author: WARNER, J.

text:
    Carlos POZO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3419.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.
    Rehearing Denied Oct. 4, 2007.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Carlos Pozo appeals his conviction and sentence for vehicular homicide. He raises multiple claims of error, on which we affirm, including: (1) failure to grant a judgment of acquittal on the sufficiency of the evidence; (2) denial of a peremptory juror challenge for failure to give a race-neutral reason; (3) failure to give a special jury instruction; and (4) error in answering a jury question during deliberations. We reverse, however, because the trial court denied a post-trial motion to interview the jury when there was evidence of actual prejudice resulting from external juror influence.

Pozo and several classmates decided to skip school one morning to go to breakfast. All of the friends followed Pozo to his house so he could get some money. Cait-lyn Kazanjian accompanied Pozo in his vehicle. As they entered the residential area, with a speed limit of thirty-five miles per hour, Pozo began driving very fast. One of his classmates and an independent eyewitness, Mr. Madsen, estimated his speed between seventy-five and ninety miles per hour. Pozo passed Madsen, who observed a rain shower just ahead of Pozo’s vehicle. Madsen and Pozo’s classmates lost sight of the vehicle when it disappeared around a curve in the road.

Around the curve, the classmates in the other vehicle found Pozo’s vehicle wrapped around a tree. Both occupants had been ejected, and, tragically, Kazanjian, who was wearing a seatbelt, died of her injuries.

At the scene, Officer Main, the police investigator, did not observe any skid marks, either because of the rain-slicked roadway or the failure to brake. Using the car remnants, Main later used a statistical measure to estimate that Pozo was traveling at least sixty-seven miles an hour at the time of the crash.

The police took a statement from Pozo in which he admitted speeding but estimated he was going no more than fifty-five miles per hour. He also explained that he had one hand on the steering wheel while he was picking out a CD to play. He claimed that a black vehicle entered the road from a side street, and he swerved to avoid the vehicle, causing him to lose control of his car.

The jury convicted Pozo of vehicular homicide. The court sentenced him to sixty-six months in prison, to be followed by sixty months of probation. This appeal follows.

Pozo argues that the evidence of vehicular homicide submitted by the prosecution was insufficient as a matter of law and that the court reversibly erred in denying Pozo’s motion for judgment of acquittal. Pozo claims that the state based its case primarily on speed alone, which he claims is insufficient to support a charge of vehicular homicide. We agree with the state, however, that not only was the speed grossly excessive, but other factors were present which prevented the entry of a judgment of acquittal.

Although some courts have held that speed alone is insufficient to support a charge of vehicular homicide, see House v. State, 831 So.2d 1230, 1233 (Fla. 2d DCA 2002); Hamilton v. State, 439 So.2d 238 (Fla. 2d DCA 1983), we have held that grossly excessive speed alone can constitute such reckless conduct as to support a charge of manslaughter by culpable negligence. See Copertino v. State, 726 So.2d 330, 332-33 (Fla. 4th DCA 1999). The degree of culpability required to prove vehicular homicide “is less than culpable negligence, which is the standard for manslaughter, but more than a mere failure to use ordinary care.” Michel v. State, 752 So.2d 6, 12 (Fla. 5th DCA 2000). In Copertino we explained:

For this crime of manslaughter by culpable negligence, however, it is one thing to speed slightly over the posted limit, and it is quite another matter to drive at such an immensely excessive rate that no one could reasonably drive. In our opinion, the rate of speed of a vehicle can be firmly shown by the evidence to be so excessive under the circumstances that to travel that fast under the conditions is by itself a reckless disregard for human life or the safety of persons exposed to the speed. For example, while driving 90 mph at Sebring on a test track might not even be negligent conduct, racing at 90 mph in front of school where children are entering or leaving would surely be so flagrant as to show a reckless disregard for human life and safety. This case is of the latter kind. This defendant drove his vehicle at an enormously excessive speed at a time and in a place where it might have been dangerous to exceed the posted limits by even a little.

726 So.2d at 332-33 (emphasis in original). Similarly, based upon the state’s evidence, Pozo was driving anywhere from sixty-seven to ninety miles per hour in a residential neighborhood. That fact alone places this case in line with Copertino and justified the denial of the motion for judgment of acquittal, particularly given that the recklessness necessary to prove vehicular homicide is less than that of culpable negligence. However, in addition to that, Pozo was playing with his CD, being inattentive to his speed in rainy conditions, and rounding a curve in the road. These factors, combined with his speed, provide more than ample evidence to withstand the motion. See also D.E. v. State, 904 So.2d 558 (Fla. 5th DCA 2005); Byrd v. State, 531 So.2d 1004 (Fla. 5th DCA 1988).

We dispense with the other trial issues summarily. Pozo challenged the state’s strike of a Hispanic juror. However, he failed to preserve the issue by renewing his objection before the jury was sworn. Melbourne v. State, 679 So.2d 759, 765 (Fla.1996); Joiner v. State, 618 So.2d 174, 176 (Fla.1993). The court did not err in refusing a special jury instruction stating that speed alone is insufficient to prove vehicular homicide. As we have noted in ruling on the motion for judgment of acquittal, in this case the grossly excessive speed alone would have been sufficient to prove the ease even though there were clearly other factors present. The court did not abuse its discretion in refusing this instruction. See Campbell v. State, 812 So.2d 540, 543-44 (Fla. 4th DCA 2002). Finally, we find no error in the court’s comments to the jury, as we do not view them as comments on the evidence.

After the verdict, a juror wrote to the judge of her dismay over the jury deliberations. In her letter, the juror stated that she was concerned about Pozo’s sentence and expressed a desire that his teen years not be wasted. Additionally, she stated:

Another struggle I am having is the aggressive behavior by two of my fellow jurors. Three of the jurors were not included until the very end. And one who was remaining not guilty changed her mind after conversations that were fabricated about the possibilities of the defendants [sic] character as well as our own security. It was brought up that Palm Beach County Sheriffs office might harass us if we came back with a[not] guilty verdict.

In the following paragraph, the juror stated, “If this young man receives jail time, I will feel obligated to apologize to the Pozo family for my ignorance about the charge and for feeling pressured to vote the way I did.”

Upon becoming aware of this letter, Pozo’s counsel filed a notice of intention to interview jurors, claiming that the letter reflected that this juror and possibly other jurors were concerned about repercussions to themselves by Palm Beach County Sheriffs Office employees if they returned a not guilty verdict. The deceased victim was the daughter of a Palm Beach County Sheriffs deputy.

At the hearing on the motion, defense counsel pointed out that several members of the Palm Beach County Sheriffs Office sat in the court during the trial wearing t-shirts which showed that they were with the sheriffs department. That occurred despite a prior agreed order entered by the trial court that observers would be precluded from wearing buttons or t-shirts reflecting a bias for or against the state or the victim. Given the juror’s allegations that the jurors discussed the possibility that the Palm Beach Sheriffs Office would harass jurors if they did not vote to convict, defense counsel argued that this external influence on the jury verdict needed to be investigated.

In contrast, the state argued that the comments by the juror involved matters which inhere to the jury verdict, and thus inquiries could not be made. The trial court noted that no sworn affidavits were presented, but in any event the allegations did not necessitate further inquiry. On this issue, we reverse.

Florida Rule of Criminal Procedure 3.575 provides the procedure for interviewing jurors in criminal cases. See Amendments to the Florida Rules of Criminal Procedure, 886 So.2d 197 (Fla.2004). This rule became effective January 1, 2005, which was before the hearing in the June 2005 trial in the instant case. Rule 3.575 states:

A party who has reason to believe that the verdict may be subject to legal challenge may move the court for an order permitting an interview of a juror or jurors to so determine. The motion shall be filed within 10 days after the rendition of the verdict, unless good cause is shown for the failure to make the motion within that time. The motion shall state the name of any juror to be interviewed and the reasons that the party has to believe that the verdict may be subject to challenge. After notice and hearing, the trial judge, upon a finding that the verdict may be subject to challenge, shall enter an order permitting the interview, and setting therein a time and a place for the interview of the juror or jurors, which shall be conducted in the presence of the court and the parties. If no reason is found to believe that the verdict may be subject to challenge, the court shall enter its order denying permission to interview.

The rule does not require the filing of sworn affidavits in order to interview a juror, and in this respect the rule digresses from prior case law. See, e.g., Reaves v. State, 826 So.2d 932 (Fla.2002); Johnson v. State, 804 So.2d 1218 (Fla.2001). All that is required under the rule is a statement of reasons why the verdict may be subject to challenge. Therefore, rejecting juror interviews for the failure to have sworn proof was error.

As the supreme court said in Reaves, “Juror interviews are not permitted relative to any matter that inheres in the verdict itself and relates to the jury’s deliberations. To this end, any jury inquiry is limited to allegations which involve an overt prejudicial act or external influence .... ” 826 So.2d at 943 (footnote omitted). In this case, the motion recited the juror’s own letter to the trial judge, indicating that the jurors discussed fear of harassment by the sheriffs office should the jury not convict. This discussion, coupled with the presence of clearly identified sheriffs office members in the gallery, showed that influences external to the evidence presented during the trial may have influenced the verdict. Thus, this matter may be the subject of juror interview.

The right to a jury trial is one of the most precious rights of the American system of justice. As noted in Woods v. Dugger, 923 F.2d 1454, 1456 (11th Cir.1991):

The due process clause of the Fourteenth Amendment guarantees the right of state criminal defendants to be tried by an impartial jury. The Fourteenth Amendment incorporates the essence of the Sixth Amendment right to be tried “by a panel of impartial, ‘indifferent’ jurors [whose] verdict must be based upon the evidence developed at the trial.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) (citations omitted). As Chief Justice Warren noted in his concurrence in Estes v. Texas, 381 U.S. 532, 552, 85 S.Ct. 1628, 1637, 14 L.Ed.2d 543 (1965) (Warren, C.J., concurring) due process requires the courts to safeguard against “the intrusion of factors into the trial process that tend to subvert its purpose.” Id. at 560, 85 S.Ct. at 1641.

In Woods, the defendant was on trial for first-degree murder of a correctional officer at Union Correctional Institute in Union County, Florida. The crime attracted substantial pre-trial publicity and comment in this small close-knit community. During the trial the gallery was populated with uniformed correctional officers from the prison system. Defense counsel objected, and the trial court even took video of the gallery. Many of the jurors either worked for the prison system or had relatives working for the system. Woods was convicted of first-degree murder and sentenced to death.

After exhausting state appeals, on petition for habeas corpus relief to the federal courts, Woods argued that he was denied a fair trial because of the hostile atmosphere surrounding his trial, particularly focusing on the correctional officers in the gallery. The trial court denied relief, but on appeal, the Eleventh Circuit reversed finding that Woods had proven presumed prejudice in the court proceedings. The court held that under the facts presented, Woods had met the high burden of showing inherent prejudice to his right to a fair trial and granted a new trial.

The Woods court looked to Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), in which the Supreme Court considered the prejudicial effect of having a number of uniformed state troopers sitting in the front of the gallery during the trial of the defendant. The Court determined that the presence of the officers was not so great as to be inherently prejudicial, reasoning that officer security in most courtroom settings would not impress upon the jury any unusual cause for alarm which would affect the fairness of the jury’s fact-finding process. To guide federal review of future state trials the Court articulated the following test:

All a federal court may do in such a situation is look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.

Id. at 572, 106 S.Ct. 1340 (emphasis supplied). Thus, pursuant to Holbrook, a defendant must either show inherent prejudice or actual prejudice to the fairness of the fact-finding process in order to establish a violation of the defendant’s constitutional right to a fair trial.

What constitutes “actual prejudice” in the context of jury deliberations has not been directly addressed by the Florida courts in circumstances such as these. In Pope v. State, 569 So.2d 1241 (Fla.1990), the court discussed whether actual prejudice had been shown where a juror had brought a newspaper into the jury box during deliberations in violation of instructions not to read media coverage about the case. The court noted that no actual prejudice had been shown, because the trial court had inquired of the juror and had been assured that the juror had not read anything about the case. One may surmise from this that had the juror read about the case, then that objective fact was sufficient to show actual prejudice.

Actual prejudice does not mean that the juror is actually influenced by the external or overt act to reach a particular verdict. Because a court may not inquire into a juror’s thought processes, a court’s inquiry as to influences over a jury’s verdict is necessarily limited to:

objective demonstration of extrinsic factual matter disclosed in the jury room. Having determined the precise quality of the jury breach, if any, the [trial] court must then determine whether there was a reasonable possibility that the breach was prejudicial to the defendant. ... Though a judge lacks even the insight of a psychiatrist, he must reach a judgment concerning the subjective effects of objective facts without benefit of couch-interview introspections. In this determination, prejudice will be assumed in the form of a rebuttable presumption, and the burden is on the Government to demonstrate the harmlessness of any breach to the defendant.

State v. Hamilton, 574 So.2d 124, 129 (Fla.1991) (quoting United States v. Howard, 506 F.2d 865, 869 (5th Cir.1975)).

In the context of outside influences on jury verdicts, we find Howard v. State, 941 S.W.2d 102 (Tex.Crim.App.1996) instructive. There, in deciding whether actual or inherent prejudice to the jury process occurred due to the presence of twenty uniformed officers in the gallery, the court noted:

A defendant, to prevail on an appeal claiming reversible prejudice resulting from external juror influence, must show either actual or inherent prejudice. To determine inherent prejudice, we look to whether “an unacceptable risk is presented of impermissible factors coming into play.” Holbrook v. Flynn, 475 U.S. at 570, 106 S.Ct. at 1346-47 (citing Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126 (1976)). Obviously, the test to determine actual prejudice-the result of external juror influence-would be whether jurors actually articulated a consciousness of some prejudicial effect.

Id. at 117 (emphasis supplied). This construction of actual prejudice involved in external influence on juries seems to be a correct one. Jurors may not be interrogated as to whether the influence actually affected their decision. It is sufficiently deleterious to the concept of a fair and impartial jury for the jury to have consciously contemplated the outside influence and its potential effect on their verdict. The actual prejudice standard cannot require that a defendant prove that a juror is actually influenced by the outside pressure. To require that is to demand that a defendant inquire into matters that do inhere in the jury verdict.

Given these precepts, it is clear that Pozo’s counsel’s motion to interview the jurors presented a reason to believe that the jury verdict was subject to challenge. The juror’s letter to the judge showed the jury’s consciousness of external influences on it and their potential for affecting the verdict. The court erred in denying the motion to interview the jurors.

We reverse and remand for further proceedings on the motion to interview the jurors.

POLEN and HAZOURI, JJ., concur.

      . Although the juror wrote the word "guilty,” Pozo claims the indication is that she meant "not guilty.”

       Appellant does not here make an effective argument for actual prejudice. At no time were jurors questioned regarding their conscious perception of impermissible external influence.


source: Caselaw Access Project

author: LAGOA, J.

license: Public Domain

text:
    Kirk Douglas BILLIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-585.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Rehearing Denied Sept. 26, 2007.

      Broad and Cassel and Beverly A. Pohl, Bruce S. Rogow, Ft. Lauderdale, for appellant.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General; Katherine Fernandez Rundle, State Attorney, and Christine E. Zahralban, Assistant State Attorney, for appellee.
    Before WELLS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

Kirk Douglas Billie (“Billie”) appeals a final judgment of conviction and sentence. For the reasons set forth below, we affirm.

In Billie v. State, 863 So.2d 323 (Fla. 3d DCA 2003), we reversed Billie’s second-degree murder conviction for the death of his two sons, holding that evidence of Billie’s prior bad acts had been admitted into evidence impermissibly. This appeal arises from Billie’s second trial.

I. FACTS

During the early morning hours of June 27, 1997, Billie, a Miccosukee Indian, sunk a stolen Chevrolet Tahoe into a canal, killing two of his children, Kurt and Keith Billie. The Tahoe belonged to Sheila Tiger, Billie’s former girlfriend and the mother of the children.

Billie disapproved of the manner in which Tiger was raising the children. He complained that she would drive through the reservation at night while the children slept in the Tahoe. On the night of their deaths, Billie unsuccessfully sought Tiger’s permission to visit with the children. Tiger told Billie that the children were asleep at her mother’s house and that he could not see them.

Billie, who became increasingly intoxicated throughout the evening, attempted to locate either Tiger or the children. During his search, Billie entered Tiger’s trailer and left a note which stated, “[djon’t ever think the kids will stop me.” Tiger identified the handwriting as belonging to Billie and further testified that she had not seen the note before that night. Billie had previously warned Tiger that if she continued to drive the Tahoe with the children in the back he would take it and drive it into the canal. When Billie eventually found the Tahoe parked in front of a house, Tiger was not present. Instead, Melody Osceola, Tiger’s fifteen year-old cousin, was in the truck and exited the vehicle with Tiger and Billie’s youngest child, Kirkland. Billie entered the Tahoe and drove off. After driving off with the Tahoe, Billie drove the vehicle to a canal where he released the Tahoe and allowed it to sink into the canal. His two children, Kurt and Keith, were in the backseat of the Tahoe when the vehicle sank into the canal.

Tiger reported the children and the Tahoe missing, and Billie was arrested by a Miccosukee police officer. Billie told the officer that he did not know the location of either the children or the Tahoe. In a police holding cell, Tiger asked if Billie knew the children were in the Tahoe, and he responded “yeah.” After almost ninety minutes, Billie led the police to the canal.

At the canal, a Miami-Dade rescue officer attempted to ascertain the precise location at which the Tahoe entered the water. The officer asked Billie if he had caused the Tahoe to enter the canal. Billie responded, “that is why you are here, I had a fight with my wife and I made a threat and I carried it out.”

As we noted regarding the first trial, in which Billie was charged with two counts of first-degree murder, “[t]he only dispute at trial concerned Billie’s knowledge of the children’s presence in the car at the time he drove the car into the canal.” Billie, 863 So.2d at 324. At the charge conference, Billie requested an addition to the standard second-degree murder jury instruction, which would have included an actual knowledge/subjective intent element to the standard instruction. The trial court denied the request and charged the jury with the standard instruction. The jury found Billie guilty on all counts, and he appeals his conviction.

II. STANDARD OF REVIEW

On appeal, Billie argues that the trial court erred by refusing to modify the standard jury instruction for second-degree murder. We review the denial of a criminal defendant’s request to modify a standard jury instruction for abuse of discretion. Stephens v. State, 787 So.2d 747, 755 (Fla.2001). In order to be entitled to a special jury instruction, the defendant must prove: (1) the special instruction was supported by the evidence; (2) the standard instruction does not adequately cover the defendant’s theory of the case; and (3) the proposed instruction accurately states the law and would not confuse or mislead the jury. Id. at 756. Although the defendant is entitled to have the jury instructed on his theory of defense, a trial court’s failure to grant a modification to a standard jury instruction “does not constitute error where the instructions given adequately address the applicable legal standards.” Id. at 755; see also O’Brien v. State, 771 So.2d 563, 565 (Fla. 4th DCA 2000) (“If an instruction sufficiently sets forth the applicable legal standard, the refusal to give a special instruction is not error.”)

III. ANALYSIS

The standard jury instruction for second-degree murder, approved by the Florida Supreme Court and read by the trial court to the jury, provides that to convict a defendant the jury must find that the defendant committed an act that was “imminently dangerous to another and demonstrating a depraved mind.” As the trial court instructed the jury:

To the [sic] prove the crime of second degree murder the State must prove the following three elements beyond a reasonable doubt. One, Kurt Billie and/or Keith Billie is dead. Two, the death was caused by the criminal act of the defendant. Three, there was an unlawful killing of Kurt Billie and/or Keith Billie by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life. An act includes a series of related acts arising from and performed pursuant to a single design or purpose. An act is imminently dangerous to another and demon-strafing a depraved mind if it is an act or series of acts that a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another and is done from ill-will, hatred, spite or an evil intent and is of such a nature that the act itself indicates an indifference to human life. In order to convict of second degree murder it is not necessary for the State to prove the defendant had an intent to kill.

See Florida Standard Jury Instructions In Criminal Cases, The Supreme Court Comm. On Standard Jury Instructions, § 7.4 (May 2006).

Billie argues that the trial court erred by refusing to modify the standard second-degree murder jury instruction to include the following additional language:

To prove the defendant guilty of second-degree murder, the State must prove beyond a reasonable doubt that the defendant knew the children were in the Tahoe before he released it into the canal.

The standard jury instructions for criminal trials are presumed correct and are preferred over special instructions. Stephens v. State, 787 So.2d 747, 755 (Fla.2001); Carpenter v. State, 785 So.2d 1182, 1200 (Fla.2001); Kearse v. State, 662 So.2d 677, 682 (Fla.1995). Billie argues that the standard instruction was deficient given his defense in this case, i.e., that he did not know his children were in the Tahoe. He argues that the trial court therefore erred as a matter of law in failing to give the requested instruction regarding his “subjective” knowledge of whether the children were in the Tahoe. We are not convinced by Billie’s argument.

Every element of the crime of second-degree murder is included in the standard instruction. Although Billie’s requested instruction certainly supported his theory of the case in greater detail than the standard instruction, the standard instruction adequately covered Billie’s theory of defense. The question of whether Billie knew his children were in the car was presented to the jury in great detail by both sides during trial. There can be no question that the jury understood that this was the central issue at trial, and we conclude that it was adequately captured by the standard instruction. For example, the standard instruction provides that the defendant’s act be directed toward “another,” ie., the victim or victims, and, by requiring the act to demonstrate “a depraved mind without regard for human life,” the instruction permits the jury to consider the particular circumstances and context of the defendant’s charged conduct. Moreover, the degree to which a defendant must know that his actions are “reasonably certain to kill ... another” was sufficiently conveyed by the standard instruction.

We therefore conclude that the standard jury instruction adequately addressed the particular legal standard applicable to the facts of this case, and that the trial court did not commit error in denying Billie’s requested special instruction. Indeed, we must conclude that the jury, having been adequately instructed on the law, rejected Billie’s contention that he did not know that his children were in the Tahoe when he drove it into the canal and found that his actions satisfied the requirements for second-degree murder.

We decline to address the remaining issues raised on appeal as we conclude that they are without merit and/or would have been harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Accordingly, we affirm the final judgment of conviction and sentence.

Affirmed.

      . Although Billie did not testify at this trial, the State read into evidence his testimony from the first trial.

      . In Perriman v. State, 731 So.2d 1243, 1246 (Fla.1999), the Florida Supreme Court articulated the following rationale for formulating standard jury instructions in criminal cases:
      The Florida Standard Jury Instructions in Criminal Cases were designed to eliminate — or minimize — juror confusion concerning the applicable law in criminal cases. The instructions were researched and formulated by a committee of experts and then reviewed by this Court in an effort to eliminate imprecision. The charges were designed above all to be accurate and clear-and thus to withstand appellate scrutiny. In contrast, an on-the-spot instruction formulated by a lone trial judge in the midst of a live proceeding has none of these safeguards and may prove lacking when placed under the microscope of appellate review.

      . Second-degree murder is defined in section 782.04(2), Florida Statutes (1997) as:
      The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
      An act which is imminently dangerous to another and evincing a depraved mind has further been defined as an act "that (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, (2) is done from ill will, hatred, spite, or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life.” Conyers v. State, 569 So.2d 1360, 1361 (Fla. 1st DCA 1990).

      . To the extent Billie argues that second-degree murder requires him to have had a specific intent to kill his children when he drove the Tahoe into the canal, that argument has been consistently rejected by Florida courts. See, e.g., Dellinger v. State, 495 So.2d 197 (Fla. 5th DCA 1986) (affirming second-degree murder conviction based on accidental shooting where defendant believed gun was not loaded); Larsen v. State, 485 So.2d 1372 (Fla. 1st DCA 1986) (affirming second-degree murder conviction where husband slapped wife, causing her to hit her head on the ground and die). We therefore decline to depart from the clear wording of the standard juiy instruction, despite Billie’s reliance on law from other states that he claims requires a jury to find that an act was performed with the subjective knowledge of its danger to another person in order to sustain a conviction for second-degree murder. Because the standard jury instruction adequately conveys the law of Florida and is neither confusing nor misleading, Billie "cannot overcome the presumption of its correctness.” Sloss v. State, 925 So.2d 419, 424 (Fla. 5th DCA 2006).


author: SHEPHERD, J.

text:
    Wynelle L. SEBREE, Appellant, v. SCHANTZ, SCHATZMAN, AARONSON & PERLMAN, Appellee.
    No. 3D04-2523.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.

      Gregg J. Ormond, Coral Gables, for appellant.
    Adorno & Yoss, and Jack R. Reiter and Natalie J. Carlos, Miami, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   SHEPHERD, J.

Wynelle L. Sebree appeals a final summary judgment and amended final summary judgment rendered on May 25, 2004, and September 14, 2004, respectively, which award the now defunct law firm of Schantz, Schatzman, Aaronson & Perlman, P.A. $33,500, plus interest, for unpaid attorney fees. Sebree seeks to redeem herself from the force of the judgment on the ground that the trial court interlocutorily erred by denying an earlier-filed motion to dismiss the action for failure to prosecute. We agree that the trial court erred in denying this motion and accordingly reverse the final summary judgments on appeal with directions that the complaint in this case be dismissed without prejudice. A brief summary of the factual and procedural background is necessary to our decision.

FACTUAL AND PROCEDURAL BACKGROUND

The record reflects that Schantz, Schatz-man filed suit against its former client, Wynelle Sebree, for attorney fees claimed to be due and owing on March 28, 1998. The law firm was self-represented by Martin Pico, Esq., an associate of the firm. On November 24, 1998, the law firm obtained a default final judgment for the full amount of the sum claimed. This judgment was recorded on December 6, 1998.

During the next several months, the law firm located and garnished the funds in two of Sebree’s personal bank accounts. Sebree responded with a motion to set aside the default final judgment on the ground of insufficiency of service of process. Apparently recognizing procedural error, the law firm, on March 26, 1999, joined Sebree in an “Agreed Order for Disgorgement of Garnished Funds, Dissolving Writs of Garnishment, Setting Aside Final Judgment and Default, and Quashing Service of Process.” For reasons not apparent from the record, one of the banks was ordered to pay Schantz, Schatzman $1,500 from the garnished funds. Although the case number on the Agreed Order is the same as that on the default final judgment, and the Agreed Order states “the judgment and default are vacated and set aside,” there is no further identification of the default final judgment either by date or book and page recording information.

After entry of the Agreed Order, proper service was achieved on Sebree and from April 14, 1999, through August 12, 1999, the parties litigated the reconstituted case. Sebree filed an answer to the complaint and a legal malpractice counterclaim. Schantz, Schatzman, still self-represented by attorney Pico, responded with a reply and avoidance of affirmative defenses, a motion for enlargement of time, a motion to dismiss counterclaim, and a notice of taking deposition of Michelle Sebree. The signature block on each of the law firm filings reads as follows:

Respectfully submitted, SCHANTZ, SCHATZMAN, AARONSON & PERLMAN, P.A. Attorneys for SSA & P, P.A.

Suite 1050 — First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2394 Telephone: (305) 371-3100

By: -

MARTIN PICO, ESQUIRE Florida Bar No. 0092002

The last evidence of record activity during this time period is a nineteen-day Notice of Unavailability filed by counsel for Sebree on August 12. Forty-five days later, Schantz, Schatzman ceased doing business and merged its practice with another local law firm. Pico did not join the migration, but went his own way. For the next three and a half years, there was no filing of record in this case on behalf of either Schantz, Schatzman or Sebree. At some point, the trial court docket apparently began showing the case as closed.

Purportedly prompted by a call from a title company for a pay-off figure on the default final judgment, Schantz, Schatz-man sought to locate both its litigation file and the court file in February of 2003. Neither could be found. However, the law firm was able to obtain a copy of the default final judgment from the public record and initiated non-record collection activity with the Office of the Miami-Dade County Sheriff. Somehow apprised, Se-bree countered on April 3, 2003, with the first filing in the trial court since August 12, 1999, a Motion to Dismiss pursuant to Florida Rule of Civil Procedure 1.420(e). After affording the parties — now represented by new counsel — a full hearing, the trial judge denied the motion to dismiss on June 16, 2003, based upon what the trial court considered to be “the very unusual set of facts and circumstances of this case.” The judgments on appeal followed. The validity of those judgments rises or falls on the validity of this interlocutory order. We apply an abuse of discretion standard to our review of this order. See Metropolitan Dade County v. Hall, 784 So.2d 1087, 1090 n. 4 (Fla.2001); Lang v. Mason 911 So.2d 167, 169 (Fla. 2d DCA 2005).

ANALYSIS

Florida Rule of Civil Procedure 1.420(e), as it existed at the time of the ruling by the trial court below, read:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

Fla. R. Civ. P. 1.420(e) (2002).

The law construing the rule as it then existed mandated a two-step process:

First, the defendant is required to show there has been no record activity for the year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed.

Del Duca v. Anthony, 587 So.2d 1306, 1308-09 (Fla.1991).

Discussing this two-step process, the Florida Supreme Court has made clear that the first step of the analysis favors the plaintiff. Wilson v. Salamon, 923 So.2d 363, 368 (“establish[ing] a bright-line test ... [t]here is either activity on the record or there is not”); Diamond Dry wall Sys., Inc. v. Mashan Contractors, Inc., 943 So.2d 267, 269 (Fla. 3d DCA 2006)(“Wilson has uniformly been interpreted to mean that any document appearing in the record within one year prior to the filing of a motion to dismiss precludes the entry of dismissal for failure to prosecute.”). Schantz, Schatzman concedes that it has no argument under the first step of the analysis. Instead, Schantz, Schatzman seeks refuge in the second “good cause” step.

On the second step, the burden moves to the plaintiff to demonstrate “good cause” within the meaning of Florida Rule of Civil Procedure 1.420(e), Patton v. Kera Tech, Inc., 946 So.2d 983, 986 (Fla.2006)(“The second step of the analysis places the burden on the non-moving party to demonstrate why the case should remain pending.”). Our high court has made clear that the burden on the plaintiff at this juncture is indisputably “high”. Wilson, 923 So.2d at 367 n. 2 (“During the second step, however, the analysis favors the defendant, and the plaintiff has a ‘high’ burden to establish good cause”). See also Cox v. Wiod, Inc., 764 So.2d 671 (Fla. 4th DCA 2000)(“For a party to establish good cause, it must show a compelling l’eason to avoid dismissal where there has been no record activity.”)(emphasis added). On this step, the law firm makes two arguments: (1) Pico did not advise the firm of the fact that the default final judgment had been vacated; and (2) the law firm was “misled” by the apparent fact that the trial court computerized docket showed the case “closed” at the time it received the call from the title company that disturbed its long prosecutorial slumber. As we understand Schantz, Schatzman’s second argument, it asserts that if the trial court docket had not indicated that the case was “closed,” the law firm somehow would have been prompted to “do more,” i.e., it may have located the stray Agreed Order for Disgorgement of Garnished Funds, Dissolving Writs of Garnishment, Setting Aside Final Judgment and Default, and Quashing Service of Process, and would have taken some action in the trial court to advance the case before Sebree sought to dismiss the action for lack of prosecution. In making this latter argument, the law firm places its primary reliance upon Chandler v. Fla. Farm Bureau, 546 So.2d 1179 (Fla. 4th DCA 1989). We find that the law firm is not saved by either of these arguments.

With respect to the first assertion made by Schantz, Schatzman, the entirety of the support for the assertion is found in Schantz, Schatzman’s unsworn Response in Opposition to Defendant’s Motion to Dismiss, timely filed five days before the hearing as required by the rule, and argument of counsel. Because of the high burden placed on the plaintiff on this step, it necessarily follows that unsworn allegations or argument of counsel, standing alone, will not satisfy the plaintiffs burden on a second-step analysis. Smith v. Buffalo’s Original Wings & Rings II of Tallahassee, Inc., 765 So.2d 983, 984 (Fla. 1st DCA 2000)(“[E]vidence of record is required, not simply argument or unsworn allegations.”). See also Lazcar Int’l, Inc. v. Caraballo, 957 So.2d 1191, 1192 (Fla. 3d DCA 2007)(“Unsworn argument of counsel is insufficient to satisfy the due diligence requirement of a motion to vacate a default final judgment.”); State v. Bauman, 425 So.2d 32, 35 n. 3 (Fla. 4th DCA 1982)(“Facts are established by testimony, affidavits and stipulations. It is of no moment in establishing facts that attorneys are ‘officers of the court’ as we so often read when an unsworn representation is made.”).

However, even if we accept the un-sworn assertions as true, they are insufficient to sustain the “good cause” prong of Florida Rule of Civil Procedure 1.420(e) because the law firm essentially was proceeding pro se, and in any event it is charged as a litigant with all of the knowledge its counsel, Pico, had during 1999, when the default final judgment was vacated. See Andrew H. Boros, P.A. v. Arnold P. Carter, M.D., P.A., 537 So.2d 1134, 1135 (Fla. 3d DCA 1989)(“Generally, an attorney serves as agent for his client; the attorney’s acts are the acts of the principal, the client.”). See also Ruotal Corp., N.W. v. Ottati 391 So.2d 308, 309 (Fla. 4th DCA 1980)(“It is axiomatic that knowledge of the agent constitutes knowledge of the principal as long as the agent received such knowledge while acting within the scope of his authority.”). This is all the more true in this case given that the law firm appears not to seriously contest it received $1,500 at the time the Agreed Order was entered.

The law firm’s second argument in support of “good cause” in reliance upon Chandler also fails. On this argument, the firm urges that the apparent fact the court file was erroneously shown as being closed excuses its failure to immediately file something of record to preclude dismissal. However, the facts of this case are distinguishable from Chandler. In Chandler, substitute counsel failed to initiate any record activity for more than one year on an otherwise trial-ready suit on the strength of a communication he had with the office of the clerk of court during that period, where he was affirmatively misadvised concerning the pendency of the notice. Based upon this misadviee, substitute counsel took no action, but simply awaited a trial date in reliance upon his reasonable belief that he had taken all steps he could to prosecute the case to a conclusion. If we were to apply the reasoning of Chandler to this case, we would be required to make three additional inferences: (1) that if the docket reflected the case was not closed, Schantz, Schatzman somehow would have taken some additional steps, during the course of which it would have happened across the stray Agreed Order; (2) that upon discovering the Agreed Order, the law firm would have contemplated taking preventive action to assure that the case could not be dismissed for lack of prosecution; and (3) that it in fact would have taken such action. There is no record support for such inferences to be drawn, and we decline to engage in such speculation to save the law firm.

In our view, this is a garden variety case of litigant negligence and inattention to its affairs. It is apodictic that neither litigant negligence nor inattention to deadlines constitutes “good cause” within the meaning of Florida Rule of Civil Procedure 1.420(e). Levine v. Kaplan, 687 So.2d 863, 865 (Fla. 5th DCA 1997)(“Good cause is inexcusable conduct other than negligence or inattention to deadlines. It has been defined by our courts as proof of some compelling reason why the suit was not prosecuted.”)(emphasis added), disapproved on other grounds, Hall, 784 So.2d at 1091. Houswerth v. Sheriff’s Dept., 567 So.2d 476, 476-77 (Fla. 5th DCA 1990)(“Appellant’s ignorance of the duty to prosecute [a] case and the means to do so do not constitute ‘good cause’ to avoid dismissal.”). See also Freeman v. Toney, 608 So.2d 863, 863 (Fla. 4th DCA 1992)(“[A] change of attorneys is not good cause, nor are claims that counsel changed offices, suffered secretarial changes and simply overlooked the case.”); Paedae v. Voltaggio, 472 So.2d 768, 769 (Fla. 1st DCA 1985)(“Neither office errors nor inadvertence, nor lack of cooperation by a plaintiff have been held to constitute good cause.”); Industrial Trucks of Fla., Inc. v. Gonzalez, 351 So.2d 744, 747 (Fla. 3d DCA 1977)(“Mere inadvertence or misrepresentations and erroneous assumptions of plaintiffs counsel in not prosecuting a cause for a period of one year does not constitute good cause why the action should remain pending”); Conklin v. Boyd, 189 So.2d 401, 404 (Fla. 1st DCA 1966)(“A party cannot be excused for failing to prosecute his cause of action as required by the spirit and intent of the law merely because his attorney failed to file necessary pleadings or take such action as was necessary to constitute affirmative steps in the prosecution of the case. If the failure of counsel to properly discharge the duties owed to him by his client results in damage or loss of the cause of action sued upon, the injured party may seek recourse against his attorney, but such eventuality should not work to the unjust prejudice of the opposing party”) In this case, since Schantz, Schatzman represented itself, it has no one else to blame.

For these reasons, we reverse the final summary judgment and amended final summary judgment on appeal and remand this case with directions that the complaint be dismissed without prejudice.

      . The record on appeal reflects a Certificate of the Office of the Clerk of the Circuit Court indicating that except for the progress docket, see Fla. R. Jud. Admin. 2.430(e)(l)(2002), the trial court file was destroyed sometime after August 12, 1999, "in accordance with the Florida Statutes, Chapter 119 and Rule 2.075(sic) Judicial Administration." But see § 119.031, Fla. Stat. (2002)(requiring records to be destroyed when they are "no longer needed”); Fla. R. Jud. Admin. 2.430(c)(2002)(permitting destruction of court records "after a judgment has become final”). Copies of some pre-destruction period trial court filings were located by the parties after the commencement of this appeal and the record here supplemented.

      . As previously suggested, the searchability of the Agreed Order was hampered by lack of identifying information in the body of the order. See supra p. 2. Thus, Schantz, Schatzman did not find the Agreed Order when it searched the public record. We glean from the record in this case that the title company found the Agreed Order but was uncomfortable relying upon it for title purposes because it insufficiently referenced the default final judgment. The title company did not communicate this detail to Schantz, Schatzman.

      . We note in passing that Florida Rule of Civil Procedure 1.420(e) was amended to read:
      (e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the action has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has occurred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.
      Fla. R. Civ. P. 1.420(e)(2006); In re Amendments to the Fla. Rules of Civil Procedure (Two Year Cycle), 917 So.2d 176 (Fla.2005). The subsequent change is legally irrelevant for our purposes. We apply the rule in effect at the time of the motion. See Patton v. Kera Tech. Inc., 946 So.2d 983 (Fla.2006)(reviewing dismissal of action under former Rule 1.420(e) after January 1, 2006); Miami-Dade County v. Walker, 948 So.2d 68 (Fla. 3d DCA 2007)(reviewing an order denying a motion to dismiss action under former Rule 1.420(e) after January 1, 2006).


author: PER CURIAM.

text:
    Keith CAMPBELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2925.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Keith Campbell, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal from a resentencing following an opinion and mandate from this court. See Campbell v. State, 935 So.2d 614 (Fla. 3d DCA 2006). Although we disagree with the defendant’s claim that correcting the written judgment will require another resentencing, which it will not, we do agree that the written judgment should be corrected to strike references to section 775.087, Florida Statutes and replace them with references to section 775.084, Florida Statutes and to reflect the proper degree for the convicted crimes.

Remanded for correction of judgement.


text:
    Damon C. MAZYCK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2720.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.

      Damon C. Mazyck, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GREEN, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Melvin v. State, 645 So.2d 448 (Fla.1994) (constitutional protection against double jeopardy may be waived pursuant to a bargained-for plea); Novaton v. State, 634 So.2d 607 (Fla.1994); Dunenas v. Moore, 762 So.2d 1007 (Fla. 3d DCA 2000) (scoresheet errors do not render a plea illegal unless the sentence exceeds the statutory maximum).


text:
    Roderick JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 06-2558.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Roderick Jones, in proper person.
    Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Anderson v. State, 627 So.2d 1170 (Fla.1993).


text:
    James Tyrone ROBERTS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2554.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    James Tyrone Roberts, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

Defendant, James Tyrone Roberts, was prevented from appealing the trial court’s denial of his original 3.800 motion for post-conviction relief because he did not receive timely notice of that denial. We thus treat defendant’s “Amendment to 3.800(a) Motion” as a petition for belated appeal and reach the merits of the appeal of the denial of his original 3.800 motion. See Fla. R.App. P. 9.040(c); Suarez v. State, 677 So.2d 1316 (Fla. 3d DCA 1996). On the merits, we find no error in the trial court’s summary denial of the defendant’s claim of illegal sentencing, and affirm.

Affirmed.


text:
    HARDWARE IMAGINATION, INC., and Jean Roye, Individually, Appellants, v. Paul GROLL, individually and Harold Groll, individually, and in their right as shareholders of Hardware Imagination, Inc., Appellees.
    Nos. 3D06-2064, 3D06-2061.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Rehearing Denied Sept. 26, 2007.
    Silverberg & Associates and Paul K. Silverberg and Kraig S. Weiss (Weston), for appellants.
    Anania, Bandklayder, Blackwell, Baum-garten, Torricella & Stein and Douglas H. Stein; Paykin Greenblatt Lesser & Krieg and Peter V. Fullerton, for appellees.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

Paul and Harold Groll, individually and on behalf of Hardware Imagination, Inc. (“Hardware”), appeal a final judgment valuing certain shares of Hardware stock at $751,401. Jean Roye, individually and in her capacity as personal representative of the estate of James Roye, also appeals the final judgments valuing the stock at $751,401 and awarding Hardware attorney’s fees.

We affirm the final judgment determining the buyout value of the Hardware stock because the record contains competent substantial evidence to support the $751,401 value placed on the stock. See CADD Ctrs. of Fla., Inc. v. Strickland, 851 So.2d 756, 758 (Fla. 4th DCA 2003) (citation omitted)(reversing a final judgment because there was no competent substantial evidence to support the trial court’s valuation of stock). However, we reverse the final judgment awarding Hardware attorney’s fees because, under the facts of this case, the record does not support the trial court’s finding that Hardware was the prevailing party in the significant issue of the litigation. See KCIN, Inc. v. Canpro Inv., Ltd., 675 So.2d 222, 223 (Fla. 2d DCA 1996)(holding that an award of attorney’s fees is not warranted each time there is litigation involving a contract which provides for prevailing party attorney’s fees).

Affirmed in part; reversed in part.


author: ROTHENBERG, Judge.

text:
    Cosme VALDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1333.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Cosme Valdez, in proper person. Bill McCollum, Attorney General, and Richard Polin, Assistant Attorney General, for ap-pellee.
    Before ROTHENBERG and LAGOA, JJ., and FLETCHER, Senior Judge.
   ON RULE TO SHOW CAUSE

ROTHENBERG, Judge.

On April 25, 2007, this court issued a Rule to Show Cause, ordering the defendant, Cosme Valdez, to show good cause why he should not be precluded from filing further pro se pleadings, attacking the judgments and sentences in case numbers 99-37117 and 01-13737, and why this court should not recommend to the Department of Corrections that it sanction Valdez pursuant to sections 944.28 and 944.279, Florida Statutes (2004), which provide that the Department of Corrections may bring disciplinary proceedings against a prisoner for filing frivolous collateral proceedings. Having heard nothing from Valdez and good cause has not been found, this court hearby bars Valdez from filing further pro se postconviction motions challenging the judgments and sentences in case numbers 99-37117 and 01-13737. Any pleadings or papers Valdez files in this court relating to these case numbers must be reviewed and signed by an attorney licensed to practice law in this state. The Clerk of the Third District Court of Appeal is directed not to accept any further pro se pleadings from Valdez relating to said cases.

So ordered.


text:
    MIAMI-DADE COUNTY, Appellant, v. Charles PHILLIPS, Appellee.
    No. 3D06-284.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.

      Murray A. Greenberg, Miami-Dade County Attorney, and William X. Candela, Assistant County Attorney, for appellant.
    Denise V. Powers, Coral Gables, for ap-pellee.
    Before SHEPHERD and SUAREZ, JJ., and FLETCHER, Senior Judge.
   PER CURIAM.

Affirmed. See Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla.1990); Metropolitan Dade Co. v. Evans, 474 So.2d 392 (Fla. 3d DCA 1985).


author: WELLS, J. SHEPHERD, J.,

text:
    Rebeca VELAZQUEZ a.k.a. Rebeca Hernandez, Appellant, v. Osvaldo Torres MILLAN, Appellee.
    No. 3D07-1120.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Baker Cronig & Keenan and Elizabeth Baker; Legal Services of the Florida Keys and Nancy M. Sutton, for appellant.
    Wayne Kruer, for appellee.
    Before RAMIREZ, WELLS, and SHEPHERD, JJ.
   WELLS, J.

Rebeca Velazquez appeals from a final judgment of dissolution of marriage awarding primary residential responsibility for the parties’ four year old son to her former spouse, Osvaldo Torres Millan and effectively ordering Velazquez to pay child support to Millan for a period of time while the child was in her custody. Because we cannot discern from either the record or from the final judgment whether or how the trial court applied section 61.13 of the Florida Statutes in making its custody determination, we reverse the custody determination. Based on Millan’s proper confession of error regarding the support award, we reverse that determination as well.

The testimony adduced below, for the most part, appears not to be in dispute. Millan is a Mexican native who entered this country through Texas in 1965. Velazquez is from Cuba. The parties met online while Millan was living and working in Key West. Velazquez lived and worked in Miami at the time. The parties married in September 2002 and thereafter resided in Key West.

In February 2003, their son, Daniel, was born. Velazquez quit her job to stay home to care for the child; Millan worked two jobs to support the family. In October 2005, after Hurricane Wilma destroyed the Benihana restaurant where Millan worked, Millan left Key West to work at a Beniha-na restaurant in Tucson, Arizona. Velazquez and Daniel remained in Key West.

In December 2005, Millan returned to Key West. At this time the relationship began to flounder. According to Millan, Velazquez pushed him to return to work at Benihana. He also began to suspect that Velazquez was engaged in another relationship. After Velazquez stopped speaking to him, Millan left Key West without telling Velazquez where he was going and did not return for over four months. During this time, he made no attempt to communicate with his son, not even on his son’s birthday.

In May 2006, Millan returned to Key West and filed for divorce seeking both sole custody and primary residential custodianship of his son. Velazquez, claiming that Millan threatened to abscond to Mexico with the child and that she was “scared,” twice notified INS (once in May and once in June) that Millan was not legally in this country. The parties nonetheless agreed that the child should remain in Velazquez’ custody pending the divorce and that Millan would enjoy daily visitation with the child. Millan did not, however, visit the child every day and subsequently asked to reduce visitation to every other weekend.

In September 2006, this matter was sent to mediation. No resolution was reached, apparently because the parties could not agree on Velazquez’ desire to relocate to Ft. Myers, a more affordable community where she had greater family support. Claiming that he saw “his child almost every day,” Millan asked for temporary and permanent custody because, according to Millan, Velazquez had jeopardized both his son’s relationship with him and his son’s financial well being by turning him in to INS. He asked that this harm be mitigated by giving custody to him to “make it possible for the father to stay [in this country].”

At trial, both parties requested custody of their son. Both agreed to encourage and facilitate a relationship between the son and the other parent. Millan testified that although he was currently unemployed, he had a job lined up and that although he was currently “broke” and sleeping on a sofa in a trailer that he shared with several other men, he was seeking Section 8 housing and as soon as the jointly owned marital home was sold, he would be able to provide a place where he and his son could live. Velazquez, with whom this child had lived his entire life, sought permission from the court to move to Ft. Myers where she had family support and where the cost of living was more affordable than that in Key West.

The trial court, in a form order devoid of any section 61.13 findings, ordered shared parental responsibility and awarded primary residential custody to Millan. Velazquez was ordered to pay child support, including support for a three month period during which she was the primary custodian.

Velazquez maintains here that the trial court engaged in no best interest analysis as mandated by section 61.13 of the Florida Statutes, but instead improperly punished her for reporting Millan to INS. See Rahall v. Cheaib-Rahall, 937 So.2d 1223, 1224-25 (Fla. 2d DCA 2006) (citations omitted) (explaining that courts are not to “penalize the children for the parent’s contumacious conduct” and that “a parent’s actions in the lawsuit cannot trump the child’s right to have custody decided based on his or her best interests”); Burckle v. Burckle, 915 So.2d 747 (Fla. 2d DCA 2005) (reversing change in custody from the father to the mother as a sanction for the father’s refusal to comply with court-ordered visitation).

Section 61.13 of the Florida Statutes governing shared parental responsibility and primary residence, expressly mandates consideration of a number of factors when making a custody award:

(3) For purposes of shared parental responsibility and primary residence, the best interests of the child shall include an evaluation of all factors affecting the welfare and interests of the child, including, but not limited to:
(a) The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent.
(b) The love, affection, and other emotional ties existing between the parents and the child.
(c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) Evidence that any party has knowingly provided false information to the court regarding a domestic violence proceeding pursuant to s. 741.30.
(l) Evidence of domestic violence or child abuse.
(m) Any other fact considered by the court to be relevant.

§ 61.13(3), Fla. Stat. (2006) (emphasis added).

The judgment in this case addresses none of these factors. And, other than observing, at a post-judgment hearing on Velazquez’s motion for a stay pending appeal, that the court felt that Millan would be the parent most likely to provide frequent contact with the other parent because Velazquez had tried to relocate; had withheld information from Millan; had misrepresented why Millan left town; and had not been truthful about the support Millan had provided, there is nothing in the record to indicate that the best interests of this child were evaluated in conformity with all of section 61.13’s dictates. See Decker v. Lyle, 848 So.2d 501, 503 (Fla. 2d DCA 2003) (confirming that while there is no requirement that a trial court make specific written findings in awarding custody, either “the record or the final judgment must reflect that the custody determination was made in the best interests of the child.”). As Williams v. Williams, 845 So.2d 246 (Fla. 2d DCA 2003), confirms, a decision based on less than the court’s consideration of all the factors set out in section 61.13 is insufficient:

In light of the trial judge’s conclusion that the former wife had absconded with the child in violation of the final judgment and had deprived the child contact with the former husband for over a year, we fully understand why the trial judge believed that he had heard sufficient evidence to award the former husband temporary primary residence of the child. Section 61.13(3)(a), (j), Florida Statutes (2002), provides that the best interests of a child may be determined in part based upon “the parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent” and “the willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.” The former wife’s actions provided evidence sufficient to support a finding that these two factors did not weigh in her favor. However, section 61.13(3) requires the trial court to consider numerous other factors in determining the best interests of a child.

Williams, 845 So.2d at 249.

Accordingly, we reverse the custody award and remand this matter for entry of a custody award addressing all of the factors mandated by section 61.13 of the Florida Statutes. We leave it to the trial court’s discretion to decide, on its own or upon request, whether to take additional testimony to facilitate this determination. We also reverse that that portion of the final judgment which effectively obligates Velazquez to pay child support to Millan for any period of time during which the child is in her custody, an award which Millan concedes was error.

Reversed and remanded with instructions.

RAMIREZ, J., concurs.

SHEPHERD, J.,

concurring in result.

I concur in the judgment of the court reversing this matter for entry of a proper custody order after taking additional testimony if appropriate. Appellant argues correctly that the order of the trial court should be reversed for failing to express “either on the record or in the final judgment that an award of primary custody to one parent is in the best interests of the child.” Bader v. Bader, 639 So.2d 122, 124 (Fla. 2d DCA 1994); see also Murphy v. Murphy, 621 So.2d 455 (Fla. 4th DCA 1993). I do not consider it necessary for me to engage in an analysis of the facts of this case at this time. I do not rule out the possibility that the trial court may, after weighing all relevant factors, rule in exactly the same way.

      . There is no evidence that Velazquez actually tried to relocate. The record is that she wanted to relocate to a more affordable community where she had family support and that she sought court permission to do so. There is nothing wrong in this. See § 61.13001(7), Fla. Stat. (2006) (expressly stating that "[n]o presumption shall arise in favor or against a request to relocate with the child when a primary residential parent seeks to move the child''); § 61.13001(7)(e) Fla. Stat. (2006) (requiring a trial court to consider, among other things, whether “relocation will enhance the general quality of life for both the parent ... and the child, including, but limited to, financial or emotional benefits”).

      . We find nothing in the record, such as it is, to show that any relevant information was withheld from Millan.

      . We find no record support for this observation. Velazquez testified, as did Millan, that Millan left town for four months without telling her where he was going. She did not testify that he left without telling her why he was leaving.

      .The genesis of this observation appears to be Velazquez’ testimony that she did not consider the funds Millan deposited into a joint account which she used to buy food and to pay expenses to be support.


text:
    Luis ARACENA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1568.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Rehearing Denied Sept. 11, 2007.
    Luis Araeena, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Luis Araeena appeals the denial of his motion for postconviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. Based upon our review of the trial court’s thorough order and attachments, we find no merit to the grounds raised by the defendant, and therefore, we affirm.

Affirmed.


text:
    Rafael PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1286.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Rafael Perez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

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

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

Reversed and remanded for further proceedings.


author: SCHWARTZ, Senior Judge.

text:
    Mario CALDERON, Petitioner, v. Stuart R. KALB, Trustee as Assignee of Summar Financial LLC, Respondent.
    No. 3D07-1532.
    District Court of Appeal of Florida, Third District.
    Aug. 8, 2007.
    Alvarez, Armas & Borron and J. Alfredo De Armas, Coral Gables, for petitioner.
    Michael I. Rose, Miami, for respondent.
    Before CORTIÑAS and ROTHENBERG, JJ„ and SCHWARTZ, Senior Judge. SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

An impleaded defendant in proceedings supplementary to execution under section 56.29, Florida Statutes, seeks relief from an order appointing a special magistrate to conduct the examination of assets provided by the statute. The basis of the objection is that the petitioner did not consent to the appointment. See Fla. R. Civ. P. 1.490(c); Rosen v. Solomon, 586 So.2d 1348 (Fla. 3d DCA 1991), review denied, 598 So.2d 78 (Fla.1992); Pesut v. Miller, 773 So.2d 1185 (Fla. 2d DCA 2000). Consent, however, is not required in this instance simply because the statute, which obviously trumps the rule, see 12A Fla. Jur.2d, Courts and Judges, § 214 (2005), does not require it. See RPS, Inc. v. Travel Max Int'l, Inc., 823 So.2d 243 (Fla. 4th DCA 2002). Therefore, the primary relief sought is denied.

By agreement of the parties, however, that portion of the order under review sanctioning the petitioner by requiring him to prepay the costs of the special magistrate is vacated. The costs issue shall be determined in the usual course at the conclusion of the proceeding.


author: THOMPSON, J.

text:
    David Q. SUTTON, II, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-2175.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2007.
    David Q. Sutton, II, Sanderson, Pro se.
    No Appearance for Respondent.
   THOMPSON, J.

David Q. Sutton, II, seeks a writ of habeas corpus in lower court case numbers 00-CF-38316 and 00-CF-39333 to free him from his allegedly illegal detention. We dismiss the petition with an admonition that Sutton not file additional collateral attacks on his convictions. Carr v. State, 838 So.2d 700 (Fla. 5th DCA 2003).

The State charged the 20-year-old with attempted first-degree felony murder, armed burglary of a dwelling, burglary of a conveyance, burglary of a structure, and petit theft. On 16 June 2004, Sutton entered an open plea of nolo contendere and was sentenced to 50 years’ prison with 30 years’ suspended, followed by a term of life probation for armed burglary; 30 years’ prison with 10 years’ suspended, followed by 10 years’ probation for first-degree felony murder; 5 years’ prison for burglary of a conveyance; 5 years’ prison for burglary of a structure; and time served for petit theft. This court affirmed per curiam the conviction and sentence on 21 June 2005. See Sutton v. State, 905 So.2d 148 (Fla. 5th DCA 2005) (table). Shortly after his conviction, he began his appellate quest for collateral relief.

In 2005, Sutton filed a rule 3.850 motion for postconviction relief. The trial court summarily denied his motion, and this court affirmed per curiam. See Sutton v. State, 942 So.2d 898 (Fla. 5th DCA 2006) (table). Next, he filed a rule 3.800(a) motion to correct sentence, arguing that the trial court lacked jurisdiction to sentence him because it failed to obtain jurisdiction over him for adult sentencing by the procedure set forth in section 985.226(2)(a), Florida Statutes (2004). The trial court summarily denied his motion and this court affirmed per curiam. See Sutton v. State, 942 So.2d 898 (Fla. 5th DCA 2006) (table).

On 30 March 2007, Sutton filed a petition for writ of prohibition in this court seeking an order restraining Circuit Court Judge Charles M. Holcomb and this court from acting in excess of their jurisdiction and abusing judicial power in denying his motions by illegal methods or denying his appeals per curiam, which precludes legal review. The crux of his prohibition argument was the same jurisdiction argument that he made previously under section 985.226(2)(a). This court denied the petition on 16 April 2007. See Sutton v. State, Case No. 5D07-1109 (Fla. 5th DCA April 16, 2007).

In the instant petition for writ of habeas corpus, Sutton argues that he is illegally detained because his “prosecution was never initiated, thus rendering the judgment of conviction and sentence void.” The gist of his claim is once again premised on his view that the State failed to file a petition for delinquency and treat him as a juvenile. He also argues that section 985.227 is unconstitutional because “it grants unbridled prosecutorial power giving way to selective prosecution and arbitrary classification with no Distinct [sic] standard of law to be followed in prosecuting children.”

We dismiss the instant petition because it is an improper attempt to use habeas review as a mechanism to collaterally attack his judgment and sentence. See Richardson v. State, 918 So.2d 999, 1002 (Fla. 5th DCA 2006) (“Since adoption of rule 8.850 and its predecessor, the courts have consistently held that it is inappropriate to collaterally attack a conviction through the process of habeas proceedings because such claims are cognizable under the rule.”). Moreover, when such an improper habeas attack has been lodged, the proper disposition is dismissal. See id. at 1003-04.

Sutton has diligently sought appellate relief. However, the premise for his relief is refuted by a review of the record and section 985.226(2)(a). This court has ruled repeatedly that he is not entitled to relief, yet his appeals continue. Therefore, we warn “that additional collateral attacks on his convictions and sentences, if successive and improper, will result in sanctions, including an order from this court barring him from filing additional collateral attacks on those convictions and sentences.... ” Carr, 838 So.2d 700.

PETITION DISMISSED.

PALMER, C.J. and EYANDER, J., concur.


author: CANADY, Judge.

text:
    Peter C. THYRRE, Appellant, v. Linda M. THYRRE, Appellee.
    No. 2D06-4021.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2007.

      Sarah M. Chaves and Lorieann M. Cox, St. Petersburg, for Appellant.
    Kathy C. George and Carl T. Boake of Law Offices of Boake & George, St. Pe-tersburg, for Appellee.
   CANADY, Judge.

The former husband, Peter C. Thyrre, appeals a final judgment on his petition for modification of final judgment of dissolution of marriage. We affirm without discussion the reduced alimony award to the former wife, Linda M. Thyrre, in the final judgment of modification. For the reasons explained below, we reverse the final judgment with respect to retroactivity of the alimony award and with respect to the former husband’s request to increase the former wife’s child support obligation.

Background

The parties were married in 1986 and had one son in 1988. In 2001, a final judgment of dissolution of marriage was entered, adopting a marital settlement agreement between the parties. The final judgment of dissolution ordered the former husband to pay monthly alimony in the amount of $4000 to the former wife and ordered the former wife to pay monthly child support in the amount of $100 to the former husband. The former husband was designated as the primary residential parent of the parties’ son, who has autism and requires full-time care.

On December 30, 2004, the former husband filed a petition for modification, claiming that both the former husband’s and the former wife’s financial circumstances have substantially changed since entry of the final judgment of dissolution. He requested a reduction in his alimony obligation to the former wife and an increase in the former wife’s child support obligation, both retroactive to the date he filed the petition for modification. On October 27, 2005, the trial court entered a written order, finding that “[tjhere has been a substantial and material change of circumstances herein as demonstrated by the decrease in the Husband’s income.” The trial court reduced the former husband’s monthly alimony obligation to $3400. The trial court found that “[c]hild support should not be changed due to the fact that independent income of the child includes a trust fund which pays many of his needs including a full-time[,] live[-]in caretaker, along with many of his tuition bills and therapy costs.”

On November 1, 2005, the former husband filed a motion for rehearing, arguing that the child’s private trust fund should have at the most served to eliminate the former wife’s obligation to contribute towards the child’s special needs and that the former wife should have been ordered to pay child support based on the guidelines. He also argued that the modifications should have been ordered retroactive to the date of filing. On November 2, 2005, the former wife filed a motion for rehearing, objecting to the reduction in alimony. On August 1, 2006, the trial court denied both parties’ motions for rehearing.

Retroactivity of Reduction in Alimony

We first address the issue of retroactivity of the reduction in alimony. The former husband argues that the trial court erred in failing to make the reduction in alimony retroactive to the date he filed the petition for modification. The former wife responds that the trial court properly exercised its discretion in denying the former husband’s request for retroactivity.

“A trial court has the discretion to modify alimony effective as of the date of the petition for modification or subsequent thereto.... ” Ray v. Ray, 707 So.2d 358, 360 (Fla. 2d DCA 1998). “Retroactivity is the rule rather than the exception which guides the trial court’s application of discretion when modification of alimony or child support is granted.” DeSantis v. Smith, 634 So.2d 796, 797 (Fla. 4th DCA 1994). Accordingly, there is a presumption of retroactivity which applies unless there is a basis for determining that the award should not be retroactive. “It is an abuse of discretion ... to fail to award support from the date of the petition for modification where the” circumstances requiring modification existed at the time that the petition was filed. Anderson v. Anderson, 609 So.2d 87, 89 (Fla. 1st DCA 1992); see Kowal v. Tomlinson, 780 So.2d 172, 173 (Fla. 2d DCA 2001) (holding that trial court abused its discretion in failing to order child support retroactive to the date of filing where there was no evidence that husband was unable to pay the ordered monthly amount during that period of time).

It is true that ordinarily an order granting modification is retroactive to the date the petition is filed. However, the circumstances of the case may dictate otherwise. Where the time lag between petition and order is short, one would not expect any problem in this regard. However, where, as here, there is a substantial period of time intervening ..., the proof may demonstrate a substantially different condition at the hearing on the petition than that which existed on the date of the filing thereof. These are the things that involve a trial judge’s discretion.

Bloom v. Bloom, 503 So.2d 932, 934 (Fla. 4th DCA 1987) (citations omitted).

Here, the former husband’s need for a reduction in his alimony obligation existed at the time of the filing of the petition for modification. In addition, the trial court did not state a reason for rejecting the former husband’s request for ret-roactivity, and the record does not indicate that there was a basis for rejecting the request. Cf. Bloom, 503 So.2d at 934 (“The record in the instant case supports the trial court’s exercise of discretion in refusing to make the order effective from the filing of the petition.”). In light of the presumption of retroactivity, the short time between the filing of the petition for modification and the trial court’s reduction in alimony, and the lack of record support for the trial court’s rejection of the request for retroactivity, we reverse the final judgment of modification and remand for the trial court to reduce the former husband’s alimony obligation retroactive to the date of filing of the petition for modification.

Child Support

The former husband also argues on appeal that the trial court erred in failing to apply the child support guidelines once the trial court found that there was a significant and substantial change in his financial circumstances. He further claims that the trial court erred in deviating from the guidelines on the basis of the child’s private trust fund because there was no evidence that the trust fund met all of the child’s needs.

We agree that the trial court erred in failing to applying the child support guidelines after it concluded that there had been a substantial change in the former husband’s financial circumstances justifying modification. See § 61.13(1)(a), Fla. Stat. (2004) (providing that a court may modify child support when there is a substantial change in circumstances). Section 61.30(1)(a) provides that the child support guidelines in section 61.30 establish the amount of child support the trial court shall order in both initial and modification proceedings. Generally,

[t]he court may order payment of child support in an amount that varies more than five percent from the guideline amount only upon a written finding, or a specific finding on the record, explaining why ordering payment of such guideline amount would be unjust or inappropriate. See § 61.30(1)(a), Fla. Stat. (1997). When ruling on a petition to modify child support, the statute “require[s] the trial court to consider the appropriate statutory criteria, and to make appropriate findings of fact to support its rulings.” State, Dept. of Revenue on Behalf of Young v. Sumblin, 675 So.2d 691, 692 (Fla. 1st DCA 1996).

Fisher v. Fisher, 722 So.2d 243, 245 (Fla. 2d DCA 1998) (alteration in original); see also Cooper v. Cooper, 760 So.2d 1048, 1048 (Fla. 2d DCA 2000) (“In a child support case such as this, a final judgment is deficient ‘in the absence of explicit factual findings concerning the actual incomes attributable to the Husband and the Wife, the amount and source of any imputed income, the probable and potential earnings level, and the adjustments to income.’ ” (quoting Segall v. Segall, 708 So.2d 983, 988 (Fla. 4th DCA 1998))). “Where the trial court fails to set forth findings regarding the parties’ actual incomes or adjustments to income, an appellate court cannot ascertain whether a child support award is within the guidelines.” Levi v. Levi 780 So.2d 261, 263 (Fla. 3d DCA 2001) (holding in modification of child support appeal that “the trial court erroneously failed to make findings of fact as to the amount of either party’s income or the manner in which the court computed its award pursuant to the child support guidelines”). A trial court’s denial of a petition to modify child support is reviewed for abuse of discretion. Fredman v. Fredman, 917 So.2d 1038 (Fla. 2d DCA 2006).

Here, the trial court did not apply the criteria in section 61.30 to calculate each party’s share of the child support need. However, it is clear from the former husband’s accountant’s testimony at the modification hearing that the former wife’s child support obligation under the guidelines without any deviation would be at least $551 per month. But the trial court deviated from the guidelines on the basis of the child’s private trust fund.

Section 61.30(ll)(a) allows a court to adjust a child support award or either or both of the parents’ share of the award based upon several factors, including “[e]x-traordinary medical, psychological, educational, or dental expenses”; the “[independent income of the child”; the “age of the child, taking into account the greater need of older children”; “[sjpecial needs, such as costs that may be associated with the disability of a child”; and the “[tjotal available assets of the ... child.” At the hearing, the former husband testified that the child has a private trust fund that was provided for the child by the child’s paternal grandparents. However, the former husband did not testify regarding the amount of money in the trust fund or that the trust fund meets all of the child’s needs. He testified that the child’s trust fund meets the child’s needs associated with his autism, such as the child’s nanny, counselor, and therapist, but he also indicated that it did not pay for the child’s educational expenses. In addition, the former wife did not present evidence that the trust fund sufficiently meets all of the child’s needs. Because it is clear that the child has greater needs based on his age and his autism and because there was no evidence that the child’s trust fund meets all of his needs, the trial court abused its discretion in deviating from the guidelines on this basis.

Conclusion

We affirm the trial court’s reduction of alimony, but we reverse for the trial court to order the reduction retroactive to the date the former husband filed the petition to modify. We reverse the final judgment as it relates to the former wife’s child support obligation, and we remand for the trial court to properly consider the statutory criteria under section 61.30 and to make findings to support its rulings.

Affirmed in part; reversed in part; remanded.

STRINGER and KELLY, JJ., Concur.