court terminated the former husband’s alimony obligation, finding the former wife was capable of finding employment as a school teacher. This court reversed. We found that the trial court erred in not reserving jurisdiction to award permanent alimony at a later date, if the former wife’s physical condition so warranted. Id. at 1150. See also Davis v. Davis, 691 So.2d 626 (Fla. 5th DCA 1997) (holding that trial court should have reserved jurisdiction to award permanent periodic alimony because of the uncertainty of the wife’s future medical expenses in light of her history of cancer and her inability to obtain medical insurance).

In the present case, the trial court’s effort to do equity between the parties appears to have been based on the expectation that the Lakewood home would sell for approximately $140,000. However, there is a significant possibility that the wife will net little or no proceeds from the Lakewood property. If the wife does not receive significant proceeds from the Lakewood property, she is likely to be left in an impoverished condition. Accordingly, we find the trial court abused its discretion in failing to reserve jurisdiction to award permanent alimony.

REVERSED and REMANDED.

PLEUS and LAWSON, JJ., concur.

      . The husband testified that he had paid the wife $3,500 in temporary alimony. The trial court gave the husband one month to provide documentation of these alleged payments. At that time, the trial court would enter a judgment against the husband for $10,000, less any documented credits.


author: LAWSON, J.

text:
    David S. LOGAN, Appellant, v. STATE of Florida, et al., Appellee.
    No. 5D06-4072.
    District Court of Appeal of Florida, Fifth District.
    Aug. 24, 2007.
    David S. Logan, Orlando, pro se.
    Bradley R. Bischoff, of Florida Parole Commission, Tallahassee, for Appellee, Florida Parole Commission.
    No appearance for Appellee, State of Florida.
   LAWSON, J.

David S. Logan appeals from an order denying his petition for writ of habeas corpus. In his petition, Logan sought to challenge the Florida Parole Commission’s determination that he was to be released from prison to conditional release supervision pursuant to section 947.1405, Florida Statutes (2006). Finding that habeas was not the proper remedy (since Logan was not seeking to test the legality of his then-current imprisonment), the trial court denied the petition without considering Logan’s challenge to the conditional release supervision determination. We have treated Logan’s petition as seeking the appropriate remedy, have considered it on the merits, and find that Logan is not entitled to relief. Therefore, we affirm.

Conditional release “is an additional post-prison supervision program for certain types of offenders that the legislature has determined to be in need of further supervision after release.” Rivera, v. Singletary, 707 So.2d 326, 327 (Fla.1998). The conditional release statute was enacted in 1988. Ch. 88-122, §§ 10, 19-20, Laws of Florida. Prior to enactment of this statute, when an inmate was released from state custody before the end of the pronounced prison term based upon the application of “gain time,” the sentence simply expired and the prisoner was considered to have completed his or her sentence in full. Lincoln v. Florida Parole Commission, 643 So.2d 668, 670 (Fla. 1st DCA 1994). The same is true today for inmates who do not meet the criteria for conditional release. Id. However, inmates who do meet the statutory conditional release criteria are released to community supervision for a period equal to the amount of gain time earned while incarcerated. Mayes v. Moore, 827 So.2d 967, 971-972 (Fla.2002). If they violate a condition of release prior to the expiration of their full, pronounced prison term, gain time and release are revoked and they may be re-incarcerated for the balance of their sentence. Id.

A prisoner or releasee who is not claiming entitlement to immediate release from incarceration may challenge the Parole Commission’s determination that he or she meets the statutory criteria for conditional release by petition for writ of mandamus. Wesley v. State, 848 So.2d 1231 (Fla. 2d DCA 2003); cf. Bush v. State, 945 So.2d 1207 (Fla.2006). Although Logan should have filed a petition for writ of mandamus, the trial court should have treated his petition as seeking the proper remedy, rather than summarily denying it for applying the wrong label. Ashley v. Moore, 732 So.2d 498 (Fla. 1st DCA 1999); Fla. R.App. P. 9.040(c).

Regardless, we conclude from our review of Logan’s petition that he is not entitled to relief. Logan appears to qualify for conditional release treatment, and nowhere alleges that he does not meet the statutory criteria for conditional release. Rather, Logan seems to be laboring under the misimpression that he cannot be placed on conditional release because the trial court did not order it at the time of his sentencing. Unlike probation, conditional release is not part of a criminal sentence. Mayes, 827 So.2d at 971. It, therefore, cannot be mandated or waived by the sentencing judge. Id. Rather, “[a]n inmate’s eligibility for conditional release is established by statute.” Id. Because Logan fails to allege that he does not meet the statutory criteria for conditional release, he fails to state any legitimate basis to challenge the Parole Commission’s determination that he meets the criteria. As such, Logan’s petition should have been denied on the merits.

AFFIRMED.

SAWAYA and MONACO, JJ., concur.

      . Logan’s petition is not a model of clarity. The same is true of his brief on appeal. From Logan’s filings it is not altogether clear whether Logan was awaiting release from his original sentence, or already under conditional release supervision, at the time that he filed his habeas petition. However, the trial court’s determination that Logan was not claiming a right to immediate release from incarceration appears to be correct.

      . Additionally, we note that the petition should have been transferred to the circuit court sitting in Leon County, in the second judicial circuit, where venue properly lies for actions challenging a determination by the Parole Commission. Cf. Bush, 945 So.2d at 1211-1214. However, the Commission apparently waived its home venue privilege below.


author: SILBERMAN, Judge.

text:
    A.S.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4279.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2007.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

A.S.P. appeals his adjudication of delinquency and judicial warning for possession of a weapon on school property and contends that the trial court should have granted his motion to suppress. We agree and reverse the trial court’s adjudication and disposition order.

In its delinquency petition, the State alleged that A.S.P. committed the acts of possession of a weapon on school grounds, in violation of section 790.115(2)(b), Florida Statutes (2005), and trespass on school property with a firearm or weapon, in violation of section 810.095, Florida Statutes (2005). A.S.P. filed a motion to suppress, which the trial court denied. Following trial, the court entered its order adjudicating A.S.P. guilty of possession of a weapon on school grounds. The court found A.S.P. not guilty of the offense of trespass on school property with a firearm or weapon. As to the latter offense, it was undisputed that A.S.P. was not a student at Hillsborough High School but that he was there on the day in question for the legitimate business of obtaining his scores on a test he had taken to enter a GED program. See E.W. v. State, 873 So.2d 485, 487 (Fla. 1st DCA 2004) (“The ‘legitimate business’ which would entitle one to enter or remain upon school property refers to any purpose for being there which is connected with the operation of the school.”); J.C.S. v. State, 613 So.2d 574, 575 (Fla. 1st DCA 1993) (recognizing that juvenile was on school property for legitimate business of obtaining his transcript).

With respect to the motion to suppress, Eric Johnsen testified that he is the school security officer for Hillsborough High School. On March 1, 2006, a student pointed out A.S.P. as a trespasser. That week at school there had been some gang issues and fights, and the students had been alerted to these issues. Johnsen saw A.S.P. on the bus ramp, near the senior parking lot. Johnsen asked A.S.P. whether he was a student at Hillsborough High, and A.S.P. said no. Johnsen testified that he brought A.S.P. over to the car and “searched him right away.” When asked why he searched A.S.P., Johnsen said, “Because it’s a safety issue. He’s on school grounds. He’s a trespasser.” John-sen found a knife on A.S.P.’s person, and Johnsen immediately turned the knife over to Officer Sutton of the Tampa Police Department, who then arrested A.S.P.

The trial court questioned Johnsen about what he would have done if A.S.P. had told him that he came to the school to get test scores. Johnsen said that he probably would have given A.S.P. directions to get to the proper area of the school and that if A.S.P. had said that he had school business, Johnsen would not have searched him. However, Johnsen’s testimony reflects that the only question he asked A.S.P. before immediately searching him was whether he was a student at the school.

The trial court stated that it was a close call but denied the motion to suppress “because of what had been happening in the school; the testimony that there had been problems, gangs, fights, et cetera. He said he’s not a student; therefore, they need to check him out because of the safety.”

Section 810.097(1) provides in pertinent part as follows:

(1) Any person who:
(a) Does not have legitimate business on the campus or any other authorization, license, or invitation to enter or remain upon school property ... and who enters or remains upon the campus or any other facility owned by any such school commits a trespass upon the grounds of a school facility and is guilty of a misdemeanor of the second degree ...

Section 810.097(4) provides that a law enforcement officer may arrest, without a warrant, “any person the officer has probable cause for believing has committed the offense of trespass upon the grounds of a school facility.”

Here, while Johnsen may have suspected that A.S.P. might be trespassing, the evidence did not establish probable cause to believe that A.S.P. had committed the crime of trespass upon school grounds as defined in section 810.097(1). Although A.S.P. admitted that he was not a student, Johnsen immediately searched him before ascertaining whether he had any legitimate business on campus. Under these circumstances, we cannot say that probable cause existed to arrest A.S.P. or search him incident to arrest for trespassing on school grounds.

The trial court appeared to deny the motion to suppress based on the safety issue at the school. Had Johnsen articulated a reasonable suspicion that A.S.P. had a weapon, we would agree that John-sen would have been justified in doing a pat-down for weapons. “A pat-down for weapons is permissible only when the officer has a reasonable suspicion that the defendant is armed and dangerous.” Owens v. State, 854 So.2d 737, 740 (Fla. 2d DCA 2003) (noting that the record failed to show that the officer “had a particularized suspicion that Owens was armed; thus, the pat-down for weapons was illegal”).

Johnsen admitted that he conducted a full search, not a pat-down for weapons. Even if he had only conducted a pat-down, he failed to articulate any reasonable suspicion to believe that A.S.P. had a weapon on his person. Because the evidence does not reflect that Johnsen had a particularized suspicion that A.S.P. was armed, the search was illegal.

Therefore, the trial court erred in denying A.S.P.’s motion to suppress. We reverse the adjudication of delinquency and judicial warning for possession of a weapon on school property.

Reversed.

NORTHCUTT, C.J., and LaROSE, J., Concur.

      . We note that a school official may search a student based on reasonable suspicion, as articulated in the two-prong test of New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). See T.J. v. State, 538 So.2d 1320, 1321 (Fla. 2d DCA 1989). Here, A.S.P. was not a student at Hillsborough High School. Moreover, Johnsen had no reasonable suspicion that A.S.P. had a weapon.


author: SALCINES, Judge.

text:
    John BEASLEY, Appellant. v. STATE of Florida, Appellee.
    No. 2D06-549.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2007.

      John Beasley, pro se.
    Bill McCollum, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

John Beasley appeals the denial of three grounds of his Florida Rule of Criminal Procedure 3.850 motion for posteonviction relief. Although we approve the summary denial of two of those grounds, we must reverse the order denying relief as to the remaining one because Beasley established that counsel was ineffective in counseling him concerning a plea offer.

I. Statement of the Case

Beasley was charged with burglary of a dwelling, grand theft of a firearm, possession of a firearm by a convicted felon, three counts of dealing in stolen property, and two counts of giving false verification to a pawn shop broker. The offenses allegedly occurred on September 24, 2001. Prior to trial, the State offered Beasley a plea agreement whereby he would enter a guilty plea to all the charges and, in return, his maximum sentence for burglary of a dwelling would be limited to fifteen years’ imprisonment as a Prison Releasee Reoffender (PRR). Beasley did not accept the plea offer.

After a jury trial, Beasley was found guilty of possession of a firearm by a convicted felon, dealing in stolen property, and giving false verification to a pawn shop broker. The jury acquitted Beasley of the burglary charge. He was sentenced as a habitual felony offender to concurrent sentences of five years’ imprisonment for the possession of a firearm, grand theft, and giving false verification to a pawn shop broker. He was sentenced to thirty years’ imprisonment as a habitual felony offender for dealing in stolen property.

II. The Motion for Postconviction Relief

Beasley filed a timely motion for post-conviction relief asserting in ground two that trial counsel was ineffective because she advised him not to accept the plea bargain offered by the State. Beasley asserted that counsel told him that he did not qualify for treatment as a PRR and the minimum mandatory fifteen-year sentence under the PRR statute would have been harsher than that which he could receive if he were found to be guilty of all offenses. In the motion, Beasley indicated that this advice was correct at the time it was given. However, immediately before the jury selection process commenced, the State served both Beasley and his trial counsel with notice that it intended to seek an enhanced sentence under the habitual felony offender statute. The effect of the notice was to increase Beasley’s exposure from a possible sentence of fifteen years’ imprisonment to thirty years’ imprisonment.

At the evidentiary hearing on ground two of the motion, Beasley asserted that trial counsel was ineffective for failing to inform him of the consequences of the habitual offender notice and that his sentence could be doubled. He stated that had he known the ramifications of the notice and that he was facing thirty years as a habitual felony offender he would have taken the plea offer of fifteen years and would not have “rolled the dice” with a jury. Although Beasley admitted that he had been in prison three times previously, he testified that he had not learned the consequences of habitual felony offender sentencing. He stated that his prior sentences were not long because he had received so much gain time and he was emphatic that he had never spoken to other inmates about habitual offender sentencing.

Additionally, Beasley testified that the fifteen-year offer by the State still was viable until the trial commenced. The prosecutor testified and confirmed that the offer of fifteen years as a PRR was still an option at the time the notice of intent was served on Beasley and his trial counsel.

Melissa Wilson, Beasley’s trial counsel, did not refute his allegations. She admitted that she counseled him to reject the State’s plea offer. When questioned, Attorney Wilson stated that she did not recall that “absolutely 100% [Beasley] want[ed] a trial.” This statement supports Beasley’s allegation that he would have accepted the plea agreement had he been informed of the consequences of the habitual felony offender notice.

Further, Attorney Wilson did not remember what she told Beasley about the habitual felony offender notice. Attorney Wilson stated that she had no notes concerning her conversation with Beasley about the notice because she was informed of the State’s action when they were in the holding cell immediately prior to jury selection. She indicated that usually she would have informed any defendant of the consequences, but due to the fact that the notice was served with such a short time period before they appeared in court, she could not accurately testify concerning what statement she may have made to Beasley. Attorney Wilson conceded that if Beasley had accepted the plea he would have faced only fifteen years as a PRR which is less than the thirty years as a habitual felony offender which he received. She testified that after the jury returned its verdict, she contacted the prosecutor and told him, “I’m not sure I properly advised this individual is there something we can do to make a deal and [the prosecutor] declined me.”

III. The Postconviction Court’s Ruling

In the order denying relief on ground two, the postconviction court specifically found, “[d]efense counsel did not then discuss the legal effects of the notice with her client.” However, the court concluded, “Even assuming ineffective assistance of counsel for failure to explicitly and directly confer with the defendant in the courtroom on 18 February when the notices were delivered that HFO enhancement would permit the Court to double the sentence, the Court finds that the defendant was not prejudiced as a result of that deficiency, as required by the second prong of Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ].”

The order went on to state that the court did not believe Beasley’s testimony that if he had been advised his sentence could be doubled he would have accepted the plea. The court concluded that Beasley was experienced in the criminal justice system and knew the maximum sentence he faced but “elected to take his chances with believing that he would not do any worse than the 15 year PRR offer.” The postconviction court chose not to believe Beasley’s testimony that he had not learned the consequences of a habitual offender sentence while in prison even though Beasley’s testimony that he was unaware of the consequences was unrefut-ed.

IV. Analysis

In Schwab v. State, 814 So.2d 402, 408 (Fla.2002), the supreme court discussed the two-prong test set forth in Strickland, 466 U.S. at 687, 104 S.Ct. 2052, which is used to analyze claims of ineffective assistance of counsel. First, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness” based on “prevailing professional norms.” Id. (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Next, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Because both prongs of the Strickland test present mixed questions of law and fact, this court employs a mixed standard of review, deferring to the postconviction court’s factual findings that are supported by competent, substantial evidence but reviewing the court’s legal conclusions de novo. Ford v. State, 955 So.2d 550, 553 (Fla.2007).

When examining whether trial counsel was effective in instances where a plea agreement has been offered by the State, the supreme court set out a three-part test in Cottle v. State, 733 So.2d 963, 967 (Fla.1999). The court held that a pri-ma facie case of ineffective assistance of counsel based on the rejection of a plea offer would be made if a defendant proved (1) counsel failed to communicate a plea offer or misinformed the defendant concerning the penalties; (2) the defendant would have accepted the plea offer but for the inadequate communication; and (3) acceptance of the plea offer would have resulted in a lesser sentence. The prejudice to the defendant that Strickland requires “is inherent in the defendant’s inability to make an informed decision concerning whether to accept the plea offer.” Eristma v. State, 766 So.2d 1095, 1096 (Fla. 2d DCA 2000) (citing Cottle, 733 So.2d at 969); see Rudolf v. State, 851 So.2d 839, 841 (Fla. 2d DCA 2003).

V. Conclusion

In the present case, as discussed above, the postconviction court’s factual findings that Beasley had knowledge of the consequences of the habitual felony offender notice are not supported by competent, substantial evidence. Beasley has satisfied the three-part test set out in Cottle and has presented a prima facie case of ineffective assistance of trial counsel. Accordingly, we reverse the postconviction court’s order denying ground two of Beasley’s motion and remand. Although we have no authority to require the State to reoffer its original plea offer on remand, we suggest that the parties should engage in a “good faith resumption of plea negotiations.” See Feldpausch v. State, 826 So.2d 354, 357 (Fla. 2d DCA 2002); see Rudolf, 851 So.2d at 841-42; Eristma, 766 So.2d at 1097. If negotiations take place but fail, Beasley shall be given a new trial.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, C.J. and CASANUEVA, J., Concur.

      . § 775.082(9)(a)(l)(q), Fla. Stat. (2001).

      . The judgment and sentence for grand theft were ultimately vacated.

      . § 775.084(l)(a), Fla. Stat. (2001).


author: CASANUEVA, Judge.

text:
    Thomas I. SMITH, Appellant, v. Alisa SMITH, Appellee.
    No. 2D06-3353.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2007.

      Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellee.
   CASANUEVA, Judge.

Thomas I. Smith appeals a final injunction for protection against domestic violence with minor children (after notice). He claims that his right to due process was violated when the trial court did not permit him to call his witnesses or to testify himself prior to entering the permanent injunction. We agree that the trial court erred when it denied Mr. Smith his fundamental right to be heard. Accordingly, we reverse and vacate the order of the trial court.

Alisa Smith, Mr. Smith’s wife, sought the injunction. Florida Family Law Rule of Procedure 12.610(c)(4)(A) and section 741.30, Florida Statutes (2006), require that a full evidentiary hearing be held after the entry of an ex parte temporary injunction. In the instant case, the trial court permitted a forty-five minute return hearing on June 6, 2006, at which only Ms. Smith presented testimony and evidence. Mr. Smith’s witnesses were present and ready to testify. The court continued the hearing until June 15, 2006.

At this second hearing, Mr. Smith’s witnesses were again present, but again, only Ms. Smith was permitted to testify and to call witnesses. In the middle of cross-examination of the wife, the judge abruptly ended the proceedings and entered the final injunction. The court ordered no contact between the parties, granted exclusive use of the marital home to Ms. Smith, and worked out the details of the visitation schedule of the two minor children. Although Mr. Smith answered a few questions about visitation posed by the court, his statements were not sworn testimony. The permanent injunction exposed Mr. Smith to possible indirect criminal contempt or direct criminal charges and to punishment if any charges were proven. It also barred Mr. Smith from having care, custody, possession, or control of any firearms or ammunition.

Ms. Smith contends that trial courts have broad authority to control their courtrooms and their dockets and that Mr. Smith’s trial strategy wasted his allocation of time. She argues the doctrine of invited error precludes Mr. Smith from raising his due process claim as grounds for reversal. She also suggests that Mr. Smith’s expert witnesses were not relevant to the proceedings. We are unable to draw any inferences regarding Mr. Smith’s trial strategy because he was not afforded an opportunity to present his case. While courts have broad authority to control their dockets, trial judges must use this authority to “manage their courtrooms so that the people’s business may be conducted fairly, efficiently, and expeditiously.” McCrae v. State, 908 So.2d 1095, 1096 (Fla. 1st DCA 2005). The trial court has a duty to control the proceedings, ensuring that both sides have a fair share of the court’s time. Because the trial court denied Mr. Smith the opportunity to call witnesses or to testify in his own behalf, we find it abused its discretion. In doing so, Mr. Smith was denied his fundamental constitutional right to procedural due process.

Both the Florida Family Law Rules of Procedure and the Florida statutes mandate that a party to a domestic injunction proceeding will receive a full evidentiary hearing. Neither suggests the circumstances of the instant case — that a court only permit one party an opportunity to present its side. “ ‘It is fundamental that the constitutional guarantee of due process, which extends into every proceeding, requires th[at] the opportunity to be heard be full and fair, not merely colorable or illusive.’ ” Edelman v. Breed, 836 So.2d 1092, 1094 (Fla. 5th DCA 2003) (quoting Pelle v. Diners Club, 287 So.2d 737, 738 (Fla. 3d DCA 1974)). Due process requires an opportunity to be heard. Sumner v. Sumner, 862 So.2d 93, 95 (Fla. 2d DCA 2003). The right is one afforded to both parties, and here such an opportunity was due Mr. Smith. “ ‘None of the elements involved in the notion of procedural due process has greater importance than the right to be heard.’ ” Pope v. Pope, 901 So.2d 352, 353 (Fla. 1st DCA 2005) (quoting Miller v. Miller, 691 So.2d 528, 529 (Fla. 4th DCA 1997)); Samanka v. Brookhouser, 899 So.2d 1190, 1191 (Fla. 2d DCA 2005) (finding daughter’s due process rights were violated when injunction was modified without a hearing); see also Adili v. Adili, 913 So.2d 1240, 1241 (Fla. 4th DCA 2005) (reversing an injunction for protection against domestic violence due to the trial court’s failure to allow the husband to present witnesses or evidence). Here, Mr. Smith was denied his right to be heard before the trial court entered its judgment. Because the trial court erred in denying Mr. Smith due process, we reverse and vacate the order of June 15, 2006.

We conclude that a remand for further proceedings is unnecessary because the term of the injunction expired June 15, 2007.

FULMER and CANADY, JJ., Concur.


text:
    Willie J. HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0314.
    District Court of Appeal of Florida, First District.
    Aug. 27, 2007.

      Willie J. Hudson, pro se, Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellant.
   PER CURIAM.

The appellant challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the trial court’s denial of the appellant’s claim that counsel was ineffective for failing to call alibi witness Rose Brown. The denial of the appellant’s other claims is affirmed.

In his amended issue D, the Appellant alleges that his trial counsel was ineffective for failing to investigate and call alibi witness Rose Brown. The appellant has alleged a facially sufficient claim of ineffective assistance of counsel for failing to call a witness. See Nelson v. State, 875 So.2d 579 (Fla.2004) (holding that to state a facially sufficient claim of ineffective assistance of counsel for failing to call a witness, the defendant must allege: (1) the witness’s identity; (2) the substance of the witness’s testimony; (3) how the omission of the testimony prejudiced the outcome of the case; and (4) that the witness was available to testify). The record of the trial proceedings below does not refute the appellant’s claim that there is a reasonable probability that, but for counsel’s failure to call Rose Brown, the outcome of the proceeding would have been different. See Reid v. State, 682 So.2d 194 (Fla. 4th DCA 1996) (ruling that summary denial of an ineffective assistance of counsel claim was improper where evidence showed that the wife of the defendant showed up at trial expecting to be called as an alibi witness but was never called to testify, two juries were unable to agree on a verdict, and the only witness who identified the defendant as the perpetrator of the crime was subject to impeachment on cross-examination). Thus, we reverse and remand for an evi-dentiary hearing or attachment of portions of the record that conclusively refute appellant’s claim that counsel was ineffective for failing to call Rose Brown. The denial of the appellant’s remaining claims is affirmed.

AFFIRMED in part; REVERSED in part, and REMANDED.

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


text:
    John RUDOLPH, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2976.
    District Court of Appeal of Florida, Fifth District.
    Aug. 28, 2007.
    Rehearing Denied Sept. 21, 2007.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Davis v. Reynolds, 319 F.Supp. 20 (N.D.Fla.1970).

GRIFFIN, ORFINGER and TORPY, JJ., concur.


author: GROSS, J.

text:
    Curtis ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1220.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2007.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We confront the same issue that we considered in Ross v. State, 913 So.2d 1184, 1187 (Fla. 4th DCA 2005) — “[H]ow wide did [a criminal defendant] ‘open the door’ when he testified that he pled guilty to prior charges because he was guilty.” (Emphasis in original). We hold that the trial judge properly limited the cross-examination and affirm.

Charged with burglary of a dwelling, Curtis Rogers’s trial strategy was to contend that he was guilty only of trespass.

Rogers testified at trial. He admitted that he entered the home without the consent of the owners. He explained that he thought no one was home, so he went inside because he was tired, to “chill,” sit, rest a little, and sleep.

Once inside, Rogers went into the den and rested for a while. Then, he walked around the house. First, he pushed open a locked door and went into a girl’s bedroom. He looked in the dresser and threw stuff all over the floor, explaining that he was jealous. He saw jewelry but did not take any of it because there was “no reason to.” Rogers then went into another locked bedroom where he saw a plasma television and a DVD player. He looked in the dresser drawers because he was just “curious.”

Next, Rogers went into the bathroom to look at himself in the mirror. When he entered the last bedroom, he noticed a person there, panicked, and ran out of the house without taking anything.

Defense counsel asked Rogers if he had ever been convicted of a felony. Rogers indicated that he had 13 felony convictions. Responding to his lawyer’s question, Rogers stated that he had pleaded no contest in all of the prior cases. Defense counsel then asked Rogers why he had entered pleas in the prior cases. Rogers testified that he had pled out in those cases because he was guilty.

On cross-examination, the prosecutor sought to explore Rogers’s motive for pleading no contest to the 13 felonies. After considering the defense objection, the trial court allowed this question and answer:

Q. (By the prosecutor) Mr. Rogers, back to your 13 prior felony convictions, Mr. Rogers, it is fair to say, isn’t it, by your pleading guilty to those 13 prior felonies, you had received a much lesser sentence by pleading guilty than you could have ultimately received?
A. Yes.

Rogers argues that he is entitled to a new trial based upon this exchange.

Generally, under section 90.610, Florida Statutes (2006), impeachment by prior convictions is “restricted to determining if the witness has previously been convicted of a crime, and if so, how many times.” Ross, 913 So.2d at 1186 (citing Fotopoulos v. State, 608 So.2d 784, 791 (Fla.1992)); see also Fulton v. State, 335 So.2d 280, 284 (Fla.1976); Brown v. State, 787 So.2d 136, 138 (Fla. 4th DCA 2001). Typically, “the prosecutor is not allowed to delve into the nature of a defendant’s prior convictions or the circumstances surrounding them.” Ross, 913 So.2d at 1186 (citing Green v. State, 720 So.2d 1150 (Fla. 4th DCA 1998)); Banks v. State, 655 So.2d 1224 (Fla. 4th DCA 1995). This limitation applies even when the defendant first brings out a conviction on direct examination. Ross, 913 So.2d at 1187; see Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981).

An exception to the general rule exists when a defendant engages in “spin control” by characterizing the prior convictions in a way favorable to his case at trial. Under those narrow circumstances, where a defendant has so opened the door, the state is entitled to inquire further regarding the convictions to attempt to dispel any misleading impression. Ross, 913 So.2d at 1187; Fotopoulos, 608 So.2d at 791; McCrae v. State, 395 So.2d 1145, 1151 (Fla.1980). “The ‘opening the door’ concept is based on considerations of fairness and the truth-seeking function of a trial, where cross-examination reveals the whole story of a transaction only partly explained in direct examination.” Bozeman v. State, 698 So.2d 629, 631 (Fla. 4th DCA 1997).

Lawhorne v. State, 500 So.2d 519 (Fla.1986), approved the use of “anticipatory rehabilitation.” This strategy allows a defendant to present evidence of his prior convictions on direct examination and “take the wind out of the sails” or to “soften the blow” of anticipated attacks on his credibility. The supreme court “also recognized the defendant’s right to offer testimony about the circumstances of his prior convictions, including a statement that his prior convictions were adjudicated upon pleas of guilty rather than upon trial verdicts.” Ross, 913 So.2d at 1187 (citing Lawhorne, 500 So.2d at 523). A defendant’s testimony that he pled guilty in prior cases because he was guilty implies that he elected to go to trial in the case at hand because he was not guilty. See Ross, 913 So.2d at 1187; Bowles v. State, 849 So.2d 465, 466 (Fla. 4th DCA 2003); Ziermann v. State, 696 So.2d 491, 492 (Fla. 4th DCA 1997).

In Ross, the defendant testified on direct examination that he had prior felony convictions. 913 So.2d at 1186. He explained that he pleaded guilty to those felonies, rather than go to trial, because he was guilty of the charges. Id. The trial court found that defendant’s testimony opened the door to extensive cross-examination on the circumstances surrounding his guilty pleas. Id. Over defense objection, the trial court allowed the prosecutor to elicit that the defendant faced five years in prison on possession of cocaine charges and received only eighteen months after his guilty plea. Id. The prosecutor further established that the defendant had been charged with both robbery and theft in the State of Georgia, and that the state had dropped the theft charge in exchange for his guilty plea of robbery. Id.

In Ross, this court held that the defendant’s testimony did not open the door to such extensive cross-examination concerning the details of his prior convictions. Recognizing that the defendant’s explanation that he pleaded guilty to the earlier charges was “nothing more than an implied assertion of innocence on his current charges,” we explained that a prosecutor must not wander “too far afield” by exposing the jury to “specific information about a defendant’s prior record.” Id. at 1187-88.

In this case, the trial judge properly confined the cross-examination to the parameters of Ross. The court did not permit questions about the nature of Rogers’s pri- or convictions. The question was of the type anticipated by Lawhome, where the defendant’s response “opened the door to some extent to the state’s inquiry” into the defendant’s reasons for pleading guilty. 500 So.2d at 523. Once Rogers attempted to use the prior convictions to establish that he was not guilty of burglary, the state was permitted to test the credibility of this approach by providing an alternative reason for the earlier guilty pleas.

Affirmed.

STONE and POLEN, JJ., concur.