text:
    In the Interest of J.E.B., a child. H.B., Mother, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D07-2060.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2007.

      Linda E. Griffin, Sarasota, for Appellant.
    Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee; Susan W. Fox of Fox & Loquasto, P.A., Tampa; Brian L. Gillis, Department of Children and Family Services, Arcadia; and Sandra E. Webster, Department of Children and Family Services, Sarasota, for Appellee Department of Children and Family Services.
    Wendie Michelle Cooper, Orlando, for Appellee Guardian Ad Litem Program.
   ALTENBERND, Judge.

H.B., the mother of an infant child, J.E.B., appeals an order adjudicating the child dependent based upon a finding that the child was at imminent risk of prospective abuse. The Department of Children and Family Services (the Department) sheltered J.E.B. at birth because H.B. was facing a pending criminal charge of neglect regarding another child of H.B. who died under unexplained circumstances two years earlier. We reverse the adjudication of dependency because the Department offered no proof at the adjudicatory hearing other than the mother’s arrest and pending criminal charge to support its petition for dependency. We emphasize that although the burden of proof in a dependency case is significantly less than that required to support a termination of parental rights, the Department must present a quantum of competent, substantial evidence supporting its assertion that a child it alleges to be dependent is at risk of imminent harm from the parent.

J.E.B. was born in. July 2006. In August, the Department sheltered the child and placed the child with the maternal grandmother. Thereafter, the Department filed a petition for dependency against H.B. and L.B., the father of J.E.B. The petition alleged that J.E.B. was at imminent risk of abuse or neglect from both parents. An adjudicatory hearing was held on the petition in March 2007.

At the adjudicatory hearing, the Department presented the testimony of only four witnesses: H.B., L.B., and two representatives from the Department. H.B. indicated that she would invoke her Fifth Amendment privilege on questions related to the pending criminal charge, and thus counsel for the Department asked only limited questions of her. L.B. testified briefly. The two Department representatives provided limited testimony because they had no personal knowledge of the events and circumstances alleged in the dependency petition. They had decided to shelter J.E.B. based on a review of certain records that were never introduced into evidence.

Accordingly, the Department’s evidence established only the following. In 2004, H.B. was the mother of two young children, S.P. and T.P. She and the children lived with L.B. and one of his children from a prior relationship. In June 2004, S.P. received a head injury that caused his death. L.B. testified that he was not home at the time of the injury, and he did not believe H.B. abused or neglected the child. However, H.B. was arrested and charged with child neglect in connection with the child’s death. According to the Department representatives, they reviewed the reports from this incident and decided that H.B. and L.B. posed a substantial risk of imminent harm to the newborn J.E.B. The Department thus immediately sheltered the child and filed a petition for dependency against both parents.

At the conclusion of the evidence, the circuit court denied the petition for dependency as it related to the father, L.B., because the Department had presented no evidence to support the allegations against him. The court expressed concern that the only evidence the Department had presented with respect to H.B. was the fact that she had been arrested and charged with neglect in connection with the death of S.P. After hearing argument on the matter, however, the court was persuaded to adjudicate J.E.B. dependent as to H.B.

A trial court may adjudicate a child dependent if the Department proves by a preponderance of the evidence that the child is “at substantial risk of imminent abuse, abandonment, or neglect by the parent.” §§ 39.01(14)®, .507(1)(b), Fla. Stat. (2006); see also S.G. v. Dep’t of Children & Family Servs. (In re I.B.), 946 So.2d 650, 652 (Fla. 2d DCA 2007). Here, the only allegation made by the Department against H.B. was that her neglect of another child, S.P., established that J.E.B. was at substantial risk of imminent abuse or neglect. Children who have not been abused may be deemed to be at substantial risk of imminent abuse or neglect based on a parent’s abuse or neglect of their siblings; however, the evidence must demonstrate a nexus between the past abuse and any prospective abuse to another sibling. C.M. v. Dep’t of Children & Family Servs. (In re C.M.), 844 So.2d 765, 766 (Fla. 2d DCA 2003).

The initial problem here, of course, is that the Department did not prove that H.B. abused or neglected her deceased child, S.P. The Department proved only that H.B. had been arrested and accused of neglecting S.P. Generally speaking, the law does not recognize an arrest alone, without subsequent conviction, as probative evidence of wrongdoing. See, e.g., David v. City of Jacksonville, 534 So.2d 784, 787 (Fla. 1st DCA 1988) (“‘Arrest, without more, does not, in law any more than in reason, impeach the integrity of a witness.’ Harmon v. State, 394 So.2d 121, 125 (Fla. 1st DCA 1980).”); Hines v. State, 358 So.2d 183, 185 (Fla.1978) (“The Florida Statutes do not authorize, nor would our constitution permit, a permanent revocation of probation based solely upon proof of an arrest during the probationary period.”).

The Department was required to establish more than probable cause that H.B. had abused or neglected a child; it was required to establish by a preponderance of the evidence that H.B. had abused or neglected S.P. and that J.E.B. was now at substantial risk of imminent abuse or neglect. Thus, the Department was required to produce evidence apart from the arrest itself that H.B. had abused or neglected S.P. We note that this burden is not insurmountable. Presumably, if the State was prepared to prove the criminal offense against H.B. beyond a reasonable doubt, the Department should have had the necessary evidence to substantiate its allegations in the dependency case.

Without any evidence that H.B. abused or neglected S.P. or that she posed any individual threat to J.E.B., the adjudication of dependency cannot stand. We therefore reverse and remand for further proceedings. On remand, if the Department can provide sufficient proof regarding J.E.B.’s dependency as to H.B., it should be permitted to do so.

Reversed and remanded for further proceedings.

VILLANTI, J., and GREEN, OLIVER L., Senior Judge, Concur.

      . Counsel for the Department did not pursue questioning H.B. once H.B. indicated that she would invoke her Fifth Amendment privilege. Thus we need not address whether the invocation of the privilege as to specific questions may be treated as an inference that H.B.'s responses would have incriminated her. See, e.g., Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) ("[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them[.]”). We note that counsel for the guardian ad litem briefly suggested that the adjudicatory hearing be continued until the criminal charge was tried and indicated that the criminal trial was scheduled for the near future. That suggestion was disregarded, however, and no party pursued that issue further. Such a continuance might have been advisable in this case. See, e.g., C.J. v. Dep’t of Children & Families, 756 So.2d 1108, 1110 n. 1 (Fla. 3d DCA 2000).

      . Although the Department did not present evidence at the adjudicatory hearing regarding the details of the charge of neglect, other documents in this record suggest that the charges against H.B. are not based upon an allegation that she inflicted the injury on the child, but instead on an allegation that she did not seek timely medical attention for the injury.

      . This result effectively placed the infant in the legal custody of the father, L.B., requiring the separation of the parents while the dependency continued as to H.B. The record suggests that L.B. chose to leave the child in the home of the maternal grandmother.


source: Caselaw Access Project

author: LEVY, DAVID L., Associate Senior Judge.

license: Public Domain

text:
    Joseph Rudolph RUSCHIWAL, Appellant, v. Kathleen Patricia RUSCHIWAL, Appellee.
    No. 2D07-439.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 2007.
    Kathy B. Gregg, Wauchula, for Appellant.

      Mark A. Sessums of Frost, Tamayo, Sessums & Aranda, PA., Bartow, for Ap-pellee.
   LEVY, DAVID L., Associate Senior Judge.

Joseph Ruschiwal (former husband) appeals the trial court’s award of permanent alimony and an award of retroactive alimony to Kathleen Ruschiwal (former wife). We affirm the trial court’s alimony awards but remand for modification of its final judgment based on the parties’ stipulations here.

In its final judgment, the trial court stated that the former husband “is entitled to a credit for one-half of each mortgage payment that he has made during the time from the separation until the date of this order.” However, at the conclusion of the evidentiary portion of the trial, the trial court stated on the record that the former husband “should be entitled to a credit for one-half of each mortgage payment that he has made during the time from the time of their separation until the date of the sale.” The former wife has stipulated that the trial court’s oral pronouncement is correct and that the final judgment is not correct. On review of the record, we agree that the trial court erred by not conforming its final judgment to the oral pronouncement. See Gallardo v. Gallardo, 593 So.2d 522 (Fla. 3d DCA 1991).

The former husband, citing Millen v. Millen, 658 So.2d 613 (Fla. 2d DCA 1995), argued that having placed the parties in the same relative financial position, it was error to require him to pay one-third of the former wife’s attorney’s fees. The former wife has stipulated that it was error for the trial court to have awarded her attorney’s fees. We agree.

Accordingly, we remand for the trial court to modify its final judgment in eon-formity with this decision and affirm in all other respects.

Affirmed in part, reversed in part, and remanded.

CANADY and LaROSE, JJ., concur.


author: BROWNING, C.J.

text:
    Erin SMITH n/k/a Erin A. Keller, Appellant, v. Andre C. SMITH, Appellee.
    No. 1D07-0660.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.

      John J. Uskert, Fishers, Indiana, for Appellant.
    Andre C. Smith, pro se, for Appellee.
   BROWNING, C.J.

The former wife, Erin Smith, n/k/a Erin A. Keller, appeals an amended final judgment on reserved issues to the extent that the trial court 1) classified the marital residence that she shared with the former husband, Andre C. Smith, and the children as a “nonmarital asset” not subject to an equitable distribution; 2) denied her lump-sum alimony and an equitable distribution of the marital home; and 3) awarded the parties shared parental responsibility. We reverse those portions of the amended final judgment classifying the marital residence as a nonmarital asset and awarding shared parental responsibility, and remand with instructions to the trial court to make specific findings of fact explaining its classification of the marital residence and the logistics of shared parental responsibility under the particular circumstances existing between the parties (Former Husband is presently serving a term of incarceration). We affirm the amended final judgment in all other respects.

Classification of the Marital Residence at 806 J.R. Arnold Court

Certain testimony relating to the marital residence in Panama City Beach is essentially undisputed. The parties married (November 16, 2003). The final closing on this property, occurred eleven months after the parties’ marriage, although negotiations and contracting occurred pre-marriage. The Warranty Deed, dated October 10, 2003, shows that this property is deeded to Former Husband. After the marriage, such property was encumbered by two mortgages signed by both parties. After Former Husband’s incarceration, the marital residence went into foreclosure, and the record does not disclose the status of the home since the June 2006 final hearing.

In the dissolution of marriage proceedings, Former Husband claimed the marital residence was his separate, nonmarital property. Former Wife asked the trial court to award Former Husband’s share of the marital residence to her as lump-sum alimony. See Simpson v. Simpson, 678 So.2d 882 (Fla. 3d DCA 1996) (affirming award of marital residence to former wife as lump-sum alimony). Her acknowledgment that Former Husband’s name is on the title, and that he paid the mortgage and other major expenses relating to the residence during the marriage, while she cared for the parties’ son (as well as Former Husband’s five children from a previous marriage), does not necessarily compel a finding that the home is Former Husband’s nonmarital asset. See Sigmund v. Elder, 631 So.2d 329, 331 (Fla. 1st DCA 1994) (noting that “the title to property is not always determinative of whether the property is a marital asset for equitable distribution purposes”).

Under the equitable distribution statute, a marital asset is, inter alia, an asset “acquired ... during the marriage, individually by either spouse or jointly by them,” and “[t]he enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both;” ... § 61.075(5)(a)l-2., Fla. Stat. (2005). As the spouse trying to show that the marital residence acquired during the marriage is a nonmarital asset, Former Husband had the burden of proof. See Robertson v. Robertson, 593 So.2d 491, 494 (Fla.1991); Deas v. Deas, 592 So.2d 1221, 1222 (Fla. 1st DCA 1992). Notwithstanding the fact that Former Husband took title in his name only, other factors surrounding the execution of key documents relating to the acquisition of (and financial responsibility for) the marital residence after the parties married indicate that the home is, indeed, a marital asset. See Holmes v. Holmes, 613 So.2d 511, 513 (Fla. 3d DCA 1993) (concluding that the marital home was a “marital asset” divisible upon the dissolution of the parties’ marriage, although the down payment was provided entirely by former wife, who had title in her name only, where the closing for purchase of the residence occurred several days after the parties married); Deas, 592 So.2d at 1222 (concluding that the trial court abused its discretion in treating debts incurred during the marriage as the former husband’s personal, nonmarital liabilities, for the mere fact that the former wife was unaware of debts was insufficient to meet burden of proof required pursuant to the equitable distribution statute to demonstrate the debts were not “marital liabilities”).

The trial court’s initial task of identifying marital assets and liabilities and distributing them equitably involves considering the evidence and making findings. The equitable distribution statute contemplates that the trial court will make adequate findings of fact to explain and justify its rulings. See § 61.075(3), Fla. Stat. (2005); Williams v. Williams, 923 So.2d 606 (Fla. 2d DCA 2006). We review such findings for an abuse of discretion. See Steele v. Steele, 945 So.2d 601, 602 (Fla. 4th DCA 2006). We have de novo review over the trial court’s ultimate legal conclusion as to whether an asset or liability is “marital” or “nonmarital,” as defined in the statute. See Buxton v. Buxton, 963 So.2d 950, 953 (Fla. 2d DCA 2007); Williams v. Williams, 935 So.2d 54, 55 (Fla. 1st DCA 2006).

The amended final judgment states merely that the marital home is a nonmari-tal asset that Former Husband is entitled to keep as his own residence, with Former Wife having “no further rights or responsibilities regarding this asset.” The absence of any explanation or justification for this ruling, and the lack of any readily apparent reason from the record, compel us to reverse this part of the amended final judgment and remand for specific findings consistent with the requirements of the equitable distribution statute. Cf. Vaughn v. Vaughn, 714 So.2d 632 (Fla. 1st DCA 1998) (concluding that trial court’s failure to make specific findings of fact was harmless error, where reason for unequal distribution of parties’ debt was readily apparent from record) and Embry v. Embry, 650 So.2d 190, 191-92 (Fla. 2d DCA 1995) (reversing award of marital home to former wife as equitable distribution and in lieu of child support arrearage, interest in former husband’s retirement, and contribution toward fees and costs, absent any findings of fact demonstrating home was “marital asset” subject to equitable distribution).

Award of Shared Parental Responsibility

The trial court designated Former Wife as the primary custodial parent of the parties’ son, who was born in May 2003. Former Husband, who is a convicted felon and was incarcerated at the time of the dissolution proceedings, is to have secondary residential responsibility, including reasonable supervised visitation after proper notice. The amended judgment provided that supervision of visitation (by the paternal grandparents) would terminate upon verification by a licensed mental-health counselor or psychologist that Former Husband no longer needs ongoing counseling. Both parties are to have shared parental responsibility for the child.

Initially, Former Wife argues that the trial court erred as a matter of law in awarding shared parental responsibility, where entitlement to such relief was not alleged, requested, or proved by Former Husband. See Fla. R. Civ. P. 1.110(b) (requiring a pleading that sets forth a claim for relief to state a cause of action and to contain a short, plain statement of ultimate facts showing the pleader is entitled to relief and a demand for judgment for the relief to which the pleader allegedly is entitled); Moore v. Trevino, 612 So.2d 604, 606 (Fla. 4th DCA 1992); Rhodes v. Wall, 514 So.2d 437, 438 (Fla. 4th DCA 1987) (reversing award of shared parental responsibility, where former husband never sought it in his pleadings); Freeman v. Freeman, 447 So.2d 963 (Fla. 1st DCA 1984).

However, in the original final judgment, the court had expressly and specifically reserved jurisdiction of the parties and subject-matter jurisdiction of listed issues, including shared parental responsibility. Moreover, although Former Husband did not initially seek shared parental responsibility, we note that issues not raised by the pleadings nevertheless can be tried by express or implied consent and, in such instances, may be treated by the trial court as if they had been properly pled. See Fla. R. Civ. P. 1.190(b); Hemraj v. Hemraj, 620 So.2d 1300, 1301 (Fla. 4th DCA 1993) (finding alimony issue was tried by implied consent in dissolution action, despite absence of pleadings specifically demanding alimony, where former wife’s pretrial statement listed alimony as a disputed issue to be tried, former husband did not object to that portion of the statement, and alimony issue was argued in opening and closing statements); Shrine v. Shrine, 429 So.2d 765, 767 (Fla. 1st DCA 1983). “The essence of the broad test generally applied to determine whether an issue has been tried by implied consent is whether the party opposing introduction of the issue into the case would be unfairly prejudiced thereby.” Smith v. Mogelvang, 432 So.2d 119, 122 (Fla. 2d DCA 1983). An unpled issue is deemed tried, or not tried, by implied consent depending on whether “the opposing party had a fair opportunity to defend against the issue and ... could have offered additional evidence on that issue if it had been pleaded.” Id.; Dey v. Dey, 838 So.2d 626, 627 (Fla. 1st DCA 2003). Inasmuch as it is Former Wife’s attorney who raised the issue of shared parental responsibility at the final hearing and questioned his client about this subject, Former Wife cannot reasonably claim prejudice from the trial court’s consideration of this issue. Therefore, we conclude that this issue was tried by implied consent. See Bryan v. Bryan, 765 So.2d 829, 830-31 (Fla. 1st DCA 2000).

Addressing the merits, we review the trial court’s award of shared parental responsibility for an abuse of discretion and look to see whether competent substantial evidence supports the award. See Witt v. Goben, 940 So.2d 526 (Fla. 1st DCA 2006). The pertinent statute provides:

“Shared parental responsibility” means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly.

§ 61.046(15), Fla. Stat. (2005). This relationship contemplates that the parties will mutually confer on major decisions (e.g., medical, religious, educational) affecting the child’s welfare and will reach agreement. See Sotnick v. Sotnick, 650 So.2d 157, 159 (Fla. 3d DCA 1995); Kuharcik v. Kuharcik, 629 So.2d 224 (Fla. 4th DCA 1993). “The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.” § 61.13(2)(b)2., Fla. Stat. (2005).

Former Husband has a history of problems with alcohol abuse, criminal conduct involving a deadly weapon, severe depression, and anger management involving threats of bodily harm to Former Wife and himself. With these particular circumstances in mind, we are unable to conduct a meaningful review of the trial court’s award of shared parental responsibility. The court made no findings of fact addressing the vexing problem of communications between the parties or the possible detriment to the child that might arise from shared parental responsibility, nor did the court present a viable, rational decision-making plan for the parties. Cf. Schneider v. Schneider, 864 So.2d 1193, 1194-95 (Fla. 4th DCA 2004) (affirming trial court’s sensible, “rational decision-making plan” in the event the parties with a history of hostile relations failed to agree about three key aspects of children’s lives, and acknowledging trial court’s authority to invest former wife with ultimate authority over specific aspects of the child’s welfare pursuant to section 61.13(2)(b)2.a.). On appeal, Former Wife asserts a litany of reasons why we should direct the trial court to reverse Former Husband’s shared parental responsibility without further recourse. As it is the duty of the family division court to assess credibility and to weigh the evidence in this case, we decline the invitation to “make value judgments that are appropriate for the trial court judge.” Vivian v. Schembari, 966 So.2d 492, 492 (Fla. 4th DCA 2007). Accordingly, we reverse the award of shared parental responsibility and remand with instructions to the trial court to make specific factual findings justifying Former Husband’s inclusion in major decision-making concerning the parties’ child. In section 61.13(3)(a)-(m), Florida Statutes (2005), the Florida Legislature has set out a nonexclusive list of factors to be considered by the trial court in evaluating the child’s best interests and determining whether shared parental responsibility is appropriate.

For all these reasons, we REVERSE those portions of the amended final judgment classifying the marital residence as a nonmarital asset and awarding shared parental responsibility, REMAND with instructions to the trial court to make specific findings explaining these rulings, and AFFIRM the judgment in all other respects. We note that section 61.075(l)(j), Florida Statutes (2005), allows the trial court to consider “[a]ny other factors necessary to do equity and justice between the parties” in fashioning an equitable distribution.

DAVIS and POLSTON, JJ., concur.


author: THOMAS, J.

text:
    Henry L. BENNETT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4441.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals his convictions for attempted sexual battery, sexual battery, and lewd and lascivious molestation, asserting that the trial court reversibly erred in finding the child victim, N.D.D., competent to testify and that it erred in imposing sentence based on double jeopardy violations and improper assessment of victim injury points. We affirm the trial court’s rulings in all respects.

We begin by summarizing the relevant facts, emphasizing the competency proceedings conducted here which included an examination of N.D.D.,' the defense expert’s testimony regarding her competency, and the trial court’s ruling finding her competent to testify. We also review the relevant trial testimony and the State’s closing argument. We first address Appellant’s argument challenging the trial court’s ruling on competency and then his two arguments challenging his sentence.

Facts

Appellant was charged with one count of sexual battery by vaginal penetration or union with Appellant’s penis between June 1, 2004 and June 18, 2005; one count of sexual battery by digital penetration; and two counts of lewd and lascivious molestation based on unlawful and intentional touching of N.D.D.’s breasts, genitals, or buttocks.

Competency Examination of N.D.D.

On the morning of trial, the court conducted a competency examination to determine N.D.D.’s competence to testify. N.D.D. testified that she was 12 years old and identified the middle school she attended, her favorite subject and her favorite books. She testified about what she did yesterday and told the court what she received as gifts last Christmas. She said she knew the importance of telling the truth; that telling the truth is “good” while telling a lie is “bad.” She correctly answered a question regarding color and promised to “tell only what really happened.”

The trial court correctly concluded that it needed to determine whether N.D.D. understood her duty to tell the truth. Appellant’s counsel attempted to ask N.D.D. several questions regarding the importance of telling the truth in court and what “might happen” if she lied in court versus lying somewhere else, such as at home. N.D.D. seemed confused by counsel’s questions, so the court attempted to simplify them, asking, ‘What happens if you tell a lie, in general?” N.D.D. said, “I don’t know. You tell the truth.” Additionally, N.D.D. could not answer counsel’s question regarding what would happen if she told her mother a lie and her mother found out.

The court later asked N.D.D., ‘Would [you] ever tell your teacher a lie?” N.D.D. answered no and promised the court she would tell the truth. The court inquired about whether N.D.D. knew why she was in court; after replying no, the court asked, “Did some things happen to you that these ladies want to ask you about some things that happened to you a while back?” When N.D.D. answered yes, the court asked if she was going to tell the truth or a lie when she testified; N.D.D. answered, “Truth.”

The court further inquired whether anyone told her to “say something that was a lie?” She answered, “No.” The court asked, “If you tell us what happened, do you understand that you need to tell us nothing but the truth?” She answered, “Yes.”

Appellant’s counsel asked N.D.D. if anyone told her what to say, and she replied that she was told, “Tell the truth.” When asked if anyone told her “not to say something happened when it really happened,” she answered, “No.”

The court asked N.D.D. if “anyone [told] her to say something that was not true? Did anyone tell you to say something that was a lie?” She answered no, but also answered “good” when asked if “someone told you [to say something that was not true], would that be a good thing or a bad thing?”

Dr. James Larson, an expert witness who reviewed N.D.D.’s pretrial deposition and watched her in court, testified that N.D.D. does not have a mental age of 12 years. In his opinion, she has “significant expressive and receptive language impairments” and some of her answers were irrelevant, incorrect, or not responsive. Dr. Larson noted that she could not describe the difference between telling the truth in court or at home and gave inconsistent answers regarding the number of sex acts Appellant allegedly committed. In noting that N.D.D. answered yes when the court asked, “Do you mind if I ask you some questions,” Dr. Larson concluded that she felt pressure to cooperate and obtain approval.

Dr. Larson admitted that he had heard adults incorrectly answer a “do you mind” question. He also acknowledged that N.D.D. may have thought the question regarding the number of sex acts referred to the number of acts on a particular day, not the total number of acts. Dr. Larson noted that many child witnesses have deficiencies, recognizing that N.D.D. did better in court than during her deposition, and agreed that a person could be mentally impaired or deficient and still be competent to testify.

The trial court ruled N.D.D. was competent to testify, finding that she understood her responsibility to tell the truth; the difference between a truth and a lie; why she was testifying; and that she had the ability to recollect and understand facts about which she would testify. The court noted that it was satisfied that N.D.D. could communicate and respond to properly framed questions and that many of Appellant’s arguments related to the weight and credibility her testimony should receive, rather than to its admissibility.

Trial Testimony

At trial, a family friend testified that she picked up N.D.D. from Appellant’s home on June 17, 2005, to go to church. N.D.D. looked shocked to see her, was wearing revealing clothes, her hair was scattered, and she had a white substance around her mouth. When they arrived at church, N.D.D.’s cousin told the friend to take N.D.D. home. The cousin later took her to the hospital for an examination and overheard N.D.D. say Appellant touched her and “put his thing in her,” and she did not like it.

Appellant’s cousin, N.D.D.’s current guardian, testified that N.D.D. has a learning disability and speaks slower than average.

N.D.D. testified that she was born May 23, 1994, and lives with her cousin. She testified that she went to Appellant’s home after school and that while on his bed, Appellant frequently rubbed her vagina and breasts with his fingers, kissed her breasts, and touched her vagina with his penis. She testified that Appellant told her he would make a woman out of her, but not to tell anyone.

The Child Protection Team case coordinator testified that N.D.D. said Appellant touched her breasts and vaginal areas with his hand and penis.

Patrick Murray, M.D., a pediatrician, examined N.D.D., finding secretions on her pubic hair, but no evidence of injury or tissue trauma. N.D.D. did not report any sexual penetration to him, but Dr. Murray testified that she might not be able to describe the difference between “on” and “in” due to her mild developmental delays.

Detective Brian Jones testified that he went to the hospital on June 18, 2005, to investigate N.D.D’s allegations. He later interviewed Appellant at the police station where Appellant voluntarily gave a statement.

A second audiotaped interview conducted on June 22, 2006, was played for the jury. During this interview, Appellant said N.D.D. persuaded him to touch her vagina. Appellant denied digitally penetrating her on June 17, but admitted that he had done this once or twice before and admitted touching her vagina four times over the previous year. He regretted it happened and admitted he knew better.

At trial, Appellant testified that N.D.D. visited him on June 17, 2005. Her hair was unkempt when she arrived. She ate a piece of cake and asked Appellant to touch her, but he would not, saying she was too young. Appellant denied telling N.D.D. that he wanted “to make a woman out of her,” stating that he told her he wanted to “make a lady out of her.”

Appellant testified that he thought that by admitting to touching N.D.D.’s genitals during the audiotaped interview he was admitting to simple battery and would therefore be able to bond himself out that day. He denied ever touching N.D.D.’s breasts or having sexual intercourse with her. He testified that he suffered from sexual dysfunction, which his physician confirmed at trial.

State’s Closing Argument, Jury Verdict and Sentence

In its closing argument, the State argued that sexual battery, as charged in Count I, could be proven with evidence showing any contact or union between Appellant’s penis and N.D.D’s vagina, and that penetration was not required. The State acknowledged that sexual battery by digital penetration, as charged in Count II, must be proven by penetration.

The jury found Appellant guilty of the lesser-included offense of attempted sexual battery in Count I; guilty of sexual battery, as charged in Count II; and guilty of lewd and lascivious molestation, as charged in Counts III and IV. The trial court sentenced Appellant to 225 months’ imprisonment on Count I; life imprisonment on Count II; and five years’ imprisonment on Counts III and IV.

Appellant filed a motion pursuant to rule 8.800(b)(2), Florida Rules of Criminal Procedure, arguing that his dual convictions and sentences for Counts II and III violate double jeopardy, as they were based on the same act. Appellant also argued that his conviction on Count IV was based on the same episode as his conviction on Count I, thus it violates double jeopardy. Appellant further argued that he should be resentenced on Count I, as the trial court improperly assessed victim injury points for sexual contact when the jury made no specific findings of sexual contact, and a conviction for attempted sexual battery does not necessarily require sexual contact. The trial court denied Appellant’s motion.

Analysis

I. Competency to Testify

We review the trial court’s ruling finding N.D.D. competent to testify under an abuse of discretion standard. Griffin v. State, 526 So.2d 752, 753 (Fla. 1st DCA 1988).

The competence of a child witness is based on intelligence, not age, and whether the child possesses a sense of the obligation to tell the truth. Lloyd v. State, 524 So.2d 396, 400 (Fla.1988). When ruling on a child’s competency to testify, “the trial court should consider (1) whether the child is capable of observing and recollecting facts, (2) whether the child is capable of narrating those facts to the court or to a jury, and (3) whether the child has a moral sense of the obligation to tell the truth.” Griffin, 526 So.2d at 753 (citations omitted). Factors to consider in reviewing the trial court’s decision on a child’s competency to testify include the entire context of her testimony and whether her testimony is corroborated by other evidence. See Lloyd, 524 So.2d at 400 (noting that most of the critical facts supplied by the child’s testimony were either unrefuted or corroborated by other witnesses).

Appellant argues, citing Black v. State, 864 So.2d 464 (Fla. 1st DCA 2003), that the trial court erred by finding N.D.D. competent to testify because the trial court’s cursory questions inadequately demonstrated her competency. Additionally, Appellant analogizes the competency evaluation conducted here to those conducted in Griffin and Seccia v. State, 689 So.2d 354 (Fla. 1st DCA 1997). In Black, Griffin and Seccia, this court reversed the appellants’ convictions, finding that the trial courts had erred by permitting the child witnesses to testify.

In Black, the four-year-old witness said it was “good” to tell a lie. 864 So.2d at 466. Further, the trial court’s cursory questions did not demonstrate that the child could recollect facts, narrate those facts, or that she had the “moral sense of the obligation to tell the truth.” Id. at 465-66.

In Seccia, the six-year-old child witness could not remember what she received for Christmas less than two months earlier. 689 So.2d at 355-56. She could not state where she went to church, even though she admitted often attending. Id. at 355. She did not know why it was important to tell the truth. Id. at 356.

In Griffin, the trial court did not examine the child witness, who underwent a de minimus competency evaluation before a deposition. 526 So.2d at 755. Most significantly, the child “was not unequivocally capable of separating fact from fantasy.” Id. In response to the question about what would happen if she lied to her mother, the child said she would be sent to her room, but not punished. Id. Further, no evidence corroborated her testimony. Id. This court explained that corroborating evidence, while not a prerequisite to a child witness’s testimony, was especially important here, as it was not clear the child could accurately recite the facts. Id. at 755-56.

Unlike the situation in Black, the court here extensively questioned N.D.D. N.D.D. demonstrated her intelligence, accurately recounting facts about her life, including Christmas presents received and school, unlike the child in Seccia. Significant corroboration of N.D.D.’s testimony exists: most importantly, Appellant’s admission that he touched N.D.D.’s vagina; the family friend’s testimony regarding N.D.D.’s physical condition when she picked N.D.D. up from Appellant’s home; the Child Protection Team case coordinator’s testimony; and Appellant’s cousin’s testimony. This corroboration significantly distinguishes the situation here from that in Griffin. Additionally, N.D.D. was capable of separating fact from fantasy and knew it was bad to tell a lie, unlike the child witness in Griffin.

The situation here is more analogous to the situation in Baker v. State, 674 So.2d 199 (Fla. 4th DCA 1996), where the Fourth District affirmed the appellant’s conviction, finding the child witness competent. The Fourth District reasoned that the child knew her age, where she went to school and church, and could identify the color of clothing. Id. at 200. She possessed a sense of obligation to tell the truth, as she knew it was wrong to he and that people get into trouble for lying. Id. Additionally, she agreed to answer questions as truthfully as possible. Id. at 200-01.

Similarly, N.D.D. met the requirements for testifying in court. She was capable of observing and recollecting facts and narrating those facts to the court, as she testified about school, her Christmas gifts, her birthday and age. Further, as the trial court recognized, she possessed a moral sense of the obligation to tell the truth because she knew it was wrong to lie, thought something bad would happen if she lied, and promised not to lie. Therefore, we find no abuse of discretion in the trial court’s ruling finding N.D.D. competent to testify.

II. Sentencing Issues

A. Double Jeopardy

Appellant argues that the trial court erred in imposing sentence because his dual convictions and sentences for Counts II and III and his convictions and sentences on Counts I and IV were each based on the same episode, thus violating double jeopardy. We review this issue de novo, concluding that no double jeopardy violation occurred. State v. Paul, 934 So.2d 1167, 1171 (Fla.2006).

In Alonso v. State, 834 So.2d 885 (Fla. 3d DCA 2002), the Third District held that multiple convictions based on distinctly charged acts occurring at different times, which are supported by competent, substantial evidence, do not violate double jeopardy. In Saavedra v. State, this court said, “The sexual battery statute may be violated in multiple, alternative ways.... However, the fact that the same victim is sexually battered in the same manner more than once in a criminal episode by the same defendant does not conclusively prohibit multiple punishments.” 576 So.2d 953 (Fla. 1st DCA 1991) (internal citations omitted).

As in Alonso, the record here demonstrates that multiple offenses occurred, including several incidents of digital penetration and touching of N.D.D.’s vagina, coupled with incidents of kissing and fondling her breasts, occurring throughout a one-year period. N.D.D. testified that Appellant rubbed her vagina “a lot” of times and touched and kissed her breasts. Appellant admitted touching her vagina four times and digitally penetrating her once or twice. This case does not involve a single criminal episode or a lack of evidence to support multiple convictions and sentences; therefore, no double jeopardy violation occurred.

B. Victim-Injury Points Assessed For Sexual Contact

Appellant also argues that the trial court erred in assessing 40 victim-injury points for attempted sexual battery, because the jury did not specifically find that he had sexual contact with N.D.D. in committing this offense. A trial court’s order scoring victim injury points is reviewed for an abuse of discretion. McDonald v. State, 520 So.2d 668 (Fla. 1st DCA 1988).

The trial court calculated a 120-point score for sexual contact based on Appellant’s conviction of attempted sexual battery and two counts of lewd and lascivious molestation. The State argues that the nature of the attempted sexual battery offense required it to prove that Appellant had some type of sexual contact with N.D.D.

In Grant v. State, 783 So.2d 1120 (Fla. 1st DCA 2001), this court held that the trial court erred in assessing sexual contact points based on a jury verdict of attempted lewd and lascivious molestation, reasoning that the jury could have found the appellant attempted to touch the victim, but failed, as it convicted the appellant of only an attempt. In Luhrsen v. State, 702 So.2d 596 (Fla. 2d DCA 1997), the Second District reversed the appellant’s sentence where the trial court scored victim injury points for sexual penetration, because the appellant was only charged with lewd and lascivious acts without committing sexual battery. However, in Marcado v. State, 735 So.2d 556 (Fla. 3d DCA 1999), the Second District held that the trial court correctly scored 40 points for sexual contact when the appellant was convicted of attempted sexual battery. Similarly, in Vural v. State, 717 So.2d 65 (Fla. 3d DCA 1998), the Third District held that the trial court erred by not imposing points for sexual contact where the appellant was convicted of attempted sexual battery because he attempted to force the victim to perform oral sex, but only succeeded in forcing the victim to handle and masturbate him.

Here, Appellant was charged with sexual battery based on sexual penetration or union with his penis. The jury heard evidence that Appellant put his penis in contact with N.D.D.’s vagina. While Appellant denied any sexual intercourse with N.D.D., he admitted digitally penetrating her once or twice and touching her vagina. Clearly the jury found that Appellant somehow put his penis in contact with N.D.D.’s vagina, as otherwise it could not have convicted him of attempted sexual battery. See Marcado, 735 So.2d at 557-58. The trial court scored points for sexual contact, consistent with N.D.D.’s and Appellant’s testimony and the jury’s finding that Appellant somehow put his penis in contact with N.D.D.’s vagina. Accordingly, we find the trial court did not abuse its discretion in assessing 40 victim injury points based on sexual contact.

We find Appellant’s argument based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is without merit, as the assessment of 40 points for sexual contact did not increase Appellant’s sentence beyond the statutory maximum of 30 years’ imprisonment because the trial court only sentenced Appellant to 225 months’ imprisonment.

Because the court did not err in finding N.D.D. competent to testify or err in sentencing Appellant, we affirm his conviction and sentence.

AFFIRMED.

VAN NORTWICK and LEWIS, JJ., concur.


author: PER CURIAM.

text:
    John M. ESPOSITO, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-2502.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2007.

      John M. Esposito, pro se, Petitioner.
    Bill McCollum, Attorney General, and Joe Belitzky, Senior Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

John M. Esposito petitions this court for a writ of certiorari, seeking review of an order of the circuit court which denied his petition for writ of mandamus. That petition challenged the imposition of a disciplinary sanction imposed against him by the Department of Corrections. Petitioner was found guilty after a hearing of attempting to conspire with his wife to introduce contraband, a wrist watch, into a prison facility. The disciplinary report was based upon monitored phone calls and was supported by the fact that Esposito was later found to be wearing a watch such as the one described in those calls. Petitioner argues that the person who listened to the phone calls misunderstood his conversations with his wife and that logs which reflected the results of strip searches before and after his wife’s visits following those calls would show that the watch was already in his possession before she visited. Petitioner argues that his requests for copies of those inventories were ignored, resulting in violations of the Department’s own rules and his right to due process under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). We agree. See Gill v. Crosby, 884 So.2d 442 (Fla. 1st DCA 2004); Plymel v. Moore, 770 So.2d 242 (Fla. 1st DCA 2000); Dep’t of Corr. v. Marshall, 618 So.2d 777 (Fla. 1st DCA 1993). The right to present documentary evidence was expressly identified in Wolff as one of the rights of an inmate in a disciplinary proceeding. By denying relief, the circuit court allowed to stand an action of the Department which was the result of a proceeding where due process was denied. Issuance of the writ of certiorari is therefore appropriate. White v. Moore, 789 So.2d 1118 (Fla. 1st DCA 2001). We therefore GRANT the petition for writ of certiorari, QUASH the order of the circuit court, and REMAND with instructions to issue the writ of mandamus.

PETITION GRANTED.

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


text:
    Jody BRUMIT, Petitioner, v. STATE of Florida, Respondent.
    No. 4D06-4999.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2007.
    Jason T. Forman of Law Offices of Jason T. Foreman, P.A., Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Jody Brumit (Defendant) appealed an order summarily denying her motion to vacate sentence, filed pursuant to rule 3.800(a) and/or rule 3.850, Florida Rules of Criminal Procedure, and the order denying her motion for rehearing. Her motion actually challenged her conviction, rather than her sentence. Although she was out of time to appeal her conviction or to file a timely rule 3.850 motion, her ground was that she should be treated the same as her similarly situated co-defendant. This court redesignated the case as a petition for writ of habeas corpus, treated her initial brief as the petition, and issued an order to show cause. We now grant the petition.

Defendant was charged, along with co-defendant Ronald Festa (Festa), with one count of aggravated child abuse in violation of section 827.03(2)(b), alleged to have occurred on June 18, 2000. At their jury trial, neither side asked to have the jury instructed on any lesser included offenses, and the jury was instructed to find the defendants either guilty of aggravated child abuse as charged, or not guilty. Both were found guilty as charged.

This court reversed Defendant’s direct appeal, finding the trial court erred in denying her motion for judgment of acquittal because there was insufficient evidence as a matter of law to support her conviction for aggravated child abuse. It directed the trial court on remand to enter judgment for child abuse under section 827.03(1). Brumit v. State, 843 So.2d 978 (Fla. 4th DCA 2003). On June 13, 2003, the trial court vacated the prior judgment and sentence, and resentenced Defendant to four years of probation for the offense of child abuse. No direct appeal was taken from the new conviction and sentence, and Defendant’s probation was terminated by order dated December 14, 2005.

Festa raised the same issue on direct appeal, as well as whether the trial court’s error — in precluding him from discovering the victim’s medical and mental health records and introducing testimony about the victim’s propensity for violence — prevented him from confronting the victim and presenting his only defense. This court found Festa’s appeal meritorious on both points. It reversed and remanded for a new trial because of the discovery error, but it held that he could be retried for no more than child abuse because, as this court already had found in Defendant’s appeal, the evidence was insufficient for the charge of aggravated child abuse. Festa v. State, 901 So.2d 1026 (Fla. 4th DCA 2005) (Festal).

On remand, the state charged Festa with child abuse and he moved to dismiss, explaining that the permissive lesser offense of child abuse was not submitted to the jury at his trial, because neither he nor the state requested instruction on a lesser included offense; he had elected the “all or nothing” strategy in hopes of an acquittal. In light of the fact that the jury was not instructed on the lesser included offense of child abuse, he argued that the state was now precluded from trying him for that related offense pursuant to Florida Rule of Criminal Procedure 3.151. The trial court denied the motion to dismiss, Festa filed a petition for writ of prohibition in this court, and this court granted the petition, holding that, because the jury was not instructed on the lesser included offense of simple child abuse at the original trial, retrying him for simple child abuse would violate his right to be protected from double jeopardy. Festa v. State, 927 So.2d 1049 (Fla. 4th DCA 2006) (Festa II).

In the opinion granting the petition, this court addressed Defendant’s case in a footnote that reads as follows:

On the co-defendant’s appeal, another panel held that the evidence was not sufficient to support the charge and reversed. Brumit v. State, 843 So.2d 978 (Fla. 4th DCA 2003). Unlike the present case, however, that panel directed the trial court to enter judgment on the lesser included offense of child abuse, relying on a statute. See § 924.34, Fla. Stat. (2005) (“When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.”). In Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004), we held under similar circumstances that section 924.34 is no longer valid when a factual issue critical to the lesser included offense was not itself submitted to the jury at trial. Because we have no way of knowing from the record in this case whether the co-defendant also waived all instruction on lesser included offenses, we express no opinion as to whether, because of our disposition in this case, the outcome in the co-defendant’s case should be changed.

Id. at 1052 n. 5 (emphasis added).

Based on the emphasized language above, Defendant sought collateral relief in her own case, and this case originated as an appeal from the trial court’s denial of that relief. She argues that the “manifest injustice” doctrine should overcome the law of the case presented by this court’s prior opinion in her direct appeal, Zolache v. State, 687 So.2d 298 (Fla. 4th DCA 1997); Line v. State, 722 So.2d 853 (Fla. 4th DCA 1998); Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004), aff'd, 967 So.2d 835 (Fla.2007); Young v. State, 939 So.2d 263 (Fla. 4th DCA 2006), and she asserts entitlement to the same relief provided to her co-defendant, Festa, Laster v. State, 739 So.2d 150 (Fla. 1st DCA 1999) (holding that defendant was entitled to same relief on double jeopardy claim as that obtained by co-defendant who was jointly tried with defendant, though before a different jury).

Habeas corpus filed in the appellate court is the proper method for seeking relief when co-defendants’ appeals on the same issue are resolved differently. See, e.g., Raulerson v. State, 724 So.2d 641 (Fla. 4th DCA 1999); Romero v. State, 637 So.2d 7 (Fla. 4th DCA 1994); Zeno v. State, 910 So.2d 394 (Fla. 2d DCA 2005), disagreed with on other grounds by Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006), rev. granted, 956 So.2d 455 (Fla.2007).

The state concedes that the manifest injustice doctrine may apply to Defendant, who is similarly situated to Festa; its only argument to the contrary arises in the event the supreme court were to uphold the application of section 924.34, Florida Statutes.

Section 924.34 provides as follows:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

While this case was pending, the supreme court issued an opinion affirming this court’s opinion in Sigler. Sigler arose on direct appeal from a conviction for a lesser offense, entered in accordance with this court’s mandate from a prior appeal. There, this court considered, as a matter of grace, defendant’s argument that his conviction for third-degree felony murder as a lesser-included offense of second-degree murder was illegal, despite the contention that this court’s prior conclusion that the conviction was proper was the law of the case. The allegation of an illegal conviction was an exceptional circumstance warranting relaxation of the law of the case doctrine. 881 So.2d at 17. In State v. Sigler, 967 So.2d 835 (Fla.2007), the supreme court affirmed, holding that section 924.34, Florida Statutes, is unconstitutional to the extent it can be read to allow the appellate court to direct entry of judgment for a lesser included offense if not all the elements of the lesser have been found by a jury beyond a reasonable doubt.

That is the case here. Child abuse is a permissive, category 2, lesser included offense of aggravated child abuse. Festa II, 927 So.2d at 1050 (citing Fla. Std. Jury Instr. (Crim.) 16.1). By definition, a permissive lesser included offense contains at least one statutory element that is not included in the greater offense. Carrin v. State, 875 So.2d 719, 722 (Fla. 1st DCA 2004) (citing Nurse v. State, 658 So.2d 1074, 1077 (Fla. 3d DCA 1995)). The previous jury determination that Defendant was guilty of aggravated child abuse, i.e., that she “maliciously punished” the child, cannot be deemed to include a jury finding that she was guilty of every element of the permissive lesser included offense of child abuse. State v. Sigler, 967 So.2d at 839 (citing Sigler v. State, 881 So.2d 14, 20 (Fla. 4th DCA 2004) (citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004))).

Accordingly, we grant the petition and direct the trial court to vacate Defendant’s conviction.

GUNTHER, POLEN and GROSS, JJ., concur.

      . The jury instruction for child abuse under section 837.03(1), Florida Statutes (1999), is as follows:
      To prove the crime of Child Abuse, the State must prove the following two elements beyond a reasonable doubt:
      1. (Defendant) Give as applicable
      a. intentionally inflicted physical or mental injury upon (victim)
      b. committed an intentional act that could reasonably be expected to result in physical or mental injury to (victim)
      c. actively encouraged another person to commit an act that resulted in or could reasonably have been expected to result in physical or mental injury to (victim).
      2. (Victim) was under the age of 18 years. Fla. Std. Jury Instr. (Crim.) 16.3.

      . The jury instruction for aggravated child abuse under section 827.03(2), Florida Statutes (1999), is as follows:
      To prove the crime of aggravated child abuse, the State must prove the following two elements beyond a reasonable doubt:
      1. (Defendant) Give as applicable
      a. committed aggravated battery upon (victim)
      b. willfully tortured (victim)
      c. maliciously punished (victim)
      d. willfully and unlawfully caged (victim)
      e. knowingly or willfully committed child abuse upon (victim) and in so doing caused great bodily harm, permanent disability, or permanent disfigurement.
      2. (Victim) was under the age of 18 years. Fla. Std. Jury Instr. (Crim.) 16.1.
      In the instant case, the jury was asked to find Defendant (and Festa) guilty of aggravated child abuse only if it found they maliciously punished the child.


text:
    Antonio JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4473.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2007.

      Antonio Jackson, Immokalee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant here sought redress through a motion'pursuant to Florida Rule of Criminal Procedure 3.800. The motion requested a correction of jail time credit and gain time for a period spent in Bro-ward County Jail awaiting a hearing on a separate, pending motion under Florida Rule of Criminal Procedure 3.850 for post-conviction relief.

A motion to correct an illegal sentence is not the proper vehicle through which to challenge denial of credit for time served after sentencing. Moreland v. State, 700 So.2d 800 (Fla. 4th DCA 1997). Rather the Appellant must seek administrative remedies with the Department of Corrections to receive requested credit. Id. at 801. After exhausting such remedies, the Appellant may file a petition for writ of mandamus against the Department. Id. Therefore, we affirm without prejudice the denial of the requested credit for time served and gain time spent in Broward County Jail after sentencing.

GUNTHER, WARNER and MAY, JJ., concur.


text:
    Kurt SMITH, Petitioner, v. Chester LAMBDIN, Warden and James McDonough, Secretary of the Florida Department of Corrections, Respondents.
    No. 4D07-4244.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2007.

      Kurt Smith, Okeechobee, pro se.
    Bill McCollum, Attorney General, and Joe Belitzky, Senior Assistant Attorney General, Tallahassee, for respondents.
   PER CURIAM.

The petitioner, Kurt Smith, filed a petition for writ of mandamus on October 18, 2007, seeking to compel the circuit court to rule on an appeal which has been pending since October, 2006. The appeal was on a replevin complaint ruled upon adversely to the petitioner. The petitioner has made several inquiries into the status of his appeal and was informed that it was pending.

Mandamus lies to compel a trial court to rule on a ministerial matter after a reasonable period of time. See Lakeshore Townhomes Condo. Ass’n v. Bush, 664 So.2d 1170 (Fla. 4th DCA 1995). Here, it is unclear why the appeal has not yet been addressed. “While mandamus is not available to compel a judge to rule a particular way, it is appropriate to compel some ruling.” Id. at 1170.

As the petitioner’s appeal has been pending for now well over a year, we direct the circuit court to rule. However, because we are confident that the circuit court will comply with the directions in this opinion, we withhold issuance of the writ of mandamus.

GUNTHER, GROSS and MAY, JJ„ concur.


author: GRIFFIN, J.

text:
    Arvita M. BLAND, Appellant, v. Michael BLAND, Appellee.
    No. 5D07-431.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2007.

      Carlton Pierce, of Carlton Pierce, P.A., Orlando, for Appellant.
    Richard C. Mahler, of Law Office of Richard C. Mahler, P.A., for Appellee.
   GRIFFIN, J.

Arvita M. Bland [“Wife”] has appealed the trial court’s order dissolving her marriage to Michael Bland [“Husband”], resolving equitable distribution and personal property issues but reserving jurisdiction to hear evidence and determine Wife’s claim for alimony. Because this is not an appealable order, we lack jurisdiction of this appeal and dismiss it.

After a three-year marriage, Husband filed a Petition for Dissolution of Marriage on October 1, 2004, and Wife filed a Verified Counter-Petition for Dissolution of Marriage and Other Relief. In her counter-petition, Wife included a request for alimony. On April 5, 2006, a non-jury trial was held in the case. On December 7, 2006, the trial court entered a “Final Judgment of Dissolution of Marriage,” which dissolved the marriage, found that the real property was the sole non-marital property of Husband, restored Wife’s previous name, and equitably distributed the couple’s personal property. Additionally, the order included the following language:

5. WIFE’S CLAIM FOR ALIMONY. The Court retains specific jurisdiction for either party to present additional evidence and argument on the issue of the Wife’s claim for alimony.

On January 26, 2007, Wife appealed the trial court’s December 7, 2006 order, complaining that the findings contained in the trial court’s order were inadequate and that the trial court erred in its classification and distribution of the parties’ assets.

Florida Rule of Appellate Procedure 9.030(b)(1) provides that district courts of appeal have the authority to review appeals from “final orders of trial courts, not directly reviewable by the supreme court or a circuit court” and “non-final orders of circuit courts as prescribed by rule 9.130.” Partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. Fla. R.App. P. 9.110(k).

Here, despite its title, the appealed order is not a final judgment disposing of the entire case, nor is it an appealable non-final order specified in Rule 9.130(3). The issue remaining is whether the appealed order is a “partial final judgment.” For purposes of Rule 9.110(k), the term “partial final judgment” refers to orders that make a “final adjudication of a separate and distinct portion of a case” or “a judgment that ‘totally disposes of an entire case as to any party’ but not all of the parties in the case.” Philip J. Padovano, FLORIDA Appellate PRACTICE § 21.5 (2007 ed.); Shepardson v. Shepardson, 820 So.2d 360, 361 (Fla. 1st DCA 2002).

The case law indicates that an order that dissolves a marriage and reserves jurisdiction to determine all other issues is a partial final judgment for purposes of Rule 9.110(k). See Galbut v. Garfinkl, 340 So.2d 470 (Fla.1976); Shepardson, 820 So.2d at 361; Barnett v. Barnett, 743 So.2d 105 (Fla. 4th DCA 1999); but see Klein v. Klein, 551 So.2d 1235 (Fla. 3d DCA 1989). However, an order that dissolves a marriage and determines some issues but reserves jurisdiction as to other issues, is not a partial final judgment for the purposes of appeal. See Hoffman v. O’Connor, 802 So.2d 1197, 1197-98 (Fla. 1st DCA 2002) (Although the Final Judgment of Dissolution of Marriage appears final as to the issues addressed, the reservation of jurisdiction over related claims necessarily renders the order nonfinal.).

The issues of alimony and equitable distribution certainly involve “the same parties, the same transaction, and the same underlying factual background.” Philip J. Padovano, FLORIDA Appellate PRACTICE § 21.5; see also §§ 61.075(1), 61.08, Fla. Stat. (2006). They are also inter-related because one can directly affect the other. See, e.g., Simon v. Simon, 542 So.2d 421 (Fla. 4th DCA 1989). Because the appealed order addresses an issue that is interrelated with an unresolved issue in the case, it is not final and, thus, not immediately appealable. Accordingly, Wife’s appeal is dismissed for lack of jurisdiction.

Appeal DISMISSED.

ORFINGER and EVANDER, JJ„ concur.


author: STONE, J.

text:
    William Michael JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2063.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Benjamin S. Waxman and Alan S. Ross of Robbins, Tunkey, Ross, Amsel, Raben & Waxman, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Johnson appeals his judgment and sentence, challenging the denial of his pre-sentence motion to vacate plea. We agree with Johnson that his trial counsel’s deficient advice regarding possible civil commitment consequences under the Jimmy Ryce Act constituted “good cause” sufficient to permit Johnson to withdraw his guilty plea. Accordingly, we reverse and remand for further proceedings.

Johnson was charged with eight counts of lewd and lascivious battery on a person twelve years of age or older, but less than sixteen years of age. The state nolle prossed the first seven counts, and Johnson pled no contest to count eight.

The plea form, executed by Johnson and his attorney, contained an explanation of the Jimmy Ryce Act. On the form, his attorney checked a provision indicating that he had not read this document to the defendant, but had fully explained the contents to him.

At the plea hearing, the state advised that the victim and her mother were in favor of the plea agreement and asserted that there was good reason for the trial court to accept it. The state noted that the victim was a “rebellious teenager,” who had “gone back and forth with her story,” and that “there is no physical evidence to corroborate any of it.”

During the plea colloquy, Johnson and the lawyer advised the court that the lawyer had read the plea agreement to Johnson because Johnson did not have his reading glasses. The trial court accepted the plea and deferred sentencing.

Less than three months later, following a change of counsel, Johnson filed a motion to withdraw plea under rule 3.170(f), alleging that his trial counsel failed to advise him of certain Jimmy Ryce Act consequences of his plea. Essentially, he contends that he was not advised that involuntary commitment was potentially indefinite and that future criminal commitments would trigger a civil commitment under the Act, even though not related to sex offenses.

At the evidentiary hearing, Johnson testified that he did not commit the charged crimes. He claimed that he entered the plea in hope of luring the victim’s mother to court so she could be arrested. He believed that without the mother’s influence, the victim would testify in his favor. His plan was to withdraw the plea “immediately” once the mother came to court and was arrested.

The attorney testified that he was ready to go to trial and denied advising Johnson that he would be able to withdraw his plea. The attorney advised Johnson that he could be civilly committed if he were subsequently arrested for another sex offense, but after the plea, the attorney realized that he had given Johnson incomplete advice. He never discussed with Johnson that any offense committed by someone who has a previous conviction for a sex offense is a triggering mechanism for civil commitment under the Jimmy Ryce Act. He also told Johnson that because Johnson did not have other convictions, there was an “excellent chance” he would not have any Jimmy Ryce Act concerns. The attorney denied Johnson’s claim that the plea was just a ruse to get the mother arrested; he did not recall such a discussion.

Johnson moved for rehearing, or for leave to supplement the record with an affidavit, wherein he affied: “If I knew that I could be civilly committed under the Jimmy Ryce Act at any time during the rest of my life for an arrest for any offense, not only for a sex offence, I would never have plead guilty.” The court declined to hear the motion because it had not been set.

Denial of a motion to withdraw plea is reviewed for abuse of discretion. See Smith v. State, 840 So.2d 404, 406 (Fla. 4th DCA 2003). Under Florida Rule of Criminal Procedure 3.170(f), the trial court may, in its discretion, and shall, on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn. Thus, if there is a showing of good cause, the defendant shall be allowed to withdraw his plea as a matter of right. See id.; Wright v. State, 961 So.2d 1036, 1040 (Fla. 4th DCA 2007) (“[W]hen good cause is established, the rule entitles the defendant to withdraw the plea.”).

Good cause to withdraw a plea has been found to exist “when the plea is ‘infected by misapprehension, undue persuasion, ignorance, or was entered by one not competent to know its consequence or that it was otherwise involuntary, or that the ends of justice would be served by withdrawal of such plea.’ ” Johnson v. State, 947 So.2d 1208, 1210 (Fla. 5th DCA 2007) (quoting Onnestad v. State, 404 So.2d 403, 405 (Fla. 5th DCA 1981)).

This rule should be liberally construed in favor of the defendant, as the law favors a trial on the merits. See Smith; see also Tanzi v. State, 964 So.2d 106, 113 (Fla.2007) (“[T]his presentence standard is favorable to defendants, and trial courts are encouraged to liberally grant motions made before sentencing.”).

We agree with the state’s argument that “a failed attempt at a ‘vigilante’ sting operation against a child victim’s mother, or more likely an attempt to keep his accuser quiet by threatening to expose her mother to criminal sanctions, is clearly not a ‘good cause’ basis for withdrawing a plea under the Rule.” Nevertheless, a defendant’s entry of a plea based upon his attorney’s mistaken advice can be a valid basis for finding good cause. See Nicol v. State, 892 So.2d 1169, 1171 (Fla. 5th DCA 2005) (holding that trial counsel’s failure to give defendant any advice regarding the possibility of suppressing his pre-trial confession based upon an argument that his arrest was illegal established good cause sufficient to permit the defendant to withdraw his plea); Graham v. State, 779 So.2d 604 (Fla. 2d DCA 2001) (holding that counsel’s mistaken advice that defendant’s photo would not be placed on the internet established good cause for permitting defendant to withdraw his guilty plea).

Johnson, thus, correctly argues that he should have been allowed to withdraw his plea because his attorney misad-vised him about crucial aspects of the Jimmy Ryce Act.

Section 394.925, Florida Statutes, provides: “[Involuntary Civil Commitment of Sexually Violent Predators] applies to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 394.912(9), as well as to all persons convicted, of a sexually violent offense and sentenced to total confinement in the future.” § 394.925, Fla. Stat. (2005) (emphasis supplied). In regard to the Act, the use of the term “total confinement” has been interpreted to mean “in custody,” despite the employment by the legislature of different terminology in each clause. See Ward v. State, 936 So.2d 1143, 1145 (Fla. 3d DCA), rev. granted, 939 So.2d 96 (Fla.2006) (citing Gordon v. Regier, 839 So.2d 715, 718-19 (Fla. 2d DCA 2003)). Thus, the Jimmy Ryce Act has been held to apply to future, non-sexual offenses. See Ward, supra; see also Tabor v. State, 864 So.2d 1171 (Fla. 4th DCA 2004), rev. denied, 908 So.2d 1058 (Fla.2005) (finding as a matter of first impression that Jimmy Ryce Act applied to defendant even though his current incarceration was not for a sexually violent crime).

In fact, just a few weeks after Johnson entered his plea, rule 3.172 went into effect, which states that:

Except when a defendant is not present for a plea, ... the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:
(9) that if the defendant pleads guilty or nolo contendere, and the offense to which the defendant is pleading is a sexually violent offense or a sexually motivated offense, or if the defendant has been previously convicted of such an offense, the plea may subject the defendant to involuntary civil commitment as a sexually violent predator upon completion of his or her sentence. It shall not be necessary for the trial judge to determine whether the present or prior offenses were sexually motivated, as this admonition shall be given to all defendants in all cases.

Fla. R.Crim. P. 3.172(c)(9).

The state challenges Johnson’s claim of confusion and misadvice. The record, however, reflects otherwise. Indeed, the record shows that Johnson was not advised by either the trial court or the plea form that he could be civilly committed for an indefinite period of time upon the commission of any future %on-sexual offense. Nor could trial counsel have explained the Jimmy Ryce Act fully because he admitted he did not know until after Johnson’s plea that sex offenders could suffer indefinite civil commitment as a result of the commission of a subsequent non-sexual offense. Thus, the attorney misadvised Johnson that Jimmy Ryce confinement could follow only conviction of sexual offenses.

The state argues that any confusion or misadvice about the Jimmy Ryce Act consequences of the plea cannot serve as a basis for relief because these are collateral consequences of the plea. See Morgan v. State, 911 So.2d 162, 164 (Fla.3d DCA 2005) (denying post-sentence motion to withdraw plea, stating: “Defense counsel is not required to inform a client about the collateral consequences of his plea, and the application of the Jimmy Ryce Act is a collateral consequence of a plea.” (internal citations omitted)). We disagree. While the “[f]ailure to inform [the defendant] of the collateral consequences may not have rendered the plea involuntary, ... his ignorance of it does meet the ‘good cause’ test for a pre-sentence plea withdrawal.” Johnson, 947 So.2d at 1210; see also Clemmons v. State, 919 So.2d 657, 657 (Fla. 1st DCA 2006) (“[A]n offender who enters a plea in reasonable reliance on his attorney’s misadvice as to a collateral consequence should be allowed to withdraw his plea.”) (citing State v. Leroux, 689 So.2d 235, 238 (Fla.1996)); Graham, 779 So.2d at 605 (“[I]f collateral matters are discussed and counsel’s advice is ‘measurably deficient,’ then a plea based on that advice could be involuntary.”).

Johnson had no prior criminal record and maintained his innocence throughout the proceedings. In addition, the state’s case was admittedly weak. The victim even admitted that she would not testify at trial.

We reiterate that this was a pre-sen-tence motion to withdraw plea, and the pertinent rule must be liberally construed in favor of the defendant, as the law favors a trial on the merits. See Wright, 961 So.2d at 1040 (“This was not a request made after [the defendant] had learned of the trial court’s sentence and was simply displeased with the outcome.”).

We conclude that the trial court abused its discretion and reverse and remand for further proceedings.

POLEN and GROSS, JJ., concur.

      . According to Johnson, the mother had three outstanding warrants in Monroe County.

        . Section 394.912(9)(e) defines "sexually violent offense” as including a "[l]ewd, lascivious, or indecent assault or act upon or in presence of the child in violation of s. 800.04.”

      . As originally adopted, this provision lacked the phrase "and sentenced to total confinement.” See § 916.45, Fla. Stat. (Supp.1998). In the 1999 session of the Florida Legislature, it was inserted and the provision was renumbered. Johnson entered his plea in September of 2005.


text:
    Hany BARAKAT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2741.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Davis v. State, 581 So.2d 893 (Fla.1991).

FARMER, KLEIN and GROSS, JJ., concur.


text:
    Douglas BRIZENDINE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2519.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Gina Mendez, of Law Office of Gina Mendez, LLC, Miami, and Douglas Brizen-dine, for appellant.
    Bill McCollum, Attorney General, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Douglas Brizendine appeals the summary denial of his rule 3.850 motion for postconviction relief. We affirm as to all grounds except ground “D.” As to this claim of error, we reverse for the reasons expressed below and remand for either an evidentiary hearing or the attachment of records that conclusively refute the allegation of ineffective assistance of counsel.

The state charged Brizendine with one count of strong arm robbery, a second degree felony. On October 17, 2003, at about 5:00 p.m., Connie Swain was in the Walgreen’s parking lot in Pompano Beach when a man rushed at her and said: “Do you like steaks?” The man grabbed the victim by the arm and pulled her to the ground. At that point, another person began “blowing the horn” and the man grabbed the victim’s purse and jumped into a small blue truck that was parked next to the victim’s car. That truck had a white cooler on the back and a sign on the side that read “Argus Steaks and Seafood,” according to the victim. The victim described her assailant as a white male with no accent, blonde or light brown hair, roughly five feet ten inches or six feet tall. The victim was unsure about the description because she was attacked from behind and was on the ground when she saw the assailant. A few days later, the victim could not identify Brizendine from a photographic lineup.

An eyewitness, Michael Hanley, was driving into the Walgreen’s parking lot when he heard a car honk its horn and noticed people looking at one side of the parking lot. He saw a man jump into a blue truck, with a white cooler in the back, and then speed out of the parking lot. He went to help the victim and called police, who took the description of the assailant and vehicle. Hanley positively identified Brizendine from a photographic lineup and identified Brizendine in court. The police, three hours after the incident, located the truck in Pompano Beach, unoccupied.

During the trial, the prosecutor asked the detective if he “did an investigation through the company, through the owners of that truck and did you find through that investigation that one and only one person had possession of that truck on that day checked out of their company on that day?” The detective said yes, and the prosecutor asked who was that person. The detective answered: “Doug Brizendine.” The defense attorney did not object, nor move for a mistrial during closing argument when the prosecutor commented on this testimony.

Brizendine, in this timely rule 3.850 motion, claims this testimony was impermissible hearsay and his attorney’s failure to object or move for a mistrial amounts to ineffective assistance of counsel. The lower court denied the claim without an evi-dentiary hearing, relying upon the State’s argument that the comment was not hearsay. We agree with Brizendine that the comment was hearsay and thus an objection or motion for mistrial may have been properly raised. See Keen v. State, 775 So.2d 263, 274 (Fla.2000); State v. Baird, 572 So.2d 904 (Fla.1990); Cedillo v. State, 949 So.2d 339 (Fla. 4th DCA 2007); Stokes v. State, 914 So.2d 514 (Fla. 4th DCA 2005). In Cedillo, this Court recognized the long-standing precedent that such hearsay testimony is inadmissible, even if the testifying witness does not directly relay any specific comment made by a declarant. 949 So.2d at 341. In that case, the detective testified that he spoke to several witnesses and as a result of that discussion, arrested the defendant. Id. “We identified [in Stokes ] the danger of the testimony as the possibility the jury could infer that the non-testifying witnesses the detective interviewed made accusatory statements or gave police information about the defendant’s involvement that was not presented to the jury.” Id. at 341. “The trial court erred in allowing the police officer to provide testimony implying that a non-testifying witness made accusatory statements against the defendant.” Id. “Where the implication from in-court testimony is that a non-testifying witness has made an out-of-court statement offered to prove the defendant’s guilt, the testimony is not admissible.” Schaffer v. State, 769 So.2d 496, 498 (Fla. 4th DCA 2000).

We conclude Brizendine has presented a legally sufficient claim of ineffective assistance of counsel in ground D. As such, we affirm the summary denial of the motion as to all grounds except ground D, reverse the order, and remand for the lower court to conduct an evidentiary hearing on this matter or to attach portions of the record that conclusively refute the allegation.

Affirmed in part, Reversed in part, and Remanded.

KLEIN, TAYLOR and HAZOURI, JJ., concur.


author: STEVENSON, J.

text:
    STATE of Florida, Appellant, v. Jimmie C. GAINES, Appellee.
    No. 4D07-774.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellee.
   STEVENSON, J.

Jimmie Gaines was tried by jury and convicted of fleeing or attempting to elude a marked police car, possession of cocaine, and habitual driving with a revoked license. Then, despite defense counsel’s representation that there was no basis for a downward departure sentence and over the State’s objection, relying upon section 921.0026(2)(j), Florida Statutes (2006), the trial judge imposed a sentence that was less than the lowest permissible sentence reflected on Gaines’s Criminal Punishment Code score sheet. The State has appealed the downward departure sentence. Gaines has cross-appealed, arguing that errors in jury selection and closing arguments require a new trial. We reject the arguments raised by Gaines in his cross-appeal and affirm his convictions without further comment. We find merit, though, in the State’s claim that the departure sentence cannot be sustained and write to address this issue.

Section 921.0026(2)(j), Florida Statutes (2006), permits the imposition of a sentence that is less than the lowest permissible sentence as calculated under a defendant’s Criminal Punishment Code score sheet where “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” All three components — that the crime was committed in an unsophisticated manner, that the crime was an isolated incident, and that the defendant has shown remorse — must be present in order for a downward departure sentence to be imposed under the statute. See State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005). With respect to the second component — that the crime was an isolated incident — “[a] defendant’s extensive prior criminal record precludes a showing that an offense was ‘an isolated incident.’ ” Id. (emphasis added). Moreover, “[t]he fact that a defendant who has previously committed numerous offenses has not in the past committed the same crime as the offense for which he is being sentenced does not mean that the current offense is ‘an isolated incident.’ ” Id. Gaines has eighteen prior convictions — six for driving with a suspended license, two for burglary of a conveyance, three for burglary of a dwelling, five for larceny, one for possession of cocaine, and one for robbery. A downward departure sentence predicated upon section 921.0026(2)0 thus plainly cannot be sustained. See State v. McGriff, 698 So.2d 331, 332 (Fla. 2d DCA 1997) (noting that in assessing a downward departure the current crime(s) cannot be considered isolated where the defendant’s prior record is “extensive”).

State v. Randall, 746 So.2d 550 (Fla. 5th DCA 1999), relied upon by the trial judge in imposing the departure sentence, and State v. Fontaine, 955 So.2d 1248 (Fla. 4th DCA 2007), cited by the defendant, are distinguishable. In neither of those cases did the defendant have the extensive criminal record that is present here.

In Randall, a twenty-two-year-old defendant made four sales of cocaine to the same confidential informant over the course of four days. The cocaine totaled 1.8 grams and made Randall $220.00. Randall, who had two children and no pri- or drug charges, confessed to police, explaining he was not a drug dealer and was just trying to get money for Christmas. Randall apparently had only a single prior conviction. 746 So.2d at 552. At the sentencing hearing, the judge indicated he would impose a downward departure sentence if Randall pled guilty. Randall entered the plea and the trial court imposed a downward departure sentence, relying upon section 921.0026(2)® (the defendant cooperated with the State) and section 921.0026(2)0 (the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse). The sentence was affirmed on appeal.

In Fontaine, the defendant disciplined his fíancée’s nine-year-old son by repeatedly striking him with a belt, causing welts and bruising. During sentencing, the fian-cée testified that the defendant had been in a serious accident, had been given a substantial amount of drugs, and, as a result, had become depressed and angry. Fontaine, too, attributed the behavior to the drugs and the pain, indicating he did not remember the entire incident and expressing extreme remorse. The trial court imposed a departure sentence, relying upon section 921.0026(2)(c) (the defendant’s capacity to appreciate the criminal nature of his behavior was substantially impaired at the time of the offense) and © (the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse). The majority affirmed the departure sentence based upon section 921.0026(2)(c). Fontaine had a prior criminal record, i.e., two misdemeanors, larceny and reckless driving, committed some ten years earlier and, thus, had apparently abandoned his claim that the departure sentence was authorized under section 921.0026(2)0. In a special concurrence, Judge Warner wrote that she believed the sentence could also be sustained under section 921.0026(2)0. 955 So.2d at 1250-51. Gaines’s criminal record is simply not akin to that of the defendant in Fontaine. While the cases have established no bright-line rule as for when a defendant’s prior criminal record is so “extensive” that it precludes a downward departure under section 921.0026(2)0, we have little trouble concluding that Gaines’s record crosses that border.

. In sum, after considering all issues, including those not expressly addressed herein, we affirm Gaines’s convictions, reverse the downward departure sentence, and remand for resentencing.

Affirmed in part, Reversed in part and Remanded.

STONE, J., and TRAWICK, DARYL EVAN, Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Malek Ahmad ALHINDI, Appellee.
    No. 4D06-3354.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Brittney Horstman of Schwartz & Associates, Miami, for appellee.
   STONE, J.

Alhindi was designated a habitual traffic offender. He subsequently drove with a revoked license. Alhindi was stopped for speeding, and when asked to show his driver’s license, he acknowledged to the officer, “my license is suspended.” We reverse an order granting Alhindi’s motion to dismiss charges of felony driving while license revoked as a habitual offender, in violation of section 322.34(5), Florida Statutes.

Alhindi’s attorney discovered that the underlying convictions which rendered Al-hindi a habitual traffic offender and led the Department of Motor Vehicles (DMV) to revoke his license were erroneously entered due to errors in entering pleas. The state ultimately announced a nolle prose-qui on the two underlying offenses, and the DMV then set aside, and removed from its records, the revocation of Alhin-di’s license.

Following the DMV expungement, Al-hindi moved, pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), to dismiss this felony charge of driving while license revoked as a habitual offender, arguing that when Alhindi was stopped, the DMV “had illegally placed a 5-year revocation” on his license. The state replied with a motion to strike and/or traverse of Alhin-di’s motion.

Section 322.34(5) provides that “[a]ny person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is.guilty of a felony of the third degree.” Section 322.264 defines habitual traffic offender as “any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or (2) within a 5-year period.”

This court, in Rodgers v. State, 804 So.2d 480, 482 (Fla. 4th DCA 2002), explained that “to convict under section 322.34(5) the state [must] ... prove three elements: (1) DMV had revoked defendant’s driver’s license as a habitual offender under section 322,264, (2) DMV gave defendant notice of the revocation of his license, and (3) defendant operated a motor vehicle upon a highway of Florida while the license was revoked.” Id. (holding that the state does not have to “prove each separate conviction ... which DMV relied on in revoking the license”).

Elaborating on the first two elements, we stated in Rodgers that section 322.34(5) “merely makes it necessary for the state to prove by competent evidence that DMV maintains a record on the motorist, that its record shows the requisite ... convictions within a 5 year period, and that DMV gave the motorist the statutory notice.” Id. at 483. Next, the state may prove the first two elements “by presenting a certified copy of the motorist’s driving record maintained by DMV.” Id.

In Arthur v. State, 818 So.2d 589, 591 (Fla. 5th DCA 2002), the Fifth District recognized that the state’s charging instrument does not have to “designat[e] the numerous traffic citations or offenses which led to the [habitual traffic offender] designation.”

Commenting on the proper procedure for challenging a habitual traffic offender designation, the Arthur court explained that “[i]f after receiving the notice of revocation Arthur believed his driving record was in error his remedy was to have his record corrected, not to ignore the revocation and continue to drive.” Id. at 591-92 (reasoning that section 322.34(5) “requires that one whose license is revoked because he is an habitual traffic offender must not drive unless or until his revocation is set aside”).

Later, the Second District analyzed the significance of challenging the underlying prior conviction. Arguing that an underlying conviction was based on a plea entered without a factual basis, the defendant in State v. James, 928 So.2d 1269, 1270 (Fla. 2d DCA 2006), moved to dismiss the 322.34(5) charge. Id. (“Without that conviction on the DMV records, Mr. James would not have had the habitual traffic offender designation.”). “At the hearing on the motion to dismiss, the State did not object to continuing the [section 322.34(5) ] case so that Mr. James could try to set aside the [underlying] conviction and correct the DMV records.” Id. However, the James court reversed the trial court order granting James’ motion to dismiss the section 322.34(5) charge, explaining:

Whether or not [James’] challenge to the [underlying] convictions has merit, at the time of the [322.34(5)] charge, the DMV records accurately reflected the existence of three prior convictions. Even if Mr. James is successful in vacating his [underlying] conviction, the DMV records would be affected only from the date that the conviction was set aside ... [and] therefore, would not impact the facts as they were when Mr. James was stopped.... At that time, the DMV records accurately reflected the habitual traffic offender designation.

The issue of setting aside the underlying conviction was also addressed in Patterson v. State, 938 So.2d 625, 632 (Fla. 2d DCA 2006). There, the court distinguished between statutes that require proof of prior convictions, as an element of the offense, and statutes that require “proof of an administrative designation that was based on prior convictions.” Id. at 630.

Reasoning that the habitual traffic offender statutes, such as section 322.34(5), “do not focus on the ‘reliability’ of the prior convictions,” the Patterson court noted that Patterson “had the opportunity to challenge the validity of one or more of his convictions by seeking post-conviction relief before they resulted in a finding that he was a habitual traffic offender.” Id. at 632.

Here, the department revoked Al-hindi’s driver’s license because his DMV record contained the requisite prior convictions, deeming him a habitual traffic offender. Aihindi then drove his vehicle on a Florida highway. After the state charged Aihindi with felony driving while license revoked as a habitual traffic offender, Aihindi successfully set aside the underlying convictions. Nevertheless, the trial court erred in granting Alhindi’s motion to dismiss because the subsequently updated DMV record does not prevent the state from establishing a prima facie case of felony driving with a revoked license as a habitual traffic offender.

Aihindi argues that the state must prove that DMV lawfully designated him a habitual traffic offender. However, DMV did not “illegally” revoke Alhindi’s license when it relied on facially valid convictions to support its decision. We recognize that Patterson is distinguishable to some extent because Patterson challenged his underlying convictions in a motion in limine, and Aihindi has already successfully set aside his convictions. Nevertheless, we deem its reasoning applicable here. Aihindi violated the law while under DMV designation and civil disability (having a revoked license).

We conclude that the state is merely required to introduce a copy of Alhindi’s DMV records. ' Alhindi’s remedy was to correct his DMV record upon receiving the revocation notice, not ignore the notice and continue to drive with ‘a revoked license and habitual traffic offender designation.

We remand for further proceedings.

STEVENSON and HAZOURI, JJ., concur.


text:
    TROPICANA PRODUCTS, INC., Appellant, v. CITY OF PORT ST. LUCIE, a municipal corporation of the State of Florida, Appellee.
    No. 4D06-4350.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2008.

      David M. Wells and Whitney K. McGuire of McGuireWoods LLP, Jacksonville, for appellant.
    Tracy A. Marshall, Thomas A. Cloud and Heather M. Blom-Ramos of GrayRo-binson, P.A., Orlando, for appellee.
   PER CURIAM.

This appeal emanates from a lawsuit filed by Tropicana Products, Inc., against the City of Port St. Lucie wherein Tropicana alleged that the water rates charged it by the City were arbitrary, unreasonable or discriminatory in violation of chapter 180 of the Florida Statutes and Florida law. There is a presumption that the rate established by the city council is valid. The burden rests on the party challenging the rate to clearly establish that the rate is arbitrary, discriminatory and without reason. See City of New Smyrna Beach v. Fish, 384 So.2d 1272, 1276 (Fla.1980). Following a bench trial and the presentation of extensive evidence, the trial court rejected Tropicana’s claims and entered judgment in favor of the City. We have considered Tropicana’s many arguments, find no error in the trial court’s ruling, and affirm the judgment appealed.

Affirmed.

STONE, STEVENSON, JJ., and TRAWICK, DARYL EVAN, Associate Judge, concur.