text:
    In the Interest of L.C. and L.C., children. J.C., Appellant, v. Department of Children and Family Services and Guardian ad Litem Program, Appellees.
    No. 2D06-219.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2007.
    See also 947 So.2d 1240.

      Ingrid Anderson, Clearwater, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Patricia Murphy Propheter of Statewide Guardian ad Litem Office, Orlando, for Appellee Guardian ad Litem Program.
   NORTHCUTT, Judge.

J.C. is the father of two children who were adjudicated dependent both as to him and as to their mother, L.R. He contends that the evidence was insufficient to support the dependency and that the adjudication was procedurally deficient as well. We need not address J.C.’s procedural complaints, because we reverse the dependency adjudication for lack of evidence.

The petition for dependency alleged that the children were at “substantial risk or imminent threat of harm o[r] abuse or neglect” from J.C. on two bases — inadequate supervision, § 39.01(30)(a)(3), Fla. Stat. (2005); and violence, § 39.01(30)®. See § 39.01(14)(f). The circuit court dismissed the charge of inadequate supervision during the adjudicatory hearing. The court based its finding of dependency as to J.C. solely on allegations of domestic violence in the family. Consequently, we will discuss the evidence the Department of Children and Family Services- presented against both parents.

To prove J.C.’s violence, DCF introduced a police report from 1999, in which L.R. accused him of stalking and threatening her, and a 1998 police report of an incident in which L.R. claimed that J.C. had hit her in the eye. As proof of L.R.’s violent behavior, DCF relied on a petition for a domestic violence injunction that J.C. had filed against her in February 2004. In the petition, J.C. alleged that L.R. struck him, threw a bottle at him, tossed hot coffee on him while he was driving, pulled his hair, and took one of their children with her on an outing to purchase crack cocaine. At the adjudicatory hearing, both parents disputed the accuracy of these documents. DCF also questioned L.R. about a 1997 episode in which she shot J.C. in their home. L.R. explained that at the time of the incident she had believed that J.C. was out of town. She shot him because she mistook him for an intruder. She claimed that she had immediately realized her mistake and sought medical assistance for him.

The parties’ oldest child was born in 2000. Thus, all of J.C.’s alleged violent acts occurred before the children were born. Obviously, then, DCF did not contend that the children were actually harmed or abused by J.C.’s behavior. Rather, the Department maintained that the children were at substantial risk of prospective harm or abuse.

In its oral findings, the circuit court agreed that the domestic violence placed the children at risk of abuse and neglect. See § 39.01(14)(f). The court discounted J.C.’s and L.R.’s explanations of the incidents that occurred before the children were born. In its written order, the court found that “the mother and the father engaged in domestic violence in the presence of the children,” based on the incidents alleged in J.C.’s 2004 petition for a domestic violence injunction. The court specifically rejected J.C.’s assertion that, when completing the form petition, he had mistakenly checked a box to indicate that the acts had taken place in the children’s presence.

We review a dependency adjudication for an abuse of discretion. An adjudication of dependency will be upheld if the court applied the correct law and its factual rulings are supported by competent substantial evidence. See R.F. v. Dep’t of Children & Families (In re M.F.), 770 So.2d 1189, 1192 (Fla.2000).

Domestic violence may constitute either harm to a child’s health or welfare as defined in section 39.01(30), or abuse of a child as defined in section 39.01(2). Harm to a child’s welfare can occur when a person “[ejngages in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child.” § 39.01(30)(i). However, domestic violence may constitute “harm” only if it occurs in the child’s presence. M.B. v. Dep’t of Children & Family Servs. (In re K.B.), 937 So.2d 709, 710 (Fla. 2d DCA 2006); S.B. v. Dep’t of Children & Family Servs. (In re E.B.), 834 So.2d 415, 416 (Fla. 2d DCA 2003). There must be evidence that the child has seen the violence or was aware of it. A.R. v. Dep’t of Children & Family Servs. (In re J.A.H.), 876 So.2d 647, 649 (Fla. 2d DCA 2004); D.D. v. Dep’t of Children & Families, 773 So.2d 615, 617-18 (Fla. 5th DCA 2000). For domestic violence to constitute “abuse,” the child must have witnessed the violence and the violence must have resulted in some physical, mental, or sexual injury to the child. M.B., 937 So.2d at 711; W.T. v. Dep’t of Children & Families, 787 So.2d 184, 185 (Fla. 5th DCA 2001).

Section 39.01(14)(f) permits an adjudication of dependency if the court finds the children “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians,” even if no actual abuse is proved. But this prospective abuse must be “imminent.” See N.D. v. Dep’t of Children & Family Servs. (In re T.B.), 939 So.2d 1192, 1194 (Fla. 2d DCA 2006). Thus, the issue is whether “future behavior will adversely affect the child and can be clearly and certainly predicted.” F.S.G. v. Dep’t of Children & Family Servs. (In re P.S.), 825 So.2d 530, 531 (Fla. 2d DCA 2002). Put another way, the court must determine whether the prospective abuse is “likely to happen” or “expected.” J.L. v. Dep’t of Children & Family Servs. (In re J.L.), 824 So.2d 1023, 1025 (Fla. 2d DCA 2002). Moreover, courts have required a nexus between the parent’s alleged behavior and the potential for future abuse of the child. See N.D., 939 So.2d at 1194.

Where there is a history of domestic violence, the prior incidents may support a finding that there is a threat of prospective harm, thus permitting a dependency adjudication under section 39.01(14)(f). See M.B., 937 So.2d at 711. For example, in T.R. v. Department of Children & Families, 864 So.2d 1278 (Fla. 5th DCA 2004), the court affirmed the dependency adjudication of T.R.’s two teenaged children based on a risk of harm stemming from domestic violence. T.R. threatened his girlfriend with a knife while she was holding their baby, and the teenagers overheard the altercation from their bedrooms. But the district court acknowledged that it was a close call whether the dependency could be supported on the basis of one act of domestic violence. The court affirmed because it was swayed by the father’s domestic violence history and by the fact that the violence against his girlfriend was accomplished with a deadly weapon.

In contrast to T.R,., here DCF presented no evidence that J.C. had ever committed a violent act in the children’s presence. In its dependency order, the court found that “the mother and the father engaged in domestic violence in the presence of the children,” based on the allegations in J.C.’s petition for a domestic violence injunction. That document was DCF’s only evidence that violent acts had taken place in the children’s presence. But J.C. filed that petition as the victim of violence; the petition spoke only of violent acts committed by the children’s mother. Accordingly, there was no competent evidence to support the court’s finding concerning J.C.

Moreover, DCF did not introduce any evidence that J.C. engaged in domestic violence after the children were bom. Indeed, the most recent incident was in 1999, some six years before the dependency trial in this case. Cf. F.S.G., 825 So.2d at 530 (noting that evidence of the father’s DUI arrest six years earlier and long before his child was born, was not, by itself, relevant to any material fact at issue).

Vis-á-vis this issue, this case is similar to R.S. v. Department of Children & Families, 881 So.2d 1130 (Fla. 4th DCA 2004). There, the trial court found that the children were in imminent danger of harm from R.S. because he had trouble controlling his anger as evidenced by several petitions for domestic violence filed against him. All the petitions had been dismissed, and the incidents alleged in them had taken place when the children were not in contact with their father. DCF presented no evidence that any of the incidents occurred in the presence of R.S.’s children or that he had endangered them by displaying anger or violence. The Fourth District held that the court’s finding was speculative and unsupported by competent substantial evidence. Id. at 1134.

The finding here, J.C. posed a risk of abuse or neglect of his children, is equally speculative and unsupported. The evidence of his violence against an adult, L.R., before the children were born, was not predictive of abuse of his children. See F.S.G., 825 So.2d at 531. There being no evidence that J.C. had engaged in domestic violence in the presence of the children — which was necessary to prove either harm under section 39.01(30) or abuse under section 39.01(2) — DCF failed to prove a nexus between his prior acts of domestic violence against the children’s mother and the potential for imminent abuse of the children in the future. See N.D., 939 So.2d at 1194; J.L., 824 So.2d at 1025.

Therefore, we reverse the adjudication of dependency as to J.C. We note that the record contains allegations against him that arose after DCF filed the dependency petition at issue in this case and that were not addressed at the trial below. Our decision today is grounded solely on the evidence presented at that trial.

Reversed.

CASANUEVA and SALCINES, JJ., Concur.

      . Our opinion in L.R. v. Department of Children & Family Services, 947 So.2d 1240 (Fla. 2d DCA 2007) is being issued simultaneously with this opinion.

      . The second amended petition for dependency.

      . L.R.'s police reports, which DCF used to substantiate J.C.’s violence, were hearsay. § 90.801(1), Fla. Stat. (2005). At trial, L.R. contended that the reports did not accurately recount the statements she made to the police. Because we hold that these documents did not support the dependency adjudication as to J.C., we will not discuss whether the reports might have been admissible as substantive evidence pursuant to the hearsay exception in section 90.801(2). We have addressed that issue in the opinion in the mother's appeal. See L.R., 947 So.2d at 1244.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Paul MORIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3490.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2007.
   STRINGER, Judge.

Paul Morin appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of claims one and three without comment but reverse and remand the denial of claim two.

In claim two, Mr. Morin attacked the factual basis of his plea, asserting there was insufficient evidence to justify the trial court’s imposition of a minimum mandatory sentence pursuant to section 775.087(2), Florida Statutes (2002). Mr. Morin argued that the trial court determined he had used a firearm in the commission of a burglary solely from the testimony of a codefendant. Mr. Morin claimed that no forensic evidence demonstrated he had used a firearm and no residue test was ever performed.

The postconviction court denied the claim, finding that it was a facially insufficient claim of ineffective assistance of counsel. However, Mr. Morin did not claim ineffective assistance of counsel. Moreover, Mr. Morin’s claim is cognizable in a rule 3.850 motion. See State v. Mancino, 705 So.2d 1379, 1381 (Fla.1998) (holding that “rule 3.850 rather than rule 3.800(a) was the proper procedural vehicle for Mancino to challenge his minimum mandatory sentence”).

Additionally, neither the attachments to the postconviction court’s order nor the limited record before this court conclusively refutes Mr. Morin’s claim. Accordingly, we reverse and remand for reconsideration of claim two. On remand, the postconviction court shall either attach those portions of the record that conclusively refute Mr. Morin’s claim or conduct an evidentiary hearing. We note that form language from Mr. Morin’s plea agreement is insufficient to establish a factual basis for the minimum mandatory penalty imposed upon Mr. Morin. See Dye v. State, 667 So.2d 935, 936 (Fla. 2d DCA 1996).

Reversed and remanded.

WHATLEY and DAVIS, JJ., Concur.


author: PER CURIAM.

text:
    Madeline RODRIGUEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellee.
    No. 06-1995.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2007.
    Madeline Rodriguez, in proper person.
    John D. Maher (Tallahassee), for appel-lee, Unemployment Appeals Commission.
    Before GERSTEN, RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Dominguez v. NL Communications, Inc., 927 So.2d 165 (Fla. 3d DCA 2006).


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, INC., Petitioner, v. SOUTH MIAMI HEALTH CENTER, INC., a/a/o Magaly Herrera, Respondent.
    No. 3D06-2163.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2007.
    Fowler White Burnett and June Galko-ski Hoffman, Miami, for petitioner.
    George A. David, for respondent.
    Before WELLS and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Upon consideration of the petition filed by United Automobile Insurance Company, Inc., certiorari is granted and the order dismissing the appeal is quashed. The appellate division of the circuit court is directed to reinstate the appeal and consider it on the merits. United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So.2d 866 (Fla. 3d DCA 2004)(en banc). Certiorari granted.


text:
    Karim GHANEM, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4451.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 2007.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.

      No appearance required for appellee.
   PER CURIAM.

Appellant Karim Ghanem appeals the summary denial of his rule 3.850 motion for postconviction relief, wherein he claimed the trial court imposed an illegal departure sentence. The motion did not contain a sufficient oath, and, thus, the lower court properly denied relief as if the motion had been filed under rule 3.800(a), Florida Rules of Criminal Procedure. Under this rule, relief is not warranted because the upward departure sentence could have been imposed pursuant to section 921.0016(3)(d), Florida Statutes (2003). See Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006) (en banc). We affirm, without prejudice to Ghanem filing a proper rule 3.850 motion within the time remaining under rule 3.850. See generally Greemvood v. State, 802 So.2d 401 (Fla. 4th DCA 2001).

SHAHOOD, TAYLOR and MAY, JJ„ concur.


text:
    Ronald C. THERMIDOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2537.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2007.
    Ronald C. Thermidor, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800. On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to relief. Reversed and remanded for further proceedings.


text:
    Carlos SAEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3094.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2007.

      Carlos Saez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal from an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: WARNER, J.

text:
    Terry R. GLOVER, Appellant, v. Kenneth MILLER, Appellee.
    No. 4D06-3705.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 2007.
    Rehearing Denied Feb. 14, 2007.

      Patrick S. Cousins and Sandra M. Pow-ery of Cousins Law Firm, P.A., West Palm Beach, for appellant.
    Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, T.J. “Jimmy” Cunningham, Jr. of T.J. Cunningham, Jr., P.A., West Palm Beach, Donald N. Watson and Ginger Jenkins Cartwright of Gary, Williams, Parenti, Finney, Lewis, Mc-Manus, Watson & Sperando, Stuart, for appellee.
   WARNER, J.

Sixteen-year-old Jerrod Miller was shot to death by a police officer. His death precipitated an unusual contest between two men both claiming fatherhood and the right to be appointed personal representative of Jerrod’s estate to pursue an anticipated wrongful death action on behalf of the estate and Jerrod’s survivors. One man, Kenneth Miller, was declared Jerrod’s father by a 1995 adjudication of paternity and judgment requiring child support. Posthumous DNA testing in 2006 revealed a 99% likelihood that Terry Glover is really the biological father of Jerrod. The trial court determined that Kenneth Miller was Jerrod’s father as a result of the paternity adjudication. It thus denied appellant Glover’s petition for administration. We affirm, concluding that Glover is not at present an heir in accordance with the applicable statutes and thus is not entitled to preference in appointment as personal representative.

Gwendolyn Cornelius gave birth out of wedlock to twin boys, Jerrod and Sherrod Miller. They carried the surname of Kenneth Miller, who had been living with Cornelius. Miller signed the birth certificate as their father. The couple lived together for several years before the twins’ birth and continued to reside together for approximately fourteen years, with occasional breakups throughout the relationship. They had two other children together. After the end of their relationship, the twins continued to visit Miller.

Miller believed he was the natural father of Jerrod and Sherrod, raising them as any father would raise his children — helping with homework, going to sporting events with them, disciplining them, talking to them about girls, and the like. In 1995, the Department of Revenue filed a paternity action against Miller on behalf of Cornelius. He failed to answer the petition, and the court entered a default judgment against him. The court adjudicated Miller to be the twins’ father and imposed a duty of support. Pursuant to that order, Miller paid support through deductions from his employment compensation.. He has a remaining and unpaid obligation for support of the twins, although the amount of the outstanding arrearages is in question.

According to Glover, Cornelius told Glover that he was the actual father of the twins shortly after their birth. But Glover never had a relationship with either boy. Cornelius died in 2003. At her funeral, Glover stated that he told the twins that he was their natural father, but neither Glover nor the twins told Miller about Glover’s claim to fatherhood. After Cornelius’ death, Miller obtained temporary custody of the children.

Jerrod was tragically killed by a Delray Beach police officer in 2005. Miller filed a petition for administration requesting his appointment as personal representative of the estate as Jerrod’s closest relative. Shortly after, Glover filed his own petition for administration, alleging that he was Jerrod’s biological father. He also filed a petition to release a specimen for DNA testing. The court,permitted that testing because of Sherrod’s desire to know his true biological father. The results confirmed that Glover was the twins’ biological father.

The court held a hearing on Glover’s right of appointment and contention that as the biological father of Jerrod, he was Jerrod’s heir and entitled to administer the estate. After hearing all of the evidence, the trial court ruled that Glover was not entitled to appointment, because Miller was the father of Jerrod by the judgment of paternity. Glover had not moved to set aside that final judgment, and thus the declaration that Kenneth Miller was Jerrod’s father was still in effect. Therefore, Glover had no right to appointment as administrator of the estate. Glover appeals.

Section 733.301(l)(b), Florida Statutes (2006), governs the preference in appointment of personal representatives. The statute prescribes the following order of preference for intestate estates: 1. The surviving spouse, 2. The person selected by a majority in interest of the heirs, 3. The heir nearest in degree. If more than one applies, the court may select the one best qualified. The term “heirs,” in turn, is defined as “those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.” § 731.201(18), Fla. Stat. (2006). If the decedent has no spouse or lineal descendants, his heirs by intestate succession are his parents or the survivor of them. § 732.103, Fla. Stat. (2006).

Where children are adopted or born out of wedlock, natural kinship is not necessarily recognized for purposes of establishing a decedent’s heirs and thus intestate succession. Section 732.108, Florida Statutes (2006) provides:

(1) For the purpose of intestate succession by or from an adopted person, the adopted person is a lineal descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family, and is not a lineal descendant of his or her natural parents....
(2) For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant of his or her mother and is one of the natural kindred of all members of the mother’s family. The person is also a lineal descendant of his or her father and is one of the natural kindred of all members of the father’s family, if:
(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void.
(b) The paternity of the father is established by an adjudication before or after the death of the father.
(c) The paternity of the father is acknowledged in writing by the father.

(emphasis added). Section 732.101(2) provides that the decedent’s date of death is the event vesting the heirs’ rights to intestate property. At the date of Jerrod’s death, Glover was not considered Jerrod’s father for purposes of intestate succession, because he never married Jerrod’s mother, was never adjudicated to be his father, and never acknowledged in writing that he was Jerrod’s father. In contrast, Miller was Jerrod’s father for purposes of intestate succession because he was adjudicated to be Jerrod’s father. Thus, Miller’s rights vested on Jerrod’s death because he is Jerrod’s father by a paternity judgment. Jerrod was a lineal descendant of Miller within the meaning of section 732.108(2)(b), so he is an heir for purposes of section 733.301(l)(b)3.

Although it is possible to establish paternity in a probate proceeding, see In re Estate of Smith, 685 So.2d 1206, 1208 (Fla.1996), where a chapter 742 paternity action has previously been brought, any resulting determination of paternity has the effect of determining the issue for intestate succession. Id. Section 732.108(2)(b) does not create a separate independent cause of action to establish paternity. Id. It merely explains the effect of an adjudication of paternity. Id. at 1208 n. 2. Therefore, unless the adjudication of Miller’s paternity is vacated, that adjudication must be given the effect of establishing Miller as Jerrod’s father for the purposes of intestate succession.

As noted by the trial court, Glover did not move to set aside the adjudication of Miller’s paternity. His petition for administration of the estate merely alleged that he is the biological father of Jerrod. Yet Miller is Jerrod’s father in the eyes of the law, regardless of the results of DNA testing. The legal father has substantial rights (in this case vested rights) which cannot be lightly dismissed, even by the discovery that the legal father is not the biological father. In fact, our supreme court has held that the mere fact that biological testing shows that a man other than a legal father is the biological father of the child without more does not require the granting of a paternity petition. Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305 (Fla.1993).

Furthermore, to set aside the adjudication of paternity would require the presence of other parties and would affect other rights. The Department of Revenue was a party to the prior proceeding, as it initially filed the paternity action not only to establish support payable to Cornelius but to collect from Miller for public assistance paid to Cornelius for both boys. Miller and the Department of Revenue should have the opportunity to defend an action to vacate the prior adjudication and present any affirmative defenses available, including any defense of laches, considering the fact that Glover stated that he knew of his probable fatherhood shortly after the children were born yet failed to take any action to declare his parenthood or to develop any relationship with the children until after Jerrod’s death. What is more, Glover allowed another man to be a “father” to his children and to be obligated to pay child support for both boys for eleven years. Miller might even assert a claim against Glover for the child support he has paid, should a court vacate the paternity adjudication and declare Glover to be the twins’ legal father. Sherrod, the twin brother, would also be affected by such a decree, as it would cut off his rights as a lineal descendant of the Miller family, pursuant to statute, and make him an heir of Glover and his family.

Because any determination of paternity will involve many other parties and have effects more far reaching than a mere adjudication of the biological connection between Jerrod and Glover, we are not convinced that such a determination can and should be made as part of the probate proceedings where the only issue to be determined is intestate succession. We agree with the trial court that in order for Glover to assert a right as an heir, the existing judgment of paternity would have to be vacated. A child cannot have two legally recognized fathers. See Achumba v. Neustein, 793 So.2d 1013, 1015 (Fla. 5th DCA 2001).

Unlike every other case cited to us, there is an existing adjudication of paternity in this case. There is no need to establish paternity for Jerrod. He has a father, Kenneth Miller, who is his heir at law. Glover is not his heir and thus is not entitled to appointment as administrator.

We therefore affirm the order of the trial court denying Glover’s petition for administration.

GROSS and TAYLOR, JJ., concur.

      . Glover’s contention that he is entitled to summary judgment of fatherhood based upon DNA testing alone is also statutorily inaccurate. Where DNA testing shows a 95 percent or more confidence level that the man is the biological father, it creates only a rebuttable presumption of fatherhood. § 742.12(4), Fla. Stat. (2006).

      . We agree that the paternity adjudication is not res judicata as to Glover because he was not a party to those proceedings. See In re Estate of Robertson, 520 So.2d 99 (Fla. 4th DCA 1988). We strongly disagree that it has no effect in this proceeding.


author: EVANDER, J.

text:
    J.A.N., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1006.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2007.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Appellant challenges the trial court’s denial of his motion to withdraw plea. We affirm.

Appellant, his attorney, his mother, and the assistant state attorney executed a written plea agreement. The agreement reflected the recommended sanctions would be a judicial warning for six months, eight hours of juvenile detention center work detail, and court costs. However, the agreement also contained the following highlighted language:

The Juvenile and State Attorney understand that the following sentence (disposition) is a recommendation and is NOT BINDING on the Court, (emphasis in original)

After conducting a thorough plea colloquy, the trial judge accepted appellant’s plea.

During the disposition hearing, it became clear the trial judge was considering more severe sanctions than the sanctions recommended pursuant to the plea agreement. Appellant then moved to withdraw his plea on the grounds “that’s not what was bargained for.”

The withdrawal of a guilty or nolo contendere plea is not a matter of right, but is a question addressed to the sound discretion of the trial court. Cabrera v. State, 915 So.2d 727 (Fla. 5th DCA 2005). The instant plea agreement clearly reflected the trial court was not bound by the recommendation set forth therein. Appellant did not have a right to withdraw his plea solely because the imposed sanctions were not consistent with his expectations. Lepper v. State, 451 So.2d 1020 (Fla. 1st DCA 1984).

We find no abuse of discretion.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.


author: PALMER, J. THOMPSON, J.,

text:
    Deshunda S. SHULER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1387.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2007.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Deshunda Shuler (defendant) appeals her sentence which was entered by the trial court after she entered a plea of nolo contendere to committing the crime of engaging in unlawful sexual activity with a minor, in violation of section 794.05(1) of the Florida Statutes (2005). Because the trial court may have misunderstood the parameters of its discretion regarding the entry of a downward departure sentence, we vacate the defendant’s sentence and remand this matter to the trial court for reconsideration.

The order setting forth the defendant’s plea notes that it was an “open plea to the court”. The trial court entered judgment in accordance with the defendant’s plea and then sentenced her to a term of 66 months of incarceration. This appeal timely followed.

The defendant maintains that her sentence should be vacated and this case remanded for reconsideration because the trial court legally erred in failing to recognize that it possessed the legal authority to enter a downward departure sentence based upon the fact that the victim in this case had consented to engaging in sexual activity with her. We agree.

The State argued below that the statutory authority which permits the imposition of a departure sentence in instances where the victim is an “initiator, willing participant, aggressor or provoker of the incident” did not apply in this case since the victim was only 16 years old when the sexual activity started. See § 921.0026(2)(f), Fla. Stat. (2005). Defense counsel responded by arguing that entry of a downward departure sentence would be justified in this case based on the fact that victim was a “willing participant” in the defendant’s crime. The court responded: “Consent is not a defense.”

In State v. Rife, 789 So.2d 288 (Fla.2001), the Florida Supreme Court ruled that trial judges are authorized to impose a downward departure sentence based on a finding that the victim consented to engaging in sexual activity with the defendant. The record indicates that, in imposing sentence on the defendant, the trial court may not have been aware of the law expressed in Rife.

Accordingly, the defendant’s sentence is vacated and this matter is remanded for reconsideration and application of the law as expressed in Rife. See Knox v. State, 814 So.2d 1185 (Fla. 2d DCA 2002)(holding that, on remand for resentencing for engaging in sexual activity with a minor, the trial court was not precluded from considering the victim’s consent as a basis for imposing a downward departure from the sentencing guidelines). Our opinion should not be construed as requiring the imposition of any particular sentence.

Sentence VACATED and case REMANDED.

MONACO, J., concurs.

THOMPSON, J., concurs specially, with opinion.

THOMPSON, J.,

concurring.

The only issue before this court is whether the trial court was aware that it could have departed below the minimum recommended sentence calculated on the appellant’s sentencing guideline score-sheet. Constrained as we are by the holding in State v. Rife, 789 So.2d 288 (Fla.2001), I must concur with my colleagues that the case should be remanded to the learned trial court for “reconsideration and application of the law as expressed in Rife.” Rife holds that a trial court can consider a departure sentence when the victim consented to sexual activity with the defendant. However, but for the trial court’s brief comment that it could not consider victim participation as a reason to depart downward, I would affirm the sentence imposed. From my reading of the record, it appears the trial court considered the factors for departure stated in Rife, but did not so articulate.

In this case, the trial court’s sentence of five and a half years was within the statutory guidelines; it was also the lowest sentence permitted on her scoresheet. The highest possible sentence was 15 years’ incarceration. The trial court heard Shuler testify that she started having sex with the victim when he was 16 years old and she was 29 or 30 years of age. The relationship lasted approximately a year and, as a result, Shuler and the victim have a daughter. The court also heard the victim testify that he met the appellant when he was 10 years old while Shuler was dating his father, by whom she has a son. The victim came to live with Shuler when he moved out of his mother’s home because of family problems. Shuler was a friend of the victim’s family and befriended the victim. The child was on probation, and Shuler appeared with him at hearings and represented that she was the victim’s mother. Also, when the child absconded from a juvenile detention facility, he returned to Shuler’s home.

The victim’s father testified his son is a slow learner who had trouble in school and has a learning disability. The father further testified that he was concerned about his granddaughter because Shuler did not live a stable life, but lived a nomadic life and moved from one friend’s home to another. He concluded that Shuler should be incarcerated because she was not repentant and did not believe she did anything wrong. The victim, now 20, also testified he was concerned about his 10-year-old brother because the same thing could happen to him. During the investigation, the victim told the police that, when the sexual activity occurred, he did not understand what was going on; however, he later understood that Shuler was using him for sexual pleasure and had no real feelings for him. Based upon those facts, it appears the trial court considered the victim’s participation.

Unfortunately, the trial court opined that it could not consider the victim’s participation as a mitigating factor because it was bound to follow the law. Thus, the trial court erred in sentencing. See § 921.0026(2)®, Fla. Stat. (2005). Rife does not mandate that the court depart because the victim participated or because the victim requested a downward departure. It is one factor the court can consider before imposing a sentence. In Rife, the supreme court wrote:

Of course, in determining whether this mitigator applies when the victim is a minor, the trial court must consider the victim’s age and maturity and the totality of the facts and circumstances of the relationship between the defendant and the victim.

Rife, 789 So.2d at 296.

Upon remand, the court can consider the facts presented at the sentencing hearing concerning the victim’s age, maturity, and intellect before entering a sentence that complies with the requirements of Rife.

      . The trial court stated, “[I] cannot find any circumstance or factor that would reasonably justify departure. My hands are tied, as much as I hate it.”


author: SAWAYA, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Teresa Ann GILLILAND and State of Florida, Respondents.
    No. 5D06-2626.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2007.
    Charles D. Peters, Orlando, for Petitioner.
    James R. Russo, Public Defender, and Blaise Trettis, Assistant Public Defender, Viera, for Respondent Teresa Ann Gilli-land.
    No Appearance for Respondent State of Florida.
   SAWAYA, J.

We grant the Department of Children and Families’ petition for writ of certiorari and quash the trial court’s order of continued commitment of the respondent, Teresa Ann Gilliland, an individual declared mentally incompetent to proceed to trial on two felony charges. The uncontradict-ed medical testimony presented to the trial court reveals that Gilliland suffers from dementia that will become progressively worse and that there is little or no probability that she will become competent in the future. Therefore, Gilliland no longer meets the criteria for commitment to the Department under section 916.13(l)(c), Florida Statutes. § 916.13(l)(c), Fla. Stat. (2006) (“Every defendant who is charged with a felony and who is adjudicated incompetent to proceed may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that ... [tjhere is a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.”); Dep’t of Children & Families v. Wehrwein, 942 So.2d 947 (Fla. 5th DCA 2006) (granting petition for writ of certiorari and quashing lower court’s order of commitment to Department of Children and Families; holding that although respondent was adjudicated incompetent to proceed to trial, respondent’s commitment to the Department was improper under section 916.13(l)(c) because he suffered from a mental illness that was permanent and there was not a substantial likelihood that competency would be restored); Andrews v. Johnson, 941 So.2d 494 (Fla. 1st DCA 2006) (same); Oren v. Judd, 940 So.2d 1271 (Fla. 2d DCA 2006) (same).

As the court explained in Oren, the State will have to institute civil commitment proceedings or Gilliland will have to be released. Oren, 940 So.2d at 1274.

PETITION GRANTED.

PALMER and EVANDER, JJ., concur.


author: TORPY, J.

text:
    Maria MITCHELL and Janet Trujillo, Petitioners, v. METROPOLITAN AT LAKE EOLA, LLC., Respondent.
    No. 5D06-3457.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2007.

      Marcia K. Lippincott of Marcia K. Lip-pincott, P.A., Lake Mary, for Petitioners.
    William W. Deem of William W. Deem, P.A., Jacksonville Beach, for Respondent.
   TORPY, J.

In this specific performance action, Petitioners challenge the lower court’s order that required them to post a $600,000 bond to maintain a lis pendens while their direct appeal is pending. Petitioners challenge the order on two grounds, only one of which merits discussion: whether the lower court departed from the essential requirements of the law because the bond amount does not bear a reasonable relationship to the damages Respondent might incur due to the lis pendens. Concluding that Petitioners are correct, we grant the petition and quash the lower court’s order.

Petitioners and Respondent entered into a contract for sale and purchase of a condominium unit for the price of $429,900. Petitioners paid a deposit of $42,900. A dispute arose between the parties and the closing did not occur, each party claiming that the other breached the contract. Petitioners sued for specific performance of the contract and recorded a lis pendens. Judgment was entered in favor of Respondent and Petitioners filed a direct appeal, which remains pending. The deposit remains in escrow pending the outcome of the direct appeal, Respondent having made claim to the funds as liquidated damages.

After judgment, Respondent filed a motion seeking that the lis pendens be dissolved or, in the alternative, that Petitioners post a bond. The court conducted a hearing on the motion during which Respondent’s only evidence of prospective damages was the affidavit of its agent who opined that the fair market value of the unit at the time of hearing was $600,000. The affiant estimated that Respondent would incur between $15,000 and $20,000 in additional attorney’s fees on appeal. Based thereon, the lower court ordered that the lis pendens be dissolved unless Petitioners filed a bond in the sum of $600,000.

Although the amount of a lis pendens bond is left to the discretion of the lower court, this discretion is not unfettered. Indeed, the bond amount “should bear a reasonable relationship to the amount of damages which the property-holder defendant demonstrates will likely result if it is later determined that the notice of lis pendens was unjustified.” Medical Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 675 So.2d 915, 918 (Fla.1996). The burden is on the party seeking the bond to demonstrate by evidence the amount of potential damage it might suffer due to the lis pendens. Id. Although other potential damages might be demonstrated under the peculiar facts of each case, generally, the measure of such damage is “the difference between the fair market value at the time of filing of the lis pendens and the fair market value at the time of its termination, plus any consequential damages, including the award of operating expenses if the property declined in value, prejudgment interest from the date of termination of the lis pendens, and attorney’s fees.” Santa Catalina Townhomes, Inc. v. Mirza, 925 So.2d 1147, 1148 (Fla. 4th DCA 2006).

Here, the only evidence offered of potential, prospective damages was Respondent’s estimate of future attorney’s fees. Respondent offered no evidence that the unit’s value was expected to decline. In fact, the evidence suggested the contrary. Although Respondent argued that it would suffer a loss of use of the proceeds from the sale of the unit, it offered no evidence that its probable rate of return on such proceeds would exceed the rate at which the unit might appreciate in value. Finally, Respondent offered no evidence regarding its operating expenses, carrying costs or other consequential damages.

We conclude, therefore, that the evidence before the lower court supported a bond amount of no greater than $20,000.

PETITION GRANTED; ORDER QUASHED.

MONACO and LAWSON, JJ., concur.


author: GRIFFIN, J.

text:
    Ernesto VASQUES, Petitioner, v. MERCURY CASUALTY COMPANY, Respondent.
    No. 5D06-1705.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2007.

      Jamie Billotte Moses, of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, and Kimberly A. Drig-gers, of The Nation Law Firm, Longwood, for Petitioner.
    Randall A. Wainoris, of Haas, Dutton, Blackburn, Lewis, Longley & Lee, Tampa, for Respondent.
   GRIFFIN, J.

Petitioner, Ernesto Vasques [“Vas-ques”], appellant below, seeks a writ of certiorari to quash the circuit court’s appellate decision affirming the Seminole County court’s summary judgment in favor of Respondent, Mercury Casualty Company [“Mercury”].

On December 29, 2001, Vasques severely injured his hand while working on an automobile in the garage of Maida L. Shehata. As a result of the accident, Vasques incurred hospital bills and orthopaedic surgery bills in excess of $26,000. Additionally, Vasques lost his job as an electrical helper. Vasques sought personal injury protection [“PIP”] benefits under Sheha-ta’s private passenger automobile policy with Mercury. His claim was denied.

After Mercury denied Vasques’ claim, Vasques filed suit to establish his entitlement to PIP benefits. Mercury’s affirmative defense asserted that Mercury was entitled to deny Vasques’ claim because the Shehatas had made material misrepresentations to Mercury regarding facts of the accident. Specifically, during the investigation of this claim by Mercury, the insured, Maida Shehata, her son, George Shehata, and George’s girlfriend gave recorded statements to Mercury. In thosé statements, they denied being aware of the December 29, 2001, incident or even knowing Ernesto Vasques. Subsequently, however, in their depositions taken two years after the claim was denied, both Maida Shehata and George Shehata [“Shehatas”] admitted that they knew Vasques and were aware of the accident on December 29, 2001. They admitted previously telling Mercury otherwise. In their testimony, they suggested they lied to protect themselves from any claim by Vasques.

Mercury moved for summary judgment, contending that condition number 10 of the Mercury policy concerning misrepresentations relieved it of any liability in this case. Mercury has acknowledged that, but for the Shehatas’ misrepresentations, Vasques would be entitled to coverage. Mercury also concedes that Vasques made no misrepresentations to Mercury concerning his claim.

The trial court granted Mercury’s “Motion for Final Summary Judgment,” agreeing that condition 10 relieved Mercury of liability under the policy. From that summary final judgment, Vasques appealed to the circuit court. The circuit court, sitting in its review capacity, affirmed the summary final judgment in favor of Mercury. Vasques now seeks review in this court, contending that the error below is of such a nature and magnitude that it warrants second-tier appellate review. We agree, grant the writ and quash the circuit court’s decision.

A district court may exercise its discretion to grant certiorari review when procedural due process has not been afforded or there has been a violation of a clearly established principle of law resulting in a miscarriage of justice. Progressive Express Ins. Co. v. Physician’s Injury Care Center, Inc., 906 So.2d 1125, 1126 (Fla. 5th DCA 2005). We agree that the circuit court’s decision affirming the judgment in favor of Mercury violated clearly established principles of Florida law resulting in a miscarriage of justice for Vas-ques.

Although we agree with Vasques that Mercury relies on a misinterpretation of the policy language on which it based its denial of coverage, the principal basis upon which we conclude that jurisdiction lies is that the policy language at issue — if interpreted as Mercury urges — would be inconsistent with the PIP statute and represent a violation of Florida’s public policies governing insurance.

The policy language at issue provides:
We may deny coverage of an accident or loss if you or an insured person has concealed or misrepresented any material fact or circumstance, or engaged in fraudulent conduct, in connection with the presentation or settlement of a claim.

Does this language mean a misrepresentation by an insured in connection with his own claim or anybody’s claim? Can an insured person engage in fraud “in connection with the presentation or settlement of a claim” if he is neither the presenter nor the settler of the claim? Everyone acknowledges that Vasques did not conceal or misrepresent anything, nor did he engage in any fraudulent conduct regarding his injury and/or claim. The only misrepresentation was on the part of the Sheha-tas, who denied that the incident that caused Vasques’ injury ever occurred. We agree with petitioner that because Vas-ques, the party making the claim for PIP coverage, did not make any misrepresentations regarding his claim, the above-quoted policy provision does not authorize Mercury to deny coverage. The supreme court has explained that:

As a fundamental proposition, where the language in an insurance policy is subject to differing interpretations, the policy language “should be construed liberally in favor of the insured and strictly against the insurer.” Moreover, it is axiomatic that “[i]f the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, the insurance policy is ambiguous.” Policy provisions that tend to limit or avoid liability are interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy, and exclusions to coverage are construed even more strictly against the insurer than coverage clauses.

Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla.2002) (citations omitted).

Apart from the fact that any doubts in construction of the policy language must be construed in favor of Vasques, an interpretation of this policy language that any misrepresentation by one insured person could support the denial of PIP benefits for another unrelated third party would lead to absurd results. The language has to mean a misrepresentation by the person who is making the claim. Here, the She-hatas, although insureds, did not and could not present or participate in the settlement of a claim to Mercury for this incident. Rather, Vasques as the injured party entitled to coverage under the Shehatas policy, presented the claim to Mercury, and he made no misrepresentation.

The circuit court departed from clearly established principles of Florida law when it failed to uphold Florida’s well-established “Innocent Insured Doctrine.” Several Florida cases, including Everglades Marina, Inc. v. American Eastern Development Corp., 374 So.2d 517 (Fla.1979); Overton v. Progressive Insurance Co., 585 So.2d 445 (Fla. 4th DCA 1991); and Auto-Owners Insurance Co. v. Eddinger, 366 So.2d 123 (Fla. 2d DGA 1979), stand for the proposition that fraud committed by a coinsured will not void the coverage of the innocent co-insured unless clearly stated in the policy. The lower court said this case is not covered by the “innocent co-insured” doctrine because Vasques was not a “co-insured” but “at best” is a third-party beneficiary of the policy. Leaving aside the question whether Vasques is a “co-insured,” the considerations that animate the “Innocent Co-Insured Doctrine” are not based on a category of “insured” but on the fact of innocence. Contrary to the view of the circuit court, the purpose of the “innocent insured” doctrine is especially pertinent where, as here, the claimant is especially innocent. Vasques had no connection to the Shehatas, except to work on their car. He had no exposure to or control over their actions. Unlike the coinsureds in the cases cited above, all of whom had some close connection to the “guilty” insured, yet were deemed “innocent” by the courts, Vasques was almost a stranger to the Shehatas and their lies were designed to thwart his recovery for his injuries.

We also exercise our narrow authority to issue a writ of certiorari in this case because the circuit court’s decision impermissibly disregards Florida’s public policy as expressed in the PIP statute. PIP insurance is a statutorily required coverage to comply with Florida’s no-fault law and is an integral part of the no-fault statutory scheme. The purpose of the PIP statute is to provide for speedy payment of medical bills and compensation for lost income for accident victims. Lasky v. State Farm, Ins. Co., 296 So.2d 9 (Fla.1974). Given its purpose, both this court and the Florida supreme court have held the provisions of Florida’s No-Fault Act must be construed liberally in favor of the insured. See Government Employees Ins. Co. v. Novak, 453 So.2d 1116 (Fla.1984); Stewart v. Allstate Ins. Co., 618 So.2d 771 (Fla. 5th DCA 1993); Hunter v. Allstate Ins. Co., 498 So.2d 514 (Fla. 5th DCA 1986).

The PIP statute in effect at the time of Vasques’ injury did not expressly permit an exclusion for fraud, but there was no blanket prohibition against the inclusion of general conditions affecting coverage or even exclusions, so long as the limitation was consistent with the purposes of the statute. See, e.g., Carguillo v. State Farm Mut. Auto. Ins. Co., 529 So.2d 276 (Fla.1988). However, restrictions on statutorily mandated coverage must be carefully examined because exclusions that are inconsistent with the purpose of the statute are invalid. Flores, 819 So.2d at 745. In light of the overarching purposes behind the statute’s protection, conditions or exclusions must be carefully scrutinized to determine, first, whether the condition or exclusion unambiguously excludes or limits coverage, and then, second, to determine whether enforcement of a specific provision would be contrary to the purpose of the no-fault statute. Id. Furthermore, because PIP is a statutorily mandated coverage, analogies to cases interpreting coverages that are not statutorily mandated, such as provisions in fire, life, and property insurance policies, may not necessarily be illuminating. Id.

Manifestly, a policy provision that is interpreted to eliminate personal injury protection benefits for an innocent third-party claimant based on misstatements made by the policyholder to the insurer would be inconsistent with the statutory scheme. Florida has gone to extreme lengths to assure that personal injury protection benefits follow every licensed vehicle and cover any injured person. It makes no sense that this mandated coverage for an injured person could evaporate simply because someone else designated an “insured” under the policy — even though a stranger to the claim — lied.

This view is validated by the current PIP statute. After this claim arose, the Florida legislature added a provision to the PIP statute expressly authorizing an insurer to deny PIP benefits based on fraud, but that statute is limited to a circumstance where the one seeking the benefits is the person that committed fraud. Specifically, subsection 4(g) of section 627.736 provides:

Benefits shall not be due or payable to or on the behalf of an insured person if that person has committed, by a material act or omission, any insurance fraud relating to personal injury protection coverage under his or her policy, if the fraud is committed to in a sworn statement by the insured or if it is established in a court of competent jurisdiction. Any insurance fraud shall void all coverage arising from the claim related to such fraud under the personal injury protection coverage of the insured person who committed the fraud, irrespective of whether a portion of the insured person’s claim may be legitimate, and any benefits paid prior to the discovery of the insured person’s insurance fraud shall be recoverable by the insurer from the person who committed insurance fraud in their entirety.

(Emphasis added.) This amendment expresses the extent to which fraud or misrepresentation may eliminate PIP coverage. To allow insurers to deny coverage of PIP benefits where someone other than the claimant makes a false statement for the purpose of defeating coverage would violate the well-articulated public policy considerations giving rise to personal injury protection benefits in this state.

WRIT GRANTED; DECISION QUASHED; and REMANDED.

SAWAYA and TORPY, JJ., concur.

      . At the hearing on the Motion for Summary Judgment, Mercury's counsel stated:
      We wouldn't be here before you today if it weren’t — but for these representations made by the Shehatas. They represented all along nothing happened. Had they said something happened, we wouldn’t be here. Mercury at that point if everybody was consistent, Mr. Vasques, hurt myself, and the insured said, yes, he did hurt himself in our garage—
      THE COURT: You would have paid.
      MR. WAINORIS: They would have paid.

      . See Michael V. Laurato, Sr., Return to Innocence: One Good Reason (along with several other arguments) Why the Extension of Florida’s Innocent Co-Insured Doctrine Makes Good Public Policy Sense, 7 Fla. Coastal L.Rev. 59 (2005).

      . In Michigan Millers Mutual Insurance Corp. v. Benfield, 140 F.3d 915, 925 (11th Cir.1998), the Eleventh Circuit found:
      In the policy at issue we find “an insured” to be ambiguous in that it is unclear whether this phrase in this contract establishes joint or several liability on the part of the insured. Given that the "an" of "an insured” is undeniably "inconspicuous language,” and given that the language is ambiguous, we do not hesitate to conclude that Florida’s doctrine of the innocent co-insured shields Mrs. Benfield from the imputation of liability on account of the alleged misdeeds of Mr. Benfield, her coinsured. Our holding is supported by the relevant Florida case law and by the facts of this case.


text:
    Dennis Markly BRYAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3363.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2007.

      J. Peyton Quarles of Zimmet & Quarles, P.L., Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   EVANDER, J.

Appellant and co-defendant David Bau-mann (“Baumann”) were alleged to have robbed a Subway shop in St. Augustine. During the robbery, a Subway employee was shot and killed. Appellant was indicted on one count of first degree murder (both premeditated and felony murder) and one count of armed robbery with a firearm or other deadly weapon. The state sought the death penalty. A jury found appellant guilty as charged on both counts, and recommended life imprisonment without the possibility of parole on the murder count. Appellant was ultimately sentenced to two consecutive terms of life imprisonment.

Appellant raises two points on appeal. First, he contends the trial court erred by allowing the jury to receive evidence of crimes not charged in the indictment with the result that they became the feature of the trial. We disagree.

The decision to admit collateral crime evidence is reviewed by an abuse of discretion standard. LaMarca v. State, 785 So.2d 1209 (Fla.2001). In this case, the trial court entered a thorough written order detailing how the evidence of the collateral crimes was inextricably intertwined with the crime charged. Griffin v. State, 639 So.2d 966 (Fla.1994). Furthermore, evidence of the collateral crimes did not become a feature of the trial. McLean v. State, 934 So.2d 1248 (Fla.2006). We find no abuse of discretion.

Second, appellant argues the trial court erred by denying his motion to suppress his confession. Appellant contends his confession was obtained in violation of his Sixth Amendment right to counsel. Again, we disagree. The robbery of the St. Augustine Subway occurred on August 14, 2000. On November 11, 2000, appellant and Baumann were arrested in Williamsburg, Kentucky, in conjunction with the alleged robbery of a Super 8 Motel located in that city. Evidence seized during the arrest suggested appellant and Baumann had committed a crime in St. Augustine. The St. Johns County, Florida, Sherriffs Office was contacted. On November 29, 2000, two detectives from the St. Johns County Sherriffs Office arrived in Kentucky to question appellant and Baumann regarding the robbery/murder committed at the St. Augustine Subway. Appellant was being held in a jail in London County, Kentucky. Special Agent Wade Raspberry of the Bureau of Alcohol, Tobacco & Firearms (“ATF”) transported appellant to an ATF interview room to be questioned by the St. Johns County detectives. Shortly after the interview began, appellant invoked his right to counsel. The two detectives immediately ceased the interview and left the room.

Agent Raspberry, acting on his own and not at the direction of the St. Johns County detectives, returned to the interview room. He asked appellant what happened and appellant responded that he wanted an attorney present during his interview. Raspberry replied “O.K.” and began to prepare appellant to be transported back to the jail. After an unsuccessful attempt to telephone his parents, appellant asked Raspberry, “Where are we going?” Raspberry replied that he was going to take appellant back to the jail. Then, in apparent reference to the two detectives, appellant asked, ‘Where are they going?” Raspberry told appellant the detectives were going back to Florida, but they were first probably going to interrogate Bau-mann. Appellant then asked Raspberry, “What are they going to talk to him about?” Raspberry responded “the same thing they were trying to talk to you about.” Raspberry also told appellant that the detectives would probably believe Bau-mann’s version of the story and that his (appellant’s) “ship sailed” without him. At that point, appellant insisted Raspberry have the St. Johns County detectives brought back to the interview room so that appellant could tell “his side” of the story.

Raspberry complied with appellant’s request. The two detectives readvised appellant of his Miranda rights. Appellant further signed an affidavit averring that he had requested the detectives’ return, that he wanted to waive his right to an attorney after having previously invoked such right, and that his decision to speak to the detectives was entirely voluntary. Appellant then proceeded to make the incriminating statements which were the subject of his motion to suppress.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that where a suspect invokes his right to counsel, he is not subject to further interrogation by police “until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-485, 101 S.Ct. 1880.

The Edwards decision was clarified in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). In a plurality opinion, the Bradshaw Court set forth a two-step process which is to be utilized where a suspect gives a statement to police without counsel being present, although the suspect had initially invoked his right to counsel. First, the trial court must find the suspect initiated the subsequent conversation with law enforcement. Second, the trial court must find, based on the totality of the circumstances, the suspect knowingly and voluntarily waived his right to counsel. In Bradshaw, the Court found the defendant had initiated further conversation with the police when he asked, “Well, what is going to happen to me now?” The Court noted that the defendant’s question “evinced a willingness and a desire for a generalized discussion about the investigation.” Bradshaw, 462 U.S. at 1045-1046, 103 S.Ct. 2830.

In Francis v. State, 808 So.2d 110 (Fla.2001), police officers terminated an interview with Francis immediately after he invoked his right to counsel. Approximately three and one-half hours later, Francis told an officer he wanted to talk to police. The officer advised Francis that he could not talk to the police because he had previously requested an attorney. Francis replied that he wanted to talk about the case and that he no longer wanted a lawyer. The statements subsequently made by Francis, without counsel being present, were determined to be admissible. Francis, 808 So.2d at 125-128.

In the present case, we agree with the trial court’s conclusion that it was appellant, not Raspberry, who initiated the conversation which eventually led to appellant’s decision to give a statement to the St. Johns County detectives. Although Raspberry had asked appellant what had happened between appellant and the two detectives, he did not ask any other questions after appellant advised him that appellant had wanted counsel present during any interrogation. Subsequently, it was appellant who proceeded to ask questions “evincing a willingness and a desire for a generalized discussion about the investigation.” The evidence further supported the trial court’s conclusion that, based on the totality of the circumstances, appellant had knowingly and voluntarily waived his right to counsel after initially invoking such right.

As we noted in State v. Evans, 462 So.2d 596, 599 (Fla. 5th DCA 1985), the law recognizes a defendant’s right to voluntarily change his mind after he has invoked his right to be questioned with counsel present.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.


text:
    Bradley UNDERWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2839.
    District Court of Appeal of Florida, Fifth District.
    Feb. 2, 2007.

      James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

In 1987, Underwood entered a guilty plea to the charges of burglary of a dwelling with battery and sexual battery with a deadly weapon. He was sentenced to twelve years in the Department of Corrections followed by life probation. On January 6, 2004, a violation of probation warrant was issued alleging Underwood had violated his probation by committing new law violations (condition (5)) and by failing to complete a sex offender treatment program (condition (8)). After a hearing, the trial court found Underwood had violated both conditions. He was subsequently sentenced to twenty-two years in the Department of Corrections with credit for time served. On appeal, Underwood raises several issues.

We affirm the trial court’s decision finding Underwood had violated condition (5). Underwood’s admission that he had been convicted in Kentucky of a criminal trespass committed on November 12, 2003, was sufficient to support the trial court’s decision. See Stevens v. State, 409 So.2d 1051 (Fla.1982); Waring v. State, 504 So.2d 786 (Fla. 2d DCA 1987); State ex rel. Russell v. McGlothin, 427 So.2d 280 (Fla. 2d DCA 1983); Suarez v. State, 391 So.2d 343 (Fla. 5th DCA 1980).

Although we find the evidence was insufficient to support the trial court’s finding as to condition (8), we find it unnecessary to remand for a new sentencing hearing. The trial judge’s comments clearly show that her sentencing decision was based on the events which ultimately led to Underwood’s criminal trespass conviction. See McPherson v. State, 530 So.2d 1095 (Fla. 1st DCA 1988); Wilson v. State, 506 So.2d 1170 (Fla. 3d DCA 1987).

After the trial court found Underwood had violated his probation, but prior to sentencing, Underwood raised two new issues. First, he made an ore tenus motion to withdraw his plea to the original charges. The trial court properly declined to hear the motion. The motion was neither sworn to nor timely. Lyell v. State, 872 So.2d 447 (Fla. 2d DCA 2004). Second, Underwood argued the warrant incorrectly alleged the criminal trespass in Kentucky had been committed on January 3, 2004, not November 12, 2003. Underwood’s challenge was untimely. Smart mays v. State, 901 So.2d 278 (Fla. 5th DCA 2005).

The trial court’s order is affirmed in all respects except as to its finding that Underwood violated condition (8).

AFFIRMED.

GRIFFIN and PALMER, JJ„ concur.


author: ALTENBERND, Judge.

text:
    Richard FREW, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4957.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 2007.
   ALTENBERND, Judge.

Richard Frew appeals the trial court’s denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 on the grounds that his filing of a successive motion was an abuse of procedure. We reverse.

A jury convicted Mr. Frew of second-degree murder in 2003. This court affirmed his judgment and sentence without a written opinion. Frew v. State, 871 So.2d 222 (Fla. 2d DCA 2004) (table). He filed his first timely motion for postconviction relief pursuant to rule 3.850 in March 2005. That first motion was facially insufficient because it only alleged that the trial court committed fundamental error within the jury instructions. The trial court correctly dismissed that motion because it raised an issue that should have been raised on direct appeal and, therefore, was not cognizable in a postconviction proceeding.

Mr. Frew did not appeal the order of dismissal. Instead, he filed another motion for postconviction relief raising numerous grounds. At least one of the grounds argued in this second motion appears to be facially sufficient. He claims that his attorney was ineffective for failing to move to suppress his confession, which allegedly was critical evidence in the case and which allegedly was obtained after a waiver of his Miranda rights while he was extremely intoxicated.

The trial court did not reach the merits of this motion, but denied it as a successive motion that was an abuse of procedure under rule 3.850(f). We must disagree.

Rule 3.850(f) grants the postconviction court discretion to dismiss successive rule 3.850 motions:

(f) Successive Motions. A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

Fla. R.Crim. P. 3.850(f).

However, this power is not absolute. This discretionary ability does not apply when the previous motion was summarily denied or dismissed for legal insufficiency. See McCrae v. State, 437 So.2d 1388, 1390 (Fla.1983); Wright v. State, 741 So.2d 1146, 1147 (Fla. 2d DCA 1999); Hyacinthe v. State, 940 So.2d 1280, 1281 (Fla. 4th DCA 2006). Moreover, nothing in the record before this court suggests that Mr. Frew abused judicial procedures by adding grounds to his motion when he made a second attempt to allege a facially sufficient claim. See Mancebo v. State, 931 So.2d 928, 929 (Fla. 3d DCA 2006) (holding that the movant was allowed to attempt to allege legally sufficient claims in a second timely rule 3.850 motion when his prior motion had not been denied on the merits); see also Hyacinthe, 940 So.2d at 1281 (holding that “[t]he abuse of process doctrine does not apply where the trial court has not previously ruled on the merits of a post-conviction claim in the case and the movant seeks to raise new claims in a different motion”).

Accordingly, we reverse and remand for reconsideration by the postconviction court on the merits.

Reversed and remanded.

CASANUEVA and CANADY, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    C.R.O., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1120.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2007.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See G.L. v. State, 937 So.2d 801, 803 (Fla. 5th DCA 2006), and T.N. v. State, 929 So.2d 1133, 1137 (Fla. 5th DCA 2006).

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


text:
    Gary PRETTYMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3947.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2007.
    Gary J. Prettyman, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Weeks v. State, 496 So.2d 942 (Fla. 2d DCA 1986).

PALMER, MONACO and EVANDER, JJ., concur.


author: ROTHENBERG, Judge.

text:
    The STATE of Florida, Appellant, v. Calvin BARR, Appellee.
    Nos. 3D06-1439, 3D06-1437.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.
    Before COPE, C.J., and GERSTEN and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

In this consolidated appeal, The State of Florida (“State”) appeals the downward departure sentences imposed by the trial court, over State objection, in case numbers F04-37885 and F05-14. As the record reflects that the trial court failed to provide any reasons for its downward departure from the sentencing guidelines, either in writing or by orally pronouncing its reasons at sentencing, we reverse. See State v. Payne, 684 So.2d 863, 864 (Fla. 2d DCA 1996)(holding that when a trial court enters a downward departure from the sentencing guidelines, it must provide valid written reasons for doing so); State v. Sherrill, 678 So.2d 7, 7 (Fla. 3d DCA 1996)(same); see also Pease v. State, 712 So.2d 374, 376-77 (Fla.1997)(holding that failure to provide valid written reasons for entering a departure downward from the sentencing guidelines may be affirmed if the trial court orally pronounces a valid basis for the sentence on the record).

Upon remand, the defendant may elect to withdraw his plea or be sentenced within the recommended sentencing guidelines.

Reversed and remanded.


text:
    CONSOLIDATED RESOURCES HEALTH CARE FUND I, LTD., d/b/a Lakeside Health Center, Petitioner, v. Richard RUFFINI, as Personal Representative of the Estate of Ronald Ruffini, Respondent.
    No. 4D06-3967.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    Rebecca B. Watford of the Watford Law Firm, Miami, for petitioner.
    Alan S. Levine of Levine and Associates, Fort Lauderdale, for respondent.
   PER CURIAM.

The petitioner seeks certiorari relief to quash an order compelling discovery. We grant the petition and quash the order compelling the discovery which determined the petitioner had waived its privilege objections by failing to timely respond. The lower court should have first made a determination of the breadth of discovery prior to ruling on the waiver issue, as the petitioner had correctly and timely placed overbreadth before the court. See Gosman v. Luzinski, 937 So.2d 293 (Fla. 4th DCA 2006). We remand to the lower court for reconsideration consistent with Gosmcm.

SHAHOOD, GROSS and TAYLOR, JJ., concur.


text:
    IMHOTEP-NGUZO SABA CHARTER SCHOOL and Mandela-Nguzo Saba Charter School, Appellants, v. DEPARTMENT OF EDUCATION and Palm Beach County School Board, Appellees.
    Nos. 4D05-4634, 4D05-4635.

    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      Janice L. Jennings, Boynton Beach, for appellants.
    Randall D. Burks, Ph.D., West Palm Beach, for appellee Palm Beach County School Board.

      . We have consolidated these related cases for opinion purposes only.

   PER CURIAM.

Imhotep-Nguzo Saba Charter School and Mandela-Nguzo Saba Charter School appeal decisions of the State Board of Education which affirmed the Palm Beach County School Board’s decisions to deny charters to the two proposed schools. The schools primarily challenge the application and constitutionality of a School Board policy which looked to the academic and financial success of the new schools’ predecessor, the Joseph Littles Nguzo Saba Charter School, Inc. (Joseph Littles). We conclude that the challenged policy was valid and affirm.

As of early 2005, the Palm Beach County School Board had approximately 8,000 students in 46 charter schools, including approximately 150 students at Joseph Lit-tles. Joseph Littles has been in existence since 1999. On June 23, 2003, the School Board extended Joseph Littles’ charter for ten years. Joseph Littles has concentrated on serving poor children, many of whom had failed at other schools. It has a unique curriculum of African-American studies.

Joseph Littles has now applied to the School Board to create two new charter schools, Imhotep-Nguzo Saba Charter School and Mandela-Nguzo Saba Charter School. In April 2005, the School Board denied the creation of the two new schools based on Palm Beach County School Board Policy 2.56, entitled “Number of Charter Schools.” The policy implements a State Board of Education waiver, exempting Palm Beach County from the statutory cap on the number of charter schools permissible in a particular county. The policy states certain criteria to be used in approving charter schools, which generally track the statutory declaration of the purposes of the charter school concept. However, subsection 3(d) of the policy states in part that:

[A]n applicant person!organization which already has a charter from the Board would need to demonstrate that such person/organization has a track record of success in operating an exemplary charter school for the past two (2) fiscal years. An exemplary charter school would be characterized by:
i. remaining in full compliance with its charter;
ii. demonstrating fulfillment of the statutory purposes of charter schools ...; and
iii. for schools subject to state performance grades, maintaining a performance grade of at least B or demonstrating significant annual learning gains, (emphasis added).

The School Board deemed Joseph Lit-tles to be non-exemplary based on both financial and academic non-compliance. The school’s financial non-compliance had to do with its untimely submission of required reports for fiscal year 2004-05, an improper check authorization policy allowing a single signatory, declining enrollment, accounting problems regarding grant monies, and a significant negative fund balance. The academic problems consisted of a D grade for 2003-04 and a projected grade (based on the 2004 Diagnostics) of either a D or an F for 2004-05. In addition, only half the school’s teachers were certified. Thus, the School Board denied the applications for the new schools based on Policy 2.56 and the non-exemplary nature of Joseph Littles.

Joseph Littles appealed the School Board’s decisions to the State Board of Education, which submitted the matter to the Florida Charter School Appeal Commission for review and a non-binding recommendation. See § 1002.33(6)(c), (f), Fla. Stat. (2005). By a final vote of 4 to 3, the appeal commission found that the School Board did not have statutory good cause to deny the charter school applications. The State Board of Education met on October 18, 2005, to consider Joseph Littles’ appeal and the appeal commission’s recommendation. At that hearing, Joseph Littles’ attorney argued that the School Board’s adoption of the subject policy was ultra vires based on the statute that exempts charter schools from School Board policies. The State Board of Education voted unanimously to reject the appeal commission’s recommendation as to both of the proposed schools and upheld the School Board’s denial of those applications.

The Palm Beach County School Board is the sponsor of Joseph Littles and would be the sponsor of the two new schools had they been approved. See § 1002.33(5), Fla. Stat. (2005). The schools place primary reliance on Florida Statutes section 1002.33(5)(b)4., which states that the “sponsor’s policies shall not apply to a charter school.” This reliance is misplaced. While the subject provision was clearly aimed at giving charter schools some measure of academic and administrative freedom, we do not read this provision to prohibit the School Board from adopting and enforcing policies related to the creation, renewal or termination of the charter schools they sponsor. This is true because the legislature has delegated primary decision-making authority to the school boards over these basic decisions. While such policies may well have influences on academic and administrative freedoms at the charter schools, the adoption of a policy that only schools with a C average on the FCAT will be renewed, for example, seems fundamentally different than a school board sick leave policy for teachers, which would most likely not apply to charter schools under the statute. We leave to future case law the development of this distinction, but the charter school creation policy at issue here does not appear to be a prohibited attempt to apply School Board policies to either Joseph Littles or the new schools.

An application for a charter school can be denied for “good cause.” § 1002.33(6)(b)3., Fla. Stat. (2005). The statute does not define good cause. The critical issue posed by this appeal is whether the legislature, in enacting the charter school approval process, provided sufficient minimum guidelines to the local school boards as to which applications should be granted and which should be denied. Even more particularly, we must address whether the School Board could constitutionally adopt its policy which makes “good cause” for the denial of a new school charter depend on the academic and financial success of another school operated by the applicant. This is a serious question since, as a general matter, it is the legislature’s job to say what the law is, not that of a local school board. See Art. II, § 3, Fla. Const. (“The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.”); Dep’t of Ins. v. Se. Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla.1983) (“It is the power to say what the law is that is prohibited from being delegated.”). The Florida Supreme Court has stated “ ‘repeatedly and without exception that Florida’s Constitution absolutely requires a ‘strict’ separation of powers.’ ” State v. Avatar Dev. Corp., 697 So.2d 561, 564 (Fla. 4th DCA 1997) (quoting B.H. v. State, 645 So.2d 987, 991 (Fla.1994)), approved, 723 So.2d 199 (Fla.1998).

Under separation of powers principles and the “nondelegation of duties doctrine,” statutes granting enforcement powers to executive agencies “must clearly set out adequate standards to guide the agency in the execution of the powers delegated and must define those powers with sufficient clarity to preclude the agency from acting through whim, favoritism, or unbridled discretion.” In re Advisory Opinion to the Governor, 509 So.2d 292, 311 (Fla.1987). The “crucial test” is whether the statute “contains sufficient standards or guidelines to enable the agency and the courts to determine whether the agency is carrying out the legislature’s intent.” Dep’t of Ins., 438 So.2d at 819. If a statute is so vague and uncertain in its terms that no one can say with certainty, from the terms of the law itself, what the law is, “ ‘it must be held unconstitutional as attempting to grant to the administrative body the power to say what the law shall be.’ ” Sarasota County v. Barg, 302 So.2d 737, 742 (Fla.1974) (quoting Conner v. Joe Hatton, Inc., 216 So.2d 209, 211 (Fla.1968)):

The Legislature cannot delegate to an administrative agency, even one clothed with certain quasi-judicial powers, the unbridled discretion to adjudicate private rights. It is essential that the act which delegates the power likewise defines with reasonable certainty the standards which shall guide the agency in the exercise of the power.

Delta Truck Brokers, Inc. v. King, 142 So.2d 273, 275 (Fla.1962).

The nature of the subject matter may be important in determining whether there has been an improper delegation of authority. The Florida Supreme Court has stated:

The specificity with which the legislature must set out statutory standards and guidelines may depend upon the subject matter dealt with and the degree of difficulty involved in articulating finite standards. The same conditions that may operate to make direct legislative control impractical or ineffective may also, for the same reasons, make the drafting of detailed or specific legislation for the guidance of administrative agencies impractical or undesirable.

In re Advisory Opinion, 509 So.2d at 311. “ ‘Flexibility by an administrative agency to administer a legislatively articulated policy is essential to meet the complexities of our modern society.’ ” Avatar Dev., Corp., 697 So.2d at 565 (quoting Askew v. Cross Key Waterways, 372 So.2d 913, 924 (Fla.1978)).

Here, the schools have argued that the only legislative guidance as to what “good cause” means is found in section 1002.33(6). That section states, in pertinent part:

(a) A person or entity wishing to open a charter school shall prepare an application that:
1. Demonstrates how the school will use the guiding principles and meet the statutorily defined purpose of a charter school.
2. Provides a detailed curriculum plan that illustrates how students will be provided services to attain the Sunshine State Standards.
3. Contains goals and objectives for improving student learning and measuring that improvement. These goals and objectives must indicate how much academic improvement students are expected to show each year, how success will be evaluated, and the Specific results to be attained through instruction.
4. Describes the reading curriculum and differentiated strategies that will be used for students reading at grade level or higher and a separate curriculum and strategies for students who are reading below grade level. A sponsor shall deny a- charter if the school does not propose a reading curriculum that is consistent with effective teaching strategies that are grounded in scientifically based reading research.
5. Contains an annual financial plan for each year requested by the charter for operation of the school for up to 5 years. This plan must contain anticipated fund balances based on revenue projections, a spending plan based on projected revenues and expenses, and a description of controls that will safeguard finances and projected enrollment trends.

The schools contend that because their applications were facially complete, according to the statutory criteria, there was no “good cause” for the School Board to deny them. We disagree. We find that the “Guiding Principles; Purpose” section of the charter school statute provides sufficient legislative guidance to support the School Board’s Policy 2.56. That portion of the statute states:

(a) Charter schools in Florida shall be guided by the following principles:
1. Meet high standards of student achievement while providing parents flexibility to choose among diverse educational opportunities within the state’s public school system.
2. Promote enhanced academic success and financial efficiency by aligning responsibility with accountability.
3. Provide parents with sufficient information on whether their child is reading at grade level and whether the child gains at least a year’s worth of learning for every year spent in the charter school.
(b) Charter schools shall fulfill the following purposes:
1. Improve student learning and academic achievement.
2. Increase learning opportunities for all students, with special emphasis on low-performing students and reading.
8. Create new professional opportunities for teachers, including ownership of the learning program at the school site.
4. Encourage the use of innovative learning methods.
5. Require the measurement of learning outcomes.
(c) Charter schools may fulfill the following purposes:
1. Create innovative measurement tools.
2. Provide rigorous competition within the public school district to stimulate continual improvement in all public schools.
3. Expand the capacity of the public school system.
4. Mitigate the educational impact created by the development of new residential dwelling units.

§ 1002.33(2), Fla. Stat. (2005).

In our opinion, the “Guiding Principles; Purpose” section of the statute, when coupled with the mandatory application requirements, save the legislative delegation from separation of powers problems. Where reasonably possible a statute will be interpreted in a manner that resolves all doubt in favor of its constitutionality. State v. Fuchs, 769 So.2d 1006, 1008 (Fla.2000); Dep’t of Ins., 438 So.2d at 820; Barg, 302 So.2d at 741. Clearly, the first part of Policy 2.56 tracks the guiding principles/purpose language quite closely. The important question is whether these statements of legislative purpose provide sufficient ground to allow the School Board to adopt the final section of the rule, requiring an applicant who already owns a school to show that it is an “exemplary” school before another charter will be granted to the same entity. We believe that they do. The entire statutory scheme shows legislative concern with the quality of the academic and financial performance of charter schools and the ability of the applicant to meet the high standards set by the statute. The School Board’s policy of requiring exemplary performance is a practical and reasonable approach to testing the academic and financial abilities of an applicant in furtherance of the statute’s purposes.

The charter schools have also attempted on appeal to argue that the reason for the academic and financial deficiencies at Joseph Littles was due to inequitable funding by the School Board. There is no evidence in the record to support this claim. The schools suggest that the absence of evidence on this issue is through no fault of their own and argue that the charter school appeal process is flawed because there was no apparent place for the formal presentation of evidence. The charter schools did not make this argument in the hearing before the State Board of Education and, in fact, point to no instance where they actually sought to present evidence but were denied the opportunity to do so. Therefore, we cannot consider this issue for the first time on appeal.

The State Board of Education concluded that there was competent, substantial evidence to support the School Board’s finding that the existing charter school of the applicant was fiscally and academically non-compliant, and that this finding was statutory good cause for denial of the applications for the new charter schools. An agency’s interpretation of a statute that it is charged with enforcing is entitled to great deference and will be approved on appeal unless it is clearly erroneous. BellSouth Telecomms., Inc. v. Johnson, 708 So.2d 594, 596-97 (Fla.1998); Dep’t of Ins., 438 So.2d at 820. Where the State Board of Education’s determination of an appeal of the approval or denial of a charter school application is supported by competent, substantial evidence in the record, the final order should be affirmed. See Sch. Bd. of Osceola County v. UCP of Cent. Fla., 905 So.2d 909 (Fla. 5th DCA), review denied, 914 So.2d 954 (Fla.2005). In the instant case, the record supports the State Board of Education’s conclusion. Accordingly, we affirm the final order.

Affirmed.

STEVENSON, C.J., WARNER and TAYLOR, JJ., concur.

      . Effective July 1, 2006, the Legislature eliminated the "good cause” requirement from the statute, seemingly vesting even greater discretion in local school boards. Ch. 06-190, § 1, at 1928, Laws of Fla. We express no opinion as to the meaning or validity of this amendment.


text:
    David RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2364.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.
    David Richardson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner shall be allowed belated appeal of the November 21, 2005, order denying motion for post-conviction relief in Escambia County Circuit Court case number 2001-CF-5028-B. Upon issuance of mandate in this cause, the circuit court shall treat this court’s mandate as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

DAVIS and BENTON, JJ., ERVIN, III, RICHARD W., Senior Judge, concur.


text:
    Demetria Q. MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4108.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.

      Demetria Q. Moore, pro se, Petitioner.
    Bill McCollum, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Demetria Q. Moore is hereby afforded a belated appeal from the judgment and sentence in case number 01-2005-CF-5311-A and the violation of probation in 01-2004-CF-3268-A in the Circuit Court for Alachua County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal, if she qualifies for such an appointment.

PETITION GRANTED.

WEBSTER, POLSTON, and HAWKES, JJ., Concur.


text:
    James REESE, Appellant, v. James McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D05-3053.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.
    Appellant James Reese, pro se, Florida City.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

James Reese appeals an order dismissing his petition for writ of mandamus for failure to comply with the circuit court’s case management order directing him to file appropriate indigency documentation, as required by section 57.085(2), Florida Statutes (2003). In particular, Reese failed to file a copy of his inmate bank account statement for the six months preceding the filing of his petition. Given the reasonable position taken by the Department of Corrections before this court, we REVERSE the circuit court’s order of dismissal and REMAND the case to allow Reese one opportunity to correct the deficiencies in his indigency submissions. See, e.g., Tooma v. Moore, 743 So.2d 1189 (Fla. 1st DCA 1999); Masiello v. Moore, 739 So.2d 1196 (Fla. 1st DCA 1999); Marquarb v. Fla. Parole Comm’n, 701 So.2d 674 (Fla. 1st DCA 1997).

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


text:
    Gregory MONTGOMERY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0497.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.

      Gregory Montgomery, pro se, Petitioner.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner shall be allowed belated appeal of the September 22, 2005, judgment and sentence in Leon County Circuit Court case number 2004-CF-4180. Upon issuance of mandate in this cause, a copy of the opinion will be transmitted to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

DAVIS and BENTON, JJ., ERVIN, III, RICHARD W., Senior Judge, concur.


text:
    Henry VAN LODER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6406.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.
    C. Dennis Roberts, Public Defender, Lake City, and Brant Hargrove, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 13, 2006, the Court has determined that the notice of appeal was filed in the lower tribunal on December 6, 2006, as evidenced by the clerk’s stamp on the face of the notice. Because the notice was filed more than 30 days after rendition of the underlying order, it failed to timely invoke the Court’s jurisdiction. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed.

BROWNING, C.J., WOLF, and KAHN, JJ., concur.