author: ORFINGER, J.

text:
    STATE of Florida, Appellant, v. Donald Lee CLAVETTE, Appellee.
    No. 5D07-598.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
   ORFINGER, J.

Meghan Greene and her boyfriend, Donald L. Clavette, lived together in a home they shared with their one-month-old child. Following a disagreement, Ms. Greene left their residence with the child to stay with friends. A few hours later, a highly intoxicated Mr. Clavette forced his way into the home where Ms. Greene and the child were staying, pushed her down and tried to take the child. Unable to do so, Mr. Clavette departed. The Orange County Sheriffs Department was called and several deputies responded. After learning what happened and where Mr. Clavette and Ms. Greene lived, the deputies asked Ms. Greene for consent to search their residence in an effort to locate Mr. Cla-vette. Ms. Greene consented and the deputies departed in search of Mr. Clavette, intending to arrest him for misdemeanor domestic violence.

The deputies arrived at the residence shared by Mr. Clavette and Ms. Greene shortly thereafter, between 4:00 and 5:00 a.m. They attempted to contact anyone in the home by telephone and by illuminating the home with a spotlight. When those steps were unsuccessful, the deputies used their public address system in an effort to raise anyone in the residence, but again got no response. Finally, the deputies knocked on the front door and Mr. Cla-vette’s sister opened the door. Initially, she told the deputies that she and her boyfriend were spending the night and that Mr. Clavette was not home. However, she later told the deputies that she was not certain whether Mr. Clavette was in the residence. The deputies took Mr. Cla-vette’s sister and her boyfriend to a safe location outside, and entered the residence. They conducted a protective sweep of the house and found Mr. Clavette behind the closed door of his bedroom, lying in bed. After they identified themselves as deputy sheriffs, Mr. Clavette lunged toward one the deputies, grabbing the barrel of his rifle. A fight ensued, and Mr. Clavette was subdued and arrested by the deputies and subsequently charged by information with attempting to take a firearm from a law enforcement officer, resisting an officer with violence, battery on a law enforcement officer and misdemeanor domestic violence battery.

Through counsel, Mr. Clavette filed a motion to suppress pursuant to Florida Rule of Criminal Procedure 3.190(h). The motion did not attempt to suppress any physical evidence or statements made by Mr. Clavette. Instead, it sought to suppress “all testimonial evidence [from the deputies] relating to the ... charges” resulting from his arrest. Concluding that the deputies entered the residence illegally to make a warrantless arrest for a misdemeanor, the trial judge granted the motion and suppressed any testimony by the deputies regarding the fracas that ensued when they arrested Mr. Clavette.- The State now appeals the suppression order. As explained below, we reverse.

On appeal of a suppression order, legal questions are reviewed de novo, while factual decisions made by the trial court, viewed in light of constitutionally-mandated burdens of proof, are entitled to deference if supported by competent substantial evidence. Williams v. State, 788 So.2d 334, 336 (Fla. 5th DCA 2001).

A private home is the area where a person enjoys the highest expectation of privacy under the Fourth Amendment. See Vasquez v. State, 870 So.2d 26, 29 (Fla. 2d DCA 2003). Consequently, the war-rantless entry of a person’s home by law enforcement officers to search for objects of a crime is generally barred by the Fourth Amendment, subject only to a few carefully drawn exceptions. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (prohibiting warrantless entry into home to effect arrest; reiterating that physical entry of home is chief evil against which Fourth Amendment is directed). One such exception recognizes the validity of searches with the voluntary consent of an individual who possesses joint access, common authority, or other sufficient relationship over the premises being searched. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). However, although joint occupants may consent to a search of their shared premises, when consent is expressly refused by the party against whom the search is directed, any subsequent consent by the other joint occupant is invalid. See Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).

In the case before us, Mr. Clavette was a joint occupant of the home whose constitutional rights were clearly implicated by law enforcement’s entry into the home that he shared with Ms. Greene. While not disputing Ms. Greene’s right to consent to the entry, Mr. Clavette argues that his refusal to respond to law enforcement’s entreaties constituted an express refusal on his part to allow the entry, thereby negating Ms. Green’s consent. We disagree.

In Randolph, the Supreme Court held that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” 547 U.S. at 120, 126 S.Ct. 1515 (emphasis added). By holding that only the express refusal of consent is sufficient to overcome the consent given to the police by another resident, we conclude that the Supreme Court intended that such refusal be direct, firm and explicit, and not one gleaned by implication or inference. Indeed, the Randolph opinion went on to posit an example that has significant implications here. The Court said that “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.” Id. at 105, 126 S.Ct. 1515. The latter is precisely what occurred here.

The Randolph dissent argued that the rule adopted by the majority was too narrow and advocated for a broader rule that would permit the police to enter a residence anytime an individual with joint authority over the premises consented, irrespective of an objection by other co-occupants. In describing what he perceived to be a flawed rule adopted by the majority, Chief Justice Roberts wrote:

The rule the majority fashions does not implement the high office of the Fourth Amendment to protect privacy, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room.

Id. at 127, 126 S.Ct. 1515 (Roberts, C.J., dissenting).

In the case before us, Mr. Clavette never expressly refused consent. To the contrary, just as Randolph suggested, he was either hiding, resting or sleeping in his bedroom and did not hear or chose not to respond to the police prior to their entry into his home. In any event, under the rule adopted in Randolph, Mr. Clavette’s lack of express refusal to the police entry was insufficient to overcome the consent given by Ms. Greene.

Amother point merits discussion. Even if the police had illegally entered the residence, Mr. Clavette would not have been entitled to suppress the observations and testimony of the deputies regarding the events that occurred thereafter. This is because it is well-established that a person is not entitled to use force to resist even an illegal arrest. State v. Freeney, 613 So.2d 523, 525 (Fla. 2d DCA 1993). As Professor LaFave recognizes “[o]n occasion, when the police conduct an illegal arrest or an illegal search this will prompt the person arrested or subjected to the search [to] react by committing some criminal offense. He might attack the arresting or searching officer.... In such cases, the courts are confronted with the question of whether evidence of this new crime must be suppressed as a fruit of the prior illegal arrest or search.” 4 Wayne R. La-Fave, Search and Seizure, § 11.4(j) (4th ed. 2004). The courts have consistently held that the evidence of the new crime is admissible notwithstanding the prior illegal arrest or search.

Professor LaFave explains the rule adopted by the courts thusly:

In cases where the response has been a physical attack ... courts have again held that the evidence of this new crime is admissible. Illustrative is Commonwealth v. Saia, [372 Mass. 53, 360 N.E.2d 329 (1977) ] where an officer was attacked by two men after he had made an entry into their premises. Although the court was inclined to the view that the entry was lawful, it was held that the evidence of this assault would be admissible even if the officer had been engaged in an illegal search.
Even if one assumes the illegality of the entry there is no showing that the evidence sought to be suppressed is an “exploitation” of the primary illegality. ... What is present here is simply an attempt to suppress evidence which is a result of allegedly willful acts of misconduct by [the defendants], whose provocation and perhaps ultimate defense may be found in the fact of the entry itself. The exclusionary rule does not reach this far.
... Suppose a police officer or other person had been killed in the affray that allegedly occurred here. That hypothesis illustrates the inappropriateness of any ruling that the observations of the police were inadmissible under the exclusionary rule in the circumstances of these cases.
In these cases as well, it is sometimes said by way of explanation that the attack upon the officer was a “free and independent action.” But here ... the better basis of distinction is that no exploitation of the prior illegality is involved and that the rationale of the exclusionary rule does not justify its extensions to this extreme. “Application of the exclusionary rule in such fashion,” as one court put it, “would in effect give the victims of illegal searches a license to assault and murder the officers involved — a result manifestly unacceptable.”

(Footnotes and internal citations omitted).

This reasoning is sound, and we adopt it. Mr. Clavette’s use of force was an independent act of misconduct. See generally Freeney, 613 So.2d at 525 (holding that evidence that defendant pushed officer backwards, ran away, and continued to struggle was not “legally derivative” of allegedly illegal stop, and thus was not required to be excluded under exclusionary rule); State v. Taylor, 557 So.2d 941 (Fla. 2d DCA 1990) (holding that driver’s abusive and highly confrontational behavior, immediately after his vehicle had been stopped for traffic infraction, justified driver’s arrest for disorderly conduct and subsequent search of his vehicle); LaFave, supra, § 11.4(a). Under the law, Mr. Clavette was expected to tolerate even an illegal entry and seek redress for any violation of his rights in a subsequent legal proceeding. Freeney, 613 So.2d at 525; see Fields v. State, 178 Ind.App. 350, 382 N.E.2d 972, 975 (1978) (“A citizen, today, can seek his remedy for a policeman’s unwarranted and illegal intrusion into the citizen’s private affairs by bringing a civil action in the courts against the police officer and the governmental unit which the officer represents. The common law right of forceful resistance to an unlawful arrest tends to promote violence and increases the chances of someone getting injured or killed.”).

Having concluded that the deputies’ entry into Mr. Clavette’s home was not illegal, and even if it had been, Mr. Clavette was not authorized to respond with violence, we reverse the order of suppression and remand this matter for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MONACO and TORPY, JJ., concur.

      . The dictionary defines "express” as “directly, firmly and explicitly stated.” See Webster's Ninth New College Dictionary 438 (9th ed. 1989).


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    RE-EMPLOYMENT SERVICES, LTD. and GSK Services, Inc., Appellants, v. NATIONAL LOAN ACQUISITIONS COMPANY, etc., Appellee.
    No. 5D06-4417.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.

      C. Gene Shipley of Nardella Chong, P.A., Altamonte Springs, for Appellants.
    Michael L. Gore, David J. Markese, and Eric C. Reed, of Shutts & Bowen, LLP, Orlando, for Appellee.
   SAWAYA, J.

The issue we must resolve is whether a return of service is legally insufficient on its face if it does not specify the date and time the process server received the summons and complaint for service, as required by section 48.21, Florida Statutes (2006). Contending that the return of service filed in the lawsuit brought against them by National Loan Acquisitions Company (NLAC) did not contain this statutorily required information, the defendants, Re-Employment Services, Ltd. (RES) and GSK Services, Inc. (GSK), argue that the trial court erred in denying their motion to quash process, service of process, and return of process.

Although the facts underlying the lawsuit are not important to resolution of the issue before us, the procedural history is. The lawsuit was filed on June 30, 2006, and summonses for RES and GSK were issued on July 3, 2006. These dates are particularly important because affidavits of service signed by a process server for Attorneys Legal Services, Inc. (ALS), averred that ALS had received the summonses and complaint on June 30, 2006, at 5:24 p.m., which is approximately three days before the summonses were actually issued.

RES and GSK, both located in Georgia, initially filed a motion to dismiss the complaint or transfer venue, arguing that the court lacked personal jurisdiction over them because the complaint failed to allege a basis for such jurisdiction under Florida’s long arm statute found in section 48.193, Florida Statutes (2006). At the time the motion was filed, RES and GSK had not received a copy of the affidavits setting forth the return of service. In response to the motion to dismiss, NLAC filed an amended complaint which added allegations that RES and GSK were subject to the trial court’s jurisdiction because, among other things, they conducted business in Florida.

When RES and GSK received a copy of the return of service, they filed a motion to dismiss the amended complaint and to quash process, service of process, and return of process. This motion argued that the return of service was defective for failing to accurately record the date and time the summonses and complaint came to hand as required by section 48.21, Florida Statutes, and focused on the fact that the affidavits setting forth the return of service erroneously stated the summonses and complaint were received by the process server, or “came to hand,” on June 30, 2006, at 5:24 p.m., when the summonses were not issued until July 3, 2006.

NLAC filed amended affidavits of the process server in an effort to correct this error and to remedy any other deficiencies in the service of process. The amended affidavits averred, in pertinent part, that the process came to hand “[o]n or about July 7, 2006,” and that process was served “[o]n July 7, 2006, at 8:20 p.m.” NLAC also filed a memorandum opposing the defendants’ motion to dismiss the amended complaint and quash service of process, contending that the defendants waived any challenge to the sufficiency of the service of process by failing to raise the issue in their motion to dismiss the original complaint, and alternatively, that any actual deficiencies in the service of process were remedied when NLAC filed the amended affidavits of service. The trial court denied the motion without a hearing and this appeal followed.

As an initial matter, we note that this court has jurisdiction to review the non-final order denying the motion to quash under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), which permits review of non-final orders that determine the jurisdiction of a person. See Fisher v. Int’l Longshoremen’s Ass’n, 827 So.2d 1096, 1097 (Fla. 1st DCA 2002); Gaspar, Inc. v. Naples Fed. Sav. & Loan Ass’n, 546 So.2d 764, 765 (Fla. 5th DCA 1989). Our standard of review is de novo. Nw. Aircraft Capital Corp. v. Stewart, 842 So.2d 190, 193 (Fla. 5th DCA 2003) (citing Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002)).

Before we proceed to resolve the specific issue before us, we will briefly address the assertion that RES and GSK waived any challenge to the sufficiency of the service of process by failing to specifically raise the issue in their motion to dismiss the original complaint. Although the trial court did not specifically articulate a ruling regarding this issue — at least we do not find such a ruling in the record before us — we believe that it did so implicitly by deciding the issue relating to the sufficiency of the return of service on the merits. We conclude that the trial court arrived at the correct result regarding the waiver issue.

A defendant must contest the sufficiency of the service of process at the inception of a case either by motion or responsive pleading. Fla. R. Civ. P. 1.140; Lennar Homes, Inc. v. Gabb Constr. Servs., 654 So.2d 649, 651 (Fla. 3d DCA 1995). The defense will be waived if it is not raised at the “ ‘first opportunity.’ ” See Romellotti v. Hanover Amgro Ins. Co., 652 So.2d 414, 414 (Fla. 5th DCA 1995) (quoting M.T.B. Banking Corp. v. Bergamo Da Silva, 592 So.2d 1215, 1215 (Fla. 3d DCA 1992)). However, no waiver occurs if the initial motion to dismiss is amended to include the defense before the motion is heard. See Waxoyl, A.G. v. Taylor, Brion, Buker & Greene, G.P., 711 So.2d 1251, 1254 (Fla. 3d DCA 1998); Astra v. Colt Indus. Operating Corp., 452 So.2d 1031, 1032 (Fla. 4th DCA 1984).

In the present case, at the time RES and GSK filed their initial motion to dismiss, they had not obtained a copy of the affidavits setting forth the return of service. Before any hearing on the initial motion was held, NLAC filed an amended complaint to correct its failure to sufficiently allege personal jurisdiction. By the time NLAC filed the amended complaint, RES and GSK had obtained a copy of the return of service, and they responded to the amended complaint by filing the motion to dismiss and quash service of process, which alleged that the return of service was defective on its face because it averred that process came to hand before the summonses were even issued. NLAC responded by filing amended affidavits setting forth the return of service in an effort to remedy the error.

Under these circumstances, RES and GSK challenged the validity of the service of process and return of service at the first opportunity. Further, even if the filing of the motion was not the first opportunity to raise the issue, there was not a hearing, or even a ruling, on the original motion to dismiss. Thus, the motion to dismiss directed to the amended complaint, which included the motion to quash, should be treated as an amendment to the original motion to dismiss since a defendant is permitted to amend a motion to dismiss to include additional defenses prior to a hearing on the motion. See Waxoyl, 711 So.2d at 1254; Astra, 452 So.2d at 1032. Because we agree with the implicit ruling of the trial court that the issue relating to the insufficiency of the retain of service was properly preserved and not waived, we will direct our attention to resolving that issue.

The courts require strict construction of, and compliance with, the provisions of statutes governing service of process. Shurman v. Atl. Mortg. & Inv. Corp., 795 So.2d 952, 954 (Fla.2001); Shepheard v. Deutsche Bank Trust Co. Ams., 922 So.2d 340, 343 (Fla. 5th DCA 2006); Torres v. Arnco Constr., Inc., 867 So.2d 583 (Fla. 5th DCA 2004); Pina v. Simon-Pina, 544 So.2d 1161, 1162 (Fla. 5th DCA 1989). The court cannot proceed in a matter until proper proof of valid service is made. Klosenski v. Flaherty, 116 So.2d 767, 768-69 (Fla.1959); Henry P. Trawick, Jr., Florida Practice and Procedure, § 8:20 (2007 ed.).

The burden of proving proper service of process falls upon the party invoking the court’s jurisdiction, see She-pheard, and the return of service is evidence of whether service was validly made. Klosenski, 116 So.2d at 768-69. If the return is regular on its face, then the service of process is presumed to be valid and the party challenging service has the burden of overcoming that presumption by clear and convincing evidence. Id. at 769; Melchi Dev. Group, Inc. v. Berky Dev. Group, L.L.C., 918 So.2d 407 (Fla. 5th DCA 2006); Telf Corp. v. Gomez, 671 So.2d 818 (Fla. 3d DCA 1996). However, if the return is defective on its face, it cannot be relied upon as evidence that the service of process was valid. Klosenski, 116 So.2d at 769; Gonzalez v. Totalbank, 472 So.2d 861 (Fla. 3d DCA 1985). When there is an error or omission in the return of service, personal jurisdiction is suspended and it “lies dormant” until proper proof of valid service is submitted. Klosenski, 116 So.2d at 769; Schneiderman v. Cantor, 546 So.2d 51 (Fla. 4th DCA 1989); Tetley v. Lett, 462 So.2d 1126, 1127 (Fla. 4th DCA 1984).

The statutory provisions that govern return of service are found in section 48.21, which specifically provides:

Each person who effects service of process shall note on a return-of-service form attached thereto, the date and time when it comes to hand, the date and time when it is served, the manner of service, the name of the person on whom it was served and, if the person is served in a representative capacity, the position occupied by the person. A failure to state the foregoing facts invalidates the service, but the return is amendable to state the truth at any time on application to the court from which the process issued. On amendment, service is as effective as if the return had originally stated the omitted facts. A failure to state all the facts in the return shall subject the person effecting service to a fíne not exceeding $10, in the court’s discretion.

§ 48.21, Fla. Stat. (2006).

In the present case, the return of service was defective on its face because it not only failed to accurately note the date and time the process came to hand, but also it actually stated that it came to hand before the summonses were even issued. § 48.21, Fla. Stat. (2006); Schneiderman, 546 So.2d at 51 (“The affidavit of service filed on October 1, 1987[,] failed to note the time when the process came into hand and the time it was executed. Both are statutory requirements of a proper return of execution of process. Failure to state the times invalidates the service.”); Gonzalez, 472 So.2d at 863 (“Section 48.21, Florida Statutes (1979)[,] requires those serving process to record, among other things, the manner of execution of the process and the name of the person served. A failure to record those facts invalidates the service, unless it is amended.”); Trawick, supra, § 8:20. Of course, under section 48.21, NLAC was permitted to correct the error by amending the return of service, and NLAC did in fact file amended affidavits in an effort to remedy the problem. However, even as amended, the return of service was still facially defective because it entirely omitted the time that the process came to hand and, rather than state the specific date, it merely averred that it was received by the process server “[o]n or about July 7, 2006.”

NLAC essentially argues that despite the clear requirements of section 48.21, it is not necessary to include in the return of service the specific date and time the process was received by the process server. We disagree. The Legislature underscored the importance of including all of the required information by specifically providing that “failure to state all the facts in the return” shall, at the court’s discretion, subject the process server to a civil penalty. § 48.21, Fla. Stat. (2006) (emphasis added). To accept NLAC’s argument would vitiate the pertinent provisions of the statute and we, therefore, reject it. We must abide by the basic tenet that “ ‘the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.’ ” Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla. 2006) (quoting State v. Goode, 830 So.2d 817, 824 (Fla.2002)).

We conclude that because the amended return of service was defective on its face, the trial court was not permitted to presume that the service of process was valid. However, the defects in the return of service did not divest the trial court of personal jurisdiction over RES and GSK. Instead, such jurisdiction is suspended and will lie dormant until NLAC submits proper proof of service. This will require a hearing or submission of proper affidavits by NLAC from the process server providing the necessary information mandated by section 48.21. Accordingly, we remand this case to the trial court for proceedings consistent with this opinion. See Thompson v. State, Dep’t of Revenue, 867 So.2d 603 (Fla. 1st DCA 2004).

REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . We note, parenthetically, that the parties did. set a hearing date for the purpose of resolving this matter, but the trial court, two days before the scheduled date, cancelled the hearing and subsequently rendered the order under review. Had the trial court proceeded with the hearing, it is very likely this matter would not have been brought to this court for review.


author: PLEUS, J.

text:
    Robert FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2395.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PLEUS, J.

Freeman appeals his conviction for manslaughter after his six pit bulls mauled an elderly neighbor to death. He makes two arguments. First, he argues that the trial court erred in denying his motion for judgment of acquittal because the actions alleged and proved were specifically prohibited by the “Dangerous Dog Act,” section 767.13(2), Florida Statutes (2003). Second, he claims that even if he was properly charged with manslaughter, the trial court erred in denying his requested instruction on the lesser-included offense based on the Dangerous Dog Act. We affirm.

Facts

The State’s information charged Freeman with manslaughter by culpable negligence. It alleged that Freeman

did through culpable negligence, without intent to harm, and without lawful justification, caused upon ALICE BROOM wounds and injuries which resulted in the death of said ALICE BROOM, a human being, by having specific knowledge that his dogs had the propensity to act in an aggressive manner, and having this knowledge he engaged in a course of reckless disregard for human life by allowing his dogs to escape confinement, said dogs having escaped confinement and attacked and mauled to death ALICE BLOOM [sic], in violation of Florida Statute 782.07

On the afternoon of December 12, 2003, in Citra, Florida, the Marion County Sheriffs Office received a 911 call from Freeman stating that he had just returned home from work to find his neighbor, Alice Broom, “almost dead” with a hole in her neck and his dogs still chewing on her. Freeman said the dogs had gotten out of the house and attacked Broom. Freeman asked the 911 operator to call the dog people and tell them to come get his dogs because he “should have got rid of them a long time ago.” Freeman could see his front door hanging open.

Paramedics arrived to find Ms. Broom lying unconscious on the ground in the fetal position. She was half clothed; the rest of her clothes were strewn around the yard. She had a “big chunk” out of her neck and her arms had been “chewed away.” She was transported to the hospital where she was pronounced dead. The police evidence technician who photographed Broom’s body described it as being covered “from head to toe ... in dirt, bite marks, scratches, [and] puncture wounds.”

The medical examiner testified that Broom died from loss of blood and multiple skin and soft tissue injuries. The location of the injuries evinced defensive efforts consistent with curling up in a fetal position.

Freeman admitted to several witnesses that his dogs attacked Broom. The State also called a forensic odontologist, who testified based on his comparison of teeth impressions to Broom’s injuries that all six of Freeman’s dogs had attacked Broom.

A veterinarian testified that all six dogs were part pit bull, which are intentionally bred for aggressiveness. The more dogs in a group, the more they act as a pack.

Sheriffs detectives found Freeman’s mobile home in “tremendous disrepair.” There were dog droppings inside and there was no electricity or water. There was a hole where the door knob should be in the front door. Freeman told detectives that he tied the door shut with electrical cord and exited out the back door. However, one detective described the door as being bowed outward and “having tremendous give” when pushed.

Ms. Broom’s daughter testified that she saw Freeman’s dogs outside everyday and they would run away from his property. Additionally, several witnesses testified about prior attacks by Freeman’s dogs in the year preceding Ms. Broom’s death.

In January 2003, Charlie Sumpter was walking near Freeman’s property when six or seven of Freeman’s pit bulls charged out from under Freeman’s trailer, knocked Sumpter to the ground and bit him about eight times. The dogs ripped off Sump-ter’s pants and left scars on his legs, which he showed to the jury. Freeman came outside, yelled at the dogs and pulled them off Sumpter. When Sumpter told Freeman he was going to the hospital, Freeman became angry and said the dogs had a right to bite him because he was walking on Freeman’s property.

In April 2003, Charlie Dennison was walking down the street when three of Freeman’s pit bulls ran out of his yard and attacked Dennison. Dennison fell down but managed to fight them off. The dogs bit his calves, tearing his pants and causing him to bleed. Dennison showed the jury his scars. Freeman ran outside and said he thought the dogs were in the house.

In September 2003, Ms. Broom’s great-grandson, Jamal Williams, was walking the family dachshund on the street in front of Ms. Broom’s house when six of Freeman’s dogs appeared, grabbed the leash from him and attacked the dachshund. He tried to beat them off with a stick but they kept attacking. Suddenly, the dogs stopped attacking, which allowed Williams to carry the dog away. They took the dachshund to the vet, who stopped the bleeding. Pictures of the dachshund’s injuries were shown to the jury. The next day, Freeman was angry because Williams’ grandmother had called animal control.

The code enforcement officer who responded to the call went to Freeman’s house. Freeman was not home but there were six or eight dogs loose in front of his trailer. Williams identified them as the dogs that attacked his dachshund.

Also around September 2003, Ms. Broom’s nephew, Lorenzo Colding, was walking down the street near Broom’s house when six of Freeman’s dogs attacked him. All six dogs bit his pants legs but did not break the skin. Freeman came outside and called off his dogs.

Around October 2003, Ms. Broom’s grandson, Andrew Williams, was walking along the walking path that everyone used when Freeman’s dogs came from Freeman’s yard and began growling at Williams. The dogs tore holes in Williams’ pants and bit him four or five times. Freeman came outside and called his dogs off Williams. Williams went to the doctor to get a tetanus shot.

In November 2003, Willy Clinton was walking on the street near where Ms. Broom was later killed when Freeman’s dogs came running out of Freeman’s house, through the front door, and attacked Clinton. The dogs surrounded him “like a pack mentality” — one would act like it was going to attack but then another would attack. Clinton’s pants were torn and he was bitten in the thigh. After 15 or 20 minutes, Freeman came outside, retrieved his dogs and started petting and kissing them. Clinton, who bred dogs, told Freeman it was not right to reward the dogs for biting people and said he needed to do something with the dogs because sooner or later they were going to hurt or kill someone. Clinton called code enforcement and filed a report.

Discussion

A. Denial of Motion for Judgment of Acquittal

Freeman moved for judgment of acquittal, arguing that he should have been charged under section 767.13(2), Florida Statutes (2003), commonly referred to as the “Dangerous Dog Act.” See Huie v. Wipperfurth, 632 So.2d 1109, 1112 (Fla. 5th DCA 1994), approved, 654 So.2d 116 (Fla.1995). On appeal, Freeman argues that the trial court erred in denying his motion for judgment of acquittal because the acts charged as manslaughter, a second degree felony, actually constituted a more specific offense in section 767.13(2), a second degree misdemeanor. That sections states:

If a dog that has not been declared dangerous attacks and causes severe injury to or death of any human, the dog shall be immediately confiscated by an animal control authority, placed in quarantine, if necessary, for the proper length of time or held for 10 business days after the owner is given written notification under s. 767.12, and thereafter destroyed in an expeditious and humane manner. This 10-day time period shall allow the owner to request a hearing under s. 767.12. The owner shall be responsible for payment of all boarding costs and other fees as may be required to humanely and safely keep the animal during any appeal procedure. In addition, if the owner of the dog had prior knowledge of the dog’s dangerous propensities, yet demonstrated a reckless disregard for such propensities under the circumstances, the owner of the dog is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

§ 767.13(2), Fla. Stat. (2003) (emphasis added).

Freeman relies primarily on a rule of statutory construction which requires that a specific statute controls over a general statute. As explained by the Florida Supreme Court in Adams v. Culver, 111 So.2d 665, 667 (Fla.1959):

It is a well settled rule of statutory construction, however, that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. In this situation “the statute relating to the particular part of the general subject will operate as an exception to or qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy, if any.” It has been said that this rule ‘is particularly applicable to criminal statutes in which the specific provisions relating to particular subjects carry smaller penalties than the general provision.’

(Citations omitted). See also Burnett v. State, 737 So.2d 1106, 1107 (Fla. 1st DCA 1998).

The State argues that “[t]here first must be a hopeless inconsistency between the two statutes before rules of construction are applied to defeat the express language of one of those statutes.” State v. Parsons, 569 So.2d 437, 438 (Fla. 1990). “In other words, it is improper to resort to the canons of statutory construction when the texts of different statutes are plain and unambiguous.” Limbaugh v. State, 887 So.2d 387, 397 (Fla. 4th DCA 2004).

Thus, the threshold issue is whether the two statutes can be read in harmony with each other, so that each statute can be enforced without doing violence to the language of the other. Section 782.07(1), Florida Statutes (2003) states:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added). The type of manslaughter applicable to this case is by culpable negligence rather than act or procurement. Florida Standard Jury Instruction (Criminal) 7.7, Manslaughter, defines-culpable negligence as follows:

I will now define “culpable negligence” for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

(Emphasis added).

Although both crimes employ the phrase “reckless disregard,” which may create ambiguity as to which statute applies, there are some notable differences. In particular, section 767.13(2) only requires proof of the dog owner’s “knowledge of the dog’s dangerous propensities” and a “reckless disregard for such propensities under the circumstances.” The statute does not define the phrase “dangerous propensities” but it broadly defines a “dangerous dog” as one which

(a) Has aggressively bitten, attacked, or endangered or has inflicted severe injury on a human being on public or private property;
(b) Has more than once severely injured or killed a domestic animal while off the owner’s property;
(c) Has been used primarily or in part for the purpose of dog fighting or is a dog trained for dog fighting; or
(d) Has, when unprovoked, chased or approached a person upon the streets, sidewalks, or any public grounds in a menacing fashion or apparent attitude of attack, provided that such actions are attested to in a sworn statement by one or more persons and dutifully investigated by the appropriate authority.

§ 767.11(1), Fla. Stat. (2003).

In contrast, manslaughter by culpable negligence requires more than knowledge of a dog’s “dangerous propensities.” It requires knowledge that his negligent act or omission is “likely to cause death or great bodily injury.” Thus, if a dog owner knew that Ms dog had been used in dog fighting or had “approached a person ... in a menacing fashion,” he could have knowledge of the dog’s “dangerous propensities” under section 767.13(2) but not necessarily knowledge that his failure to contain the dog would be “likely to cause death or great bodily injury” under section 782.07(1).

In addition, the manslaughter statute arguably requires a higher standard of recklessness. While section 767.13(2) requires “reckless disregard for such propensities under the circumstances,” section 782.07(1) requires a course of conduct showing (1) reckless disregard of human life, (2) reckless disregard of the safety of persons exposed to its dangerous effects, (3) such an entire want of care as to raise a presumption of a conscious indifference to consequences, (4) wantonness or recklessness, (5) a grossly careless disregard for the safety and welfare of the public, or (6) such an indifference to the rights of others as is equivalent to an intentional violation of such rights. Fla. Std. Jury Instr. (Crim.) 7.7.

The manslaughter statute is more narrowly focused on reckless conduct affecting human life, human safety, or the safety and welfare of the public. The dangerous dog statute is more broadly focused on reckless disregard of a dog’s behavior to people and animals.

Thus, even though the two statutes employ the phrase “reckless disregard,” it is clear from an examination of the plain language of these statutes that they require proof of different levels of knowledge and recklessness.

Even if we were to conclude that the two statutes are ambiguous, unclear or inconsistent, prior decisions support the State’s position that it had discretion to charge Freeman with either manslaughter or the lesser crime. In McCreary v. State, 371 So.2d 1024 (Fla.1979), the defendant was convicted of vehicular homicide after running a stop sign and killing the occupant of another vehicle. On appeal, he argued that the trial court should have granted his motion for judgment of acquittal because the “reckless” standard of proof for vehicular homicide was the same as the “culpable negligence” standard for manslaughter and the State had not met that standard. Id. at 1025.

The supreme court disagreed, finding that the legislature intended to created two different level felonies with different standards of proof. The court reasoned as follows:

Certainly, it is within the authority of the legislature to make punishable as a third-degree felony reckless driving which results in the killing of a human being where the degree of negligence falls short of culpable negligence but where the degree of negligence is more than a mere failure to use ordinary care. The present case is a good example of why the legislature would enact such a law. The State’s evidence in the present case is not sufficient to establish that the defendant’s conduct was of such a gross and flagrant character as to support a finding of culpability sufficient to sustain a conviction for manslaughter. The evidence, however, does show that the defendant killed another human being by the operation of a motor vehicle in “a reckless manner likely to cause the death of, or great bodily harm to, another” and is sufficient to support a conviction for vehicular homicide....
It is not unreasonable for the legislature to create a lesser included offense to cover the hiatus between section 782.071 manslaughter and the traffic offense of reckless driving created by section 316.029, Florida Statutes (1975). If the facts had been different, the State might have elected to charge the defendant with the higher offense of manslaughter. For example, if the defendant had raced through the stop sign at an excessive rate of speed in a deliberate effort to beat another motor vehicle that he saw approaching the intersection or if the defendant was playing “chicken” with another vehicle, these facts might have justified the State’s charging and the jury’s convicting the defendant of manslaughter. In the present case, the State properly charged and the jury convicted the defendant of the lesser offense of vehicular homicide.

Id. at 1026-27 (footnote omitted; emphasis added).

Two months later, in State v. Young, 371 So.2d 1029 (Fla.1979), the supreme court reached the same conclusion based on a different factual and procedural scenario. The defendant in Young was charged with manslaughter after his tractor-trailer struck a ear, killing its driver. The trial court dismissed the information with leave to charge the defendant with vehicular homicide. The district court agreed, reasoning that the vehicular homicide statute was later in time and dealt more specifically with killing by negligent operation of a vehicle.

On certification to the supreme court, the dissent argued that “if a statute of general application conflicts with a statute of more specific application, the latter should prevail,” citing to Adams v. Culver. Id. at 1031 (Boyd, J., dissenting). However, the majority rejected this argument based upon its reasoning in McCreary, holding that “in a prosecution for homicide arising out of the negligent operation of a motor vehicle, the State may elect to charge the defendant under the manslaughter statute.” Id. at 1030.

Freeman’s only retort to Young is that both manslaughter and vehicular homicide are contained within the homicide chapter in the Florida Statutes, but in this case, the legislature created a separate chapter dealing with dangerous dogs. He notes the legislature expressly stated that it was creating this new chapter because “existing laws inadequately address this growing problem.” § 767.10, Fla. Stat.

This distinction does not overcome the reasoning in Young. If anything, it makes a stronger case for the State. As the State notes, Chapter 767 is located under Title 45, dealing with torts, rather than Title 46, dealing with Crimes. This placement actually strengthens the State’s argument that the legislature intended to punish different levels of conduct. Accordingly, we believe the State had discretion to charge Freeman with manslaughter.

B. Denial of Requested Jury Instruction

Freeman requested an instruction on section 767.13(2) as a lesser included offense, but did not give the trial court any legal reasons for the request. The trial court denied the request, finding that culpable negligence was the only lesser included offense.

On appeal, Freeman argues that if both crimes were authorized, then the trial court erred in failing to instruct the jury on section 767.13(2) as a lesser-included offense of manslaughter for two reasons. First, he claims the requested lesser offense was “wholly included” in the charged offense. Second, he argues that the dangerous dog offense was only one step removed from the manslaughter offense.

“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation.” Baker v. State, 937 So.2d 297 (Fla. 4th DCA 2006). Although Freeman requested the instruction below, he failed to explain why he was requesting it. He made no argument below, much less either of the arguments he now makes on appeal. Accordingly, his arguments were not properly preserved.

Even if Freeman had preserved this argument, we conclude the trial court’s denial of Freeman’s requested instruction resulted in harmless error. Reversible error occurs when a trial court denies a requested instruction on the next lesser-included offense “if the charging instrument and the evidence admitted would support a conviction on the next lesser offense.” Moore v. State, 932 So.2d 524, 527 (Fla. 4th DCA 2006) (citing State v. Abreau, 363 So.2d 1063 (Fla.1978)). However, when the requested instruction pertains to a lesser-included offense which is two or more steps removed from the charged offense, the error is not per se reversible, but rather, is subject to harmless error analysis. Pena v. State, 901 So.2d 781, 787 (Fla.2005).

In the instant case, the information and evidence both support giving the requested instruction on section 767.13(2). The State does not contest this point. However, it correctly argues that this crime was two steps removed from manslaughter, and therefore, the error was subject to harmless error analysis. Freeman’s argument that the requested lesser was only one step removed is based on the mistaken assertion that the lesser-included offense of culpable negligence, which was presented to the jury, was a second degree misdemeanor. In fact, it was a first degree misdemeanor.

Section 784.05(2), Florida Statutes (2003) states, in pertinent part:

(1) Whoever, through culpable negligence, exposes another person to personal injury commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(2) Whoever, through culpable negligence, inflicts actual personal injury on another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

“The degree of punishment for such acts depends on whether injury is inflicted. If so, the crime is a misdemeanor of the first degree; if not, a misdemeanor of the second degree.” State v. Greene, 348 So.2d 3, 4 (Fla.1977). In the instant case, the unre-futed evidence established that fatal injuries were inflicted. Thus, the culpable negligence in this case was a first degree misdemeanor. Consequently, the requested lesser-included violation of section 767.13(2) was two steps removed and the error in denying the instruction is subject to harmless error analysis.

The State argues that the error was harmless because the jury was given a fair opportunity to exercise its pardon power by finding Freeman guilty of culpable negligence but it failed to do so. This factor has been determinative in several cases involving failure to instruct on a lesser-included offense two or more steps removed from the charged offense. See, e.g. State v. Iseley, 944 So.2d 227 (Fla. 2006); Abreau; Johnson v. State, 855 So.2d 1157 (Fla. 4th DCA 2003).

In addition, the evidence of guilt in this case was overwhelming. There was ample evidence that Freeman knew his dogs had escaped from his trailer and attacked passersby on several prior occasions. Yet on the day of Ms. Broom’s death, Freeman went to work, leaving his dogs free to escape and attack passersby, as they had done many times in the recent past.

AFFIRMED.

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

      . The entire section states:
      The Legislature finds that dangerous dogs are an increasingly serious and widespread threat to the safety and welfare of the people of this state because of unprovoked attacks which cause injury to persons and domestic animals; that such attacks are in part attributable to the failure of owners to confine and properly train and control their dogs; that existing laws inadequately address this growing problem; and that it is appropriate and necessary to impose uniform requirements for the owners of dangerous dogs.


author: MONACO, J.

text:
    Barbara GEOGHEGAN, Appellant/Cross-Appellee, v. Timothy GEOGHEGAN, Appellee/Cross-Appellant.
    No. 5D06-1843.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.

      Pamela Huddleston, of Huddleston, Pa-lumbo, Robbins & Riddle, P.A., Melbourne, and Michael R. Walsh of Michael R. Walsh, P.A., Orlando, for Appellant/Cross-Appellee.
    Mayanne Downs, of King, Blackwell, Downs & Zehnder, P.A., Orlando, for Ap-pellee/Cross-Appellant.
   MONACO, J.

The appellant, Barbara Geoghegan, appeals from an amended final judgment granting a dissolution of her marriage to Timothy Geoghegan, and resolving the usual financial and child support issues. As the children of this marriage are now all adults, the primary issues raised in the appeal concern the allocation of monetary resources between the parties. We affirm the final judgment in all respects, save two: alimony and attorney’s fees.

I. Alimony.

This is a long term-marriage (31 years) during which, according to the final judgment, the parties enjoyed a standard of living that was “above average, but not opulent.” The Wife had earned a Bachelor’s Degree in sociology prior to the marriage, and a Master’s Degree in reading during the marriage. The Husband had similarly obtained a Bachelor’s Degree in Economics and a Master’s Degree in Business Administration. The Wife had not worked outside the home for many years, as the parties agreed that she should stay at home to raise the three children born of this marriage.

At the time of the dissolution the Husband was employed by the Harris Corporation, and was earning a base salary of $178,000, plus an incentive bonus award and certain stock options and share awards, the nature of which changed somewhat over the years. The Husband first received stock options in 1991. Although he received none from 1992 through 1994, he has annually been granted stock options from 1995 to the present. These stock options awarded to the Husband by his employer would vest over a three-year period, but had to be exercised by him within seven years of issuance. The Husband regularly exercised his stock options and used the proceeds to meet the family’s obligations.

On occasion the Husband received “performance” shares, which would be earned based on the performance of the Harris Corporation and his continued employment by that organization. The performance shares were on a cliff-vesting schedule, meaning that none of these shares would vest until three years had elapsed from their date of issuance. In addition, the Husband also received certain “restricted shares” from his employer. These shares were again granted to the Husband by his employer for the purpose of encouraging continued employment. The restricted shares, which also carried a three-year cliff-vesting schedule, were first received by the Husband about a year after the parties separated.

Finally, the Husband has on occasion received a performance bonus based on the performance of the employer. Historically, the Husband has over the last five years received a performance bonus in two of these years.

Since becoming employed by Harris, the Husband has set aside ten per cent of his income for retirement. He typically contributed the maximum amount allowed by law into his 401K plan, with the remainder deposited into a SERP account. In addition, he set up a medical savings account to pay for non-covered medical expenses incurred by him and his family. According to his affidavit, the Husband contributes $416.67 per month for this purpose. All of these contributions, of course, are made with pre-tax dollars.

The trial court found in the final judgment that the Husband’s annual income was about $259,000, “inclusive of base salary, bonuses, stock options, performance shares and existing restricted shares,” and granted the Wife permanent periodic alimony in the amount of $5,000 per month, as well as six months of rehabilitative alimony in the amount of $1,000 per month. It is the calculation of permanent alimony by the trial court that troubles us.

Any consideration of a determination of the amount of an alimony award must be grounded in section 61.08(2), Florida Statutes (2006). The principle under-girding this statute is that alimony should be a balance of two elements: the needs of the payee and the ability of the payor to sustain that need. See Jaffy v. Jaffy, 965 So.2d 825 (Fla. 4th DCA 2007). Section 61.08(2) begins with the mandate that in order for a court to determine “a proper award of alimony or maintenance, the court shall consider all relevant economic factors.” Among the factors that the legislature specifically listed is “(g) All sources of income available to either party.” See also O’Connor v. O’Connor, 782 So.2d 502, 504 (Fla. 2d DCA 2001); Brock v. Brock, 690 So.2d 737 (Fla. 5th DCA 1997). The term, “income,” is defined in section 61.046(7), Florida Statutes (2006), as it pertains to the present case, as follows:

(7) “Income” means any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, ... annuity and retirement benefits, pensions, dividends, interest, royalties, trusts and any other payments, made by any person, private entity, federal or state government, or any unit of local government.

Our task on review is to determine whether the judgment is supported by competent evidence. See Saporito v. Saporito, 831 So.2d 697, 701 (Fla. 5th DCA 2002). In order to facilitate a meaningful appellate review of the trial court’s alimony determination, it is incumbent upon the trial court to include specific findings of fact regarding the factors enumerated in section 61.08(2)(a)-(g). Williams v. Williams, 923 So.2d 606, 607 (Fla. 2d DCA 2006); Jain v. Jain, 915 So.2d 711, 712 (Fla. 4th DCA 2005); Milo v. Milo, 718 So.2d 343, 344 (Fla. 2d DCA 1998); Brooks v. Brooks, 678 So.2d 1368, 1370 (Fla. 1st DCA 1996). The failure to provide these required findings may, therefore, constitute reversible error. Fulmer v. Fulmer, 961 So.2d 1081 (Fla. 1st DCA 2007); Vitalis v. Vitalis, 799 So.2d 1127, 1130-31 (Fla. 5th DCA 2001); Hill v. Hooten, 776 So.2d 1004 (Fla. 5th DCA 2001). “Especially in complex cases with extremely divergent testimony, findings of fact are needed by [the appellate] court to determine that the trial court has in fact acted within its discretion and not in an arbitrary, inconsistent fashion.” Haas v. Haas, 552 So.2d 221, 222 (Fla. 2d DCA 1989).

In the present case we can determine from the record that the Husband’s base salary, including bonuses, was $234,000. We know, as well, that the Husband indicated on his financial affidavit that he had gross income for the year 2005 in the amount of $258,654. Finally, we know that the trial court found the Husband’s income for the purpose of an alimony determination to be about $259,000, “inclusive of base salary, bonuses, stock options, performance shares and existing restricted shares.” Neither the Husband’s affidavit, nor the final judgment, nor the testimony that was adduced at the trial explains what specifically made up the $25,000 difference between the Husband’s salary and bonus money and his gross annual income as determined by the trial court. We can guess that it is made up of “stock options, performance shares and existing restricted shares,” but we have no way of knowing how much is attributed to each, and how the allocations were derived. Our guess would not be fair to either party.

A determination of whether stock options and similar incentives are to be included in the annual income of a spouse who is obliged to pay alimony is complex. See, e.g., Seither v. Seither, 779 So.2d 331 (Fla. 2d DCA 1999). See also Charles P. Kindregan and Patricia A. Kindregan, Unexercised Stock Options and Marital Dissolution, 34 Suffolk U. L. Rev. 227 (2001). Here, however, some of the stock incentives awarded to the Husband by his employer have been granted with great regularity. As noted, for example, the generic stock options have been awarded to the Husband yearly since 1995, and have been used in the past by the family to meet family obligations. Because they have been granted regularly and continuously, and have historically made up a part of the family income, some component of the stock options should have been considered by the trial court as a candidate for possible inclusion as income available to the Husband when the court determined his ability to pay. See, e.g., Parry v. Parry, 933 So.2d 9, 16 (Fla. 2d DCA 2006); Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999). Some employer incentives have, however, only been granted irregularly to the Husband. For example, performance bonuses have only been awarded in two of the last five years. Indeed, in some measure it appears that the trial court did ratchet up the income of the Husband with the stock options in mind. We just cannot tell from the judgment or the record how the court got there.

Moreover, there is no indication that the trial court considered including the income earned by the Husband that was annually contributed by him to his 401K plan, SERP account, or medical savings account in the calculation of the Husband’s income. As these payments are voluntary contributions (albeit for valid and beneficial purposes) on the part of the Husband, and as they reduce the apparent annual income available to the Husband, they should have been considered by the trial court in making the ability-to-pay alimony calculation. Cf. Fitzgerald v. Fitzgerald, 912 So.2d 363, 365 (Fla. 2d DCA 2005); Copeland v. Copeland, 667 So.2d 487 (Fla. 1st DCA 1996).

Finally, we must also consider the judgment as it relates to the Wife’s need. Once again, we are unable to reconcile how this aspect of the equation was determined by the trial judge. It may be that $5,000 per month in permanent alimony is all that the Wife needs in order to satisfy the requirements of section 61.08. We simply cannot tell from the judgment. See Mathieu v. Mathieu, 877 So.2d 740, n. 1 (Fla. 5th DCA 2004), review denied, 909 So.2d 862 (Fla.2005).

Accordingly, we reverse that part of the final judgment of dissolution insofar as it determines that the Husband shall pay to the Wife permanent periodic alimony in the amount of $5,000 per month, and direct the trial court to revisit this issue and provide findings of fact from which a reviewing court can determine whether the award squares with the requirements of section 61.08 and the cases construing it. We note for the guidance of the trial judge that we find no abuse of discretion in the imputation of income to the Wife.

II. Attorney’s Fees.

The trial court ordered that each party be responsible for his or her own attorney’s fees and court costs. We review this determination for an abuse of discretion. Stern v. Chovnick, 914 So.2d 524 (Fla. 4th DCA 2005).

Once again, need and the ability to pay are the primary elements to be considered in deciding entitlement to attorney’s fees in a dissolution proceeding. See Rosen v. Rosen, 696 So.2d 697 (Fla. 1997). The idea, of course, is to “ensure that both parties have similar access to competent legal counsel.” Id. at 699.

After reviewing the equitable distribution of assets, including the nature of the assets distributed to the Wife, and the relative financial resources of the parties, as well as the vast disparity in income between the Husband and Wife, we conclude that the trial court erred in not awarding attorney’s fees to the Wife. We, accordingly, reverse on this issue, as well.

III. Conclusion.

Except with respect to the amount of permanent alimony awarded the Wife and the lack of an award of attorney’s fees in favor of the Wife, we affirm the final judgment of dissolution. We note in particular for the guidance of the trial court that we approve the grant of the dissolution of the marriage, the equitable division of the assets of the parties, the award of child support, and all other aspects of the final judgment other than those noted. We direct the trial court to revisit the issues of permanent alimony and attorney’s fees in accordance with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER and TORPY, JJ., concur.

      . 50% would vest in the first year, 75% after two years, and 100% after three years.

      . Supplemental Executive Retirement Plan.

      . It may be that all or some part of the money placed in the medical savings account is being used to pay medical bills for the Husband and Wife. If so, that information can certainly be factored into the matrix that yields the Husband’s ability to pay.


author: PALMER, C.J.

text:
    Reuben WASHINGTON, Appellant, v. Cynthia Heard STEVENS, Appellee.
    No. 5D06-3552.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.
    Reuben Washington, Ocala, pro se.
    Bill McCollum, Attorney General and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   PALMER, C.J.

Reuben Washington appeals the trial court’s order denying his motion to terminate his court ordered child support obligation. Concluding that the trial court committed no reversible error, we affirm.

The Florida Department of Revenue (DOR) filed a petition on behalf of Cynthia Stevens to establish paternity and child support for her son. Washington was subsequently adjudicated to be the biological father of the child and ordered to pay $129.00 per month in child support.

Pertinent to this appeal, Washington filed a pro se motion in the trial court seeking to terminate his child support obligation claiming that his parental rights had been terminated. A hearing was set on the motion. At the hearing, which Washington did not attend, the DOR attorney asked the trial court to deny Washington’s motion. DOR alternatively argued that Washington’s motion should be held in abeyance and addressed once he was released from prison, citing to Department of Revenue v. Jackson, 846 So.2d 486 (Fla.2003). The trial court denied Washington’s motion with leave to renew once he was released from prison. This appeal timely followed.

When a parent seeks to modify a child support obligation because he or she is unable to pay due to incarceration, the parent may file a petition to modify with the trial court that entered the original child support order. However, the trial court should hold the petition in abeyance and place the matter on its inactive calendar for the term of the parent’s incarceration until a time when a thorough evaluation of the parent’s ability to pay may be conducted, and a farsighted plan for payment may be established. Department of Revenue v. Jackson, 846 So.2d 486 (Fla. 2003).

Both Washington and the DOR now claim that the Jackson case does not apply to this situation. Washington argues that the trial court erred in applying Jackson because he never sought to modify his child support obligation. DOR claims Jackson has no application to this case and, instead, argues that the trial court properly denied Washington’s motion because Washington failed to meet his burden of proving that his parental rights had been terminated.

Washington had the burden of proof with regard to his motion to terminate his child support obligation and his failure to meet that burden justified the trial court’s denial of his motion. Furthermore, the trial court properly denied Washington’s motion with leave to renew once his term of incarceration has ended. At that time, Washington will be in a position to re-file his motion to terminate child support and, if successful, relief will be available retroactive to the date of the alleged termination of his parental rights.

AFFIRMED.

PLEUS and TORPY, JJ., concur.

      . Washington’s claim that his parental rights had been terminated was based on an order issued by the clerk of this court, dated December 15, 2005, which references a trial court order terminating parental rights. That order appears to contain a scrivener’s error, since the underlying action in that appeal did not involve an order terminating parental rights but, rather, an order denying a dependency petition.

      . Washington was incarcerated at the time of the hearing and his request to appear tele-phonically was not granted.


text:
    Stacy TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1778.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.
    Stacy Taylor, Daytona Beach, Pro Se.
    No Appearance for Appellee.
   ORFINGER, J.

Stacy Taylor appeals the trial court’s order dismissing his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) without prejudice. The trial court concluded that Mr. Taylor’s motion was legally insufficient as it failed to identify with particularity the nonhearsay record documents upon which he relied. We affirm.

In 1997, Mr. Taylor pled guilty to two counts of robbery with a firearm and mask (counts one and five); two counts of aggravated battery (counts two and three); and one count of attempted second-degree murder with a firearm (count four). Mr. Taylor was sentenced to concurrent terms of 210 months in prison with consecutive three-year minimum mandatory terms imposed on counts one and four as a result of his possession of a firearm during the commission of the offenses. See § 775.087(2), Fla. Stat. (1995). While Mr. Taylor was resentenced in 2000 to concurrent terms of 148 months in prison following the Florida Supreme Court’s decision in Heggs v. State, 759 So.2d 620 (Fla.2000), the consecutive three-year minimum mandatory terms on counts one and four remained unchanged.

In his rule 3.800(a) motion, Mr. Taylor attacks the imposition of consecutive minimum mandatory sentences, arguing that such a sentencing scheme is illegal, as the crimes occurred in a single criminal episode. See Hale v. State, 630 So.2d 521 (Fla.1993) (holding that consecutive habitual offender sentences for offenses that were committed in single criminal episode are illegal). Mr. Taylor recognizes that in State v. Christian, 692 So.2d 889, 890 (Fla.1997), the Florida Supreme Court held that “[a]s a general rule, for offenses arising from a single episode, stacking is permissible where the violations of the mandatory minimum statutes cause injury to multiple victims, or multiple injuries to one victim.” (Footnotes omitted). However, Mr. Taylor contends that in his case, it is “apparent on the face of the record” that “only one victim was injured during the criminal episode.” Therefore, he argues that his sentence was improperly stacked.

Generally, Hale claims must be brought in a proceeding under Florida Rule of Criminal Procedure 3.850 since a determination of whether the offenses for which the defendant has been sentenced arose out of a single criminal episode is not a pure question of law but, instead, often requires an evidentiary determination. See State v. Callaway, 658 So.2d 983 (Fla.1995). However, the courts have carved out a limited exception to that rule when the trial court can rule on the motion based solely on nonhearsay record documents. See, e.g., Spires v. State, 796 So.2d 1245 (Fla. 5th DCA 2001) (holding that where clear from face of record that defendant’s offenses arose out of single criminal episode, consecutive habitual offender sentences could be challenged under rule 3.800(a)); West v. State, 790 So.2d 513 (Fla. 5th DCA 2001) (allowing Hale claim to be raised in rule 3.800(a) proceeding because error clear on face of record); see also Simms v. State, 949 So.2d 373 (Fla. 4th DCA 2007); Harris v. State, 875 So.2d 735, 737 (Fla. 2d DCA 2004); Perreault v. State, 853 So.2d 604, 606 (Fla. 5th DCA 2003); Canavan v. State, 842 So.2d 306 (Fla. 5th DCA 2003); Whitfield v. State, 804 So.2d 1274 (Fla. 5th DCA 2002).

While this Court has recognized this exception, it has never explicitly stated what must be alleged to plead a facially sufficient single criminal episode claim under rule 3.800(a). At least three of our sister courts have held that to plead a facially sufficient rule 3.800(a) claim asserting a Hale violation, the defendant must identify with particularity the non-hearsay record documents that support his claim. See, e.g., Lauramore v. State, 949 So.2d 307 (Fla. 1st DCA 2007); Jones v. State, 894 So.2d 1070 (Fla. 4th DCA 2005); Speas v. State, 887 So.2d 416 (Fla. 2d DCA 2004). We adopt this pleading standard. We believe that this standard will discourage defendants from filing obviously frivolous motions and will ensure that busy trial judges do not have to pick through sometimes lengthy records to determine whether a vague rule 3.800(a) motion has merit. Further, this standard is consistent with the supreme court’s holding in Burgess v. State, 831 So.2d 137 (Fla.2002), that only nonhearsay record documents can be utilized in a rule 3.800(a) proceeding. The supreme court made clear that police reports and arrest affidavits are “ordinarily considered hearsay and inadmissible.” Id. at 140. Hearsay cannot be considered merely because it is contained in a court file. While a trial court may take judicial notice of court records, it does not follow that section 90.202(6), Florida Statutes (2006), permits the wholesale admission of hearsay statements contained within those court records. Id. at 141.

In the present case, Mr. Taylor failed to specifically identify nonhearsay, record evidence supporting his claim that his sentence violated Hale, and, thus, his claim is legally insufficient. We therefore affirm the dismissal of his motion without prejudice to Mr. Taylor’s ability to file a properly pled rule 3.800(a) motion in the trial court.

AFFIRMED.

SAWAYA and MONACO, JJ., concur.

      . Stacking of minimum mandatory sentences is also permitted when authorized by the plain language of the relevant sentencing statute. See Kelly v. State, 964 So.2d 135 (Fla. 2007).

      . Rule 3.850 proceedings must be brought within two years of the defendant’s conviction becoming final. Consequently, time-barred defendants often utilize rule 3.800(a) proceedings, which can be filed at any time if the sentencing error is apparent on the face of the record.


author: EVANDER, J.

text:
    J.M., Mother of L.T., D.T., and K.T., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D07-2156.
    District Court of Appeal of Florida, Fifth District.
    Nov. 16, 2007.

      Micheál L. Edwards, Jacksonville, for Appellant.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa, Wendy S. Loquasto of Fox & Lo-quasto, P.A., Tallahassee, and Annette Pitts, Managing Attorney, Department of Children & Families, St. Augustine, for Appellee.
   EVANDER, J.

J.M., the mother, appeals the trial court’s order denying her motion to reopen her three children’s dependency case. We affirm.

In April, 2004, the mother’s oldest child committed suicide. The Department of Children and Families (“DCF”) alleged that the child had committed suicide with a belt that had been repeatedly used by the mother and her new husband to beat all four of her children. At the time of the suicide, the four children were 13, 10, 9, and 6 years old.

DCF filed a petition for dependency as to the remaining three children with the primary allegation being that the children were victims of frequent and excessive corporal punishment. The stepfather, in particular, was alleged to have been cruel and abusive to the children. He also was alleged to have an extensive criminal history. The mother ultimately entered a consent plea to the petition. Her amended case plan required her, inter alia, to have individual counseling, to complete a twenty-six week batterer’s intervention/anger management program, and to provide a safe home environment. As part of the case plan, the stepfather was prohibited from having any contact with the children.

In February 2006, DCF filed a motion to have the children placed in the long-term relative custody of the children’s uncle and aunt. DCF alleged that the mother had failed to substantially comply with her amended case plan in that she had failed to continue her individual counseling, had failed to complete the twenty-six week batterer’s intervention/anger management program, and had failed to provide proof that her home was safe. The basis of the allegation that the mother’s housing situation was unacceptable was that she was still residing with the stepfather. The mother opposed the motion for long-term relative care and maintained that neither she, nor the stepfather was, or had ever been, a danger to the children.

On May 1, 2006, the trial court granted DCF’s motion and the children were placed into the long-term relative custody of their uncle and aunt. The mother was granted bi-weekly supervised visitation. The stepfather was prohibited from having any contact with the children. The trial court retained jurisdiction over the ease, but terminated supervision. This court affirmed the trial court’s order. See J.M. v. Dep’t of Children and Families, 947 So.2d 1186 (Fla. 5th DCA 2007).

Shortly after this court’s affirmance, the mother filed a motion to reopen the case and a supplemental petition to modify. The trial court denied the motion to reopen, finding that the mother’s allegations were legally insufficient. We agree.

A long-term relative custody order is considered an order of permanency. § 39.621(2)(d), Fla. Stat. (2007). See In re K.M., 946 So.2d 1214 (Fla. 2d DCA 2006). Prior to July 1, 2006, section 39.622(4), Florida Statutes, governed a parent’s request to regain custody of a child placed in long-term relative care. That section required the parent to (1) demonstrate a material change in circumstances, and (2) establish that the return of the child to the parent would be in the child’s best interest.

Effective July 1, 2006, section 39.622 was repealed. Newly enacted section 39.621(9) provides that a permanent placement is not to be modified unless the circumstances of the permanent placement are no longer in the child’s best interest. If a parent files a motion for reunification, the court is required to hold a hearing to determine whether the dependency case should be reopened.

The permanency placement is intended to continue until the child reaches the age of majority and may not be disturbed absent a finding by the court that the circumstances of the permanency placement are no longer in the best interest of the child. If a parent who has not had his or her parental rights terminated makes a motion for reunification ... the court shall hold a hearing to determine whether the dependency case should be reopened and whether there should be a modification of the order. At the hearing, the parent must demonstrate that the safety, well-being, and physical, mental and emotional health of the child is not endangered by the modification.

§ 39.621(9), Fla. Stat. (2007).

In her motion to reopen the case, the mother alleged she had completed her individual counseling and that the children were “desirous of living with their mother and [stepfather].” In her supplemental petition to modify, the mother further made a conclusionary allegation that she was “capable of protecting the children.” On May 8, 2007, the trial court held a non-evidentiary hearing on the mother’s motion to reopen the case. At the hearing, the mother did not dispute DCF’s contention that the mother was still residing with the stepfather.

Although the trial court’s order for long-term relative custody had prohibited any contact between the children and the stepfather, the mother failed to allege (or proffer) any facts which would support a conclusion that the stepfather was no longer a threat to harm the children. The transcript of the hearing is devoid of any suggestion that the stepfather had taken any action to modify his behavior.

Had the motion to reopen the case alleged specific facts which, if proven, would have supported an order of reunification, we would agree that the trial court was required to hold an evidentiary hearing. However, in this case, the only non-conelu-sionary factual allegations made by the mother was that she had completed her individual counseling and that the children were desirous of living with her and the stepfather. She made no specific factual allegations that would support a conclusion that the stepfather was no longer a threat to harm the children. Given her apparent intent to continue to reside with the stepfather, we find no error in the trial court’s decision to forego an evidentiary hearing.

Our decision does not prevent the mother from filing a motion to reopen the case that alleges facts sufficient to support an order of reunification.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.

      . Section 39.622(4), Florida Statutes (2005) provided:
      Each party to the proceeding agrees that a long-term custodial relationship does not preclude the possibility of the child returning to the custody of the parent at a later date if the parent demonstrates a material change in circumstances and the return of the child to the parent is in the child’s best interest.


author: HAWKES, J. KAHN, J.,

text:
    T.S., In the Interest of D.H., a Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D07-2161.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2007.

      John L. Miller of Johnson, Green, & Miller, P.A., Milton, for Appellant.
    Katie George, Chief Legal Counsel, Richard D. Cserep, Assistant District Legal Counsel, Department of Children and Families, Pensacola, for Appellee.
    Leslie N. Powell, Legal Services of North Florida, Pensacola, for Appellee.
   HAWKES, J.

T.S., Father of D.H., appeals the termination of his parental rights. As grounds, he alleges the Department of Children and Families (Department) failed to prove by clear and convincing evidence that he abandoned his child pursuant to section 39.806(1)(b), Florida Statutes (2006). We agree.

Facts

From the time of the child’s birth in December 2005 until mid-July 2006, Father’s paternity was in question. On August 1, 2006, approximately two weeks after his paternity was established, Father began an eight-month term of incarceration in the county jail.

In November 2006, three months after he was incarcerated, the Department filed a petition to terminate his parental rights, alleging Father had abandoned his child in that, while being able, he did not provide child support or make an effort to contact his child.

In March 2007, seven months after he was incarcerated, and one month prior to his scheduled release from incarceration, a termination hearing was held. Significantly, there was no evidence presented to show Father had the ability to pay child support, or contact his 15-month-old child from jail. Father’s parental rights were ultimately terminated based solely on a finding of abandonment.

In support of its finding of abandonment, the trial court found Father, while being able, made no provision to pay child support, failed to maintain contact with his child, and failed to send a card or gift for the child’s birthday.

Analysis

The statutory elements of abandonment must be established by clear and convincing evidence. See § 39.809(1), Fla. Stat. (2006). The standard of review for a trial court’s finding of clear and convincing evidence is highly deferential. See N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 999 (Fla. 1st DCA 2003). On appeal, a finding of clear and convincing evidence is presumed to be correct and will not be overturned unless it lacks evidentia-ry support or is clearly erroneous. See id. We review trial court’s finding of clear and convincing evidence for competent, substantial evidence. See id. at 1000.

Abandonment, is defined in relevant part as:

“a situation in which the parent ... while being able, makes no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. If the efforts of such parent ... to support and communicate with the child are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned. ... [Ijncarceration ... may support a finding of abandonment.”

§ 39.01(1), Fla. Stat. (2006). The qualifying phrase “while being able” excludes involuntary abandonment. See P.S. v. State, 384 So.2d 656 (Fla. 5th DCA 1980).

Although a parent’s incarceration can be a factor the court considers for terminating parental rights based on abandonment, incarceration alone is insufficient. W.T.J. v. E.W.R., 721 So.2d 723 (Fla.1998); In re T.B., 819 So.2d 270, 272 (Fla. 2d DCA 2002); In re N.S., 898 So.2d 1194, 1198 (Fla. 2d DCA 2005). It is also improper to terminate parental rights if a parent is unable to financially provide for the child or assume parental obligations due to incarceration. See In re T.B., 819 So.2d at 272; C.B. v. Dep’t of Children & Families, 874 So.2d 1246 (Fla. 4th DCA 2004) (holding that, absent any other evidence of abandonment, Mother’s rights were improperly terminated based on short-term incarceration).

Here, Father was incarcerated for only eight months. During that time, his child was between eight months old and 15 months old. There was no evidence that Father had the ability to either support his child or meaningfully contact his child during the eight months he was in jail. The trial court’s finding to the contrary is not supported by competent, substantial evidence. We REVERSE the order terminating Father’s parental rights, and REMAND for proceedings consistent with this opinion.

PADOVANO, J., concurs.

KAHN, J., dissents with opinion.

KAHN, J.,

Dissenting.

I would defer to the findings of the trial court concerning abandonment and, therefore, respectfully dissent.

      . Father’s incarceration resulted from pleading to a charge of Lewd and Lascivious on Mother because, at the time of the child’s birth, Mother was 14 years old and Father was 20 years old. His original sentence was for one year, but he served as a trustee and was released after eight months.