text:
    Lawrence A. SIMONS, Appellant, v. Shirley ODEBRECHT, et al., In re R.G. Dulaney Trust, Appellee.
    No. 3D05-1204.
    District Court of Appeal of Florida, Third District.
    March 15, 2006.
    Stokes, McMillan & Maracini, P.A. and Michele A. Maracini Miami, for appellant.
    Lauri Waldman Ross, Miami; Sullivan, Admire & Sullivan, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. Perry v. Agnew, 903 So.2d 376 (Fla. 2d DCA 2005).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert PIZANA, Appellant, v. James R. McDONOUGH, Florida Department of Corrections, Appellee.
    No. 1D05-6097.
    District Court of Appeal of Florida, First District.
    March 17, 2006.
    Rehearing Denied April 19, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Louis Vargas, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 1, 2006, the Court has determined that the order on appeal is neither a final order, nor a nonfinal order appealable pursuant to Florida Rule of Appellate Procedure 9.130. Accordingly, the appeal is hereby dismissed for lack of jurisdiction. In light of the dismissal, the appellant’s Motion for Expedited Proceedings, filed on January 24, 2006, is denied as moot.

ERVIN, WOLF, and BROWNING, JJ., concur.


author: CANADY, Judge.

text:
    STATE of Florida, Appellant, v. Arthur BATTIS III, Appellee.
    No. 2D05-2519.
    District Court of Appeal of Florida, Second District.
    March 24, 2006.
    Rehearing Denied April 28, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Elizabeth A. Beardsley of Escobar, Ramirez & Associates P.A., Tampa, for Ap-pellee.
   CANADY, Judge.

The State appeals a trial court order suppressing evidence in a prosecution against Arthur Battis for the charge of-trafficking in cocaine. The trial court suppressed the evidence on the basis that Battis involuntarily abandoned the evidence during the course of an illegal stop. Based on the rationale of California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), however, we conclude that the suppression was erroneous because Battis was not stopped or seized at the time he abandoned the cocaine.

Background

Battis filed a motion to suppress the cocaine, arguing that law enforcement’s stop of Battis was illegal and that Battis’s abandonment of the cocaine therefore was not voluntary. The trial court held a hearing, and both parties stipulated to the facts as alleged in the motion and certain other facts. Based on the undisputed facts, the trial court considered the following scenario.

The United States Marshals Service was conducting an investigation in Pinellas County of a male subject wanted for murder. As part of this investigation, officers were conducting surveillance of Battis’s home, where the officers thought the male subject might be staying. At a time when the officers were conducting surveillance, Battis departed from his home in his car. The officers followed Battis’s car in an unmarked police vehicle. The officers activated their lights and siren and moved partially into Battis’s lane as Battis was traveling towards them in the opposite direction. Battis passed the officers’ vehicle, continued to drive in the opposite direction, and then made a left turn. The officers made a u-turn and followed Battis with lights and siren still activated. The officers observed an object being thrown from Battis’s car when Battis turned left. After Battis turned left, he pulled over a half-block down the road. The officers detained Battis and recovered the object, which was a pill bottle containing cocaine.

The trial court granted the motion, concluding that the cocaine was abandoned during an illegal stop and that there was a sufficient nexus between the illegal stop and the abandonment of the cocaine to make the abandonment involuntary.

Argument on Appeal

Citing Hodari, 499 U.S. 621, 111 S.Ct. 1547, the State argues on appeal that Bat-tis was not detained when he abandoned the cocaine because he failed to respond to the officers’ show of authority. Battis argues that his act of abandoning the cocaine was solely the result of law enforcement’s illegal stop and therefore his abandonment of the cocaine was not voluntary.

Analysis

In Hodari, the Supreme Court addressed the question of “whether, with respect to a show of authority ..., á seizure occurs even though the subject does not yield.” 499 U.S. at 626, 111 S.Ct. 1547. The Court held “that it does not.” Id. There, the defendant observed an unmarked car, “panicked, and took flight.” Id. at 622-23, 111 S.Ct. 1547. An officer pursued him on foot, and the defendant tossed away a rock of crack cocaine. Id. at 623, 111 S.Ct. 1547. The officer finally tackled the defendant and later recovered the rock of crack cocaine. The defendant argued that he was unreasonably seized at the time he dropped the drugs and therefore the drugs should be suppressed as the fruit of that seizure. Id. at 623-24, 111 S.Ct. 1547. The Court held that “assuming that [the law enforcement officer’s] pursuit ... constituted a ‘show of authority’ enjoining [the defendant] to halt, since [the defendant] did not comply with that injunction he was not seized until he was tackled.” Id. at 629, 111 S.Ct. 1547. See also Perez v. State, 620 So.2d 1256, 1258 (Fla.1993) (recognizing binding force of Hodari under article I, section 12 of the Florida Constitution, which requires Florida courts to “follow the United States Supreme Court’s interpretations of the Fourth Amendment and to provide no greater protection than those interpretations”).

The issue in this appeal is whether Battis had submitted to authority when he abandoned the drugs. The undisputed facts presented to the trial court indicate that Battis had not yet complied with law enforcement’s show of authority when he threw the cocaine out of the car. “A person who flees from a show of authority has not been seized, while a person who remains in place and submissive to the show of authority has been seized.” Hollinger v. State, 620 So.2d 1242, 1243 (Fla.1993). “An unlawful seizure only takes place if the person either willingly obeys or is physically forced to obey the police request, i.e. there is no unlawful seizure when the person ‘drops then stops,’ even where the drop occurs after an order to stop.” Johnson v. State, 640 So.2d 136, 138 (Fla. 4th DCA 1994).

In R.H. v. State, 764 So.2d 762 (Fla. 5th DCA 2000), law enforcement “observed a ear with an equipment violation” and “attempted a traffic stop,” but “the car continued on.” Id. at 763. The defendant jumped out of the car and ran, and the car ultimately crashed into a building. The defendant argued that the car he was in was “stopped when the officers first put their lights on to effect” the stop. Id. The Fifth District rejected that claim and concluded that “the police did not stop the car.” Id. (citing Hodari, 499 U.S. 621, 111 S.Ct. 1547).

When he threw the cocaine out of the ear window, Battis had not been seized. Even though the officers had activated their lights and siren prior to the abandonment of the cocaine, Battis did not submit to the officers’ show of authority until he pulled over and stopped after he had abandoned the cocaine. See Hodari, 499 U.S. at 629, 111 S.Ct. 1547; see also People v. Brodack, 296 Ill.App.3d 71, 230 Ill.Dec. 540, 693 N.E.2d 1291, 1295 (1998) (holding that “absent physical force, a police show of authority in activating lights and siren does not amount to a stop until the defendant submits to the show of authority ... by pulling over and stopping his vehicle”); State v. Weaver, 259 Kan. 844, 915 P.2d 746, 750 (1996) (“[T]he defendant did not yield to the officer’s show of authority (the emergency lights) by pulling over. Thus, a stop did not occur when the officer activated his emergency lights.”).

“[Ajppellate courts should ... accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but appellate courts must independently review mixed questions of law and fact that ultimately determine constitutional issues.... ” Connor v. State, 803 So.2d 598, 608 (Fla.2001). “[T]he determination of whether the application of the law to the historical facts establishes an adequate basis for the trial court’s ruling is subject to de novo review.” Id. Here, the facts are undisputed. However, the trial court’s application of the law to the facts was erroneous.

Conclusion

Because the drugs were abandoned before Battis was seized, the trial court erred in concluding that the drugs were abandoned during an illegal stop and were therefore subject to suppression. Accordingly, we reverse the order suppressing the evidence and remand for further proceedings.

Reversed and remanded.

FULMER, C.J., and LaROSE, J„ Concur.


author: FULMER, Chief Judge.

text:
    Donald JARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5223.
    District Court of Appeal of Florida, Second District.
    March 24, 2006.
    Rehearing Denied May 2, 2006.

      Roger D. Futerman and Sean B. Kelley of Roger D. Futerman & Associates, Clearwater, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee,, and Jonathan P. Hurley, Assistant Attorney. General, Tampa, for Ap-pellee.
   FULMER, Chief Judge.

Donald Jarrett was stopped for speeding in the Town of Redington Shores by a police officer who was employed by the Town of Indian Shores. The officer was on patrol in Redington Shores because the town had entered into an agreement by which Indian Shores was providing it with law enforcement services. Jarrett was charged with several felonies that grew out of the stop. Jarrett moved to suppress all evidence derived from the stop, arguing that the stop was illegal because the agreement for law enforcement services between the two municipalities was invalid. After- the trial court denied his motion to suppress and motion for rehearing, Jarrett pleaded to the charges, reserving his right to appeal, the denial of the motion to suppress. We affirm the trial court’s order denying Jarrett’s motion but for reasons other than those relied on by the trial court.

At the motion to suppress hearing, the parties stipulated to the facts pertaining to the traffic stop and subsequent arrest. They presented their legal arguments by simultaneously submitting written memorandums. Jarrett initially argued that the agreement between the two towns violated article VIII, section 2(c) of the Florida Constitution, which provides that “exercise of extra-territorial powers by municipalities shall be as provided by general or special law.” Jarrett contended that in the absence of an underlying statute, Indian Shores could not exert extra-territorial jurisdiction over Redington Shores by agreeing to have its police officers provide law enforcement services for Redington Shores. The State argued that the agreement was authorized by section 166.0495, Florida Statutes (2003), which provides that “[a] municipality may enter1 into an interlocal agreement pursuant to s. 163.01 with an adjoining municipality or municipalities within the same county to provide law enforcement services within the territorial boundaries of the other adjoining municipality or municipalities.”

The trial court denied Jarrett’s motion on the basis that the agreement between the towns was authorized by section 166.0495. Jarrett filed a motion for rehearing in which he noted that the interlocal agreement requirement of section 166.0495 triggers compliance with the provisions of section 163.01. Section 163.01(11), Florida Statutes (2003), states: “Prior to its effectiveness, an interlocal agreement and subsequent amendments thereto shall be filed with the clerk of the circuit court of each county where a party to the agreement is located.” Having found no such filings, Jarrett argued that the agreement was not effective and was, therefore, unenforceable.

The trial court denied Jarrett’s motion for rehearing based on a determination that Jarrett had “no standing to challenge any ostensible infirmity of the agreement” because he was neither a signatory to nor a third-party beneficiary of it. We do not agree that the question presented by this case is one of standing to challenge the agreement. Jarrett’s motion seeks suppression of evidence obtained as a result of an alleged unlawful seizure which he claims violated his rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and article 1, section 12 of the Florida Constitution. His legal allegation is sufficient to confer standing to bring his motion to suppress. See State v. Jones, 483 So.2d 433, 435 (Fla.1986) (“Unquestionably, stopping an automobile and detaining its occupant constitutes a seizure within the meaning of the fourth amendment to the United States Constitution.”); see also Welch v. State, 741 So.2d 1268, 1270 (Fla. 5th DCA 1999). However, because his motion cannot succeed on its merits, we affirm the denial of the motion.

The primary purpose of the exclusionary rule is to deter unlawful police action. See United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); State v. White, 660 So.2d 664, 666 (Fla.1995). Therefore, it has been held not to apply to evidence obtained by .police who acted in objectively reasonable reliance upon a statute which was subsequently determined to be unconstitutional. See Illinois v. Krull, 480 U.S. 340, 350, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). In such circumstances, there is no police misconduct to deter.

Applying these principles in this case, we address the question of whether the officer’s stop and arrest of Jarrett, made in objectively reasonable reliance on the purported agreement between the two jurisdictions, resulted in a violation of Jarrett’s constitutional rights, assuming that a subsequent challenge to the agreement’s effectiveness has merit. It is undisputed that the Town of Indian Shores was providing law enforcement services within the Town of Redington Shores pursuant to an agreement that the towns are authorized to execute under Florida law. Jarrett’s challenge to the agreement is not grounded on a Fourth Amendment violation by the police officer but rather is aimed at the actions of the municipal governments in allegedly failing to follow the statutory procedures applicable to the execution of interlocal agreements. No police misconduct is alleged. In this circumstance, we hold that application of the exclusionary rule cannot be justified.

Furthermore, we conclude that the agreement confers at least de facto status on the police officer who stopped Jarrett notwithstanding any alleged procedural infirmity in the agreement between the two towns. “A de facto officer’s acts are as valid and binding upon the public or upon third persons as those of an officer de jure.” See Kane v. Robbins, 556 So.2d 1381, 1385 (Fla.1989); see also Farrell v. State, 650 So.2d 88, 89 (Fla. 4th DCA 1995) (stating that the acts of de facto officers “are valid as to third persons and the public until their title to office is judicially adjudged to be defective”).

Affirmed.

DAVIS and WALLACE, JJ., Concur.


text:
    Maris Marie GEIGER, Appellant, v. Jason William SCHRADER, Appellee.
    No. 1D05-2921.
    District Court of Appeal of Florida, First District.
    March 27, 2006.
    Rehearing Denied April 25, 2006.
    Cynthia Stump Swanson, Esquire, Gainesville, for Appellant.
    Paul S. Rothstein, Esquire, Gainesville, for Appellee.
   PER CURIAM.

Appellant appeals the trial court’s amended order of injunction for protection against domestic violence with minor child, modifying a visitation schedule for appellee with the parties’ minor child. However, the injunction expired on November 2, 2005, and therefore is no longer in effect. Accordingly, this appeal is dismissed. See Hunt v. Hunt, 713 So.2d 1117 (Fla. 1st DCA 1998) (dismissing an appeal to dissolve a domestic violence injunction which had already expired).

Appellee has also filed a cross appeal, alleging that the trial court erred in declining to award attorney’s fees against appellant in the injunction order. However, because there is no provision for an award of attorney’s fees in a section 741.30, Florida Statutes, proceeding, this cross appeal is without merit. See Lewis v. Lewis, 689 So.2d 1271 (Fla. 1st DCA 1997) (denying an award of attorney’s fees in a section 741.30, Florida Statutes, proceeding).

AFFIRMED.

KAHN, C.J., LEWIS and POLSTON, JJ., concur.


text:
    Joseph GOLPHIN, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D05-5500.
    District Court of Appeal of Florida, First District.
    April 5, 2006.
    Joseph Golphin, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of certiorari is dismissed without prejudice to petitioner’s right to seek review upon entry of a final appealable order. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005); Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

ERVIN, PADOVANO and HAWKES, JJ., concur.


author: CORTINAS, Judge.

text:
    INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCALS 1416, 1922, 1922-1 AND 2062, etc., et al., Appellants, v. MIAMI-DADE COUNTY, etc., et al., Appellees.
    No. 3D05-2567.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.
    Rehearing Denied May 4, 2006.

      Neil Flaxman, Coral Gables, for appellants.
    Murray A. Greenberg, Miami-Dade County Attorney, and Lee Kraftchick, Assistant County Attorney, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   CORTINAS, Judge.

Appellants are the International Longshoremen’s Association, Locals 1416, 1922, 1922-1, and 2062 (“ILA”), and members of the Union who work at the Appellee’s, Miami-Dade County’s (“County”) seaport, the Port of Miami (“Port”). In order to access the Port’s cargo area where Appellants work, Appellants were required to obtain and present identification cards, which are issued by the County on an annual basis for a certain fee and are renewable each year absent certain disqualifying offenses.

In July 2004, the Coast Guard notified the Port that its security was at risk due to a number of security breaches, including access control problems arising out of the issuance of identification cards without sufficient scrutiny. In response to the Coast Guard’s warning, the Port took certain remedial measures, including temporarily suspending all Port security clearances for a period of several weeks. While the clearances were suspended, the County investigated whether any identification cards had been issued improperly.

Appellants filed a complaint claiming that, by temporarily suspending their security clearances at the Port, the County deprived them of a property interest without due process of law in violation of Title 42, United States Code, Section 1983. The trial court granted the County’s motion to dismiss, finding that Appellants did not have a protected liberty or property interest in a government security clearance or a job requiring a security clearance. The court also concluded that, even if there was a protected interest, due process was not implicated because the suspension of security clearances was the result of a legislative decision applicable to all persons seeking access to the Port. We affirm.

The order granting the County’s motion to dismiss is a question of law subject to de novo review. Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So.2d 843, 845 (Fla. 4th DCA 2004). When considering a motion to dismiss, we must accept the allegations contained in the four corners of the complaint as true, and determine whether the allegations support a claim for relief. Id.

In order to state a due process claim under 42 U.S.C. § 1983, Appellants must first show that they have a constitutionally protected interest. See Kentucky Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). Appellants must next show that the government interfered with their constitutionally protected interest without affording them sufficient due process procedures. Id.

Appellants contend that they have a property interest in their jobs at the Port through a collective bargaining agreement between their union and various companies doing business at the Port. See Greene v. McElroy, 360 U.S. 474, 492, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). Appellants further contend that they were deprived of their property interest without notice or opportunity to be heard when their identification cards were summarily seized. They assert that the County could have used less intrusive means to verify security of the cards, which would have minimized their loss of income.

In response, the County argues that Appellants failed to show that they had a liberty or property interest in maintaining security clearances at the Port. See Dep’t of Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988). The County further argues that, even if Appellants enjoyed a right to a security clearance, the County provided them with sufficient due process because legislative acts of general application provide all of the process which is due. See Meola v. Dep’t of Corrs., 732 So.2d 1029, 1035 (Fla.1998)(finding that across-the-board legislative suspensions of government-created rights do not require individualized hearings).

We find that Appellants failed to demonstrate the existence of a constitutionally protected property or liberty interest. In Egan, a case involving a Navy employee who had been discharged after his security clearance was revoked, the Supreme Court stated that “no one has a ‘right’ to a security clearance.” Egan, 484 U.S. at 528, 108 S.Ct. 818. Furthermore, the Third Circuit has observed that, since the Supreme Court’s decision in Egan, “every court of appeals which has addressed the issue has ruled that a person has no constitutionally protected liberty or property interest in a security clearance or a job requiring a security clearance.” Stehney v. Perry, 101 F.3d 925, 936 (3d Cir.1996) (citations omitted). Therefore, we cannot find that Appellants enjoyed a constitutionally protected interest in their security clearance identification cards.

In support of their position, Appellants rely on Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). In Greene, an employee of a government contractor was discharged from his position after his security clearance was revoked. Greene, 360 U.S. at 475-76, 79 S.Ct. 1400. The Supreme Court found that the employee had a property interest in his employment and a liberty interest in his freedom to practice a chosen profession. Id. at 492, 79 S.Ct. 1400. The Court further found that the revocation of the employee’s security clearance destroyed his ability to obtain employment in the aeronautics field. Id. The Supreme Court concluded that, since the government severely limited the employee’s work opportunities, the employee should have been afforded a hearing which comported with traditional notions of fair process and procedure. Id. at 508, 79 S.Ct. 1400.

Although we recognize that there is a constitutionally protected interest in an individual’s ability to follow a chosen trade or profession, we conclude that this interest was not implicated in the instant case. In Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), the Supreme Court found that a union cafeteria worker employed at a military facility was not denied due process when her security clearance was summarily revoked because her right to engage in a chosen profession was not affected. The Supreme Court noted that the employee was simply denied an opportunity to work at one specific military facility. Id. at 896, 81 S.Ct. 1743.

Similarly, in the instant case, Appellants were denied access to the port while their security clearances were being verified. Appellants were not deprived of their right to engage in a chosen trade or profession as they were not precluded from obtaining employment at another port facility. Moreover, Appellants’ access to the Port was only temporarily restrained while the Port was undergoing certain security verifications, which were mandated by the Coast Guard. Therefore, the County was not required to provide Appellants with individual due process hearings. See Cafeteria, 367 U.S. at 898, 81 S.Ct. 1743; Artist v. Virginia Int’l Terminals, 679 F.Supp. 587, 595 (E.D.Va.1988).

Accordingly we affirm the trial court’s finding that Appellants did ■ not have a protected property or liberty interest in a security clearance or a job requiring a security clearance.

We affirm all other issues on appeal.

Affirmed.


text:
    Helen B. HORTON, Appellant, v. RODRIGUEZ ESPAILLAT Y ASOCIADOS, Appellee.
    No. 3D05-1884.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.

      Weissman, Dervishi, Borgo & Nordlund, P.A., Brian S. Dervishi, and John Borgo, Miami, and Jonathan Bakalarz, for appellant.
    Silva & Silva, P.A., Miami, and Ibrahim Reyes, Jr., for appellee.
    Before GREEN, RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

We reverse the order denying defendant’s motion to vacate the final judgment pursuant to Florida Rule of Civil Procedure 1.540(b). Where a party asserts that the underlying judgment is void, “it is necessary to evaluate the underlying judgment in reviewing the order denying the motion. If it is determined that the judgment entered is void, the trial court has no discretion, but is obligated to vacate the judgment.” Dep’t of Transp. v. Bailey, 603 So.2d 1384, 1386-87 (Fla. 1st DCA 1992).

In this case, the underlying judgment is void because the complaint, on its face, fails to state a recognizable claim against the defendant, see Becerra v. Equity Imports, Inc., 551 So.2d 486 (Fla. 3d DCA 1989); Magnificent Twelve, Inc. v. Walker, 522 So.2d 1031 (Fla. 3d DCA 1988); see also Palmer v. Parker, 52 Fla. 389, 42 So. 398, 400 (1906), for liability on the dishonored checks. The trial court should have granted the motion on this basis.

This cause is therefore reversed and remanded for further proceedings. The remaining points raised on appeal lack merit.

Reversed and remanded.


text:
    Gregory Allen LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5480.
    District Court of Appeal of Florida, First District.
    April 7, 2006.

      Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order denying in part and granting in part his rule 3.800(a) motion. His first claim is facially insufficient and without merit. In his second claim, the appellant requests his conviction and sentence be vacated where the written judgment and sentence contains a fingerprint card bearing the name of Marcus Eugene Greene, Jr., as opposed to the appellant’s name.

The trial court granted the appellant relief on this ground by directing the Clerk of the Court to amend the fingerprint card accordingly. It appears the trial court should have vacated the appellant’s judgment and sentence and subsequently entered a proper written judgment and sentence with a corrected fingerprint card. See Edwards v. State, 422 So.2d 24 (Fla. 2d DCA 1982).

However, where an appellant makes a fact-based challenge to the lawfulness of his conviction, the appellant’s claim is not cognizable in a rule 3.800(a) motion and should be raised in a rule 3.850 motion. See Martell v. State, 676 So.2d 1030 (Fla. 3d DCA 1996); Yates v. State, 556 So.2d 501, 502 (Fla. 1st DCA 1990); Wiley v. State, 604 So.2d 6 (Fla. 1st DCA 1992) (citing Ferenc v. State, 563 So.2d 707 (Fla. 1st DCA 1990); Gandy v. State, 560 So.2d 1363, 1364 (Fla. 1st DCA 1990); State v. Spella, 567 So.2d 1051, 1052 (Fla. 5th DCA 1990)). In the instant case, the appellant’s claim requires a fact-based inquiry conducted through an evidentiary hearing to test the validity of the fingerprint card.

This court does have the authority to convert a rule 3.800(a) action into a 3.850 proceeding where appropriate. See Valdes v. State, 765 So.2d 774 (Fla. 1st DCA 2000). However, where an appellant fails to include an oath, the motion cannot be treated as a rule 3.850 motion. See Stoutamire v. State, 710 So.2d 744 (Fla. 1st DCA 1998). Here, the appellant’s motion is not properly sworn as required by rule 3.850, and thus, the appellant’s motion cannot be treated as a rule 3.850 motion.

Accordingly, we affirm the order partially denying and partially granting the appellant’s rule 3.800(a) motion, but do so without prejudice to appellant’s refiling his second claim in a timely and sworn rule 3.850 motion. See Stoutamire, 710 So.2d. at 744.

AFFIRMED.

WOLF, WEBSTER and BROWNING, JJ., concur.


text:
    Eugene Henry GRUENWALD, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3648.
    District Court of Appeal of Florida, First District.
    April 11, 2006.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant filed an appeal under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because our independent review of the record did not reveal reversible error, we affirm. However, we remand for removal of the theft enhancements from Appellant’s judgment. Gruenwald v. State, 899 So.2d 1138 (Fla. 1st DCA 2005). Because correction of this scrivener’s error is simply a ministerial act, Appellant’s presence is not required. The trial court’s order is affirmed in all other respects.

AFFIRMED but REMANDED for correction of scrivener’s error.

ERVIN, PADOVANO and HAWKES, JJ., concur.


text:
    Ronald Wayne KELLY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3691.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2006.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W, GRIFFIN and LAWSON, JJ., concur.


author: WELLS, Judge.

text:
    Reginald SWINDLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-903.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.
    Reginald Swindle, in proper person.
    Charles J. Crist, Jr., Attorney General, and Stephen R. Berger, Assistant Attorney General, for appellee.
    Before WELLS, and SHEPHERD, JJ„ and SCHWARTZ, Senior Judge.
   WELLS, Judge.

ON REMAND

This case stems from the summary denial of a Rule 3.850 motion for post-conviction relief and is before us on remand from the Florida Supreme Court. Relying on Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), where this court found the Florida Sexual Predators Act unconstitutional on procedural due process grounds, this court reversed the denial of Swindle’s 3.850 motion and certified conflict with Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003), in which the Second District rejected a similar procedural due process challenge to the same act. See Swindle v. State, 919 So.2d 462 (Fla. 3d DCA 2004).

The Florida Supreme Court, finding that the Act does not violate procedural due process, has now reversed Espindola, quashed our earlier decision based on that case, and remanded this matter for reconsideration in light of that reversal. See Milks v. State, 894 So.2d 924 (Fla.2005) (holding that the Florida Sexual Predators Act does not violate procedural due process); State v. Swindle, 923 So.2d 456 (Fla.2006) (quashing Swindle v. State, 919 So.2d 462 (Fla. 3d DCA 2004), and remanding for reconsideration). We therefore substitute this opinion affirming in all respects the order denying Swindle’s motion for post-conviction relief for our earlier decision in Swindle v. State, 919 So.2d 462 (Fla. 3d DCA 2004).

Accordingly, the order denying Swindle’s Rule 3.850 motion is in all respects affirmed.


text:
    STATE of Florida, Appellant, v. Mark K. SACHS, Appellee.
    No. 3D04-1244.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.
    Charles J. Crist, Jr., Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellant.
    Roberto D. Stanziale, Ft. Lauderdale, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Based on the parties’ stipulation at the trial level as to the controlling effect of State v. Harden, 873 So.2d 352 (Fla. 3d DCA 2004) (finding section 409.920(2)(e), Florida Statutes, unconstitutional), appeal pending, No. SC04-613, we hereby affirm.


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    SHANDS TEACHING HOSPITAL AND CLINICS, INC., Petitioner, v. Tatianna SAMUEL, a minor, by and through her parents and natural guardians, Janicka MATHIS and Kina Mathis, Janicka Mathis and Kina Mathis, individually, Rene Rivera-Santiago, and Cardiovascular Perfusionists, Inc., Respondents. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. Wesley Webster, Florida Board of Education, Body Dynamics, Inc., d/b/a, BDI Pharmaceuticals, PDK Labs, Inc., Lil’ Champ Food Stores, Inc., The Pantry Inc., f/k/a, Lil’ Champ Food Stores, Inc., and Ultra Tab Laboratories, Inc., Respondents. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. Mary Ellen Mayer, as Personal Representative of the Estate of Joseph Mayer on behalf of Mary Ellen Mayer and the Estate of Joseph Mayer, Respondents. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. Brenda Thompson, individually and as Parent and Natural Guardian of Kathleen Morgan Thompson, a minor, and David Saunders, M.D., Respondents. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. Victoria Golden and Edward S. Golden, individually, and as Natural Parents and Guardians of Jennifer Golden, a minor, State of Florida, Board of Education, and Board of Governors, Respondents. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. Marguerite Stone, as Personal Representative of the Estate of Ronald Pat Stone, deceased, and on Behalf of Valerie A. Stone, Respondents. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. Lisa C. Fine, as Personal Representative of the Estate of Cory Fine, Respondent. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. Donna L. Stewart, Respondent. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. Bette S. Seewald and Eugene J. Seewald, her husband, Respondents. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. Kathleen Cooper, Respondent. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. Michael Shane Ring, Sherry Ring, individually and as Parents and Natural Guardians of Michael Shane Ring, Jr., Respondents. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. David L. Autin and Joan Autin, as Personal Representatives of the Estate of Eraste Thomas Autin, Respondents. Shands Teaching Hospital and Clinics, Inc., Petitioner, v. Agustin Arroyo and Julianne Arroyo, Respondents.
    Nos. 1D05-5186, 1D05-5774 to 1D05-5782, 1D05-5785 to 1D05-5787.
    District Court of Appeal of Florida, First District.
    April 13, 2006.

      Susan L. Kelsey of Anchors Smith Grimsley, P.L., Tallahassee, for petitioner.
    Christopher P. Jayson, Arthur Skafidis and Camille Godwin of Cohen, Jayson & Foster, P.A., Tampa, for respondents Ta-tianna Samuel, Janicka Mathis and Kina Mathis.
    William H. Ogle of Mayfield & Ogle, P.A., Ormond Beach; and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for respondent Wesley Webster.
    Patrick Deckle of Patrick Deckle, P.A., Tampa; and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for respondents Mary Ellen Mayer and the Estate of Joseph Mayer; and Agustín Arroyo and Julianne Arroyo.
    Alan E. McMichael of Stripling, McMi-chael & Stripling, P.A., Gainesville; and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for respondents Victoria Golden, Edward S. Golden and J.G., a minor.
    Mark A. Avera of Avera & Avera, LLP, Gainesville; Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach; and Sharon H. Proctor, Avon Lake, Ohio for respondents Marguerite Stone.
    Frank A. Ashton of Peek, Cobb, Edwards & Ashton, P.A., Jacksonville; and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for respondent Lisa C. Fine.
    Linda Bellornio Commons, Spring Hill; and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for respondent Donna L. Stewart.
    Gilbert J. Alba of DeCarlis & Sawyer, P.A., Gainesville; and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for respondents Bette S. See-wald and Eugene J. Seewald.
    D. Mark Warner of Fisher, Butts, Se-chrest & Warner, P.A., Gainesville; and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for respondents Michael Shane Ring and Sherry Ring.
    Virginia M. Buchanan and Matthew D. Schultz, Pensacola; and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for respondents David L. Autin and Joan Autin.
   PER CURIAM.

Following the denial of its motions to disqualify the trial judge, Shands Teaching Hospital and Climes, Inc., (“Shands”), petitions this court for prohibition relief. We previously consolidated these cases for purposes of assigning them to the same panel of judges, and now consolidate them for disposition in this opinion.

During the trial of a medical negligence action styled as Dunn v. Shands Teaching Hospital and Clinics, Inc., et al., the trial judge made comments questioning the propriety of litigation tactics employed by Shands and the University of Florida Board of Trustees. The judge added that his concern with the appearance of impropriety on the part of Shands and the Board was not limited to the Dunn case, and extended to all the other cases involving those parties to which he was assigned. Shands timely moved to disqualify the judge in Dunn, asserting that these comments exhibited his bias or prejudice against it. The trial judge granted the motion for disqualification, expressly finding that it was legally sufficient. Shands then filed its motions to disqualify the same judge in these cases also involving University of Florida Board of Trustees, relying in large part on the comments made during the Dunn trial as the basis for its stated belief that it could not receive a fair hearing before the judge in any case also involving the Board. However, the trial judge found these allegations to be legally insufficient and denied the motions.

Having determined that the motion in Dunn was legally sufficient, the trial judge erred in denying the motions to disqualify in these cases. In Walls v. State, 910 So.2d 432 (Fla. 4th DCA 2005), the petitioner sought disqualification of the trial judge because in another unrelated case, the judge had granted a motion for disqualification based upon the judge’s acrimonious professional relationship with the attorney who also represented petitioner. However, the trial judge denied that motion as legally insufficient. In granting prohibition relief, the court in Walls observed that having granted the motion for disqualification in the first case, thus indicating a finding that it was legally sufficient to show bias, the trial judge should have likewise granted the motion filed on petitioner’s behalf. In other words, where the alleged facts are sufficient to establish a basis for disqualification, as the judge here determined was the case with respect to the motion filed in Dunn, disqualification is also warranted in other cases in which the same basis exists and disqualification is timely sought.

In finding the motions at issue here to be legally insufficient, the trial judge relied on City of Hollywood v. Witt, 868 So.2d 1214 (Fla. 4th DCA 2004). In City of Hollywood, the movant sought to disqualify the same judge in four cases, alleging that comments made by the judge in connection with one case demonstrated his bias and prejudice. The court determined that the comments were sufficient to show bias in the case in which they were made, but not in the three others because no showing had been made that the basis of the judge’s alleged bias existed in those cases. In contrast, the trial judge here acknowledged that his concern extended to all cases involving Shands and the Board, and we thus find City of Hollywood to be inapposite.

Accordingly, the petitions for writ of prohibition are GRANTED. On remand, a new judge shall be assigned to hear further proceedings in each of these cases.

ERVIN, DAVIS and BENTON, JJ., concur.


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    SEMINOLE COUNTY SCHOOL BOARD and Preferred Governmental Claim Solutions, Petitioners, v. Patricia HENDERSON, Respondent.
    No. 1D06-0989.
    District Court of Appeal of Florida, First District.
    April 13, 2006.

      Michael L. Peterson and Nicole Floren-tino of Moore, Peterson & Zeitler, P.A., Orlando, for petitioners.
    Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for respondent.
   PER CURIAM.

The petitioners seek a writ of certiorari, asking this court to review an order of the Judge of Compensation Claims which granted the claimant’s request for appointment of an expert medical advisor in her workers’ compensation case. Petitioners have not identified any injury flowing from this order which cannot be remedied on appeal from a final order. Accordingly, the petition for writ of certiorari is denied.

PETITION FOR WRIT OF CERTIO-RARI DENIED.

BARFIELD, BROWNING and THOMAS, JJ., concur.


text:
    David PETTY, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5595.
    District Court of Appeal of Florida, First District.
    April 13, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the trial court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s summary denial of the appellant’s motion without comment; however, in denying the appellant’s motion the trial court included language barring the appellant from future pro se filings. In the context of pro se criminal defendants, the Florida Supreme Court has held that before the trial court can sanction a defendant by imposing a bar to future pro se filings, a defendant must be given notice and the opportunity to respond. State v. Spencer, 751 So.2d 47, 48-49 (Fla.1999). Following the holding of Spencer, this Court has consistently reversed trial court orders which bar future pro se filings that are imposed without providing the required notice and opportunity to respond. See, e.g., Jackson v. Parkhouse, 826 So.2d 478, 480 (Fla. 1st DCA 2002); Long v. State, 793 So.2d 1141 (Fla. 1st DCA 2001). On appeal the appellant argues, and the State concedes, that no such notice and opportunity to respond was provided. Accordingly, that part of the trial court’s order barring future pro se filings is REVERSED and the cause REMANDED for further consideration consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

BENTON, POLSTON, and THOMAS, JJ., concur.


text:
    David HERNANDEZ, Petitioner, v. DENNY’S RESTAURANT & CLAIMS CENTER, Respondents.
    No. 1D05-5440.
    District Court of Appeal of Florida, First District.
    April 13, 2006.
    David Hernandez, pro se, petitioner.
    No appearance for respondents.
   PER CURIAM.

The Judge of Compensation Claims (JCC) granted a motion to dismiss the claim of David Hernandez for workers’ compensation benefits. An appeal was taken to this court but the appeal was dismissed because the order merely granted a motion and was not a final, appealable order. Hernandez v. Denny’s Rest, 896 So.2d 794 (Fla. 1st DCA 2005). Hernandez petitions this court for a writ of mandamus to compel the JCC to enter a final order. Petitioner explains that he filed a “Motion for Express and Specific Demand for Performance” with the Office of the JCC but no further activity has taken place.

A petitioner seeking to compel a public official to act must first make an express and distinct demand for performance of that act. Allen v. Young, 824 So.2d 970 (Fla. 1st DCA 2002); Al-Hakim v. State, 783 So.2d 293 (Fla. 5th DCA 2001). Although Hernandez has filed a motion requesting entry of a final order, he does not show that the motion has been called up for hearing and we must therefore deny the petition on authority of Smartt v. First Union National Bank, 771 So.2d 1232 (Fla. 5th DCA 2000). Petitioner is now confined to a correctional institution and he must likely make arrangements with Department of Corrections officials and the Office of the JCC to appear telephonically and obtain a ruling on his motion. See Gosby v. Third Judicial Circuit, 586 So.2d 1056 (Fla.1991).

PETITION FOR WRIT OF MANDAMUS DENIED.

BARFIELD, BROWNING and THOMAS, JJ., concur.


text:
    Steven E. HUTCHINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-4879.
    District Court of Appeal of Florida, First District.
    April 13, 2006.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant having failed to respond to the Court’s order of January 10, 2006, the Court has determined that the notice of appeal was not timely filed. For this reason, the appeal is hereby dismissed.

DISMISSED.

BARFIELD, WEBSTER, and BENTON, JJ., concur.


text:
    Walter Noble GRANDISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2946.
    District Court of Appeal of Florida, First District.
    April 13, 2006.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The appellant challenges his convictions for possession of cannabis and cocaine. Because the evidence presented at trial was insufficient to prove his actual dr constructive possession of the contraband, the trial court erred by denying his motion for judgment of acquittal. See Hill v. State, 736 So.2d 133 (Fla. 1st DCA 1999); see also Watson v. State, 877 So.2d 914 (Fla. 4th DCA 2004); Cruz v. State, 744 So.2d 568 (Fla. 2d DCA 1999); Agee v. State, 522 So.2d 1044 (Fla. 2d DCA 1988). We accordingly reverse the appellant’s convictions and remand this case with directions that he be discharged.

ALLEN, PADOVANO and BROWNING, JJ„ Concur.


text:
    James YARBROUGH, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5206.
    District Court of Appeal of Florida, First District.
    April 13, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion seeking prison credit filed pursuant to Florida Rule of Criminal Procedure 3.800. The appellant seeks two years of prison credit for the initial time served on the incarcerative portion of a split sentence.

A defendant is entitled to credit for time he has already served on the incarcerative portion of a split sentence. Pierson v. State, 801 So.2d 1055 (Fla. 1st DCA 2001); See Corpus v. State, 744 So.2d 594 (Fla. 2d DCA 1999) (noting that a defendant is entitled to prison credit for time already served in prison on the charges). The trial court failed to attach any documents, such as the written judgment and sentence, that conclusively establish that the appellant received two years of prison credit towards the sentences imposed in case numbers 90-3531, 90^4924, and 90-5261 for time previously served on those cases, or that the appellant is not entitled to such credit. Thus, we reverse the denial of the appellant’s motion and remand for the trial court to grant relief or attach documents refuting the appellant’s allegations. See Pierson.

REVERSED and REMANDED.

WOLF, WEBSTER and BROWNING, JJ., Concur.


author: BROWNING, J. KAHN, C.J., WOLF, J.,

text:
    Larry John PULLO, Former Husband, Appellant/Cross-Appellee, v. Sharon Denise PULLO, Former Wife, Appellee/Cross-Appellant.
    No. 1D04-2155.
    District Court of Appeal of Florida, First District.
    April 13, 2006.

      Lyman T. Fletcher, Jacksonville, and Jeffrey A. Conner, of Fletcher & Conner, Jacksonville, for appellani/cross-appellee.
    Natalie A. Tuttle, of Natalie Nice, P.A., Jacksonville, for appellee/cross-appellant.
   BROWNING, J.

Larry Pullo, the former husband, challenges an order of the trial court determining that the former wife, Sharon Pullo, was entitled to a portion of the former husband’s Deferred Retirement Option Program (DROP) account and modifying the parties’ 1995 dissolution judgment by converting the former wife’s rehabilitative alimony to permanent alimony. The former wife argues on cross-appeal that she is entitled to interest and cost-of-living adjustments (COLAs) as to her portion of the amounts deposited into the DROP fund. We affirm the trial court’s conversion of the rehabilitative alimony to permanent alimony; affirm the trial court’s distribution of the DROP account to the parties; and reverse on the cross-appeal. We discuss only the DROP distribution and the cross-appeal.

A final judgment dissolving the parties’ 25-year marriage and distributing their property was entered in 1995. The final judgment, in part, distributed the former husband’s fully vested employer-based pension plan with the City of Jacksonville as follows:

17. The Wife shall receive 33% of the Husband’s City of Jacksonville Pension/retirement benefit. The monthly value of this account as of December, 1994 was $3,614.80. Therefore the Wife shall receive $1,192.88 per month upon the Husband’s retirement from the City of Jacksonville (Fire and Rescue). The Husband shall notify the Wife in advance of his retirement plans and advise her of the time this benefit will be paid. Said payments shall be made directly to the Wife.

After the dissolution, the former husband continued to work for the City of Jacksonville and accrued further service credits in the defined-benefit pension plan. Subsequently, the City created a DROP which the former husband joined in January 2000. Pursuant to his participation in the DROP, the former husband was required to cease working for the City in January 2005.

At the hearing on the former wife’s enforcement/modification petition the trial court received into evidence section 121.209 of the Jacksonville Municipal Code setting forth the terms and conditions of the Jacksonville Police and Fire Pension Fund DROP Plan. The ordinance begins with the following preamble:

In general, and subject to the provisions of this section, the Deferred Retirement Option Program, hereinafter- referred to as the DROP, is a program under which an eligible Member of the Plan, may elect to participate, deferring receipt of normal retirement benefits while continuing employment with the City of Jacksonville without loss of any other employee benefits. Upon an eligible Member’s election to participate in the DROP, the amount of credited service and final average salary becomes frozen for purposes of determining pension benefits. Additional service beyond the date of entry into the DROP shall no longer accrue any additional benefits under the Pension Fund. The deferred monthly retirement benefits under the DROP shall accrue in the Fund on behalf of the participant, plus interest compounded monthly, as provided in paragraph (c)(1), for the specified period of the DROP participation, as provided in paragraph (b)(1). Upon termination of employment, the participant shall receive the total DROP benefits, as provided in Section 121.209(c), and begin to receive the previously determined normal retirement benefits.

(Emphasis added.) Subsection (b)(5) of the DROP ordinance states:

The DROP participant shall be a retiree under the Pension Plan for calculation of increased pension benefits, unless otherwise prescribed herein, but not for the purposes of employment with the City of Jacksonville, and the availability of employee benefits and programs related thereto.

(Emphasis added.) Subsection (b)(6) of this ordinance states that, once made, an election to participate in the City’s DROP “is irrevocable.”

The former wife claims she is entitled to her pro-rata share of the DROP fund, COLAs, and interest on her share in the DROP fund pursuant to the terms of the final judgment. The former husband claims she is barred from any entitlement to the DROP funds. The trial court agreed in part with both parties, because the former husband had, in effect, retired when he entered DROP and was deferring only the receipt of the retirement funds that otherwise would be received by him and the former wife. Therefore, the former wife was entitled to her pro-rata share of such benefits, but the trial court denied COLAs and interest benefits on the amount of DROP funds awarded to the former wife. We agree with the former wife’s position on both the original appeal and her cross-appeal.

ANALYSIS

A former spouse’s entitlement to an interest in a DROP fund and to interest, and to COLAs on such funds, has been addressed by our sister court, the Fourth District Court of Appeal, in similar cases to this appeal. See Russell v. Russell, 922 So.2d 1097 (Fla. 4th DCA 2006); Ganzel v. Ganzel, 770 So.2d 304 (Fla. 4th DCA 2000); Swanson v. Swanson, 869 So.2d 735 (Fla. 4th DCA 2004). We agree with these precedents and adopt their rationale as applicable here.

In Ganzel, that court concluded that a former wife was entitled to a pro-rata share of the former husband’s post dissolution participation in a DROP fund, and stated:

Once the judgment of dissolution, which incorporated the settlement agreement, was entered, marital property rights no longer existed and only individual property rights remained. See, e.g., DeSantis v. DeSantis, 714 So.2d 637 (Fla. 4th DCA 1998). Therefore, once the judgment of dissolution was entered, $782.79 of the Former Husband’s retirement benefits payable each month became the Former Wife’s property. See, e.g., Joyce v. Joyce, 563 So.2d 1126, 1127 (Fla. 1st DCA 1990) (stating that “pure property settlement agreements are nonmodifiable absent consent of the parties”).
In this case, each party’s interest in the Florida Retirement benefits are [sic] being paid into a fund and earning interest. Pursuant to the judgment of dissolution, the $782.79 is the Former Wife’s individual property to which the Former Husband has no claim.

Ganzel, 770 So.2d at 306.

By adopting and applying such rationale, we conclude that the former wife received an undivided individual property right in the former husband’s retirement account that, under the dissolution judgment, entitles her to a pro-rata share of his DROP fund (that portion of the DROP fund the former wife would have received but for the former husband’s deferring retirement benefits to the DROP fund). Accordingly, we affirm the trial court’s determination on this issue.

Addressing the former wife’s cross-appeal, we conclude that she is entitled to interest and COLAs on her accrued benefits in the former husband’s DROP account. See Swanson, 869 So.2d at 738 (“Furthermore, as is obvious, 45% of the value of the former husband’s pension benefits as of January 17, 1990 belongs to the former wife. Therefore, the interest and cost of living adjustments which were applied to the former wife’s share, despite being in the former husband’s DROP account, should also belong to the former wife.”). Thus, we reverse the trial court’s determination to the contrary and grant the relief requested by the former wife on cross-appeal.

Moreover, after careful review of our learned colleagues’ dissent, we remain unpersuaded that the foregoing rationale should be abandoned for their rationale. We continue to disagree that Boyett controls this appeal, and that the dissent’s analysis is not in conflict with Ganzel and Sivanson, which is predicated on the Gan-zel rationale.

In Boyett the court addressed the time a retirement plan is to be valued rather than ownership of a retirement plan as here. Here, no valuation issue is presented; only the question of DROP’S ownership is germane to this appeal’s determination. The parties recognize DROP’S value, but vehemently disagree over the quantum of the parties’ ownership; accordingly, like our sister court in Ganzel and Swanson, we conclude Boyett is not controlling. Moreover, the fact that former husband gave up his right to accrue additional future benefits in order to enter DROP does not change their equation. It is clear that former husband entered DROP because the program provides an economic benefit for him, even under Ganzel, and he seeks here only to further increase that benefit by acquiring former wife’s vested retirement benefits deferred in DROP, as compared to non-DROP participation. We find no basis in equity or property law to allow such a conversion of former wife’s deferred retirement benefits.

Nor can we agree with the dissent’s allegation that:

The issue in Ganzel was not whether the former wife in that case was entitled to a portion of the former husband’s post-dissolution DROP fund pursuant to the terms of the parties’ dissolution judgment; the former husband in that case agreed that the funds deposited into his DROP account were retirement benefits subject to the distribution scheme set forth in the parties’ dissolution judgment.

Wolf, J., dissenting opinion at page 17. The parties in Ganzel never stipulated to the former wife’s having an interest in DROP. The opinion states:

The Former Husband concedes that the funds deposited into DROP are retirement benefits — benefits that would have been paid each month to the Former Husband and Former Wife had the Former Husband not elected to participate in DROP and had instead simply retired.

Ganzel, 770 So.2d at 306 (emphasis added). It is clear that this concession covers only what is elementary to all plans: payments into DROP are merely deferred retirement benefits from which, but for DROP participation, each former spouse would receive his or her pro-rata share immediately. Accordingly, the concession only established for the court what is well-known.

Finally, we disagree with the dissent that the primary issue in Ganzel was alimony. The court itself stated that the Ganzel litigation was precipitated by a letter from the Florida Division of Retirement informing the former husband that his former wife, under the terms of the QDRO, would be receiving her pro-rata share of the former husband’s DROP benefits, just as the trial court determined here. We conclude from this language that contrary to the dissent, the central issue in Ganzel was the parties’ interest in the DROP account, and the alimony issue was only obliquely involved based on the former wife’s need for alimony as impacted by receipt of her retirement benefits, including those in DROP.

CERTIFICATION

Because of the numerous participants in DROP accounts similarly situated to these parties, we certify the following question to be one of great public importance:

IS A SPOUSE WHO IS AWARDED A PORTION OF THE OTHER SPOUSE’S PENSION AT THE TIME OF DISSOLUTION ENTITLED TO SHARE IN A DROP ACCOUNT CREATED, INCLUDING INTEREST AND COLAS, SOMETIME AFTER THE DISSOLUTION HAS BECOME FINAL?

DISPOSITION

We AFFIRM on the original appeal, REVERSE on the cross-appeal, and REMAND for proceedings consistent with this opinion.

ALLEN, WEBSTER, DAVIS, BENTON, PADOVANO, LEWIS, POLSTON, HAWKES, and THOMAS, JJ., concur.

KAHN, C.J., concurring in part and dissenting in part with opinion.

WOLF, J., concurring in part and dissenting in part with opinion, and ERVIN, BARFIELD, and VAN NORTWICK, JJ., concur.

KAHN, C.J.,

concurring in part and dissenting in part.

I agree with the majority’s opinion affirming that portion of the trial court’s order allowing Mrs. Pullo to collect her share of Mr. Pullo’s retirement benefit effective January 2000. I disagree with the majority, however, that we should reverse on the cross-appeal and allow Mrs. Pullo full participation in the DROP account. I conclude that a portion of the money paid by Mr. Pullo into his DROP account is, in fact, the marital asset referenced in paragraph 17 of the Final Judgment of Dissolution of Marriage. Because the Final Judgment does not contemplate that additional benefits, such as interest or COLAs, would be treated as marital assets, I would affirm on the cross-appeal.

The threshold question in this case is quite straightforward — is Mrs. Pullo entitled to her predetermined share of Mr. Pullo’s pension/retirement benefit as of January 2000, the date Mr. Pullo commenced participation in the DROP program? We should answer this question in the affirmative because the moneys deposited by Mr. Pullo into the DROP account are, in fact, part of his “Pension/retirement benefit,” and thus, under the final judgment, have been subjected to equitable distribution. On the other hand, the additional benefits provided by the DROP program, apart from the contribution of pension moneys, are not marital assets that were distributed by the final judgment.

I cannot agree with Judge Wolfs view that none of the DROP contributions prior to 2005 are marital property. The final judgment, which we all agree controls, simply provides that Mrs. Pullo will receive $1,192.88 per month upon Mr. Pullo’s retirement, because of her entitlement to “33% of the Husband’s City of Jacksonville Pension/retirement benefit.” However one wishes to characterize Mr. Pullo’s status commencing in January 2000, he began to receive retirement benefits as of that date. Although his right to possession of those benefits may have been deferred pursuant to Jacksonville’s ordinance, those very benefits funded the DROP account. The trial court quite correctly determined that a result allowing Mr. Pullo to retain 100% of those retirement benefits contravenes the plain language of the final judgment.

I conclude that requiring the former wife’s participation in the DROP account is actually a prohibited modification of a distribution of marital property. Florida courts uniformly agree that section 61.14(1), Florida Statutes, does not allow modification of a property distribution. See, e.g., Hulse v. Hulse, 873 So.2d 542, 543 (Fla. 1st DCA 2004) (observing that monthly amounts received as equitable distribution from husband’s retirement pay “were non-modifiable property distributions”); Spano v. Spano, 698 So.2d 324, 327 (Fla. 4th DCA 1997) (“[A] property distribution under chapter 61 is quite different than alimony, child support, or child custody and visitation as regards the ability to modify a judgment.... Section 61.14 makes clear that only alimony and child support, or child custody, or child visitation may be modified after final judgment. In other words, under chapter 61 the property distribution is conclusive with the final judgment. A property distribution under section 61.075 may not be modified even if the needs of a party change after the judgment.”) disapproved on other grounds, Bane v. Bane, 775 So.2d 938, 943-44 (Fla.2000); McAvoy v. McAvoy, 662 So.2d 744, 745 (Fla. 5th DCA 1995) (“[T]he parties are entitled to a final distribution of their assets and liabilities at the time of dissolution.”); Masters v. Masters, 443 So.2d 388, 389 (Fla. 2d DCA 1983) (finding that equitable distribution of property acquired during the marriage gives rise to “a vested right which was not subject to modification”).

Contrary to the assertion in the majority opinion, the accouterments of a DROP account should not, in this case, be seen as marital assets. Mrs. Pullo received an award that allowed her a sum certain of pension/retirement benefits. She did not receive, as a result of the dissolution decree, any entitlement to guaranteed interest accruals or cost-of-living adjustments on those benefits. These matters are purely creatures of the DROP account itself. As Judge Wolfs dissent observes, Mrs. Pullo’s automatic entitlement to these amounts is prohibited by Boyett v. Boyett, 703 So.2d 451 (Fla.1997). For this reason, I disagree with the majority that Mrs. Pullo is entitled to full participation in the DROP account. ■ I would affirm in its entirety the trial court’s treatment of the DROP contributions.

WOLF, J.,

Concurring in part and Dissenting in part.

I would reverse that portion of the trial court’s order awarding the former wife portions of the former husband’s DROP account. I would not reach the issue on cross-appeal. In all other respects, I concur with the majority opinion.

The determination of whether the former wife was entitled to a portion of the former husband’s DROP account involved interpretation of the dissolution judgment. Thus, the trial court’s order on this point is subject to the de novo standard of review. See Geiger v. Geiger, 632 So.2d 693, 695 (Fla. 1st DCA 1994); see also Ballantyne v. Ballantyne, 666 So.2d 957, 958 (Fla. 1st DCA 1996).

In Boyett v. Boyett, 703 So.2d 451 (Fla.1997), the Florida Supreme Court held that “the valuation of a vested retirement plan is not to include any contributions made after the original judgment of dissolution.” Id. at 452. In reaching this conclusion, the supreme court disapproved this court’s decision in DeLoach v. DeLoach, 590 So.2d 956 (Fla. 1st DCA 1991), which had adopted a differing valuation formula for retirement benefits subject to distribution in a dissolution proceeding. See Boyett, 703 So.2d at 451-52.

In Blevins v. Blevins, 649 So.2d 315 (Fla. 1st DCA 1995), this court held that a former wife was not entitled to any interest in a retirement benefit acquired by the former husband after dissolution of the parties’ marriage. The former husband in Blevins worked for General Motors (GMAC) at the time he divorced the former wife, and the trial court awarded the former wife a portion of the former husband’s pension plan with GMAC that had accrued during the parties’ marriage. The former husband was subsequently “forced to retire early from GMAC at age 51, pursuant to the terms of an agreement between GMAC and the United Auto Workers Union (UAW).” Id. at 316. “That agreement provided for the payment of ‘basic’ retirement benefits for life based on years of service, in addition to ‘temporary’ benefits to be paid monthly until the age of 62 when the employee becomes eligible to receive social security benefits.” Id. In post-dissolution proceedings, the trial court awarded the former wife not only a portion of the former husband’s “basic” retirement benefits, but also a portion of his “temporary” retirement benefits acquired as a result of the post-dissolution agreement between GMAC and the UAW.

On appeal, this court reversed the award to the former wife of a portion of the former husband’s “temporary” retirement benefits “because those benefits were not accrued during the parties’ marriage.” Id. at 317. This court explained that the former husband’s right to the “temporary” retirement benefits “arose by reason of an agreement negotiated.and entered into after the dissolution of the parties’ marriage.” Id.; see also Olsen v. Keefer, 714 So.2d 1165, 1166 (Fla. 1st DCA 1998) (holding that, in accordance with Boyett and Blevins, former wife had no interest in retirement benefits “accrued after dissolution of the parties’ marriage, including increased benefits from a subsequently adopted collective bargaining agreement”).

While there are definite differences between the DROP in this case, and the collective bargaining agreements at issue in Blevins and Olsen, the salient characteristics of both are the same for purposes of the issue presented here, making Blevins and Olsen controlling. First, the DROP fund at issue here did not exist at the time the parties divorced; second, the specific terms of the DROP plan as well as testimony from the former husband and his expert establish that the former husband gave up any further increases in his defined pension benefit in order to enter DROP. In other words, after dissolution, he entered into an agreement with his employer whereby he agreed to give up a future benefit (belonging only to him by virtue of the supreme court’s holding in Boyett) in exchange for the benefits provided under DROP. As such, the funds available to the former husband by virtue of the City’s DROP are the result of a post-dissolution agreement between him and the City, resulting in an additional retirement benefit payable to him upon retirement. .Because the DROP benefit exists in addition to, and not instead of, the former husband’s defined pension benefit, the trial court erred in determining that the amounts accruing monthly in the former husband’s DROP account were the “functional equivalent” of his defined pension benefit. Cf. Kelson v. Kelson, 675 So.2d 1370, 1372 (Fla.1996) (holding, that former husband’s Voluntary Separation Incentive Program (VSI) benefit, obtained by him upon his early separation from the United States Marine Corps in lieu of any military retirement benefit, was the “functional equivalent” of the “retired pay” the former wife was awarded a portion of in the parties’ dissolution judgment, because “[i]f we were to hold otherwise a service-member spouse would be able to defeat the other spouse’s court-awarded interest in military retirement benefits by unilaterally altering the form of those benefits in a manner that was unforeseeable at the" time the award was made”).

The position taken within the majority opinion reflects a fundamental misunderstanding of the practical effect of the former husband’s decision to participate in the DROP. While the former husband’s decision to participate in the DROP increased the value of his share of his employer-based pension, it left the former wife’s interest unaffected. The former wife was awarded $1,192.80 per month as her share of the value of the former husband’s pension at the time of dissolution payable upon his retirement. In January 2000, the former husband elected to participate in the DROP. Had the former husband worked for five more years with the City of Jacksonville without entering the DROP, the former wife would still have received $1,192.80 per month beginning in January 2005, and the former husband’s share of his retirement (in which the former wife had no interest) would have grown to reflect the additional years of service and commensurate increase in his average compensation rate over those five years. Thus, when the former husband elected to participate in the DROP and continue working for five additional years beginning in January 2000, the former wife’s awarded interest in his pension remained unaffected.

Under the terms of the dissolution judgment, the former wife began to receive $1,192.80 per month in January 2005 as her share of the former husband’s pension; this is the same amount she would have collected beginning at the same time had the former husband not chosen to participate in the DROP. The former husband therefore clearly gave up only his interest in any growth in his share of the pension as a result of his participation in the DROP, and therefore only he is entitled to that additional benefit.

The foregoing analysis is not in conflict with the decisions in Ganzel v. Ganzel, 770 So.2d 304 (Fla. 4th DCA 2000), or Swanson v. Swanson, 869 So.2d 735 (Fla. 4th DCA 2004), relied on by the former wife in her brief. The issue in Ganzel was not whether the former wife in that case was entitled to a portion of the former husband’s post-dissolution DROP fund pursuant to the terms of the parties’ dissolution judgment; the former husband in that case agreed that the funds deposited into his DROP account were retirement benefits subject to the distribution scheme set forth in the parties’ dissolution judgment. Instead, the issue in Ganzel was whether the former wife was entitled to continue receiving alimony benefits pursuant to the terms of the parties’ dissolution judgment while at the same time having her conceded share in the DROP account earning interest. The Fourth District Court of Appeal determined in Ganzel that the former wife could continue receiving alimony pursuant to the terms of the parties’ dissolution judgment even though her conceded share of the DROP fund was earning interest. See Ganzel, 770 So.2d at 306.

Similarly, while there is gratuitous language in Swanson v. Swanson, 869 So.2d 735 (Fla. 4th DCA 2004), indicating that the former wife’s “share” of the former husband’s “pension benefits” was “accumulating” in the former husband’s post-dissolution DROP account, the issue in Swanson was again not whether the former wife was entitled to a portion of the DROP fund pursuant to the terms of the parties’ dissolution judgment, but rather the appropriateness of the trial court’s valuation of the parties’ respective shares of one another’s retirement benefits, the propriety of the immediate offsets of those values calculated by the trial court, and whether the former wife was entitled to interest and COLAs on her apparently conceded share of the accrued benefits in the DROP fund. See id. at 736-38.

Ganzel and Swanson appear to be the only cases in Florida discussing the treatment of DROP accounts created after dissolution. However, three other states have confronted this issue, with California and Louisiana determining that DROP funds created after divorce are subject to division pursuant to the terms of a dissolution judgment distributing the parties’ retirement or pension benefits as they existed at the time of divorce, and Wisconsin taking a contrary view. Compare In Re Marriage of Davis, 120 Cal.App.4th 1007, 16 Cal.Rptr.3d 220, 227-28 (2004) (holding that former wife “undisputedly own[ed] a community property interest in [former husband’s] retirement benefits, and therefore own[ed] a community property interest in his retirement benefits as enhanced” by his post-dissolution participation in his employer’s DROP) and Bailey v. Bailey, 708 So.2d 354, 357 (La.1998) (holding that former wife had “right to receive the funds in the [former husband’s post-dissolution] DROP account, at least the portion attributable to [the former husband’s] labor and efforts and retirement contributions during the existence of the community prior to entering the DROP program”) with Winkler v. Winkler, 282 Wis.2d 746, 699 N.W.2d 652 (2005) (declining to reopen and modify property division in parties’ dissolution judgment in order to distribute the post-dissolution fund created in favor of the former husband by a variation on a DROP plan, on grounds that “[w]ere we to now conclude, as [the former wife] urges, that post-divorce employer modification of pension payout terms, years after a divorce, compels reopening of the divorce Judgment, finality in division of retirement benefits would essentially evaporate”). Our supreme court’s decision in Boyett requires us to reject the approach taken in California and Louisiana and to reverse that portion of the trial court’s order awarding a portion of the DROP account to the former wife.

      . Louisiana appears to have the most well-developed law in this area because the concept of DROP began in that state in the mid-1980's in connection with pension plans administered for police and fire personnel.


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    Lonnie David SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0366.
    District Court of Appeal of Florida, First District.
    April 13, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to this Court’s order of February 14, 2006, the appeal is hereby dismissed for lack of jurisdiction. See Frazier v. State, 766 So.2d 459 (Fla. 1st DCA 2000).

DISMISSED.

BARFIELD, BROWNING, and THOMAS, JJ., concur.


text:
    STATE of Florida, Appellant, v. J.L.M., III, Appellee.
    No. 1D05-2935.
    District Court of Appeal of Florida, First District.
    April 18, 2006.

      Charlie Crist, Attorney General; and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellant.
    C. Erica White, Tallahassee, for Appel-lee.
   PER CURIAM.

The State appeals a final order declaring J.L.M., III (Appellee), incompetent to proceed and dismissing the State’s amended petition for delinquency because two experts opined it was unlikely that Appellee would become competent within the next two years. The State contends that the trial court misinterpreted and misapplied section 985.223, Florida Statutes (2005), and Florida Rule of Juvenile Procedure 8.095 by not retaining jurisdiction over Appellee for two years. Concluding that the trial court failed to comply with the mandate of the statute, we reverse and remand for further proceedings consistent with the opinions stated herein.

Appellee was seven years old in August 2004 when he committed the offenses giving rise to the State’s amended petition for delinquency, which alleged battery on a law-enforcement officer, three counts of battery on a school employee, and misdemeanor battery. These counts alleged acts of scratching, striking, pushing, and/or kicking five individuals. An adjudicatory hearing was held on November 3, 2004, at the conclusion of which the trial court determined that the State had proven its charges against Appellee as to all five counts. The court deferred ruling on the adjudication of delinquency until it had an opportunity to review the pre-disposition report and to consider any other of Appellee’s past acts of violence or problems in the juvenile justice system.

On January 21, 2005, defense counsel filed a motion to declare Appellee incompetent to proceed on the grounds 1) that at age five, Appellee had been clinically diagnosed with disruptive behavior disorder and attention deficit hyperactivity disorder; 2) that in October 2004, he had been referred by the county school board to Florida State University for a psycho-educational evaluation, which recommended that he see a neurologist to obtain a neurological assessment regarding his aggressive, delinquent behaviors reported at school; and 3) that the county school board had designated Appellee as “emotionally handicapped” and was providing exceptional student educational services to help meet his special needs. See Fla. R. Juv. P. 8.095(a). The trial court entered orders appointing experts Dr. Leland, Ph. D., and Dr. Partyka, Ph.D., to determine whether Appellee was competent to proceed. See Fla. R. Juv. P. 8.095(c) (providing for appointment of no more than three, nor fewer than two, “disinterested qualified experts to examine the child as to competency”). Appellee was eight years old when he was evaluated.

A competency hearing occurred on April 26, 2005. At the commencement of the proceeding, the parties stipulated that both experts had concluded in their reports that Appellee was currently incompetent to proceed. Defense counsel then asked for a dismissal of the State’s amended petition. The prosecutor asserted that the proper procedure would be for the trial court to retain jurisdiction over the matter for two years and to check Appellee’s competency every six months to ascertain whether he was yet competent to proceed. The trial judge noted that Dr. Partyka had opined that it was unlikely that Appellee could be “trained to competence” within the next four to six years, whereas Dr. Leland opined that Appellee probably would not become competent to proceed much before age 12. On cross-examination, Dr. Leland testified that Appellee is of average intelligence and that, on average, age 12 is about when those abilities have developed in children of average intelligence.

The prosecutor argued that Appellee’s motion for a declaration of incompetency was untimely. The State argued also that because the two experts had not opined “for sure” that Appellee would not gain competency within the next two years, the trial court must retain jurisdiction over the case and re-examine Appellee at six-month intervals to determine the competency issue. Defense counsel renewed the request to have the amended petition dismissed. Accepting the experts’ opinions, the trial judge orally found it was unlikely that Appellee would become competent within two years. Given that finding, the court found no need to bring back Appellee for periodic re-examinations. The court then issued a written order declaring Appellee incompetent and dismissing the amended petition.

The trial court’s interpretation and application of a statute is a pure question of law subject to de novo review. See Demps v. State, 761 So.2d 302, 306 (Fla.2000). Review of a trial court’s ruling on competency is whether competent substantial evidence supports the ruling, see Alston v. State, 894 So.2d 46, 54 (Fla.2004), and a competency ruling will stand absent an abuse of discretion. See id.; Hardy v. State, 716 So.2d 761, 764 (Fla.1998).

Section 985.223, Florida Statutes, and Rule 8.095 govern incompetency matters in juvenile delinquency proceedings. The opening paragraph of the statute states:

If, at any time prior to or during a delinquency case, the court has reason to believe that the child named in the petition may be incompetent to proceed with the hearing, the court on its own motion may, or on the motion of the child’s attorney or state attorney must, stay all proceedings and order an evaluation of the child’s mental condition.

Rule 8.095(2) essentially tracks the statutory language regarding the trial court’s setting a hearing. Statutory subsection (l)(c) addresses the need for specific written judicial findings “as to the nature of the ineompetency and whether the child requires secure or nonsecure treatment or training environments.” Subsection (l)(f) sets forth the factors to be considered in determining whether a child is competent to proceed. Statutory subsection (5)(a) states:

If a child is determined to be incompetent to proceed, the court shall retain jurisdiction of the child for up to 2 years after the date of the order of incompetency, with reviews at least every 6 months to determine competency.

Subsection (5)(c) states:

If the court determines at any time that the child will never become competent to proceed, the court may dismiss the delinquency petition. If, at the end of the 2-year period following the date of the order of incompetency, the child has not attained competency and there is no evidence that the child will attain competency within a year, the court must dismiss the delinquency petition. If appropriate, the court may order that proceedings under chapter 393 or chapter 394 be instituted. Such proceedings must be instituted not less than 60 days prior to the dismissal of the delinquency petition.

Rule 8.095(2), which sets forth the procedure to be followed when a child is believed to be incompetent, provides that the processes for determining competency are to be set in motion “prior to or during” the adjudicatory hearing. The State contends that this timing element makes sense, given the fact that the determination of competency goes to the child’s ability to appreciate the allegations and possible penalties, to understand the adversarial nature of the proceedings, to present pertinent facts to counsel and to consult with defense counsel with a reasonable degree of understanding, to demonstrate proper courtroom behavior, and to testify relevantly. See § 985.223(l)(f)l.-6., Fla. Stat. Appel-lee’s motion to declare incompetency was not filed until after the adjudicatory hearing was completed. We note that the statute contemplates a wider time range for the trial court, on the motion of the child’s attorney, to stay.the proceedings and order a mental health evaluation “at any time prior to or during a delinquency case.” See § 985.223(1), Fla. Stat. Although the prosecutor challenged the timing of Appellee’s motion without success, the State’s main argument was that the trial court must retain jurisdiction for two years.

Rule 8.095(7)(A)-(B) addresses the trial court’s jurisdiction and essentially tracks the statutory language:

Continuing Jurisdiction and Dismissal of Jurisdiction.
(A) If a child is determined to be incompetent to proceed, the court shall retain jurisdiction of the child for up to 2 years after the date of the order of incompetency, with reviews at least every 6 months to determine competency. If the court determines at any time that the child will never become competent to proceed, the court may dismiss the delinquency petition....
(B) If, at the end of the 2-year period following the date of the order of incompetency, the child has not attained competency and there is no evidence that the child will attain competency within a year, the court must dismiss the delinquency petition.

The State contends that the statute and rule do not permit a trial court to dismiss a petition for delinquency under the instant circumstances, where an eight-year-old was deemed presently incompetent and the court found it unlikely that competency would be attained within the next two years. Stated otherwise, the State’s position is that Florida law does not provide that simply because a child is incompetent to proceed at age eight (and may not become competent within the next two years), the delinquency petition can be dismissed. Rather, the State asserts that under such circumstances, the trial court must retain jurisdiction over the child following the incompetency order pursuant to section 985.223(5)(a), Florida Statutes, unless the court determines pursuant to section 985.223(5)(c), Florida Statutes, that the child will never become competent to proceed or if, after two years following the incompetency order, the child has not attained competency and there is no evidence the child will attain competency within a year.

Because Appellee’s motion for a declaration of incompetency was filed “during [the] delinquency case,” even if after the conclusion of the adjudicatory hearing, we (like the trial court) reject the State’s claim of untimeliness without further discussion. As to the trial court’s refusal to retain jurisdiction for two years, we conclude that the trial court failed to follow the express requirements of the applicable statute and rule. Dr. Partyka opined it was unlikely that eight-year-old Appellee could be trained to competence within the next 4-6 years. Dr. Leland testified that Appellee ’probably would not become competent much before age 12. The State contends that the trial court had to retain jurisdiction for two years where neither of the two experts opined that Appellee never would become competent.

Section 985.223(5)(a), Florida Statutes, states that “[i]f a child is determined to be incompetent,” as both experts found Ap-pellee to be currently (and more likely than not to be for the next four years or more), “the court shall retain jurisdiction of the child for up to 2 years after the date of the order of incompetency, with reviews at least every 6 months to determine competency.” The pertinent language in this provision mandates the retention of jurisdiction “for up to 2 years after the date of the order of incompetency” where “a child is determined to be incompetent to proceed.” The trial court found that Appellee was currently incompetent to proceed. As the trial court did not find (and no competent substantial evidence indicated) that Appellee never would become -competent to proceed, section 985.223(5)(c), Florida Statutes, was not triggered. Under section 985.223(5)(a), Florida Statutes, and the parallel rule, the trial court was required to retain jurisdiction and to review the circumstances “at least every 6 months to determine competency.”

Accordingly, we REVERSE the order dismissing the delinquency petition and REMAND with directions to the trial court to reinstate the amended petition for delinquency and to retain jurisdiction over Appellee’s case in accordance with the requirements of the applicable statute and rule.

BARFIELD, BROWNING and THOMAS, JJ., concur.


text:
    Raymond Kelly KOON, Appellant, v. Cynthia Diane KOON, Appellee.
    No. 1D05-5606.
    District Court of Appeal of Florida, First District.
    April 18, 2006.

      George W. Blow, III, Live Oak; Conrad C. Bishop, Jr., and Kathleen McCarthy Bishop, Perry, for Appellant.
    Robert A. Sandow, Live Oak, for Appel-lee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of January 3, 2006, the Court has determined that the appellant has failed to demonstrate that the order on appeal is a final order or an otherwise appealable nonfinal order. For this reason the appeal is hereby DISMISSED.

BARFIELD, WOLF, and BROWNING, JJ., concur.


text:
    Jeffrey J. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4582.
    District Court of Appeal of Florida, First District.
    April 18, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General; Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his posteonviction motion. We affirm without discussion claim two. As to his first and third claims, we reverse and remand with instructions to the trial court to either hold an evidentiary hearing or to attach record portions conclusively refuting the appellant’s assertions.

The appellant was convicted of sale of cocaine, following a jury trial in which the appellant was tried alongside his co-defendant. In his first claim, the appellant asserts his counsel was ineffective for failing to file a motion to sever prior to trial where his counsel had been put on notice that the co-defendant’s defense of entrapment would require the co-defendant to implicate the appellant as a drug dealer and contradict the appellant’s theory of innocence. The appellant further asserts that, as predicted, his co-defendant testified that the appellant sold drugs for a living and directly implicated the appellant as a source of cocaine, without objection from counsel. Similarly, in his third claim the appellant alleges he was denied effective assistance of counsel when his counsel knew of the co-defendant’s entrapment defense, yet failed to take steps to sever the co-defendant’s and appellant’s trials. Thus, the appellant raises facially sufficient claims for relief. Cherry v. State, 835 So.2d 1205 (Fla. 4th DCA 2003)(hold-ing that an appellant makes a facially sufficient claim for postconviction relief based on counsel’s failure to sever where the appellant asserts that his counsel should have recognized the incompatibility of the co-defendant’s defense prior to trial and, at the very least, should have moved to sever immediately following the co-defendant’s testimony regarding highly prejudicial and irrelevant prior acts of the appellant).

Accordingly, we affirm in part, and reverse in part the trial court’s rulings with regards to the appellant’s first and third claim and remand with instructions to the trial court to conduct an evidentiary hearing or to attach record documentation refuting the appellant’s assertions.

AFFIRMED IN PART AND REVERSED IN PART AND REMANDED.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Anna Hoyt VERNER, Respondent.
    No. 1D05-1203.
    District Court of Appeal of Florida, First District.
    April 19, 2006.
    Enoch J. Whitney, General Counsel; Judson M. Chapman, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for petitioner.
    David M. Robbins and Susan Z. Cohen, of Epstein & Robbins, Jacksonville, for respondent.
   PER CURIAM.

DENIED. See Dep’t of Highway Safety & Motor Vehicles v. Pitts, 815 So.2d 738 (Fla. 1st DCA 2002).

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