author: PER CURIAM. WOLF, J.,

text:
    Willie WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5090.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2008.

      Willie Watson, pro se, for Appellant.
    Bill McCollum, Attorney General, and Phillip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Willie Watson appeals a circuit court order summarily denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Additionally, he appeals from a circuit court order denying his amended motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm without comment the circuit court’s denial of these motions, finding each of Watson’s claims barred or meritless.

We write only to address the applicability of Spera v. State, 971 So.2d 754, 761-762 (Fla.2007), which was issued after Watson submitted his brief for this appeal. In essence, Spera states that when a defendant’s motion for postconviction relief is summarily denied for failure to meet pleading requirements, the trial court must give the defendant the opportunity to amend the motion. Id. at 761. Here, several of the claims in Watson’s rule 3.850 motion were found facially insufficient. However, since Spera had yet to be issued, the trial court did not allow Watson to amend his motion. Watson then appealed, although his brief does not address whether he should have been allowed to amend his motion. He has not filed any additional authority mentioning Spera or its findings.

The question before this Court, then, is whether we should consider Spera in cases where a defendant has appealed from a summary denial of a postconviction motion, but failed to address Spera or its holding in the documents submitted for appeal. We find, in such specific circumstances, that Spera should not be considered.

Traditionally, when a defendant submits a brief in an appeal from a summary denial of a postconviction motion, this Court may review only those arguments raised and fully addressed in the brief. See Cooper v. State, 856 So.2d 969, 977 n. 7 (Fla.2003) (finding “speculative, unsupported” arguments raised in a brief addressing a summary denial to be improper); Marshall v. State, 854 So.2d 1235, 1252 (Fla.2003) (noting issues raised in an appellate brief addressing a summary denial must be supported by “definitive arguments”). We find the same logic should be applied to the application of Spera. When a defendant appeals from a summary denial of his postconviction motion, he must address the applicability of Spera’s holding in his appellate brief or supplemental authority to preserve such arguments for review. If the defendant fails to do so, he waives any claim he may have had concerning Spera.

Here, although Watson’s appellate brief was submitted before Spera was issued, he has not submitted additional authority mentioning its application to his case. Therefore, this Court is not required to consider whether it applies. The circuit court’s orders are thereby AFFIRMED.

BARFIELD and HAWKES, JJ., concur.

WOLF, J., concurs with opinion.

WOLF, J.,

Concurring.

I believe that the requirements of Spera v. State, 971 So.2d 754 (Fla.2007), are impractical and require extensive judicial labor for little, if any, legitimate return from an already overburdened court system. An unjustified fear of finality will require us to spend limited resources on largely unfounded claims rather than allowing the court system to expeditiously and thoroughly address legitimate claims for relief. To mitigate this effect, I would require that a claim pursuant to the dictates of Spera must be raised in the trial court and raised within an appellate brief in order to entitle an appellant to relief.

While Spera says it does not invite frivolous pleadings, I respectfully suggest that all efforts to preclude such pleadings in the past have been largely unsuccessful. Post-conviction relief was originally meant to be an extraordinary remedy to address instances where a defendant is in jail as a result of a truly unfair proceeding. In fact, rule 3.850 was created in an effort to stem the tide of habeas corpus filings predicted as a result of the United States Supreme Court’s holding in Gideon v. Wainwright. Roy v. Wainwright, 151 So.2d 825 (Fla.1963) (discussing at length the creation of Criminal Procedure Rule No. 1, rule 3.850’s predecessor, in light of fears of numerous filings on the heels of the Gideon decision). It was not intended to be what it has become — a mechanism allowing convicted defendants who have been provided a second opportunity to appeal to throw as many claims of ineffective assistance of counsel against the wall to see how many will stick. This case is a perfect example of such; in his motion asserting numerous ineffective assistance of counsel claims, appellant asserts his counsel erroneously failed to object to the trial court allowing a handicapped person to testify from a wheelchair.

In fact, postconviction motions such as this one are flooding the judicial system. Of the 4,349 cases disposed of by three-judge panels of the First District Court of Appeal in 2007, 1,222, or over 28%, involved postconviction motions. Requiring trial judges to review numerous frivolous amendments only increases the problem.

Spera expressly dictates that the “trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion.” 971 So.2d at 761. This statement implies that a defendant must first ask for leave to amend his petition in the trial court; a position that I believe is sound. Trial courts shall only be required to grant leave to amend a facially or legally insufficient rule 3.850 motion if (1) the defendant requests such leave to amend, and (2) the motion can be sufficiently amended to create a viable claim. If no such request is made, the trial court should be able to deny relief based on either procedural or facial insufficiency, without offering the defendant leave to amend his motion. A parallel civil rule has been employed by this court. See Fox v. Harris, 773 So.2d 107 (Fla. 1st DCA 2000) (holding that where an appellant fails to show that he asked for and was denied leave to amend below, he may not request reversal for leave to amend from this court). Preservation at the trial level should also be required in the context of non-capital post conviction motions.

Spera is also silent on whether, m granting leave to amend, a trial or appellate court must advise petitioners on how to correct deficiencies in their pleadings. Absent this advice from the court, Spera requires trial judges to address numerous additional petitions that will again prove deficient. Alternatively, requiring trial judges to give this advice puts them in the position of being a legal adviser and using limited judicial resources to frame responses. If the trial court incorrectly provides this advice, will we then have opened up a new area of appeal?

While I agree with the result reached by the majority that we should require petitioners to raise the issue on appeal, I am reluctant to set up an additional illogical system similar to Anders where a party gets greater review (Spera review when the issue has not been raised) when it does not file a brief than when it does file a brief but does not raise the issue. See Footnote 1 in the majority opinion. Writing on a clean slate, I would hold that no party seeking postconviction relief would be entitled to an automatic right to amend without raising the issue before the trial court and on appeal.

Because I see no reasonable probability that this petition can be amended to state arguable grounds for relief, and because it does not appear that appellant requested leave to amend his petition from the trial court, I agree to affirm the trial court’s order.

      . However, if a defendant does not file a brief when appealing the denial of his postconviction motion, this Court is still required to investigate all possible means of relief, including the potential application of Spera. See Anderson v. State, 840 So.2d 1108, 1109 (Fla. 2nd DCA 2003).

      . 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael Ray CLINES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0391.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2008.
    Michael Ray Clines, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Everett QUILLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5861.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2008.

      Everett Quine, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: WELLS, J.

text:
    The SCHOOL BOARD OF MIAMI-DADE COUNTY, Florida, Petitioner, v. Yanet LEYVA, individually and as Personal Representative of the Estate of Diannet Leyva, a deceased minor, on behalf of all statutory Survivors, Pallmenia Alfonso, Torrey Marcel Greene, Miami Dade County, Florida and the City of Miami, Respondents.
    No. 3D07-2541.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.
    Pyszka, Blackmon, Levy, Mowers & Kelley and Jeffrey A. Mowers and Cindy J. Mishcon, Miami Lakes, for petitioner.
    Leesfield Leighton & Partners and John Elliot Leighton; Jay M. Levy, Miami, for respondent Yanet Leyva.
    Before WELLS, ROTHENBERG and SALTER, JJ.
   WELLS, J.

Asserting sovereign immunity, the School Board of Miami-Dade County petitions for a writ of certiorari, asking that we quash a trial court’s order denying its motion to dismiss the negligence action brought by the estate of a child killed at a school crosswalk. Relying on Department of Education v. Roe, 679 So.2d 756, 757 (Fla.1996), we conclude that we do not have jurisdiction to review this denial of the motion to dismiss based on sovereign immunity.

Certiorari denied.


text:
    Kenneth NIX, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-230.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2008.
    Kenneth Nix, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s rule 3.800(a) motion to correct sentence, but without prejudice to raising the issue in a timely, non-successive rule 8.850 motion. See generally Tennant v. State, 827 So.2d 321 (Fla. 5th DCA 2002)..

SHAHOOD, C.J., WARNER and KLEIN, JJ., concur.


author: ALTENBERND, Judge.

text:
    ELL-CAP/DIVERSIFIED 75 NAPLES ESTATES, n/k/a Naples Estates Limited Partnership, f/k/a MHC-Naples Estates Limited Partnership; MHC Operating Limited Partnership; and Manufactured Home Communities, Inc., Appellants, v. NAPLES ESTATES HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 2D07-508.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2008.
    J. Alen Bobo, David D. Eastman, and Jody B. Gabel of Lutz, Bobo, Telfair, Eastman & Lee, Sarasota, for Appellants.
    August J. Stanton III of Stanton and Gasdick, Orlando; and Lee Jay Colling of Lee Jay Colling & Associates, P.A., Mta-monte Spring, for Appellee.
   ALTENBERND, Judge.

This is an appeal from a nonfinal order in a lawsuit between a mobile homeowners’ association and various entities involved in the ownership or management of the mobile home park. The order certifies a class that appears to include all mobile home owners who have had mobile homes on lots in the park since June 1992. The order does not require any notice to members of the class. Although the order may be defective for procedural reasons, we reverse because the rights of first refusal that are alleged in the mobile homeowners’ association’s second amended complaint are contractual and statutory rights of the association as a corporation. The second amended complaint alleges no claims that the individual mobile home owners could pursue individually or as a class.

This case involves a mobile home park in Naples, Florida, which has been in operation since at least the early 1990s. It has approximately 500 lots. At all relevant times there has been a mobile homeowners’ association. Although it appears that a prior association was replaced by the current association, for purposes of this appeal it is sufficient to regard Naples Estates Homeowners Association, Inc. (NEHA), as the association.

Until the end of 1997, the mobile home park was owned by Ell-Cap/Diversified 75-Naples Estates (Ell-Cap). In September 1997, Ell-Cap allegedly entered into a contract for the sale of the mobile home park to MHC Operating Limited Partnership (MHC) for approximately $11,500,000, and the property was allegedly sold at the end of 1997 to MHC.

Soon after the sale, NEHA filed this lawsuit. Because this is an appeal from a nonfinal order, we have a very limited record provided by the parties in appendices. The order certifying the class was entered in early 2007 while the case was pending on a second amended complaint. The record does not explain why it took more than eight years for the case to reach this posture.

As alleged in the pleadings, the dispute between NEHA and Ell-Cap and MHC centers on rights of first refusal possessed by NEHA at the time of the sale to MHC. Ell-Cap and MHC appear to take the position that the transfer was a corporate or business restructuring and not the type of transaction to which a right of first refusal applies. NEHA argues that it had both a contractual and a statutory right to be notified of this sale and to exercise its right of first refusal. It claims that it is ready, willing, and able to purchase the property upon the terms offered to MHC in September 1997.

According to the second amended complaint, NEHA first obtained contractual rights to purchase this property in a settlement agreement in June 1992. That agreement expressly states that Ell-Cap “hereby grants to the Association an enforceable right of first refusal to purchase the Park when Ell-Cap/Diversified 75-Na-ples Estates offers the Park for sale or receives a bona fide offer to purchase that it intends to consider.” The agreement expressly identifies “the Association” as the nonprofit corporation receiving the enforceable right. Nothing in this agreement gave individuals who owned mobile homes on lots in the park in 1992 any individually enforceable rights to purchase the property.

A similar settlement agreement was executed in April 1996. It extends and confirms an “absolute right of first refusal to purchase park” to “the Association,” which once again is identified as the nonprofit corporation entering into the agreement.

After the settlement agreement, a “right of first refusal to purchase park” was recorded in Collier County records in 1996. It describes NEHA as the “buyer” and grants and conveys to NEHA the enforceable right of first refusal to purchase the park.

Finally, NEHA seeks to enforce a statutory right of first refusal pursuant to section 723.071(1)(b), Florida Statutes (1997). That statute states that “[t]he mobile home owners, by and through the association defined in s. 723.075, shall have the right to purchase the park.” Id. Thus, the statute does not give individual mobile home owners a right of first refusal. That right must be exercised through an association. As a matter of law, the association cannot be an informal group of individuals and must be a corporation. See § 723.075.

NEHA’s second amended complaint seeks to enforce these rights of first refusal. It alleges that NEHA is entitled to specific performance. It also seeks rights to collect certain rents that the park owner otherwise received since 1998. We express no opinion on whether NEHA is entitled to these remedies. However, it is obvious that no member of the class is entitled to any of these remedies. If Ell-Cap is obligated to extend an offer to purchase this property, it must extend that offer to NEHA, not to some group of past or present mobile home owners. If the offer of first refusal is accepted, unless the right is assigned, the entity that must enter into the real estate contract is NEHA.

NEHA has the right to institute and maintain this action, but it does so as a distinct corporation. It does not maintain this action as a class representative for a group of individual mobile home owners. Accordingly, we reverse and remand for further proceedings in which NEHA is permitted to proceed on its own claim but not as a class representative.

Reversed and remanded.

CASANUEVA and WALLACE, JJ., Concur.

      . The second amended complaint states that Ell-Cap is also known as Naples Estates Limited Partnership and was formerly known as MHC-Naples Estates Limited Partnership.

      . Although we have reservations about the appealability of orders certifying classes in cases under Florida Rule of Civil Procedure 1.222, see Amber Glades, Inc. v. Leisure Assocs. Ltd. P’ship, 893 So.2d 620, 624 (Fla. 2d DCA 2005), on its face this order is titled as a determination of class standing and notice. Thus, we treat it as a nonfinal order appeal-able under rule 9.130(a)(3)(C)(vi). Given the impact this order could have on class members who have no notice, we would reach the same result if we treated the appeal as a petition for common law certiorari.

      . The parties have informed us that mobile homeowners' associations usually create another legal entity to purchase such a park and that the affected mobile home owners have an ownership interest in the new legal entity. This practice, however, does not require the mobile home owners to be parties to this lawsuit.


author: CASANUEVA, Judge.

text:
    In re COMMITMENT OF James R. MAY. James R. May, Petitioner, v. State of Florida, Respondent.
    No. 2D07-3965.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2008.

      Theresa N. Jean-Pierre of Cohen & De-Paul, P.A., Tampa, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   ORDER DISMISSING PETITION FOR BELATED APPEAL

CASANUEVA, Judge.

In a proceeding governed by the Jimmy Ryce Act, part V of chapter 394, Florida Statutes (2007), the trial court entered a final judgment declaring James R. May a sexually violent predator and committing him to the Department of Children and Family Services. Because Mr. May filed an untimely notice of appeal from this judgment, he filed this petition pursuant to Florida Rule of Appellate Procedure 9.141(c) seeking a belated appeal. Rule 9.141 is titled “Review Proceedings in Collateral or Post-Conviction Cases.” Because Jimmy Ryce proceedings are civil in nature, Westerheide v. State, 831 So.2d 93 (Fla.2002), we questioned Mr. May’s use of this rule of appellate procedure designed for those seeking a belated appeal in criminal cases. We ordered the parties to address the issue of whether this court has the authority to treat a petition for belated appeal of a Jimmy Ryce Act commitment order as a petition for habeas corpus. Mr. May, relying on Kleparek v. State, 964 So.2d 225 (Fla. 4th DCA 2007), asserts that relief pursuant to a petition for writ of habeas corpus is appropriate. The State essentially agrees with Mr. May, contending that relief cannot be founded upon the authority of rule 9.141(c) but that Mr. May might be entitled to belated review of his commitment via a petition for writ of habe-as corpus.

Generally, an appellate court is not authorized to grant a belated appeal in a civil proceeding as the filing of the notice of appeal is jurisdictional. See Ward v. State, 859 So.2d 523 (Fla. 1st DCA 2003). In V.H. v. Dep’t of Children & Family Servs. (In re B.H.), 893 So.2d 639, 640 (Fla. 2d DCA 2005), a termination of parental rights appeal, we observed that “[i]n a civil proceeding, this court cannot grant a belated appeal, and generally the litigant must file a motion in the trial court pursuant to [Florida Rule of Civil Procedure] 1.540 to obtain relief.” However, a significant point in V.H. was that a constitutionally recognized right was implicated — the fundamental liberty interest that parents have “in the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In such a ease, we held that “the proper vehicle for relief to obtain a belated appeal is to file a petition for writ of habeas corpus in the trial court.” V.H., 893 So.2d at 640. See also In re Interest of E.H., 609 So.2d 1289 (Fla.1992). Jimmy Ryce Act proceedings similarly implicate a constitutionally recognized right — liberty.

A person facing involuntary Jimmy Ryce commitment is entitled to counsel for those proceedings at state expense. § 394.916(3). Furthermore, the Jimmy Ryce Act provides the committed person with the right to appeal, § 394.917(1), as well as a right to appellate counsel at state expense, § 394.917(3). Therefore, the legislature has acknowledged the strong liberty issues at stake, and the only logical conclusion is that some procedural vehicle must exist to effect the right to appeal in cases such as Mr. May’s, in which the committed person was represented by trial counsel who, according to the sworn petition, failed to timely file a notice of appeal despite the petitioner’s request.

Mr. May’s situation is essentially analogous to that of a parent whose rights have been terminated but who has lost the right to appeal because counsel failed to file a timely appeal as requested. Absent some other vehicle, the parent loses the right to appeal a judgment affecting his or her fundamental liberty interest. The Fourth District recognized this fact in Kleparek, 964 So.2d 225, another case in which the petitioner sought a belated appeal after a Jimmy Ryce commitment. Citing to the termination of parental rights case of In re E.H., 609 So.2d at 1289, the Kleparek court held “that the proper vehicle is ... a petition for writ of habeas corpus seeking belated review of the lower tribunal’s order.” 964 So.2d at 226. The appellate court then granted belated review of the commitment order.

Due to the civil nature of Jimmy Ryce proceedings, we analogize Mr. May’s circumstances to those of a parent whose parental rights have been terminated and whose appeal was untimely filed through no fault of the parent’s. When a belated appeal was sought in In re E.H., 609 So.2d 1289, our supreme court afforded the parent a right to seek an appeal through a petition for writ of habeas corpus, but the court required the petition to be filed in the trial court, not the appellate court:

[I]n those limited situations when a parent is entitled to belated appeal, the petition for writ of habeas corpus is the proper procedural vehicle for seeking the appeal. The writ of habeas corpus was designed as a speedy method of affording a judicial inquiry into the cause of the alleged unlawful custody of an individual. For that reason, habeas corpus has been authorized as a remedy for ascertaining a parent’s right to custody of his or her children. We hold that the parent’s petition for writ of habeas corpus should, be filed with the trial court. This will permit a resolution of any factual issues as well as any defenses including those predicated upon laches.

Id. at 1290-91 (citations omitted). Because Mr. May’s petition presents a factual issue about whether he timely instructed his attorney to file an appeal, he should follow the procedure set out by our supreme court in In re E.H., so the trial court may resolve the factual issues that may entitle him to a belated appeal. Thus, although we agree with the reasoning in Kleparek, we decline to follow its disposition of taking up the matter as if the trial court had already determined the petitioner’s entitlement to a belated appeal. The better procedure is that outlined in In re E.H.

Accordingly, we dismiss the petition for belated appeal from a civil commitment order as we are without jurisdiction to consider it.

ALTENBERND and LaROSE, JJ., Concur.


text:
    Marcus MIDDLETON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1961.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2008.
    James S. Purdy, Public Defender, and Michael Olshefski, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 373 So.2d 898 (Fla.1979).

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


text:
    Stoney Lee POWERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-229.
    District Court of Appeal of Florida, Fifth District.
    Feb. 26, 2008.
    Stoney L. Powers, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED.

See Garnett v. State, 957 So.2d 32 (Fla. 2d DCA 2007).

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


author: MAY, J.

text:
    Arthur SALM, Appellant, v. Carla-Rae SALM, Appellee.
    No. 4D06-3691.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 2008.
    Rehearing Denied March 25, 2008.
    Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellant.
    Amy D. Shield, P.A., Boca Raton, for appellee.
   MAY, J.

The former husband appeals an Amended Final Judgment entered in the dissolution of his marriage; the former wife cross-appeals. Each former spouse raises multiple issues concerning the trial court’s distribution of assets, classification of income, assessment of expenses for the maintenance of the marital home pending its sale, and attorney’s fees. We have reviewed each issue and find no error in the trial court’s order with the exception of two areas in need of correction or clarification on which both parties agree. We therefore affirm the final judgment, but remand the case for the trial court to address the following two issues.

First, the former wife argues the trial court included an equitable distribution chart in the Amended Final Judgment that transposed postpetition activity. The former husband agrees and advises that this error is the subject of his pending motion to correct errors. For that reason, we remand the case to the trial court to address the former husband’s motion.

Second, the former spouses agree that a handwritten clause in the Amended Final Judgment concerning responsibility for repairs to the marital home creates an ambiguity or inconsistency. Specifically, the trial court ordered the husband pay the expenses on the marital home that he occupies until the home is sold, and the handwritten clause directs the parties to split litigation expenses/repairs. We find no error in the trial court’s decision to order the former husband to bear the household expenses and repairs, but remand the case to the trial court to clarify the identified sentence.

Affirmed but remanded for correction and clarification.

SHAHOOD, C.J., and POLEN, J., concur.


text:
    William HEAD, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D07-526.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2008.

      William Head, pro se, Appellant.
    Sean T. Garner, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

William Head, Appellant, seeks review of a circuit court order dismissing his petition for writ of mandamus as untimely under section 95.11(8), Florida Statutes (2006). Appellant argues that the circuit court erred in applying section 95.11(8) instead of 95.11(5)(f), Florida Statutes (2006), when it dismissed his petition. The State concedes that the circuit court applied the incorrect statutory provision. We agree and reverse the circuit court’s order dismissing Appellant’s petition for writ of mandamus because the circuit court erred in finding that Appellant’s claim was time-barred.

On July 10, 2006, Appellant filed a grievance with the Department of Corrections (DOC) requesting application of his gain time to his release date. Following Appellant’s exhaustion of his administrative remedies, the Office of the Secretary of the DOC entered its final denial of Appellant’s grievance appeal on September 19, 2006. Appellant filed a petition for writ of mandamus in the circuit court on November 1, 2006, raising the same arguments he asserted in his original grievance. The circuit court denied Appellant’s petition as untimely under section 95.11(8) on January 16, 2007.

Section 95.11(8) requires a party appealing a prison disciplinary proceeding to file a petition within thirty days of the Office of the Secretary of the DOC’s final decision. In contrast, section 95.11(5)(f) provides that “[efccept for actions [challenging prison disciplinary proceedings], a petition for extraordinary writ, other than a petition challenging a criminal conviction, filed by or on behalf of a prisoner” must be brought within one year of exhausting administrative remedies. See also Canete v. Fla. Dep’t of Corr., 967 So.2d 412, 414 (Fla. 1st DCA 2007) (holding that an inmate’s claim for mandamus relief regarding restoration of jail credit was not time-barred under section 95.11(5)(f) when he exhausted all administrative remedies and invoked the trial court’s jurisdiction well within one year of that date).

Appellant sought review of an administrative determination that denied application of gain time to his date of release in his petition for writ of mandamus. Appellant did not argue against a disciplinary proceeding or his conviction. Therefore, the thirty-day time period set forth in section 95.11(8) is inapplicable, and section 95.11(5)(f), which sets forth a one-year time period, is the provision governing Appellant’s petition. Appellant’s petition was filed well within the time period set forth in section 95.11(5)(f) and should have been considered timely filed.

Accordingly, the order of the circuit court dismissing Appellant’s petition for writ of mandamus as untimely is REVERSED and the matter is REMANDED for further proceedings consistent with this opinion.

PADOVANO, LEWIS, and THOMAS, JJ., concur.

      . Pro se prisoners’ petitions are deemed filed on the date they are delivered to prison officials. Haag v. State, 591 So.2d 614, 617 (Fla.1992).


text:
    James D. ANDERSON, Appellant, v. Martha RUSSELL f/k/a Martha Anderson, Appellee.
    No. 1D07-0492.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2008.
    John R. Weed of John Weed, P.A., Perry, for Appellant.
    Angela M. Ball of Angela M. Ball, P.A., Perry, for Appellee.
   PER CURIAM.

James D. Anderson, Appellant, challenges the Final Judgment entered October 24, 2006. We reverse.

The marriage between Appellant and Martha Russell, Appellee, was dissolved in 1987. The final judgment of dissolution awarded a two-acre parcel of property to both Appellant and Appellee, and required the parties to split the property in half as agreed upon by them. In 1992, appellee signed a document, addressed to Appellant, which indicated an intent to in some form transfer an interest in this property to appellant and then to their daughter. This agreement was not signed by Appellant. No deed of conveyance was ever executed by the Appellee.

In 2005, Appellant filed a complaint for specific performance, asking that the Ap-pellee be required to convey the property per the 1992 agreement. The appellee filed a counter-complaint for partition. On May 15, 2006, the trial judge entered a final judgment of specific performance. The trial judge made the following findings:

4. On June 10, 1992 the Plaintiff and Defendant entered into an agreement whereby the Plaintiff purchased the Defendant’s interest in the subject property which was to be the property of himself and Roxanne Anderson from that day forth.
5. The Defendant explained that she understood that the document was created by the parties in order to create and preserve an interest in the property for their daughter, Roxanne Anderson. It was, therefore, the intent of the parties that the Plaintiff would have a life estate in the Defendant’s undivided interest of the property and that Roxanne Anderson would be the remainderman of that undivided interest.
6. Both parties testified that the two acres comprising the subject property is of approximately the same type and character naturally.
7. Subsequent to the dissolution and after the Defendant had executed the document mentioned above, the Plaintiff negotiated a lease for a cellular tower to be placed on one acre of the undivided property.
8. The Defendant received good and valuable consideration for entering into this Agreement.
9. The Plaintiff and Defendant do not own the subject property as tenants in common since the Defendant has conveyed her interest and therefore there is no property to be partitioned.

The trial judge then ordered:

1. That the Plaintiff has met his burden of proof to show by a preponderance of the evidence that there was a valid agreement for the Defendant to convey her interest in the subject property to the Plaintiff.
2. The Plaintiff shall procure the services of a surveyor so that a survey can be performed to create a legal description for two (2) one-acre parcels.
3. The Plaintiff, James Anderson, is awarded the one acre parcel on which the cellular tower is located.
4. The Plaintiff, James D. Anderson, is awarded a life estate in the other one acre tract and upon the death of the Plaintiff this tract shall vest in Roxanne Anderson as the sole owner thereof.
5. The Defendant, Martha Russell, f/k/a Martha Anderson, shall execute deeds in conformity with this Judgment within fifteen (15) days of receipt of the surveyed legal descriptions. If the Defendant fails to do so, then this Judgment shall have the effect of a duly executed conveyance of her interest as set forth herein, as provided under Rule 1.570(d) of the Florida rules of civil Procedure.
6. The counter-Complaint for Partition is denied.

Appellee filed a motion for rehearing or clarification, asserting that both parties intended the entire two-acre parcel to ultimately go to the daughter. After a hearing, the trial judge struck the initial final order and issued a second final judgment in which he awarded Appellant a life estate in the entire two-acre parcel, with the remainder interest in the entire parcel to the daughter.

The trial judge had no legal authority or evidentiary basis to change the nature of appellant’s undivided one-half interest in the property at issue. The original judgment issued on May 15, 2006, directing the division of the property into two equal one-acre parcels and granting appellant a fee simple interest in one and a life estate in the other, was correct and consistent with the final judgment in the dissolution of the parties’ marriage. The judgment on appeal is reversed. On remand, the trial judge is directed to reinstate the May 15, 2006 final judgment.

REVERSED and REMANDED.

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


text:
    Jermaine Edward McAROY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1644.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2008.
    Nancy A. Daniels, Public Defender, and Laura Anstead, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross and Thomas Wi-nokur, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the revocation of his probation. We AFFIRM the revocation based on two violations of Condition (5). At the revocation' hearing, the State presented no evidence regarding the third alleged violation of Condition (5), committing the offense of neglect of a child without great bodily harm. Accordingly, we REMAND with directions to strike that portion of the order finding this third violation. See, e.g., Sherwood v. State, 933 So.2d 43, 44-45 (Fla. 2d DCA 2006); Davis v. State, 478 So.2d 112, 113 (Fla. 2d DCA 1985).

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


author: BROWNING, C.J.

text:
    William Joe ROBINSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2748.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2008.
    Nancy A. Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Donna A. Gerace and Giselle Lylen Rivera, Assistant Attorneys General, Tallahassee, for Appellee.
   BROWNING, C.J.

We affirm Appellant’s conviction and sentence for manslaughter by culpable negligence. Appellant concedes his first two claims on appeal in light of the release of Smiley v. State, 966 So.2d 330 (Fla.2007). Appellant’s third claim on appeal, that the trial court erred in denying a motion for judgment of acquittal on the ground that the State did not adequately rebut his evidence of self-defense, was not preserved for review because defense counsel failed to argue that ground during the motion for judgment of acquittal. See, e.g., Woods v. State, 733 So.2d 980 (Fla.1999). Accordingly, we must refrain from reviewing the merits of that claim.

AFFIRMED.

VAN NORTWICK and ROBERTS, JJ., concur.


text:
    Richard Lee TAYLOR, III and Lisa Marie Taylor, his wife, Petitioners, v. PENSKE TRUCK LEASING CORPORATION, a foreign corporation, Baron Transport, Inc., a foreign corporation, Ryder Truck Rental, Inc., a Florida corporation, and Clinton Ryan, Respondents.
    No. 1D07-3150.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2008.
    Bryan S. Gowdy and John S. Mills of Mills & Creed, P.A., Jacksonville and Christopher Shakib of Terrell Hogan Ellis Yegel Wei, P.A., Jacksonville, for Petitioners.
    Dennis R. Schutt and Alison N. Emery of Schutt, Schmidt, Burnett & Noey, Jacksonville, Attorneys for Respondent, Penske Truck Leasing Corporation; and Michael S. Donsky of Birder & Donsky Law Offices, P.A., Gainesville, Attorney for Respondents, Baron Transport, Inc., Ryder Truck Rental, Inc., and Clinton Ryan.
   BROWNING, C.J.

Petitioner Richard Taylor was in a car accident which he cannot remember. As a result, he relied on experts to answer interrogatories about the accident, but wrote the answers in the first person. Respondents did not know the answers came from experts until Taylor’s deposition, wherein it came to light he could not remember the accident. Respondents then moved to dismiss the case for fraud, and moved for sanctions. In opposition to these motions, Petitioners asserted the work-product privilege. A hearing on the matter comprised legal argument, but no evidence.

The lower court denied the motions to dismiss, but, without ruling on the motions for sanctions, found Respondents had shown exceptional circumstances warranting disclosure of the expert opinions and factual bases for the answers to interrogatories. The judge instructed Petitioners to “reveal the names and opinions and bases of those opinions of their experts which they relied upon to answer” interrogatories 7, 8, 10, 26, and 27. We grant certio-rari relief from this order.

The lower court has departed from the essential requirements of law by finding exceptional circumstances exist without having heard any evidence from Respondents as to the need for the information or any undue hardship Respondents might face in collecting the information independently. See Nevin v. Palm Beach County Sch. Bd., 958 So.2d 1003 (Fla. 1st DCA 2007); Metric Eng’g, Inc. v. Small, 861 So.2d 1248 (Fla. 1st DCA 2003); Procter & Gamble Co. v. Swilley, 462 So.2d 1188 (Fla. 1st DCA 1985). This order will likely cause irreparable harm to Petitioners, as once the information is released, it cannot be retracted. See Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995); Huet v. Tromp, 912 So.2d 336 (Fla. 5th DCA 2005).

For these reasons, we GRANT the cer-tiorari petition, QUASH the lower court’s order insofar as it compels the disclosure of the names and opinions of Petitioners’ non-testifying experts and the bases of those opinions, and REMAND for the lower court to receive evidence on Respondents’ need for the materials and undue hardship as to collecting the information independently.

KAHN and ROBERTS, JJ., concur.


text:
    Elise KAHN, Appellant, v. AMERICAN HERITAGE LIFE INSURANCE COMPANY, Allstate Financial Corporation, Allstate Insurance Company, and The Allstate Company, Appellees.
    No. 1D07-1513.
    District Court of Appeal of Florida, First District.
    Feb. 29, 2008.
    Archibald J. Thomas, III, of Thomas & Klink, Jacksonville, for Appellant.
    Timothy B. Strong and Robert D. Sheesley, of Coffman, Coleman, Andrews & Grogan, P. A., Jacksonville, for Appel-lees.
   PER CURIAM.

Appellant Elise Kahn appeals the trial court’s judgment on the pleadings. In Count I of her amended complaint, appellant alleges a breach of contract action against appellee American Heritage Life Insurance Company. We must accept the allegations as' true, therefore we do not reach or comment on the merits of the allegations made. See Crocker v. Pleasant, 778 So.2d 978, 981 n. 4 (Fla.2001) (“Because this case is before us after the trial court granted a motion for judgment on the pleadings, our inquiry is a narrow one and we must accept as true all well-pleaded allegations of the non-moving party. Judgment on the pleadings can be granted only if, on the facts as admitted for purposes of the motion, the moving party is clearly entitled to judgment.”) (internal citation omitted). To the extent that the claim is not supported by the material facts necessary to establish the claim, sanctions under section 57.105, Florida Statutes, may apply.

We agree with appellant that she states a claim for breach of her agent contract with American Heritage for unpaid commissions associated with the Philadelphia Federal Credit Union account. Therefore, we reverse the judgment relating to appellant’s breach of contract claim against American Heritage and remand for further proceedings on that claim. We affirm the judgment relating to all other appellees and counts without further comment.

AFFIRMED in part; REVERSED in part and REMANDED with directions.

POLSTON, HAWKES, and THOMAS, JJ., concur.


author: DAVIS, Judge.

text:
    Jeffrey Alan BUTTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-776.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 2008.

      James E. Felman and Katherine Earle Yanes, of Kynes, Markman & Felman, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Jeffrey Alan Butts appeals his convictions for reckless driving and culpable negligence. Although he was originally charged with vehicular homicide and manslaughter while operating a motor vehicle, the jury returned convictions on the lesser included charges. He does not contest the sentence imposed on either of the two convictions. Because we conclude that admission of portions of the widow’s testimony was harmful, reversible error, we reverse and remand for a new trial on the charges of reckless driving and culpable negligence.

The charges resulted from a tragic motor vehicular accident that occurred as Butts was traveling north on Interstate 75 when he struck the rear of a motorcycle driven by Robert Seborowski. Seborowski suffered from skin abrasions and a laceration and was transported to the hospital. However, as a result of his hospitalization, it was discovered that Seborowski suffered from several other medical conditions of which he was not aware and for which he was not being treated. These conditions included hypertension, diabetes, and severe coronary heart disease. While hospitalized, Seborowski suffered serious cardiac complications and died eight days later as the result of a pulmonary thromboem-bolism, which is a blood clot, commonly from the leg, that breaks loose and travels to the lung, causing blockage of an artery.

After Seborowski’s death, the State filed an information charging Butts with vehicular homicide and manslaughter while operating a motor vehicle. According to the State’s theory, Butts caused the accident by recklessly driving at an excessive rate of speed, frequently changing lanes, and striking the victim’s motorcycle from the rear at a time when the motorcycle was traveling at a speed under the posted speed limit. This theory was based on the eyewitness testimony of four lay witnesses.

At trial, the State presented the testimony of the four lay witnesses, a traffic homicide investigator, and the victim’s wife. On appeal, Butts challenges the testimony of the investigator and Mrs. Seborowski.

The four lay eyewitnesses gave conflicting testimony regarding what actually happened at the time of and immediately preceding the accident. The State’s traffic homicide investigator testified that in her opinion this was a case of vehicular homicide, and the victim’s wife testified that Seborowski did not know of his other medical conditions, that she would only receive $50,000 as a settlement from the insurance company, and that Seborowski had been very active before the accident. She also became so emotional on the stand that the trial court found it necessary to call a temporary recess. Butts then presented the testimony of his accident reconstruction expert, who testified that based on his evaluation of the physical evidence, the State’s theory of the accident was in error.

Although there was no disagreement at trial regarding the fact that Butts did strike the motorcycle from behind, the jury was presented with a contested set of facts as to exactly how the motorcycle was struck and the nature of Butts’ driving at the time of the collision. Similarly, although the question of whether the accident was the cause of the victim’s death was not raised, the jury was advised as to the nature of the injuries the victim sustained in the accident, the status of his physical condition, and the cause of his death. The jury was also advised that the burden was on the State to prove each element of each offense and that an element of each of the charges against Butts was that the victim’s death was the result of Butts’ conduct.

The jury returned verdicts acquitting Butts on both of the felonies but finding him guilty of the misdemeanor lesser included charges for each count. It is these misdemeanor convictions that Butts now appeals.

Butts argues that the trial court erred in allowing the victim’s widow to testify over his objection. Butts attacks the relevancy of any of the widow’s testimony; however, he particularly objects to her statement at trial that she had settled with Butts’ insurance company for $50,000. Because we find this to be reversible error, we need not address Butts’ remaining challenges to the widow’s testimony.

When the widow testified at trial that the insurance company already had settled the case for $50,000, the clear implication was that someone else had investigated these facts and had determined that Butts was liable. See Keen v. State, 775 So.2d 263, 274 (Fla.2000) (“ ‘[T]he clear inference to be drawn from [Amabile’s] testimony’ was that the insurance industry with its resources had investigated the disappearance and discovered a murder .... ” (second alteration in original)). However, Butts was unable to refute that implication because he could not cross-examine the widow as to the motivation of the insurance company in entering the settlement. Thus the jury was improperly led to believe that the insurance company had uncovered reliable evidence of Butts’ guilt. As such, this testimony was not merely irrelevant; it was prejudicial to Butts.

The State argues that even if admission of this testimony was error, it was harmless. We disagree. We cannot say beyond a reasonable doubt that the verdict would have been the same had the jury not been advised of this settlement. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). First, the jury was presented with conflicting testimony as to Butts’ driving immediately preceding the accident. The State’s eyewitnesses contradicted each other in several important respects. Their testimony was then rebutted by Butts’ expert, who opined that based on his evaluation of the damages and his calculations as an accident reconstructionist, Butts could not have been traveling at the speed attributed to him by some of the State’s witnesses. For a jury attempting to reconcile this conflict, the existence of evidence that the insurance company’s independent investigator already had determined that Butts was at fault to some degree could have been the crucial factor in the decision to return guilty verdicts on reckless driving and culpable negligence, both of which required proof of improper driving by Butts. Additionally, the emotional impact of a widow, after testifying as to the length and quality of her marriage to the victim, telling the jury that she received $50,000 less the attorney’s fee as her settlement and that “that was all there was to get” is unpredictable. For these reasons, we conclude that the error was not harmless, that the convictions must be reversed, and that the case must be remanded for a new trial. We need not address the remaining arguments regarding other portions of the widow’s testimony.

Although Butts also argues that the trial court erred in accepting the traffic homicide investigator as an expert in accident reconstruction and admitting her testimony that the proper charge was vehicular homicide, we need not address this issue. Because the jury acquitted Butts of vehicular homicide, the charges to be tried on remand will be limited to the misdemeanors of reckless driving and culpable negligence, making irrelevant the traffic investigator’s determination that vehicular homicide was the correct charge. Moreover, since all of the widow’s testimony was admitted, as argued by the State, to address issues regarding the victim’s injuries and ultimate death, her testimony will be irrelevant on retrial because the victim’s death will not be at issue.

Reversed and remanded for retrial on the charges of reckless driving and culpable negligence.

NORTHCUTT, C.J., and WHATLEY, J., Concur.

      . The investigator testified that she made no calculations and applied no scientific principles in reaching her "conclusion” that the proper charge was vehicular homicide. At retrial, should the State again attempt to qualify her as an expert in accident reconstruction, the trial court would be required to determine that her opinion was in fact relevant to an issue susceptible of an expert's testimony, i.e., an issue beyond the knowledge of the lay juror. If, in fact, her opinion is solely based on her review of the witness' statements and her interview of witnesses, such would not qualify as an expert's opinion.


author: SILBERMAN, Judge.

text:
    Vincent Maurice ROBINSON, a/k/a Preacher Robinson, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D06-1916, 2D06-1918.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 2008.

      James Marion Moorman, Public Defender, and Sean K. Ahmed, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

In these consolidated appeals, Vincent Maurice Robinson challenges his judgment and sentence of time served for possession of cocaine in case number 2D06-1916 (circuit court case number 03-CF-021137). We affirm that judgment and sentence without discussion.

In case number 2D06-1918 (circuit court case number 05-CF-000140), Robinson challenges his judgment and sentence for (1) trafficking in illegal drugs (hydro-codone); (2) possession of a controlled substance (cocaine) with intent to sell or deliver within 1000 feet of a church; (3) possession of less than twenty grams of cannabis; and (4) possession of drug paraphernalia. We affirm the judgment and sentence on counts one and four without discussion. We reverse the judgment and sentence on counts two and three because the trial court should have granted the motion for judgment of acquittal on those counts when the State failed to prove the knowledge element for constructive possession.

In case number 2D06-1918, the evidence at trial showed that on January 3, 2005, officers of the QUAD squad, a Tampa Police Department narcotics unit, executed a search warrant at Robinson’s residence. Robinson lived there with his girlfriend and her two children. With respect to counts two and three, cocaine and marijuana were found in baggies in a ceramic house on the kitchen counter. The police did not attempt to lift fingerprints from any of the items.

Officer Petit searched the kitchen, and he testified that the bottom portion of the ceramic house was hollowed out and that when he looked underneath it he discovered the baggies containing the drugs. Officer Petit admitted on cross-examination that he did not see the baggies until he turned the house over. Officer Petit was asked “if a person walking in that room was to just look at that house, they’d have no idea that there was something concealed in it, correct?” He replied, “Unless they had knowledge it was there.”

In his motion for judgment of acquittal, Robinson argued that the State had failed to prove any actual possession of the contraband and that the State had failed to prove the knowledge element required for constructive possession. The trial court denied the motion, and the jury found Robinson guilty as charged. The State presented no evidence that Robinson had been in actual possession of the cocaine and marijuana found in the ceramic house. Thus, the issue is whether the State presented sufficient evidence to support a conviction on counts two and three based on constructive possession.

“In a constructive possession case, the State’s burden is to show beyond a reasonable doubt that the defendant knew of the presence of the contraband and that he had the ability to exercise dominion and control over it.” Wagner v. State, 950 So.2d 511, 512 (Fla. 2d DCA 2007). When possession of the premises where the contraband is found is joint rather than exclusive, “knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership but must be established by independent proof.” Mitchell v. State, 958 So.2d 496, 500 (Fla. 4th DCA) (citing Brown v. State, 428 So.2d 250, 252 (Fla.1983)), review denied, 969 So.2d 1015 (Fla.2007). Independent proof may include “evidence that the defendant had actual knowledge of the presence of the contraband or evidence of incriminating statements or circumstances, other than simple proximity to the contraband, from which the jury could infer the defendant’s knowledge.” Wagner, 950 So.2d at 513.

When the premises are in joint possession, the State may prove knowledge by contraband found in plain view in the common areas of the premises. Mitchell, 958 So.2d at 500 (citing Brown, 428 So.2d at 252). In Mitchell, the court cautioned, however, that “[t]he mere fact that some contraband was in plain view does not permit the inference that the defendant knew of the entire amount of contraband found upon a search of a residence.” Id.

Here, Robinson was a joint occupant of the residence. The State failed to prove that the cocaine and marijuana were in plain view. Further, the State did not present independent proof establishing the required element that Robinson had knowledge of the cocaine and marijuana in the ceramic house on the kitchen counter. Because the State failed to prove actual or constructive possession, the trial court should have granted the motion for judgment of acquittal on the cocaine and marijuana charges. Accordingly, we reverse Robinson’s judgment and sentence on counts two and three in circuit court case number 05-CF-000140.

Affirmed in part and reversed in part.

CASANUEVA and SALCINES, JJ., Concur.


author: STRINGER, Judge.

text:
    STATE of Florida, Appellant, v. Angela Deshone HOLLAND, Appellee.
    No. 2D07-1091.
    District Court of Appeal of Florida, Second District.
    March 5, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   STRINGER, Judge.

The State seeks review of the order dismissing the information that charged Angela Holland with trafficking in illegal drugs, possession of cannabis (less than 20 grams), and possession of drug paraphernalia. Because there was a material fact in dispute and because the undisputed facts establish a prima facie case against Holland, we reverse the order and remand for further proceedings.

The charges against Holland arose from a search of her home pursuant to a search warrant obtained based on the sheriffs observance of two controlled drug transactions conducted out of the home. Holland was not present during either transaction, the first of which was conducted by Holland’s daughter, and the second by her son.

The home consisted of three bedrooms: a master bedroom, a room with a crib, and a room with a bunk bed, all of which appeared occupied. During the search of the master bedroom belonging to Holland, officers found, in plain view, 3.3 grams of marijuana in a plastic bag located on Holland’s bed, 41 Hydrocodone pills in a separate plastic bag, 3 Hydrocodone pills located in a plastic cup on Holland’s headboard, and, in the same cup, a Cigna Health Insurance card bearing Holland’s name. Also located in the bedroom was mail addressed to Holland. Present during the search were Holland’s 22-year-old daughter, with her baby, both of whom resided with Holland. Holland’s son occasionally resided with Holland but was not present during the search.

Holland filed a motion to dismiss the information, arguing that based on the undisputed facts, the State failed to establish the first element of constructive possession, dominion and control over the contraband. The trial court agreed and dismissed the information. A motion to dismiss must establish that (1) there are no material facts in dispute and (2) the undisputed facts do not establish a prima facie case of guilt against the defendant. State v. Kalogeropolous, 758 So.2d 110 (Fla.2000). All facts and inferences are to be viewed in the light most favorable to the State. Id. at 112. We review de novo the trial court’s Order Dismissing Information, Bell v. State, 835 So.2d 392 (Fla. 2d DCA 2003), and we reverse.

The charges against Holland are based on constructive possession because the contraband was not found in Holland’s actual possession. See Loyd v. State, 677 So.2d 76 (Fla. 2d DCA 1996). To establish a prima facie case based on constructive possession, the State must show that (1) Holland had “dominion and control” over the contraband and (2) she had knowledge of the presence of the contraband. Ed mond v. State, 963 So.2d 344 (Fla. 4th DCA 2007). The existence of these two elements will be inferred if the premises where the contraband was found is in the defendant’s exclusive possession. Lopez v. State, 711 So.2d 563, 565 (Fla. 2d DCA 1997). If possession is not exclusive, the two elements will not be inferred and must be proven by independent proof. Loyd, 677 So.2d 76. “ ‘Such proof may consist either of evidence of actual knowledge of the contraband’s presence or evidence of incriminating statements and circumstances from which the jury might lawfully infer the accused’s actual knowledge of the presence of contraband.’ ” Ogle v. State, 820 So.2d 1054, 1055 (Fla. 4th DCA 2002) (quoting Moffatt v. State, 583 So.2d 779, 781 (Fla. 1st DCA 1991)).

It is undisputed that the narcotics were discovered by detectives in a bedroom that belonged to Angela Holland. At the hearing on the motion to dismiss, Holland presented the possibility that Holland’s daughter occupied the master bedroom with Holland, contrary to the State’s allegation of Holland’s exclusive occupancy. With this assertion, however, Holland created a dispute of material fact as to exclusive occupancy, and a motion to dismiss is thus not proper. See Kalogeropolous, 758 So.2d at 111.

Furthermore, it is well settled that all inferences must be in favor of the State on a motion to dismiss. Id. at 112. Clearly an inference could be made from the evidence that Holland, the owner of the home, resided alone in the master bedroom, the baby resided in the room containing the crib, and Holland’s daughter resided in the remaining room. Based on this inference, the State has met its burden as to the element of dominion and control and established a prima facie case of guilt based on constructive possession. See Edmond, 963 So.2d at 346. The State need not prove its case conclusively to defeat a motion to dismiss. See State v. Ortiz, 766 So.2d 1137, 1142 (Fla. 3d DCA 2000).

Even assuming the State failed to allege sufficient evidence that the master bedroom was exclusively occupied by Holland, the State presented evidence of incriminating circumstances from which Holland’s dominion and control may be inferred. Specifically, the evidence shows the contraband was found in plain view in Holland’s bedroom and in close proximity to Holland’s Cigna card and other belongings. This is direct evidence connecting Holland to the contraband from which a jury could infer actual knowledge. See, e.g., Lopez, 711 So.2d at 564 (discussing circumstances from which a trier of fact could infer actual knowledge of contraband, including proximity of the contraband to the defendant’s belongings and finding contraband in plain view); Loyd, 677 So.2d at 77-78 (same); Edmond, 963 So.2d at 346 (same). The State has presented sufficient evidence to survive a motion to dismiss. See State v. McQuay, 403 So.2d 566, 567-68 (Fla. 3d DCA 1981) (“[I]f there is any evidence upon which a reasonable jury could find guilt, such a motion must be denied.”)

Because Holland failed to establish a lack of dispute as to material facts, and because the State alleged sufficient evidence to establish a prima facie case of guilt against Holland, we reverse the Order Dismissing Information and remand to the trial court for further proceedings.

Reversed and remanded.

WHATLEY, J., and DAEAN, STEPHEN L., Associate Senior Judge, Concur.


author: FULMER, Judge.

text:
    Timothy Lashay STANLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3656.
    District Court of Appeal of Florida, Second District.
    March 5, 2008.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Timothy Stanley appeals from the revocation of his community control and the resulting five-year prison sentences. Because we conclude that the community control officer’s testimony was sufficient to support the findings that Stanley violated conditions twelve (by failing to remain confined to his approved residence) and three (by moving without permission), we affirm the revocation. However, we reverse the sentences and remand for resentencing.

In October 1994, Stanley entered guilty pleas to trespass, grand theft, and two counts of dealing in stolen property for offenses that occurred in July 1994. He received time served for the trespass. For each of the other counts he received 37.75 months in prison to run concurrent, but the sentences were suspended and he was placed on five years of probation on each count. This probation was revoked in March 1996, and Stanley was placed on two years of community control followed by three years of probation. The community control was revoked in September 1996, and Stanley was again placed on two years of community control followed by three years of probation.

An affidavit of violation of community control was filed in November 1996, and the evidentiary hearing was held nearly ten years later in July 2006. After finding the evidence sufficient to show that Stanley violated the community control, the trial judge imposed five-year prison sentences on each felony count.

Stanley argues that the trial court erred in imposing the five-year sentences because they exceed the suspended sentences of 37.75 months imposed in October 1994 and the 1994 guidelines range. We agree that the trial court erred in imposing sentences greater than the 37.75-month suspended sentences. See Beltran v. State, 854 So.2d 774 (Fla. 2d DCA 2003); Leathers v. State, 801 So.2d 216 (Fla. 2d DCA 2001). We therefore reverse the sentences and remand for resentencing.

Affirmed in part, reversed in part and remanded.

DAVIS and KELLY, JJ., Concur.

      . The record reflects that during this ten-year period Stanley traveled to other states and served terms of incarceration in both Indiana and Georgia.


text:
    Joseph G. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1733.
    District Court of Appeal of Florida, Second District.
    March 5, 2008.
    James Marion Moorman, Public Defender, and J.C. Hill, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Joseph G. Williams entered a no contest plea to second-degree murder. On March 3, 2006, he was sentenced to fifteen years in prison followed by seven years of probation. On March 29, 2006, he filed a pro se motion to withdraw his plea, which the trial court dismissed after finding that Williams’ allegations were too conclusory to meet his burden of establishing a legally valid claim. We affirm the conviction and sentence, but we reverse the trial court’s order dismissing the motion to withdraw plea. We direct that the motion be stricken as an unauthorized pro se pleading because it was filed at a time when Williams was represented by counsel. See Forte v. State, 956 So.2d 550, 551 (Fla. 2d DCA 2007) (affirming order striking motion to withdraw plea and noting that the order “shall not be interpreted as an adjudication on the merits of any claim”).

Affirmed in part, reversed in part, and remanded.

CASANUEVA and CANADY, JJ., Concur.


text:
    Theresa Marie MARTIN, Appellant, v. Stephen Paul MARTIN, Appellee.
    No. 2D07-4644.
    District Court of Appeal of Florida, Second District.
    March 5, 2008.
    Theresa Marie Martin, pro se.
    Stephen Paul Martin, pro se.
   PER CURIAM.

Affirmed without prejudice to any right Ms. Martin might have to seek relief by a proper pleading filed in Case No.2004DR-4764-WS, Sixth Judicial Circuit, Pasco County.

CANADY and LaROSE, JJ., and GALLEN, THOMAS M., Associate Senior Judge, Concur.


author: KLEIN, J.

text:
    Ephraim FOONBERG, an individual, Batya Foonberg, a/k/a Batya Feinberg, an individual and Frank K. Feinberg, an individual, Appellants, v. THORNHILL HOMEOWNERS ASSOCIATION, INC., Appellee.
    Nos. 4D06-3867, 4D07-852.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.
    Elliott H. Scherker, Julissa Rodriguez, and Brigid F. Cech Samóle of Greenberg Traurig, P.A., Miami, for appellants Ephraim Foonberg and Batya Foonberg.
    Robert Rivas and Jessica Slatten of Sachs & Sax, Tallahassee, for appellee.
   KLEIN, J.

Appellants purchased a new home with a perimeter fence which had not been approved, as required by the homeowner’s association. In a lawsuit filed by the association, the trial court granted the association declaratory and injunctive relief requiring the removal of the fence. We affirm.

Section 1 of Article VI of the Covenants provides that

“[n]o buildings, fence, wall, hedge or other structure or landscape improvement of any significant nature shall be ... placed ... upon The Properties ... until the plans and specifications showing the nature, kind, shape, height, materials, color and location of the same shall have been submitted to and approved in writing as to harmony as to external design and location in relation to surrounding structures and topography by the Board of Directors of the Association, or by an Architectural Committee ... appointed by the Board.

The builder submitted plans to the association for approval which did not include a perimeter fence. After obtaining approval, the builder, at the homeowners’ request, installed a white aluminum fence around the perimeter of the property, which was not submitted to the association for approval. Before the house was conveyed to the homeowners, the builder was informed by letter that this type of fence was not allowed, but the fence, which was 300 to 400 feet long was not removed.

After the homeowners closed, the association notified them that the fence had not been approved and was not in compliance with the rules. The association informed the homeowners that only two types of fences on the perimeter were allowed, wood shadow-box fences or stucco covered concrete fences. Of the seventy-eight lots which had fences, seventy-four were wood and three were stucco. There were no white aluminum perimeter fences, although one homeowner had such a fence around a pool, and another home had a white aluminum gate, attached to a perimeter fence which was either wood or stucco. The association did not regulate pool safety fences, because they were controlled by the building code.

One of the homeowners, Mrs. Foonberg, testified that they had a special needs child which required them to have both a perimeter fence and a pool safety fence. She had selected the white aluminum fence because she had been advised it was less likely to be damaged in a hurricane, and she did not want a wood fence, because they contained arsenic. The association’s president testified that wood fencing without arsenic was readily available.

The trial court found as a matter of fact that the fence had not been submitted to the association for approval as the covenants required, and that the association had been consistent in applying its longstanding policy regarding the type of fences which were approved. The homeowners have appealed and base much of their argument on the second sentence of the following paragraph:

1. Declaratory relief is hereby entered in favor of the Association, and permanent injunctive relief is hereby entered against Defendants, EPHRAIM FOON-BERG, an individual, BATYA FOON-BERG a/k/a BATYA FEINBERG, an individual, and FRANK L. FEINBERG, an individual, that Defendants must immediately remove the remaining portions of the Fence, and that Defendants must seek and obtain prior approval of the Association, before construction of a new fence, if desired, on the Subject Property. The court does, however, want to make it clear to the parties that it may very well have ruled in favor of the Defendants had an appropriate application been made to the association for the fence constructed by Mr. Berdu-go, and any Court reviewing any such application in the future would very carefully scrutinize the actions of the Plaintiff HOA pursuant to Voight v. Harbour Heights Improvement Association, Inc., 218 So.2d 803 (Fla. 4th DCA 1969), and Young v. Tortoise Island Homeowner’s Association, Inc., 511 So.2d 381 (Fla. 5th DCA 1987).

The homeowners argue that, because there was evidence that the association would not have approved the white aluminum fence if there had been a proper application, the trial court did not consider their selective enforcement defense. They argue that, in light of the general principal that the law does not require one to perform a useless act, such as making the application in this case, the court erred in not considering their claim of arbitrary enforcement. Chattel Shipping & Invest. v. Brickell Place Condo. Ass’n, 481 So.2d 29 (Fla. 3d DCA 1985) (an association is estopped from applying a regulation where selective enforcement has been demonstrated). This argument ignores an earlier paragraph in the final judgment which provides:

The Defendants have not presented sufficient evidence for this Court to conclude that the Association has unreasonably or arbitrarily exercised its discretion pursuant to Article VI, Section 1 of the Declaration, nor that it has selectively enforced the requirements in the Association’s governing documents with respect to its position of not allowing white aluminum perimeter fences in the Thornhill Green community.

Because there was competent substantial evidence to support the finding of no selective enforcement, the homeowners’ argument is not a basis on which to reverse. The gratuitous statement on which the homeowners rely is nothing other than an observation that homeowners who do not seek approval, where approval is clearly required, will find it more difficult to demonstrate that an association is being arbitrary.

We have considered the other issues raised by the homeowners and find them to be without merit.

Affirmed.

HAZOURI and DAMOORGIAN, JJ., concur.


author: HAZOURI, J.

text:
    Deborah CHIPMAN, Appellant, v. Alvin Eugene CHIPMAN, Appellee.
    No. 4D06-3935.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.

      Inger M. Garcia and Barry S. Mittel-berg of Mittelberg & Nicosia, P.A., Fort Lauderdale, for appellant.
    Kevin L. McNamara of McNamara & McNamara, P.A., North Palm Beach, for appellee.
   HAZOURI, J.

Appellant, Deborah Chipman (“wife”), appeals from the final judgment entered in her dissolution of marriage action against appellee, Alvin Eugene Chipman (“husband”). The husband cross-appeals. We reverse.

The parties were married on January 26, 1985. There were two children born of the marriage. In November 2004, the wife took early retirement from' her employment as a police officer with the Miami-Dade Police Department. At the time of her retirement, she had $666,422.61 in her pension plan.

In June 2005, after the parties’ relationship began to deteriorate, the wife asked the husband to sign a postnuptial agreement (“the agreement”) drafted by her attorney, which provided in pertinent part:

I. MARITAL RESIDENCE:

The parties own real property, known as the marital residence and located at 781 Gallop Drive, Loxahatchee, Palm Beach County, Florida as tenants by the entireties. The parties further acknowledge that said residence is encumbered by three (3) mortgages. The 1st mortgage has an [sic] balance of approximately $293,000 and is held by Countrywide Home Loans. The 2nd mortgage has an approximate balance of $150,000 and is held by Suntrust Bank. The 3rd mortgage has an approximate balance of $128,000 and is held by Guaranty Bank. The parties acknowledge that the 2nd mortgage held by Suntrust Bank is a line of credit.
The parties agree and intend to pay off the 1st mortgage held by Countrywide Home Loan in full, and desire and intend to utilize monies from the Wife’s retirement and pension plan to accomplish such payoff. The parties understand and acknowledge that the Wife shall incur certain ramifications from the early withdrawal of such funds for this purpose to her detriment. Therefore, the parties intend, desire and agree that there shall be established a special equity to the benefit of the Wife in the full amount of all funds removed by the Wife from her pension and retirement plan and contributed to the payment of the 1st mortgage on the marital residence, including any prepayment penalties, taxes or other payments incurred by the Wife as a result of such early withdrawal from her retirement and/or pension plans to effect such payment of the mortgage. Any satisfaction of mortgage issued in the parties [sic] joint names shall not serve as evidence of any entitlement to the value, equity, interest, rights or title to said marital residence in contradiction of any provisions contained in this Agreement.
In the event the property is sold in the future or otherwise distributed by any Court of competent jurisdiction, the parties specifically intend and agree that the Wife shall be entitled to a Special Equity as described herein and shall 1st be paid the amount of such equity prior to the distribution of any other proceeds or funds.
The Husband hereby waives and forever relinquishes any right, title or interest in the Wife’s retirement or pension plans which he would otherwise be entitled as a result of the parties [sic] marriage, regardless of any action filed for dissolution of marriage, spousal support or any other circumstance which may arise in the future.

(emphasis in original). The husband signed the agreement, but claimed later at trial that the wife misrepresented its purpose and consequences. The husband testified that he agreed to a waiver of his right to claim against the wife’s pension funds only if the wife paid the mortgage to zero as promised, which she did not do. Rather, after the parties signed the agreement, the wife contacted Countrywide to ask for financial assistance. Countrywide advised the wife that if the parties paid Countrywide $216,000, it would refinance the mortgage and eliminate the parties’ other mortgages and debts by incorporating them into the new mortgage. Both parties signed the refinance documents, and the refinance was completed. The $216,000 used for the refinance came from the wife’s pension funds.

In November 2005, the wife filed a petition for dissolution of marriage. The husband answered and counter-petitioned. By the time of trial, the wife had allegedly liquidated nearly the entire $666,422.61, approximately $200,000 of which was unaccounted for at trial. The trial court entered a final judgment of dissolution of marriage. The wife was designated the primary residential parent of the minor daughter. The husband was designated the secondary residential parent, and the parties were awarded shared parental responsibility. With respect to the agreement, the trial court found:

8. The parties entered into a post nuptial agreement which purported to give the Wife a special equity in the marital house and waive all of the Husband’s interest in the Wife’s retirement funds. Although the Husband acknowledges executing the agreement, he disputes the validity of the agreement. The document is undated and neither party provided definitive testimony as to the date of execution. The Husband testified that the document was not notarized at the time he signed it and the notary attestation was added at a later time. He further asserted that he did not have full disclosure and there was a lack of consideration.
9. To challenge a post nuptial agreement, the Supreme Court in Casto v. Casto, 508 So.2d 330 (Fla.1987) held that the challenging party must establish that the agreement was reached under fraud, deceit, duress, coercion, misrepresentation or overreaching. Additionally, the challenging spouse must establish that the agreement makes an unfair or unreasonable provision for said spouse, given the circumstances of the parties. The Court considered the law in this jurisdiction and the evidence presented and concludes that the Husband has failed to submit evidence sufficient to meet his burden of establishing that the agreement is invalid.
10. The agreement specifically provided that the parties agree and intend to “pay off the first mortgage held by Countrywide Home Loan in full, and desire and intend to utilize monies from the Wife’s retirement and pension plan to accomplish such payoff.” The undisputed evidence at trial was that the parties actually refinanced all of their debt, consolidating the same into a new mortgage, which included not only the previous mortgage but equity lines, and other marital debts. Hence, the condition set forth in the agreement was not satisfied. Therefore, the Court finds that the agreement is not binding on the Husband.
11.Additionally, the agreement provided that the Husband would “waive and forever relinquish any right, title or interest in the Wife’s retirement or pension plans which he would otherwise be entitled as a result of the parties marriage .... ” As the Wife had liquidated all of her retirement accounts prior to the execution of the agreement, there were no such accounts in existence at the time of the execution for the Husband to waive and relinquish. Hence, this condition was also not met. Therefore, the Wife’s request for special equity is denied.

The trial court awarded exclusive use and possession of the marital home to the husband until the home was sold. The parties stipulated that the husband was entitled to a special equity in the amount of $25,000 for the real property on which the marital home is situated. All other remaining assets and debts were considered marital and distributed accordingly.

The trial court granted the wife’s petition for partition of the real property. The trial court also determined that the wife voluntarily terminated her employment with the Miami-Dade Police Department, remained unemployed, and that there was no evidence of any physical or mental incapacity. When calculating the joint monthly child support obligation, the trial court imputed to the wife her most recent net monthly income of $5,130.00 per month. The trial court determined that the husband’s retirement funds from his employment with United Parcel Service should be divided equally between the parties. The trial court denied the wife’s request for alimony. Finally, the trial court stated:

In the absence of any evidence to establish the premarital or non marital nature of some or all of the retirement funds liquidated by the Wife during the course of the marriage and prior to the date of filing the Petition for Dissolution of Marriage, the Court concludes that the retirement funds were marital assets. Accordingly, the tax liability incurred by early withdrawal is a marital debt to be shared equally by the parties.

The wife’s first argument on appeal is that the trial court erred in finding the agreement not binding on the husband because a condition precedent was not satisfied. We agree.

A postnuptial agreement is subject to interpretation like any other contract. See, e.g., Bakos v. Bakos, 950 So.2d 1257, 1259-60 (Fla. 2d DCA 2007). The trial court’s interpretation of a contract is a matter of law subject to a de novo standard of review. Gossett & Gossett, P.A. v. Mervolion, 941 So.2d 1207, 1210 (Fla. 4th DCA 2006). In In re Estate of Boyar, 592 So.2d 341 (Fla. 4th DCA 1992), this court explained:

As a general rule, conditions precedent are not favored, and courts will not construe provisions to be such, unless required to do so by plain, unambiguous language or by necessary implication. 17A Am.Jur.2d Contracts § 471 (1991). Some of the rules of construction associated with determining whether a doubtful provision is a condition precedent are set forth in Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1 (Tex.1976), wherein the court said:
Conditions precedent to an obligation to perform are those acts or events, which occur subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a breach of contractual duty. While no particular words are necessary for the existence of a condition, such terms as “if’, “provided that”, “on condition that”, or some other phrase that conditions performance, usually connote an intent for a condition rather than a promise. In the absence of such a limiting clause, whether a certain contractual provision is a condition, rather than a promise, must be gathered from the contract as a whole and from the intent of the parties.
However, where the intent of the parties is doubtful or where a condition would impose an absurd or impossible result then the agreement will be interpreted as creating a covenant rather than a condition.

In re Estate of Boyar, 592 So.2d at 343.

Looking to the plain language in Section I of the agreement, there is no indication that any provision in that section was intended to be a condition precedent to the contract’s validity. The payment of the first mortgage was not an obligation that must have occurred before there was a right to some performance on the part of either the wife or the husband. Thus, the agreement is binding on the husband, and we reverse and remand for the trial court to reconsider and recalculate the parties’ obligations accordingly.

The wife argues next that the trial court erred in imputing her prior income to her at $77,000.00 per year, and claims that the trial court should have imputed income to her in the amount of $30,000.00 per year, based on her testimony that she can earn only that amount. We agree that the trial court erred in imputing income to the wife in the amount of $77,000.00 per year.

Section 61.30(2)(b), Florida Statutes (2006), mandates:

Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found to be voluntary on that parent’s part, absent physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community; however, the court may refuse to impute income to a primary residential parent if the court finds it necessary for the parent to stay home with the child.

As explained by this court in Brown v. Cannady-Brown, 954 So.2d 1206 (Fla. 4th DCA 2007):

The standard of review governing a trial court’s imputation of income is whether the determination is supported by competent, substantial evidence. See Schram v. Schram, 932 So.2d 245, 249 (Fla. 4th DCA 2005).
Although the trial court is free to determine the credibility of witnesses, restraints on imputation exist in the form of a required two-step analysis. First, the trial court must conclude that the termination of income was voluntary; second, the court must determine whether any subsequent underemployment “resulted from the spouse’s pursuit of his own interests or through less than diligent and bona fide efforts to find employment paying-income at a level equal to or better than that formerly received.” See Konsoulas v. Konsoulas, 904 So.2d 440, 443 (Fla. 4th DCA 2005) (quoting Ensley v. Ensley, 578 So.2d 497 (Fla. 5th DCA 1991)). In any event, the trial court may only impute a level of income supported by the evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages. See id. Schram, 932 So.2d at 249-50.

Brown, 954 So.2d at 1207-08.

The first part of the Schram analysis requires the trial court to conclude that the termination of income was voluntary. The trial court in the instant case concluded that the wife voluntarily terminated her employment with the Miami-Dade Police Department. The wife does not dispute that her termination was voluntary. Thus, we proceed to the second part of the analysis.

The second part of the analysis requires the trial court to “determine whether any subsequent [unemployment or] underemployment ‘resulted from the spouse’s pursuit of his own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.’ ” Schram, 932 So.2d at 249-50 (citations omitted). The trial court in the instant case concluded only that “[t]here was no evidence of any physical or mental incapacity that prevented the [w]ife from being gainfully employed.” When imputing income to the wife, the trial court failed to make the requisite findings concerning the wife’s recent work history, her occupational qualifications, and the prevailing earnings in the community for that class of available jobs. See Brown, 954 So.2d at 1208-09. If a trial court fails to make these requisite findings, the record must reveal competent, substantial evidence supporting the trial court’s imputation. Id. at 1209.

The record in the instant case does not contain competent, substantial evidence to support the trial court’s imputation of income to the wife at the level of her most recent salary. The wife’s uncontradicted testimony was that she could not return to work in the same capacity. She testified that her police officer certification expired and she was not re-certified yet, but was in the process of doing so. She stated that she could not return to making $77,000.00 per year because she was in a high-risk program and could not re-enter the police force at that level. The wife testified that she applied for numerous jobs with UPS, FedEx, the public school system, the City of Palm Beach Gardens, and Wendy’s, but had not been offered a job to date. The average starting salary of these positions is approximately $40,000.00. The wife stated that she could work as a temporary teacher, making $70.00 per day because she received her eligibility to get her teaching certificate, and she could later earn $30,000.00 a year as a full-time teacher. Further, in Brawn, this court recognized that “the spouse claiming that the other spouse is voluntarily unemployed or underemployed bears the burden of proof.” Id. at 1208 (citation omitted). The husband did not present any evidence on this issue. Also, as noted in Woodard v. Woodard, 634 So.2d 782 (Fla. 5th DCA 1994): “Past average income, unless it reflects current reality, simply is meaningless in determining a present ability to pay. Past average income will not put bread on the table today.” Id. at 783.

Therefore, we reverse and remand on this issue for the trial court to revisit the imputation of income to the wife, and the parties’ obligations that depend on that figure.

The husband raises two arguments on cross-appeal. First, he contends that the trial court failed to equitably distribute approximately $200,000 of the wife’s liquidated retirement assets that he claims “remain[ed] missing and completely unaccounted for” after the final judgment was entered, and failed to account for the wife’s gross waste of her pension funds. We need not reach this issue in light of our conclusion that the trial court erred in finding the agreement not binding on the husband. By signing the agreement, the husband explicitly waived his rights and interests concerning the wife’s pension plan.

The husband’s second and final argument is that the trial court abused its discretion in ordering the parties to share tax liability on the wife’s liquidated pension funds. We agree. The agreement provides that the wife receives a special equity in part because of the tax liability she would incur in withdrawing funds from her retirement account. Thus, because the agreement is binding on the husband, the wife is solely responsible for the tax liability arising from the money used to pay for the mortgage ($216,000) because she will receive a special equity in the equitable distribution.

Moreover, the husband should not share in the tax liability for the remaining retirement funds ($450,000). Because he has waived his right to the funds, he will not benefit from them, and thus, should not be responsible for the corresponding tax liability. See Pierre-Louis v. Pierre-Louis, 715 So.2d 1073 (Fla. 3d DCA 1998) (recognizing that the party who primarily benefited from income for taxes that are due and owing, should be declared exclusively responsible for the tax liability, penalty and interest).

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

KLEIN and DAMOORGIAN, JJ., concur.