author: PER CURIAM.

text:
    In re AMENDMENTS TO THE RULES OF JUVENILE PROCEDURE-FORMS FOR USE WITH RULES OF JUVENILE PROCEDURE; AND THE FLORIDA RULES OF APPELLATE PROCEDURE-JUDICIAL WAIVER OF PARENTAL NOTICE OF TERMINATION OF PREGNANCY.
    No. SC05-950.
    Supreme Court of Florida.
    July 6, 2006.
    Mary Katherine Wimsett, Chair, Juvenile Court Rules Committee, Orlando, FL, Alan Abramowitz, Pash-Chair, Juvenile Court Rules Committee, Daytona Beach, Florida, Edward Maurice Mullins, Chair, Appellate Court Rules Committee, Miami, FL, Jack Roy Reiter, Past-Chair, Appellate Court Rules Committee, Miami, Florida, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioners.
    The Honorable David A. Demers, Chief Judge, and B. Elaine New, Court Counsel, Sixth Judicial Circuit, St. Petersburg, FL, for Proponent.
    Galen Sherwin, Center for Reproductive Rights, Eve C. Gartner, Planned Parenthood Federation of America, Inc., New York, NY, Janet Crepps, Center for Reproductive Rights, Simpsonville, South Carolina, and Richard Johnson, Tallahassee, FL, and The Honorable Scott M. Bernstein, Judge, Eleventh Judicial Circuit, Miami, FL, for Opponents.
   PER CURIAM.

On June 30, 2005, in response to the enactment of the Parental Notice of Abortion Act, the Court adopted several new Florida Rules of Juvenile Procedure, accompanying forms, and an amendment to Florida Rule of Appellate Procedure 9.110. See In re Amendments to Fla. Rules Juv. Pro., 907 So.2d 1161 (Fla.2005). These rules and forms govern proceedings through which a minor may seek a judicial waiver of the notice requirements set forth in the Parental Notice of Abortion Act. Because the rules and forms were adopted on an emergency basis without the benefit of the general rulemaking process, the Court requested that interested parties file comments with the Court within sixty days of the date of the opinion. After considering the comments filed and hearing oral argument, we adopt the following amendments to rules 8.805 (Commencement of Proceedings), 8.820 (Hearing), and 9.110(n) (Exception, Appeal of Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy). We also amend forms 8.987 (Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy) and 8.991 (Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy). Finally, we adopt new forms 8.992 (Clerk’s Certificate Pursuant to Section 390.01114(4)(b), Florida Statutes), and 9.900(f) (Notice of Appeal of an Order Dismissing a Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy and Advisory Notice to Minor).

Rule 8.805 is amended in two ways. First, subdivision (a) is amended to delete the statement requiring that petitions for judicial waiver be filed in “any circuit court within the appellate district in which the petitioner resides as provided by section 390.01114(4)(a), Florida Statutes.” The statutory provision speaks for itself and there is no need to include a venue provision in the procedural rule. Second, subdivision (b)(1) is amended to require that when a petition is filed, the clerk must open a new file and assign a new case number. The Juvenile Court Rules Committee recommended this change to prevent the petition from being combined with an existing delinquency, dependency, or other child case to which a parent or others might have access. The Committee also concluded that this change would ensure that in the case of an appeal, the only material in the court file will be that related to the waiver of parental notification case.

Three amendments have been made to rule 8.820. First, subdivision (d)(1) is amended to clarify that rules 8.180 and 8.240, which govern computation of time periods in delinquency and dependency cases, respectively, do not apply to the 48-hour time period for disposition of judicial waiver petitions, and that the time period does not exclude weekends or holidays. Second, subdivision (d)(3) is amended to require that where no ruling on the petition has been made within the 48-hour period, the clerk of the circuit court shall issue a certificate stating that the notice requirement is waived pursuant to section 390.01114(4)(b), Florida Statutes (2005). In conjunction with this change, we also adopt new form 8.992 (Clerk’s Certificate Pursuant to Section 390.01114(4)(b), Florida Statutes). Third, subdivision (e) of rule 8.820, which specifies that hearings on petitions for judicial waiver of parental notification shall be closed to the public, is amended to permit the minor to request that persons other than herself or her attorney be permitted to attend the hearing.

One minor amendment is made to form 8.987 (Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy). Currently, this form allows the petitioner to check, as a reason that she is seeking to terminate her pregnancy without notice, that she “is a victim of child abuse or sexual abuse by one or both of her parents or a guardian, for the following reason(s)” and then provides three blank lines. This appears to require the minor to list the “reasons” that she has been abused — a result that is clearly not what was intended. Accordingly, the form has been amended to delete the words “for the following reasons” and the blank lines.

Rule 9.110(n), governing appeals of orders dismissing petitions for judicial waiver, is amended in three ways. First, it is amended to clarify that it is the clerk of the lower tribunal who shall prepare and transmit the record on appeal. Second, it is amended to permit the petitioner to request leave to file a brief or to request oral argument in the district court. Third, it is amended to clarify that the district court has the authority to reverse the dismissal of the petition, rather than to grant the petition.

We also adopt new form 9.900(f) (Notice of Appeal of an Order Dismissing a Petition for a Judicial Waiver of Parental Notice of Termination of Pregnancy and Advisory Notice to Minor). This new form is adapted specifically for an appeal in a judicial waiver case. Additionally, the Advisory Notice to the Minor attachment notifies the minor (1) that she is entitled to appeal the order dismissing her petition; (2) that she does not have to pay a filing fee; (3) that a form notice of appeal will be provided to her with the order dismissing her petition; (4) that if she needs assistance in filling out the notice of appeal, the clerk of the circuit court will help her; (5) that she must file the notice of appeal in the circuit court within 30 days of the order dismissing her petition; (6) that the only document she needs to file is the notice of appeal, but that she may request permission from the district court to file a brief and have oral argument; and (7) that she may request appointment of counsel on appeal. The notice also tells the minor the name and address of the appellate court that will hear her appeal.

Accordingly, we amend the Florida Rules of Juvenile Procedure and the Florida Rules of Appellate Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. Forms 8.987, 8.991, 8.992, and 9.900(f) are adopted as reflected in the appendix to this opinion, fully engrossed and effective for immediate use. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately upon release of this opinion. This opinion and the forms discussed herein may be accessed and downloaded from the Florida State Courts website at www.flcourts.org.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

8.805. Commencement of Proceedings

(a)Petition to Be Filed. Proceedings for a judicial waiver of parental notice of termination of pregnancy shall be commenced by the filing of a petition in-aay circuit courtiwithin the appellate district in whieR-the petitioner resides as provided by section- 390:01114(4)(a-)j Florida Statutes.

(b) Pseudonymous Petitions. Petitions filed under a pseudonym or initials shall be filed simultaneously with a sworn statement containing the minor’s true name, date of birth, address and the case number. A certified copy of this Sworn Statement of True Name and Pseudonym shall be given to the minor at the time it is filed. The original sworn statement shall be kept under seal at all times and may only be opened at the minor’s request or by court order.

(c) Notice Under Pseudonymous Petitions. So that the minor may receive notice in a safe and secure manner, the minor shall elect to receive notice through the address and phone number of a trusted third person or by personally contacting the clerk’s office. If the minor elects to personally contact the clerk’s office, she must still provide an address and phone number of a third person through which to receive notice in the event that the court needs to provide notice at a time other than when the minor personally contacts the clerk’s office.

(d) Procedures Upon Filing Petition. Upon the filing of a petition, the clerk of the circuit court shall immediately:

(1) open a new file and assign a new case number;

(2) provide the minor with a certified copy of Form 8.988 Sworn Statement of True Name and Pseudonym;

(3) provide the minor with Form 8.989 Advisory Notice to Minor;

(4) present the petition to the court for scheduling of the hearing and appointment of counsel, if requested; and

(5) provide notice of the hearing to the minor. If it is not possible for the clerk to immediately provide notice at the time the minor files the petition, the clerk shall provide notice through the method elected by the minor in the petition.

(e) Fees and Costs. No filing fees or court costs shall be assessed against any pregnant minor who petitions a court for a waiver of parental notice.

Rule 8.820. Hearing

(a) Hearing by Judge. A judge shall conduct an informal hearing on the petition within the time limits provided by law and these rules. General magistrates and special magistrates shall not hear a petition for a judicial waiver of parental notice of termination of pregnancy.

(b) Evidence. The judge shall hear evidence relating to the emotional development, maturity, intellect, and understanding of the minor, and all other relevant evidence.

(c) Burdens of Proof.

(1) A finding that the minor is sufficiently mature to decide whether to terminate her pregnancy requires proof by clear and convincing evidence.

(2) A finding that the minor is a victim of child abuse or sexual abuse by one or both of her parents or a guardian requires proof by a preponderance of the evidence.

(3) A finding that notification of a parent or guardian is not in the best interest of the minor requires proof by a preponderance of the evidence.

(d) Time Limits. As provided by section 390.01114(4)(b), Florida Statutes:

(1)Cases commenced under this rule take precedence over other pending matters as necessary to ensure that the court can make its ruling and issue written findings of fact and conclusions of law within 48 hours of the filing of the petition. The term “48 hours” as used in this section means exactly 48 hours from the filing of the petition and specifically includes weekends, holidays and times after regular business hours of the court.

(2) The 48-hour time limit may be extended at the request of the minor; however, the court remains under an obligation to rule on the petition as soon as practically possible.

(3) If the court fails to rule within the 48-hour period and an extension has not been requested by the minor, the petition shall be deemed granted and an order shall be issued the clerk shall issue the minor a certificate indicating the notice requirement is waived pursuant to 390.01114(4)(b), Florida Statutes.

(e)Confidentiality of Hearings. Hearings under this part shall be closed to the public and all records thereof shall remain confidential as provided by sections 390.01114(4)(e) and 390.01116, Florida Statutes. Persons other than the petitioner may be permitted to attend the hearing at the request of the petitioner. The court shall advise all persons in attendance that the hearing is confidential.

Form 8.987. Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy

IN THE CIRCUIT COURT OF THE _JUDICIAL CIRCUIT, IN AND FOR _ COUNTY, FLORIDA

In the interest of_(pseudonym or initials of minor)

Case No.:_

Division:_

PETITION FOR JUDICIAL WAIVER OF PARENTAL NOTICE OF TERMINATION OF PREGNANCY

I certify that the following information is true and correct:

(1) The pseudonym or initials of the minor (is/are) _, and the minor has filed a Sworn Statement of True Name and Pseudonym with the clerk.

(2) The minor is_years old.

(3) The minor is pregnant and notice has not been waived.

(4) The minor desires to terminate her pregnancy without notice to a parent or legal guardian for one or more of the following reasons: [check all that apply]

_a. The minor is sufficiently mature to decide whether to terminate her pregnancy, for the following reason(s):
__ b. The minor is a victim of child abuse or sexual abuse by one or both of her parents or a guardian.
_ c. Notification of a parent or guardian is not in the best interest of the minor, for the following reason(s):

(5) The minor requests that the court enter an order authorizing her to consent to the performance or inducement of a termination of pregnancy without notification of a parent or guardian.

(6) The minor requests the appointment of an attorney to represent her in this matter: [check one]:

— yes

_ no

(7) The minor elects the following method or methods for receiving notices of hearings or other court actions in this case:

— Through a third party whose name is _ and whose address and phone number for purposes of notice is _,
_ The minor will contact the office of the clerk of court at the following phone number_

I understand that by signing this form I am swearing to or affirming the truthfulness of the claims made in this petition and that the punishment for knowingly making a false statement includes fines, imprisonment, or both.

Signature: _ (You may sign a name other than your true name, such as Jane Doe or other pseudonym under which your petition is being filed.)

Date: _

Form 8.991. Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy

IN THE CIRCUIT COURT OF THE _JUDICIAL CIRCUIT,

IN AND FOR _ COUNTY, FLORIDA

In the interest of_(pseudonym or initials of minor)

Case No.:_

Division:_

FINAL ORDER DISMISSING PETITION FOR JUDICIAL WAIVER OF PARENTAL NOTICE OF TERMINATION OF PREGNANCY

THIS CAUSE having come before the court on a petition for judicial waiver of parental notice of termination of pregnancy and the court being otherwise advised in the premises, finds the following:

The minor has not proven by sufficient evidence any of the criteria that would permit a judicial waiver of the parental notification requirements of section 390.01114(3), Florida Statutes, for the following reasons:

THEREFORE, it is ORDERED AND ADJUDGED that:

1. The petition for judicial waiver of parental notice of termination of pregnancy is DISMISSED.

2. The clerk shall keep and maintain a confidential record of these proceedings as provided by section 390.01116, Florida Statutes, and shall seal the record.

3. The clerk shall immediately provide Form 9.900(f) Notice of Appeal of an Order Dismissing a Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy and Advisory Notice to Minor to the minor or petitioner if other than the minor.

DONE AND ORDERED in the. court in and for.County, Florida, on .(date).

Form 8.992. Clerk’s Certificate Pursuant to Section 390.01114(4)(b), Florida Statutes

IN THE CIRCUIT COURT OF THE _JUDICIAL CIRCUIT,

IN AND FOR _ COUNTY, FLORIDA

In the interest of_(pseudonym or initials of minor)

Case No.:_

Division:_

CLERK’S CERTIFICATE PURSUANT TO SECTION 390.01114(4)(b), FLORIDA STATUTES

The Petitioner in this cause filed a Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy on_ (month/day/year) at _ (time). Petitioner has not requested an extension of time. As of_(month/day/year) at _ (time), 48 hours have passed since the filing of the petition, and the Court has not entered a final order. Accordingly, the petition is granted, and the notice requirement is waived pursuant to section 390.01114(4)(b), Florida Statutes.

Clerk of the Circuit Court

By: -

(Deputy Clerk)

Rule 9.110. Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases

(a)-(m) [no change]

(n) Exception, Appeal of Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy. If an unmarried minor or another person on her behalf appeals an order dismissing a petition for judicial waiver of parental notice of termination of pregnancy, the clerk of the lower tribunal shall prepare and transmit the record as described in rule 9.200(d) within 2 days from the filing of the notice of appeal. The district court of appeal shall render its decision on the appeal as expeditiously as possible and no later than 10 days from the filing of the notice of appeal. Briefs or oral argument may be ordered at the discretion of the district court of appeal. The minor may move for leave to file a brief and may request oral argument. If no decision is rendered within the foregoing time period, the order shall be deemed reversed, the petition shall be deemed granted, and the clerk shall place a certificate to this effect in the file and provide the minor with a certified copy of the certificate. The appeal and all proceedings thereon shall be confidential so that the minor shall remain anonymous. The file shall remain sealed unless otherwise ordered by the court. Should the dismissal of the petition be granted reversed on appeal, the clerk shall furnish the petitioner with a certified copy of the decision or the clerk’s certificate for delivery to the minor’s physician. No filing fee shall be required for any part of an appeal of the dismissal of a petition for a waiver of parental notice of termination of pregnancy-

Committee Notes

1977 Amendment. This rule replaces former rules 3.1, 3.5, 4.1, 4.3, 4.4, and 4.7. It applies when (1) a final order has been entered by a court or administrative agency; (2) a motion for a new trial in a jury case is granted; or (3) a motion for rehearing in a non-jury case is granted and the lower tribunal orders new testimony. It should be noted that certain other non-final orders entered after the final order are reviewable under the procedure set forth in rule 9.130. This rule does not apply to review proceedings in such cases.

Except to the extent of conflict with rule 9.140 governing appeals in criminal cases, this rule governs: (1) appeals as of right to the supreme court; (2) certiorari proceedings before the supreme court seeking direct review of administrative action (for example, Industrial Relations Commission and Public Service Commission); (3) appeals as of right to a district court of appeal, including petitions for review of administrative action under the Administrative Procedure Act, section 120.68, Florida Statutes (Supp.1976); (4) appeals as of right to a circuit court, including review of administrative action if provided by law.

This rule is intended to clarify the procedure for review of orders granting a new trial. Rules 9.130(a)(4) and 9.140(c)(1)(C) authorize the appeal of orders granting a motion for new trial. Those rules supersede Clement v. Aztec Sales, Inc., 297 So.2d 1 (Fla.1974), and are consistent with the decision there. Under subdivision (h) of this rule the scope of review of the court is not necessarily limited to the order granting a new trial. The supreme court has held that “appeals taken from new trial orders shall be treated as appeals from final judgments to the extent possible.” Bowen v. Willard, 340 So.2d 110, 112 (Fla.1976). This rule implements that decision.

Subdivisions (b) and (c) establish the procedure for commencing an appeal proceeding. Within 30 days of the rendition of the final order the appellant must file 2 copies of the notice of appeal, accompanied by the appropriate fees, with the clerk of the lower tribunal; except that if review of administrative action is sought, 1 copy of the notice and the applicable fees must be filed in the court. Failure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect, but the second copy and fees may be filed after the 30-day period, subject to sanctions imposed by the court. See Williams v. State, 324 So.2d 74 (Fla.1975); Fla.R.App. P. 9.040(h).

Subdivision (d) sets forth the contents of the notice and eliminates the requirement of the former rule that the notice show the place of recordation of the order to be reviewed. The rule requires substantial compliance with the form approved by the supreme court. The date of rendition of the order for which review is sought must appear on the face of the notice. See the definition of “rendition” in Florida Rule of Appellate Procedure 9.020, and see the judicial construction of “rendition” for an administrative rule in Florida Admin. Comm’n v. Judges of the District Court, 351 So.2d 712 (Fla.1977), on review of Riley-Field Co. v. Askew, 336 So.2d 383 (Fla. 1st DCA 1976). This requirement is intended to allow the clerk of the court to determine the timeliness of the notice from its face. The advisory committee intended that defects in the notice would not be jurisdictional or grounds for disposition unless the complaining party was substantially prejudiced.

This rule works significant changes in the review of final administrative action. The former rules required that a traditional petition for the writ of certiorari be filed if supreme court review was appropriate, and the practice under the Administrative Procedure Act, section 120.68, Florida Statutes (Supp.1976), has been for the “petition for review” to be substantially similar to a petition for the writ of certiorari. See Yamaha Int’l Corp. v. Ehrman, 818 So.2d 196 (Fla. 1st DCA 1975). This rule eliminates the need for true petitions in such cases. Instead, a simple notice is filed, to be followed later by briefs. It is intended that the notice constitute the petition required in section 120.68(2), Florida Statutes (Supp.1976). There is no conflict with the statute because the substance of the review proceeding remains controlled by the statute, and the legislature directed that review be under the procedures set forth in these rules. Because it is a requirement of rendition that an order be written and filed, this rule supersedes Shevin ex rel. State v. Public Service Comm’n, 833 So.2d 9 (Fla.1976), and School Bd. v. Malbon, 341 So.2d 523 (Fla. 2d DCA 1977), to the extent that those decisions assume that reduction of an order to writing is unnecessary for judicial review.

This rule is not intended to affect the discretionary nature of direct supreme court review of administrative action taken under the certiorari jurisdiction of that court set forth in article V, section 3(b)(3), Florida Constitution. Such proceedings remain in certiorari with the only change being to replace wasteful, repetitive petitions for the writ of certiorari with concise notices followed at a later date by briefs. The parties to such actions should be designated as “petitioner” and “respondent” despite the use of the terms “appellant” and “appellee” in this rule. See commentary, Fla. R.App. P. 9.020.

Subdivisions (e), (f), and (g) set the times for preparation of the record, serving copies of the index on the parties, serving briefs, and serving notices of cross-appeal. Provision for cross-appeal notices has been made to replace the cross-assignments of error eliminated by these rules. In certiorari proceedings governed by this rule the term “crossappeal” should be read as equivalent to “cross-petition.” It should be noted that if time is measured by service, rule 9.420(b) requires filing to be made before service or immediately thereafter.

Subdivision (h) permits a party to file a single notice of appeal if a single proceeding in the lower tribunal, whether criminal or civil, results in more than 1 final judgment and an appeal of more than 1 is sought. This rule is intended to further the policies underlying the decisions of the supreme court in Scheel v. Advance Marketing Consultants, Inc., 277 So.2d 773 (Fla.1973), and Hollimon v. State, 232 So.2d 394 (Fla.1970). This rule does not authorize the appeal of multiple final judgments unless otherwise proper as to each. If a prematurely filed notice is held in abeyance in accordance with Williams v. State, 324 So.2d 74 (Fla.1975), the date of filing is intended to be the date the notice becomes effective.

Subdivision (i) provides an expedited procedure in appeals as of right to the supreme court in bond validation proceedings. An appendix is mandatory.

Subdivision (j) provides for an expedited procedure in appeals as of right to the supreme court from an order of a district court of appeal.

1980 Amendment. The rule has been amended to incorporate changes in rule 9.030 and to reflect the abolition of supreme court jurisdiction to review, if provided by general law, final orders of trial courts imposing sentences of life imprisonment.

The reference indicated (2) in the second paragraph of this committee note for 1977 amendment should be disregarded. See amended rule 9.030(a)(1)(B)(ii) and accompanying committee note.

1984 Amendment. Subdivision (k) was added to remedy a pitfall in the application of case law under Mendez v. West Flagler Family Association, 303 So.2d 1 (Fla.1974). Appeals may now be taken immediately or delayed until the end of the entire ease, under the rationale of Mendez.

1992 Amendment. Subdivision (d) was amended to require that the appellant, except in criminal cases, attach to its notice of appeal a conformed copy of any orders designated in the notice of appeal, along with any orders on motions that postponed the rendition of orders appealed. This amendment is designed to assist the clerk in determining the-nature and type of order being appealed and the timeliness of any such appeal.

Subdivision (m) was added to clarify the effect of a notice of appeal filed by a party before the lower court renders a final ap-pealable order. Under this subdivision, such a notice of appeal is subject to dismissal as premature, but a final order rendered before the dismissal of the appeal will vest the appellate court with jurisdiction to review that final order. It further provides that the' appellate court may relinquish jurisdiction or otherwise allow the lower court to render such a final order before dismissal of the appeal. If the only motion that is delaying rendition has been filed by the party filing the notice of appeal, under rule 9.020(g)(3), such motion is deemed abandoned and the final order is deemed rendered by the filing of a notice of appeal.

1996 Amendment. The addition of new subdivision (a)(2) is a restatement of former Florida Rule of Probate Procedure 5.100, and is not intended to change the definition of final order for appellate purposes. It recognizes that in probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different issues and involve many different persons. An order of the circuit court that determines a right, an obligation, or the standing of an interested person as defined in the Florida Probate Code may be appealed before the administration of the probate or guardianship is complete and the fiduciary is discharged.

Subdivision (c) was amended to reflect that in appeals of administrative orders, the appellate court filing fees should be filed in the appellate court, not the administrative tribunal.

Subdivision (n) was added by the committee in response to the opinion in Canal Insurance Co. v. Reed, 666 So.2d 888 (Fla.1996), suggesting that the Appellate Court Rules Committee consider an appropriate method for providing expedited review of these cases to avoid unnecessary delays in the final resolution of the underlying actions. Expedited review in the manner provided in rule 9.130 is available for such judgments in cases where a claim against the insured is pending and early resolution of the coverage issue is in the best interest of the parties. The notice of appeal should identify whether a party is seeking review pursuant to the procedure provided in this rule or in rule 9.130.

2006 Amendment. Rule 9.110(n) has been amended to clarify that the word “clerk” in the first sentence of the rule refers to the clerk of the lower tribunal. The amendment also permits the minor to ask for leave to file a brief or to request oral argument. The amendment clarifies that the district court does not grant the minor’s petition, but rather may reverse the circuit court’s dismissal of the petition.

Court Commentary

2003 Amendment. Subdivision (J) was deleted to reflect the holding in North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So.2d 612 (Fla.2003).

Rule 9.900. Forms

(a)-(e) [no change]

(f) Notice of Appeal of an Order Dismissing a Petition for a Judicial Waiver of Parental Notice of Termination of Pregnancy and Advisory Notice to Minor.

IN THE CIRCUIT COURT FOR THE_JUDICIAL CIRCUIT (NUMERICAL DESIGNATION OF THE CIRCUIT) IN AND FOR _COUNTY, FLORIDA
Case No_

In re: Petition for a Judicial Waiver of Parental Notice of Termination of Pregnancy.

(Your pseudonym or initials)

Appellant.

NOTICE OF APPEAL

NOTICE IS GIVEN that_(your pseudonym or initials), appeals to the _(District Court with appellate jurisdiction), the order of this court rendered _ (enter the date that the order was filed on the clerk’s docket) [See rule 9.020(h) ]. The nature of the order is a final order dismissing a petition for a judicial waiver of parental notice of termination of pregnancy.

Signature:_
(As signed on your petition for judicial waiver if you are representing yourself)
Date:_
OR
Attorney for _(pseudonym or initials of appellant)
(address and phone number of attorney)
Florida Bar No_

ADVISORY NOTICE TO THE MINOR YOU ARE NOTIFIED AS FOLLOWS:

1. You are entitled to appeal the order dismissing your petition for a judicial waiver of parental notice of termination of pregnancy. You do not have to pay a filing fee for the appeal.

2. If you wish to appeal, you must file a notice of appeal. A form for the notice of appeal (Fla. R.App. P. 9.900(f)) will be provided to you with the order dismissing your petition. You must fill in every blank on the form with the information requested. If you need assistance with the form, the clerk of the circuit court will help you complete it.

3. You must file the notice of appeal with the clerk of the circuit court where your case was heard. The notice of appeal must be filed within thirty (30) days of the date when the judge’s written order dismissing your petition was filed with the clerk of the circuit court. If you do not file your notice of appeal within this time period your appeal will not be heard.

4. The notice of appeal is the only document you need to file in connection with your appeal. You may file a motion to seek permission to file a brief in your case, or to request oral argument of your ease. These motions or any other motions or documents you file concerning your appeal, except the notice of appeal, must be mailed or delivered to the appellate court for filing. The appellate court that will be reviewing your case is:

The-District Court of Appeal
(address of the District Court)
Telephone number:_

(Note: The clerk of the circuit court will fill in the blanks above with the appropriate court information).

5. You may request a lawyer to represent you in your appeal. You must tell the judge who heard your petition for a judicial waiver of parental notification of termination of pregnancy that you wish to have a lawyer appointed.

(fg) Directions to Clerk, [no change to body of form]

(gh) Designation to Reporter, [no change to body of form]

(hi) Civil Supersedeas Bond, [no change to body of form]

(ij) Prisoner’s Motion and Affidavit to Proceed Without Prepayment of Court Costs and Fees, [no change to body of form]

Committee Notes

[no changes]

      . We emphasize that judicial waiver of parental notice of termination of pregnancy cases are strictly confidential and are not subject to Florida Rule of Judicial Administration 2.085(d) or to any manner of case coordination or unified family court procedures.

      . In conjunction with the adoption of this new form notice of appeal, we also amend form 8.991 to reflect the new form.


source: Caselaw Access Project

license: Public Domain

text:
    Timothy J. SIMS, Appellant, v. Carlos NAZIR, Appellee.
    No. 3D03-90.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Maria Del Carmen Calzón, Miami, for appellant.
    Roland Sanchez-Medina, Coral Gables, for appellee.
    Before GODERICH, SHEVIN, and WELLS, JJ.
   PER CURIAM.

In the eviction proceeding below, we reverse the trial court’s order finding that it is contrary to the summary procedure set forth in section 51.011, Florida Statutes (2002).

Reversed and remanded for further proceedings.


text:
    Manuel PEREZ-VASQUEZ, Petitioner, v. Anna G. SMITH-RIVERA, Respondent.
    No. 3D03-3256.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2003.
    Kluger Peretz Kaplan & Berlin, and Alan J. Kluger, and Jason R. Marks, and Michael T. Landen; and Elser Foster-Morales & Kopco, for petitioner.
    Barranco Kircher & Vogelsang, and Beth Vogelsang; and Kimberly Boldt, for respondent.
    Before SCHWARTZ, C.J., GERSTEN and WELLS, JJ.
   PER CURIAM.

We grant the writ of prohibition and quash the order of the trial court appointing a special master without the consent of the parties. See Fla. Fam. L.R.P. 12.492(b) (2003). We also direct the trial court to hear all matters concerning this case. Any rulings of the special master are hereby vacated.

Prohibition granted.


text:
    Terry FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1567.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2004.

      Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Concluding that section 775.21, Florida Statutes, the Florida Sexual Predators Act, does not deny procedural due process under the Florida Constitution, we affirm the order under review. See Therrien v. State, 859 So.2d 585 (Fla. 1st DCA 2008); Jones v. State, 855 So.2d 715 (Fla. 4th DCA 2003); Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003); Givens v. State, 851 So.2d 813 (Fla. 2d DCA 2003); Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2003). We certify conflict with the decision in Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

ALLEN, KAHN and POLSTON, JJ„ concur.


text:
    Timothy SNEED, Appellant, v. The STATE of Florida, Appellee.
    No. 3D00-3618.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2004.
    Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   CORRECTED OPINION

PER CURIAM.

This cause is once again before us for reconsideration, pursuant to the Supreme Court of Florida’s order vacating our affir-mance, of Sneed’s conviction and sentence for second degree murder. We previously relinquished jurisdiction to the trial court, for a factual determination of whether the police made good faith efforts to properly obtain Sneed’s medical records pursuant to State v. Johnson, 814 So.2d 390 (Fla.2002). The lower court successor judge, without the benefit of an evidentiary hearing, made a finding that, among other things, the police did not initially obtain the Sneed’s medical records in good faith. Because we conclude that this finding is not supported by competent, substantial evidence in the record, we vacate this finding and once again remand this cause for an appropriate evidentiary hearing and factual determination.

Timothy Sneed Was charged with second degree murder for the shooting death of Cory Thompkins on or about October 5, 1998. On the day after the shooting, Sneed appeared at Pan American Hospital complaining of a gunshot wound. The police obtained Sneed’s medical records from the hospital without giving notice to Sneed ór his attorney, in violation of section 395.3025(4)(d), Florida Statutes (1998) . The state later filed a notice of intent to subpoena Sneed’s medical records, this time following the proper statutory procedure. Sneed moved to suppress the hospital records, arguing that the taint from the original illegal seizure could hot be cured by a later, proper request. The trial court denied the motion to suppress.

At trial, Sneed pled self-defense. As there were no independent witnesses to the incident, the states evidence was primarily circumstantial. Sneed testified in his own defense that he went to the victims apartment and the victim pulled a gun on him. A struggle ensued, according to Sneed, in which the gun went off, killing the victim. The state argued, in closing, that Sneed should not be believed, in part, because of discrepancies between his statements in the hospital records and the testimonies of the nurse and the doctor who had treated him. Sneed was found guilty and sentenced to thirty-five years in prisons; with a three-year minimum mandatory.

On appeal, Sneed argued that the trial court erred in admitting the hospital records, where they had first been obtained in violation of section 395.3025(4)(d). We affirmed the conviction and sentence but certified conflict with State v. Rutherford, 707 So.2d 1129 (Fla. 4th DCA 1997), Klossett v. State, 763 So.2d 1159 (Fla. 4th DCA 2000) and State v. Johnson, 751 So.2d 183 (Fla. 2d DCA), review granted, 767 So.2d 461 (Fla.2000). Sneed v. State, 802 So.2d 458 (Fla. 3d DCA 2001).

In State v. Johnson, 814 So.2d 390 (Fla.2002), the Florida Supreme Court held that hospital records obtained in violation of section 395.3025 did not have to be excluded or suppressed if the state made a good faith effort to comply with the statutory requirements. Id. at 394. As a result of this decision, the Supreme Court vacated our earlier decision in this ease and remanded it to us for our reconsideration. See Sneed v. State, 821 So.2d 301 (Fla.2002). We, in turn, relinquished jurisdiction to the trial court for a factual determination of the good faith issue in accordance with the Johnson decision.

Upon our relinquishment of jurisdiction, the trial judge, as successor judge to this cause, issued the following finding one day prior to departing the circuit court for the federal bench:

When the police initially obtained the Defendant’s medical records, they did not make a good faith effort to follow proper statutory requirements for compelling disclosure of the Defendant’s medical records. Subsequent to the police obtaining the Defendant’s medical records, the State obtained the Defendant’s medical records by following the proper statutory procedures.

This successor trial judge, however, did not conduct an evidentiary hearing on the issue of good faith. Consequently, there is no record support for the trial court’s purported findings. Since there is no competent, substantial evidence in the record to support the trial court’s factual findings, they may not stand and we vacate the same. See Hines v. State, 737 So.2d 1182, 1184 (Fla. 1st DCA 1999)(holding standard of review of findings of fact is whether competent, substantial evidence supports findings).

We therefore find it necessary once again to relinquish jurisdiction to the trial court for a proper factual determination based upon competent, substantial evidence, of whether the state (which includes the police as an arm of the state), acted in good faith when it initially obtained the Sneed’s hospital records. For this purpose, jurisdiction is relinquished to the trial court for a period of forty-five days.

Jurisdiction relinquished and remanded with instructions.

      . The statute provides, in pertinent part:
      4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent ...:

      (d) In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.
      395.3025(4)(d), Fla. Stat. (1998).

      . See State v. Alfonso, 478 So.2d 1119, 1121 (Fla. 4th DCA 1985) ("[IJnformation within the possession of the police is considered to be in the possession of the prosecution.").


text:
    The HARTFORD INSURANCE COMPANY OF The MIDWEST, INC., Petitioner, v. CLINIC CENTER, INC., et al., Respondents.
    No. 3D03-3259.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Moriarty & Monroe and Beth A. Moriarty and Elyce I. Schweitzer, Maitland, for petitioner.
    Downs & Associates and Kevin W. Whitehead, for respondents.
    Before GODERICH, FLETCHER, and RAMIREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Pursuant to the respondents’ confession of error, the order under review is quashed and the cause is remanded to the circuit court.


text:
    John KING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3214.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.

      John King, m proper person.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   CONFESSION OF ERROR

PER CURIAM.

We reverse and remand for resentenc-ing based on the State’s confession of error that the defendant’s sentences exceed the statutory maximum for a third degree felony.

Reversed and remanded for resentenc-ing.


text:
    Paul MELKONIAN, etc., Appellant, v. RIVIERA VILLAS CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D03-2426.
    District Court of Appeal of Florida, Third District.
    July 21, 2004.
    Paul Melkonian, for appellant.
    Jonas and Silberman and Daniel E. Jonas, Miami Beach, for appellee.
    Before GODERICH, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. Mody v. California Fed. Bank, 747 So.2d 1016, 1017-18 (Fla. 3d DCA 1999) (“In order to vacate a foreclosure sale, the trial court must find: (1) that the foreclosure sale bid was grossly or startlingly inadequate; and (2) that the inadequacy of the bid resulted from some mistake, fraud or other irregularity in the sale.”)


text:
    Patrick LONGSWORTH, Appellant, v. H R2 INCORPORATED, and Florida Unemployment Appeals Commission, Appellee.
    No. 3D04-513.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Patrick E. Longsworth, in proper person.
    John D. Maher (Tallahassee), for appel-lee.
    Before COPE, GREEN, and SHEVIN, JJ.
   PER CURIAM.

Patrick Longsworth appeals a final order of the Florida Unemployment Appeals Commission denying him unemployment compensation. We find that the record supports the appeals referee’s finding by competent and substantial evidence that Longsworth is disqualified from receiving unemployment benefits because he left his job voluntarily without good cause attributable to his employer. See § 443.101(1)(a), Fla. Stat. (2003); Perez v. State Dep’t of Labor & Unemployment, 377 So.2d 806 (Fla. 3d DCA 1979); Uniweld Prods., Inc. v. Indus. Relations Comm’n, 277 So.2d 827 (Fla. 4th DCA 1973). We therefore affirm.

Affirmed.


author: SHEPHERD, J.

text:
    ROCO TOBACCO (USA), INC., Appellant, v. FLORIDA DIV. OF ALCOHOLIC BEVERAGES, etc., et al., Appellee.
    No. 3D02-2180.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 2004.
    Rehearing Denied Nov. 19, 2006.
    Robbins & Reynolds and Robert A. Robbins, and Barry M. Boren, for appel-lanf/cross appellee.
    Charles J. Crist, Jr., Attorney General, and James A. Peters, Special Counsel (Tallahassee), for appellee/cross appellant.
    Before SCHWARTZ, C.J., and COPE, and SHEPHERD, JJ.
   SHEPHERD, J.

This is an appeal of a final order granting the State’s Motion for Summary Judgment and imposing discovery sanctions and costs against Roco Tobacco and its attorney. We affirm the lower court on the grant of summary judgment and on the imposition of discovery sanctions under Fla. R. Civ. P. 1.380, but reverse as to the costs awarded sua sponte.

This case arose in September 2000, when Roco Tobacco, an importer of gray market cigarettes, filed a declaratory judgment action against the State challenging an amendment to § 210.185, Fla. Stat. (2000), concerning the importation, distribution and sale of gray market cigarettes in Florida on the basis of federal law preemption. Roco alleged that, depending on how the Florida law was interpreted, it may be precluded from conducting business in the State. Roco also sought preliminary injunctive relief against the application of the statute. In October 2000, after the trial court denied preliminary relief, Roco voluntary ceased its business operations in Florida, apparently because it was unwilling to risk the potential consequences of running afoul of the amended statute. Two months later, in December 2000, Congress passed and the President signed the Tobacco Compliance Act of 2000, as codified in 19 U.S.C. § 1681-1681b, modifying the federal framework for lawfully importing tobacco products and indisputably making it illegal for Roco to continue its business in the way that it had been doing. Although the amendments to the federal law and therefore presumably its arresting effect on companies like Roco were publicly supported by the Attorney General of the State of Florida and many of his colleagues around the country, Roco never advised the court or opposing counsel that it had ceased doing business until August 30, 2001. Furthermore, for reasons not made fully clear to this Court, it did not dismiss the underlying state law challenge.

Thereafter, though the constitutional issue was by then seemingly moot — something that should have been apparent to both sides in December 2000 — the State sought to undertake discovery, including the deposition of Barry Boren, Roco’s general counsel and counsel of record in this action. Without initially informing opposing counsel or the court of its cessation of business, Roco instead filed a motion for protective order against the taking of this deposition, and made it appear to all that the litigation was proceeding full steam ahead.

The motion for protective order was granted in part and denied in part. The order also expressly warned that Roco’s failure to comply with the order “shall result in sanctions authorized by Fla. R. Civ. Pr. (sic) 1.380, including striking of Plaintiffs pleading for relief.” Notwithstanding this warning, the deposition proved contentious and largely fruitless. In addition, Mr. Boren did not bring any documents to the deposition as required by order. The State responded by filing the invited discovery sanctions motion, which was soon followed by a Motion for Summary Judgment.

At a hearing held on both motions in March 2003, the court granted the State’s Motion for Summary Judgment, and summarily awarded attorneys’ fees as a discovery sanction on the Plaintiff in the amount of $9,000 and on Plaintiffs counsel, Boren, in the amount of $1,000 to be paid by him to his favorite charity. The court did not supply a basis for the award, other than to note that the State of Florida requested $12,000, but it figured $10,000 was adequate. Nor was this award or its basis memorialized in a written order at that time.

Emboldened by this victory, the State soon thereafter sought a further award of fees and costs against Roco, this time under Fla. R. Civ. P. 1.442 and § 57.105, Fla. Stat. (2000), arguing that it should not have been litigating a case which had been moot since at least December 2000, when the Tobacco Compliance Act of 2000 became effective. At a hearing held in May 2003, the court denied the Fla. R. Civ. P. 1.442 and § 57.105, Fla. Stat. motion, but inexplicably granted the State a total of $4,400 in “costs,” of which $3,900 was assessed to Roco and $500 to Attorney Boren. This time, a written order was entered embodying the results of both the March 2003 and May 2003 hearings, but again without relating any basis for the fee or cost awards. Roco and its counsel sought a rehearing, which was denied. This appeal followed.

We affirm the final summary judgment in this case. It is apparent from the record that Roco did not seriously defend against the summary judgment motion below, except as necessary to deflect the threat of sanctions. Mendelson v. Oceania Club, Inc., 766 So.2d 1079 (Fla. 3d DCA 2000) (where the underlying foreclosure action was unopposed below, only attorneys’ fees award was appealable).

With respect to the awards of attorneys fees, which were sought under Fla. R. Civ. P. 1.380(b), we review these awards under an abuse of discretion standard. Boca Investors Group, Inc. v. Potash, 832 So.2d 197 (Fla. 3d DCA 2002), (citing Mercer v. Raine, 443 So.2d 944 (Fla.1983)). Fla. R. Civ. P. 1.380(b), under which the State was proceeding at the March 2002 hearing, allows only for an award of “reasonable expenses caused by the failure ” of a party or deponent to obey a court order. Fla. R. Civ. P. 1.380(b) (emphasis added). In this case, Attorney Boren, whom Roco had previously designated in an interrogatory as having discoverable knowledge concerning the company, clearly failed to provide meaningful answers at his deposition, and clearly failed to supply the documents requested. The affidavit supplied by the State in support of its sanctions motion reflects the amount of time invested by counsel to bring about compliance from Roco and its counsel to answer questions per the terms of the order on the protective order motion and to bring the discovery sanctions motion. The number of hours spent on extracting discovery was never contradicted by Roco or its counsel by filing a formal response, nor was it shown to be unreasonable. Gross v. Franklin, 387 So.2d 1046 (Fla. 3d DCA 1980) (failure to raise an available defense constitutes a waiver for purposes of appeal). Instead, at the March 2003 hearing on the motion for sanctions and attorneys fees, Attorney Boren glibly informed the court that the matter had been moot since December 7, 2000, and, therefore, the motion for discovery sanctions should be denied. While the State should also have been aware of the change in federal legislation mooting the case, and while the State, too, could have streamlined the process by more directly pursuing an earlier dismissal of the case, the lower court was nevertheless within its bounds for awarding attorneys fees as discovery sanctions against Roco and Attorney Boren. Despite the State protracting the inevitable conclusion of this litigation, Roco and Attorney Boren’s conduct, in comparison, was more egregious and therefore, warranting of sanctions. After all, Roco and Attorney Boren could have voluntarily dismissed the suit which had become moot, in December 2000. Instead, they opposed the deposition by filing for a protective order and needlessly asserted the attorney-client privilege on matters that had become legally inconsequential. Because Roco and its counsel took legal positions and actions to be' litigious and, in effect, “invited the State to dance,” they should now be bound by the consequences of those actions. In that light, there was no abuse of discretion in awarding attorneys fees to the State. Accordingly, we affirm the court’s order of attorneys fees under Fla. R. Civ. P. 1.380.

Lastly, we do, however, reverse the award of costs in this case. Having denied the combined Rule 1.442 and § 57.105 motion, there was no basis for further expenditure of judicial effort on these matters at the time. Neumann v. Neumann, 857 So.2d 872 (Fla. 1st DCA 2003) (holding that the court violated former husband’s right to due process and abused its discretion by modifying visitation, where only issue before court was former husband’s motion for contempt and enforcement and neither pleading nor notice of hearing mentioned or requested that visitation schedule be modified). Orders that adjudicate issues not before the court or presented by the pleadings, fail to place the parties on notice and thereby deny fundamental due process. Id.

Affirmed in part and reversed in part, with directions to enter judgment in favor of Roco Tobacco and Barry Boren on the issue of costs.

      . The Office of the Attorney General has been counsel of record and lead defense counsel for the State defendants, which includes the Attorney General in his official capacity since the beginning of the case.

      . Fla. R. Civ. P. 1.442 is Florida’s "Proposals for Settlement” Rule. The letter the State relies upon as its settlement demand does not remotely meet the requirements of the rule. Nor does the procedure it followed in this regard.

      . Although not raised as an issue on appeal, we note that the trial court ordered plaintiff’s counsel, as a sanction, to make a $1,000 charitable contribution to a charity of counsel’s choice. While the issue is not now before us, we question whether Rule 1.380 authorizes such a sanction. See United States v. Johnson, 327 F.3d 554, 563 (7th Cir.2003); Vollmer v. Publishers Clearing House, 248 F.3d 698, 711 n. 11 (7th Cir.2001); Grimes v. City and County of San Francisco, 951 F.2d 236, 240 (9th Cir.1991); see also Estate of Calloway v. Marvel Entertainment Group, 9 F.3d 237, 241 (2d Cir.1993). But see Stanfield v. Brookshire Grocery Co., 761 F.Supp. 29 (W.D.La.1991); In re Pierre, 190 B.R. 462, 464 (Bankr.S.D.Fla.1995).


text:
    Demetrius JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1023.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    Demetrius Johnson, in proper person.
    Charles J. Crist, Jr., Attorney General, and John Barker, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GODERICH and SHEPHERD, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Based upon the state’s proper confession of error, we reverse the denial of Defendant’s 3.800 motion and remand for sentencing. At the time of the offense the defendant could not be sentenced as a habitual offender for a life felony. Martin v. State, 795 So.2d 143 (Fla. 3d DCA 2001). As the State confesses, the Defendant should be re-sentenced for the life felony in count three pursuant to the laws in effect at the time of his offense. Green v. State, 810 So.2d 1101 (Fla. 1st DCA 2002).

Reversed and remanded.


text:
    Alvaro NASIB, Appellant, v. Luzmary NASIB, Appellee.
    No. 3D03-2579.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    Paul Jon Layne, Miami, for appellant.
    Kurt R. Klaus, Miami, for appellee.
    Before COPE, GREEN and SHEPHERD, JJ.
   PER CURIAM.

Alvaro Nasib appeals a final judgment of dissolution of marriage. The sole claim of error is the denial of permanent periodic alimony to the husband. We conclude that the denial was within the court’s discretion under the evidence presented. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

Affirmed.


text:
    Richard WORTH, Appellant, v. FLORIDA DEPARTMENT OF REVENUE on behalf of Nancy Worth, Appellee.
    No. 3D03-2669.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.
    Iris N. Sachs and Nancy C. Wear, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General and William H. Branch, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J. and GERSTEN and GREEN, JJ.
   PER CURIAM.

Richard Worth (“father”) appeals an order denying his motion for rehearing and to vacate modification of a child support award. We reverse and remand with instructions to hear this matter within ninety days and without continuances.

Reversed and remanded.


text:
    SUPERIOR GARLIC INTERNATIONAL, INC., et al., Petitioners, v. E & A PRODUCE CORPORATION, et al., Respondents.
    No. 3D04-1924.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2004.
    Schatzman & Schatzman and Arnold D. Schatzman, for petitioners.
    James H. Greason, for respondents.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Petitioners seek a writ of mandamus to compel the circuit court below to disburse monies held as a cash supersedeas bond securing a final judgment that awarded attorneys fees to petitioners. The award has been affirmed on appeal by this court and a mandate has issued. We have jurisdiction. Art. V, § 4(b)(3), Fla. Const.; Fla. R.App. Proc. 9.030(b)(3) (2004). We grant the writ.

I. Procedural Posture

E & A Produce Corporation (“E & A”) filed a multi-count complaint against Superior Garlic International, Inc. and its two shareholders, Silfredo Trujillo and Nil-da Olmo, that included a treble. damage claim for civil theft pursuant to § 772.11, Fla. Stat. (2000). Following the abandonment of the claim by E & A the trial court entered an award of attorneys’ fees against E & A and in favor of Superior Garlic, Trujillo and Olmo in the sum of $9,123.75. E & A superseded the judgment by filing a cash supersedeas bond with the clerk of the Circuit Court. This court subsequently affirmed the fee award and a mandate has issued. E & A Produce Corp. v. Superior Garlic Int’l, Inc., 864 So.2d 449 (Fla. 3d DCA 2003). However, E & A has refused to satisfy the judgment.

After E & A refused to satisfy the judgment, Superior Garlic, Trujillo and Olmo filed a motion in the trial court to have the judgment satisfied from the supersedeas bond. However, before the motion could be heard, a separate judgment was eh-tered, apparently severally but not jointly, in favor of E & A and against Superior Garlic and Trujillo in the sum of $24,000 each on the remaining counts. A successor trial judge denied disbursement pending post-trial proceedings relating to the recently rendered final judgment and col-lectibility thereon. Superior Garlic, Trujillo and Olmo ask this court to issue its writ of mandamus to nevertheless compel disbursement of the supersedeas bond.

II. Discussion

Mandamus is appropriate where a petitioner “demonstrate^] a clear legal right to the performance of a ministerial duty by [a] respondent and that no other adequate remedy exists.” Morse Diesel Int’l, Inc. v.2000 Island Blvd., Inc., 698 So.2d 309 (Fla. 3d DCA 1997). See also Chavis v. Dugger, 538 So.2d 120 (Fla. 1st DCA 1989) (“Mandamus is available to enforce an established right, but not to establish that right.”)

“The mandate of an appellate court is a final judgment in the cause, and compliance [therewith] is a ministerial act to be performed by the trial court.” Nicholson v. Ariko, 565 So.2d 843 (Fla. 5th DCA 1990). Upon issuance of a mandate, an automatic stay resulting from the posting of a supersedeas bond is automatically lifted, and the judgment creditor has the right to either execute on the judgment or proceed against the supersedeas bond. See Fla. R.App. P. 9.310(e) (“A stay entered by a lower tribunal shall remain in effect ... until the mandate issues.”). See also Freedom Insurors v. M.D. Moody & Sons, Inc., 869 So.2d 1283, 1285 (Fla. 4th DCA 2004)(A supersedeas “does not undo or set aside what the trial court has adjudicated, but simply stays further proceedings in relation to the judgment being appealed from until the appellate court acts upon the decision in the lower court”) (citing Bacon v. Green, 36 Fla. 313, 18 So. 866, 869 (1894)).

“It is the duty of the trial court to enforce the mandate and not stray from it.” Nicholson, 565 So.2d 843 at 844. Although not unsympathetic to the trial court’s apparent concern that E & A may be obligated to satisfy one judgment while being potentially on the verge of finality on a larger one in its favor, disbursement of the supersedeas was required upon issuance of the mandate. Id. Moreover, on the facts of this case, E & A would not be entitled to a set-off of the attorneys’ fees judgment suffered by it against the later judgment obtained by E & A against Superior Garlic and Trujillo in any event. See generally Florida Gas Transmission Co. v. Lauderdale Sand & Fill, Co., 813 So.2d 1013, 1015 (Fla. 1st DCA 2002) (noting that “it is proper to include as setoffs amounts recovered by the plaintiff in settlements with other defendants when the suits against all of the defendants involve the same claims ... When the plaintiff has separate and distinct claims against more than one defendant, however, a setoff is inappropriate”).

We grant the writ of mandamus with directions that petitioners be allowed to satisfy the attorneys’ fee award from the proceeds of the cash supersedeas.

      . As we noted in an earlier appeal of the fee award, it is unclear whether the fee award was made pursuant to § 772.11(a), Fla. Stat. or § 57.105, Fla. Stat. E & A Produce Corp. v. Superior Garlic Int’l, Inc., 864 So.2d 449, 450 (Fla. 3d DCA 2003). However, that is immaterial for our purposes.

      . Olmo had been successful in removing herself from the controversy on a summary judgment motion. See E & A Produce Corp. v. Olmo, 864 So.2d 447 (Fla. 3d DCA 2003).

      .The successor trial judge, Judge Robert Pi-neiro, although not included as a respondent in the caption of the petition, is a "formal party to the petition for mandamus.” Fla. R.App. P. 9.100(e).


text:
    Jocelyn ESMURDOC, Appellant, v. DAIMLERCHRYSLER CORPORATION, et al., Appellees.
    No. 3D04-874.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2004.
    Krohn Moss and Jason H. Carls (Sunrise); Alex D. Weisberg; Scott Cohen, for appellant.
    Anderson St. Denis Glenn and John Glenn and Edward J. Welch (Boca Raton), for appellees.
    Before GREEN, FLETCHER, and WELLS, JJ.
   PER CURIAM.

As DaimlerChrysler Corporation is neither a party to the contract containing the arbitration clause nor a third-party beneficiary of the arbitration clause, we reverse the trial court’s order which stayed the suit and referred it to arbitration. The case is remanded for proceedings consistent herewith.

Reversed and remanded.


text:
    Harry SENDZISCHEW, M.D., Lester Shalloway, M.D., and Mount Sinai Medical Hospital, Inc., Appellant, v. Christopher JOHNSON, Appellee.
    Nos. 3D03-2129, 3D03-2193, 3D03-2295.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2004.
    Kubicki Draper and Caryn L. Bellus, Miami; Stephens Lynn Klein LaCava Hoffman & Puya and Marlene S. Reiss, Miami, and Cory W. Eichhorn, Boca Ra-ton; Greenberg Traurig and Arthur J. England, Jr., Elliot B. Kula and Pamela A. DeBooth, Miami, for appellants.
    Gary, William, Parenti, Finney, Lewis, McManus, Watson & Sperando, Ft. Pierce; Edna L. Caruso, West Palm Beach, for appellee.
    Before GODERICH, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. § 766.102(2), Fla. Stat. (2003); § 768.81(3)(6), Fla. Stat. (1991); Osler v. Collins, 870 So.2d 65 (Fla. 2d DCA 2003); Hughes v. Slomka, 807 So.2d 98 (Fla. 2d DCA 2002); Leavitt v. Krogen, 752 So.2d 730 (Fla. 3d DCA 2000).


text:
    UNIVERSAL PRINTING CO., Appellant, v. U.S. FIRE INSURANCE CO., Appellee.
    No. 3D04-209.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2004.
    Scott Alan Orth, for appellant.
    Benson & Ross, for appellee.
    Before GODERICH, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

We reverse the trial court’s denial of Universal Printing Company’s motion for permission to file a third amended complaint as to counts I and II. Universal sought to assert that its insurer, U.S. Fire Insurance Company, waived its settlement defense. There is no “pertinent consideration” to support the court’s order denying Universal’s motion to amend. See Carib Ocean Shipping, Inc. v. Armas, 854 So.2d 234, 235-37 (Fla. 3d DCA 2003), and cases cited therein. Therefore, the trial court abused its discretion in refusing to permit such amendment. Accordingly, we are compelled to vacate the summary judgments on those counts. In addition, because the court granted summary judgment on count III on the same basis as counts I and II — breach of the cooperation clause, we vacate the judgment on that count.

Reversed and remanded.

      . We note that Universal may prevail if it successfully proves that U.S. Fire waived the settlement defense despite Universal’s breach of the cooperation clause. See American Reliance Ins. Co. v. Perez, 712 So.2d 1211 (Fla. 3d DCA 1998).


text:
    Carador Donald JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2756.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2004.
    Weiner & Ratzan and Jeffrey S. Weiner, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before SHEVIN, RAMIREZ and WELLS, JJ.
   PER CURIAM.

We reverse the order denying defendant’s post-conviction relief motion. The record demonstrates that the court abused its discretion in finding that trial counsel rendered effective assistance. This Court has held that failure to call exculpatory witnesses constitutes ineffective assistance of counsel. Terrero v. State, 839 So.2d 873 (Fla. 3d DCA 2003); Majewski v. State, 487 So.2d 32 (Fla. 1st DCA 1986). Here, as in Gillard v. State, 697 So.2d 896 (Fla. 1st DCA 1997), the witnesses that trial counsel neglected to call were crucial to the consent defense, which was argued in opening and closing. Given the significance of this defense, and the need for these witnesses, counsel’s omission essentially left the consent defense unsubstantiated. We must conclude that there is a “reasonable probability that counsel’s omission[s] affected the verdict.” Gillard, 697 So.2d at 897. Additionally, as alleged in the motion, the witnesses were subpoenaed, present at trial, and prepared to testify. See Nelson v. State, 875 So.2d 579 (Fla.2004).

Based on the foregoing, we reverse the order denying post conviction relief and remand for a new trial.

Reversed and remanded.


text:
    Linda S. WITT, Appellant, v. The SCHOOL BOARD OF MIAMI-DADE COUNTY, Appellee.
    No. 3D04-1511.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2004.
    Meyer & Brooks, P.A., and Anthony D. Demma (Tallahassee) for appellant.
    Ana I. Segura, Miami, for appellee.
    Before LEVY, GERSTEN, and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Fertally v. Miami-Dade Community College, 651 So.2d 1283 (Fla. 3d DCA 1995).


text:
    Stacey GOLIGHTLY, Appellant, v. Richard Thomas GOLIGHTLY, Jr., Appellee.
    Nos. 3D03-1183, 3D03-1697.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 2004.
    Iris N. Sachs, Miami, for appellant.
    Mary Raymond, Miami, for appellee.
    Before COPE, SHEVIN and SHEPHERD, JJ.
   PER CURIAM.

We reverse the order denying the former wife’s attorney’s fees motion. There is no record support for the trial court’s conclusion that the former wife’s defense to the former husband’s motion to modify custody “was raised mainly to frustrate or stall” the proceedings, Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997); Nash v. Nash, 624 So.2d 370, 372 (Fla. 3d DCA 1993); the trial court denied the former husband’s motion after a full hearing. As the transcript of the fee motion hearing demonstrates, the former wife’s actions following the court’s denial of the modification motion were based on well-founded reasons. Therefore, we reverse and remand for the trial court to determine the fee issue based on need and ability to pay. Rosen.

We also reverse the guardian ad litem fee award, and remand for a determination based on the parties’ need and ability to pay. See Meloan v. Coverdale, 525 So.2d 935, 938 (Fla. 3d DCA 1988).

Reversed and remanded.


text:
    Michael ADDICOTT, Appellant, v. Neil LEFF, Appellee.
    No. 3D04-382.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2005.
    Stuart R. Michelson, Fort Lauderdale, and James J. Birch, for appellant.
    Waldman Feluren Hildebrandt & Trigo-boff, P.A., Craig J. Trigoboff, Weston, for appellee.
    Before COPE, RAMIREZ and SUAREZ, JJ.
   PER CURIAM.

Michael Addicott appeals an order of the Florida Commission on Ethics denying him attorney’s fees under subsection 112.317(8), Florida Statutes (2003). • Upon review of the request for attorney’s fees and the administrative record, it is clear that appellant Addicott’s request did not meet the statutory standard. The order denying attorney’s fees is affirmed.


author: CORTINAS, Judge.

text:
    Franklin W. BAIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2625.
    District Court of Appeal of Florida, Third District.
    March 2, 2005.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and CORTINAS, JJ.
   CORTINAS, Judge.

The defendant, Franklin W. Bain, appeals his convictions and sentences on counts one and two, which charged defendant with aggravated assault with a deadly weapon by threatening to kill Kent Romero and Peter Tansey on July 9, 1999. We affirm, in part, and reverse, in part.

During the trial in this case, the State presented the following testimony. In May 1999, the defendant was arrested for petit larceny and for driving while his license was suspended. The defendant entered into a bail bond agreement with Hugo Bail Bonds. Bondsperson Mabel Gonzalez testified that she bonded the defendant out of jail and that he executed a disclosure notice that provided, “Surety Company, as bail, shall have control and jurisdiction over the principal during the term for which the bond is executed and shall have the right to apprehend, arrest and surrender the principal to the proper officials at any time as provided by law.”

When the defendant failed to appear in court, the bail bond company sent bondsmen to arrest him. On July 9, 1999, Kent Romero and Peter Tansey, wearing identification on their vests and a badge on a chain around their necks, approached the defendant’s house. Romero went to the front door of the home and Tansey went to the rear door. Romero knocked and announced multiple times that they were “surety agents, bail agents.” Romero spoke to the defendant through a window and explained that he had failed to appear in court and that they needed to speak with him. The defendant told Romero that it was late and that they should leave and come back in the morning. Romero then heard the bolt of a rifle being pulled back and saw the silhouette of a rifle through the window. The front and back doors opened, and Rottweiler dogs ran out the doors attacking the bondsmen. The defendant then locked himself back in the house. After calling the police and being told they could not assist, Romero and Tansey tried to break down the front door, but the defendant left through the rear door and evaded them. Sometime thereafter, the police arrested the defendant.

On appeal, the defendant argues that the trial court erred in giving a special jury instruction regarding a bail bondsman’s authority to arrest the defendant and forcibly enter the defendant’s dwelling. The defendant claims that the special instruction removed the question of the reasonableness of the bondsmen’s actions from the jury’s province and effectively nullified the instruction on self-defense violating his right to a fair trial. We disagree.

During the charge conference, the defense counsel “objected” to the instruction as follows:

I object because I want to make sure we preserve our right. It is our hope that we can ask for a change in the law in that aspect so I think we have at least an ethical basis upon which to object. We object that it should not be the law.

The State argues that defense counsel stated that the instruction was the law but that he only wanted to preserve his right to ask for a change in said law.

The trial court then gave the following instruction to the jury:

A defendant who has been released from jail on bond is considered to be in the custody of the surety agent or bail bondsperson who posted the bond for the defendant.
A surety agent or bail bondsperson may arrest a defendant at any time before the conclusion of the defendant’s case and is permitted to forcibly enter the defendant’s dwelling or home to make the arrest.

The jurors were also instructed with the standard instruction on justifiable use of deadly force when attacked in one’s own home as modified by the defense.

We find that the defense objection was not sufficiently precise so as to inform the trial judge of the basis and grounds of the objection. § 924.05(1)(b), Fla. Stat. (1999). Thus, the claim was not properly preserved for appeal, and this court will only review the issue for fundamental error. Archer v. State, 673 So.2d 17, 20 (Fla.), cert. denied, 519 U.S. 876, 117 S.Ct. 197, 136 L.Ed.2d 134 (1996).

Although the instruction may have been more complete by instructing the jury that a bail bondsman could only use “reasonable force,” giving this instruction was not fundamental error. See Johnekins v. State, 823 So.2d 253 (Fla. 3d DCA 2002), review denied, 845 So.2d 890 (Fla.2003). Review of the record indicates that no reasonable juror could have believed that the defendant was being burglarized or robbed on July 9, 1999. Nor was any force used by the surety agents on July 9, 1999. On the contrary, from the inception, the bail bondsmen identified themselves and their purpose for being there. Moreover, the instruction given did not preclude the jury from finding that the defendant acted in self-defense if that is what they believe.

Upon his conviction on counts one and two, the trial court sentenced the defendant to ten years imprisonment on count one with a three-year minimum mandatory, followed by a five-year term of imprisonment on count two with a three-year minimum mandatory. The written sentencing order indicated a three-year minimum mandatory term on count one only.

As part of this appeal, the defendant filed a motion to correct his sentence alleging that the habitual offender sentences on the aggravated assault counts must be imposed concurrently. At oral argument, the State conceded this point and agreed that counts one and two must run concurrently. We agree and remand for re-sentencing with the instruction that these counts must run concurrently. The defendant need not be present for re-sentencing.

The defendant also filed a second motion to correct his sentence on the ground that the trial court erred by using a 1998 case as a qualifying prior conviction for habitual offender purposes. This issue has no merit based on this court’s holding in Turner v. State, No. 3D04-2510, 891 So.2d 1215 (Fla. 3d DCA Feb. 2, 2005)(adopting the reasoning of McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003)). These cases held that the sanction of probation may count towards the calculation of the sentence under the habitual felony offender statute, section 775.084, Florida Statutes. We certify direct conflict with Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003).

Finally, the appellant filed a pro se brief alleging that the State witnesses committed perjury, that the trial court ordered the jury to find the defendant guilty of using a firearm, and that the trial court did not know that it was sentencing the defendant to two counts of aggravated assault with a firearm. As the State witnesses were subject to rigorous cross-examination and the jury was instructed on weighing the evidence and considering the reliability of the witnesses’ testimony, the defendant’s claim has no merit. Nor was there any evidence that the trial court ordered the jury to find the defendant guilty of using a firearm or that the trial court did not know that it was sentencing the defendant to two counts of aggravated assault with a firearm.

Affirmed, in part; reversed, in part; direct conflict certified.


text:
    William F. HAYES, Jr., et al., Appellants, v. In re the GUARDIANSHIP OF Mae E. THOMPSON, etc., Appellee.
    No. 3D04-985.
    District Court of Appeal of Florida, Third District.
    March 16, 2005.
    Rosenthal Rosenthal 'Rasco, Eduardo I. Rasco, and Jessica B. Lassman, for appellants.
    Stephen B. Fuller, for appellee.
    Before LEVY, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

We find that the appellants lack standing to challenge the trial court’s award of attorney’s fees. McGinnis v. Kanevsky, 564 So.2d 1141, 1144 (Fla. 3d DCA 1990). Accordingly, we affirm and certify conflict with Bachinger v. Sunbank/South Florida, N.A., 675 So.2d 186 (Fla. 4th DCA 1996).

Affirmed; conflict certified.


author: ROTHENBERG, Judge. .

text:
    Gerald TOBIN, Appellant, v. Raymond BURSCH and Deborah Bursch, Appellees.
    No. 3D02-3294.
    District Court of Appeal of Florida, Third District.
    March 30, 2005.

      Howard Brodsky, Miami, for appellant.
    Raymond Bursch and Deborah Bursch, in proper persons.
    Before COPE, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge. .

The defendant, Gerald Tobin, appeals the denial of his motion for attorney’s fees pursuant to section 57.105(1), Florida Statutes (2002). We reverse and remand.

The plaintiffs, Jonathan E. Bursch, Raymond Bursch, and Deborah Bursch, filed a legal malpractice action against Tobin. The plaintiffs alleged that Tobin represented them in a real estate transaction in which they purchased a five-acre parcel which was landlocked. They further alleged that they did not discover that the parcel was landlocked until they attempted to sell the property and that, if they had known that the parcel was landlocked, they would not have purchased it.

After the plaintiffs filed a voluntary dismissal, Tobin filed a motion for entitlement of attorney’s fees pursuant to section 57.105(1), seeking fees against the plaintiffs and plaintiffs’ counsel. Tobin presented the affidavit of an attorney who had represented the plaintiffs in this real estate transaction until being discharged by the plaintiffs. The attorney averred that in April 1989, Raymond Bursch contacted and hired a land surveyor to survey the property. After the survey was performed, Raymond gave him a copy of the survey and correspondence received from the surveyor. Upon reviewing the survey and correspondence, he immediately notified Raymond that the property was landlocked. The surveyor also filed an affidavit averring that there is no doubt that Raymond knew that the property was landlocked.

Following a hearing, the trial court entered an order denying Tobin’s motion for attorney’s fees. Tobin’s appeal follows.

Tobin contends that the trial court abused its discretion by denying the motion for attorney’s fees. We agree.

Based on the affidavits of the plaintiffs’ previous attorney and of the surveyor who surveyed the parcel, the plaintiffs had no factual basis to support the allegations against Tobin. The affidavits indicate that the plaintiffs purchased the five-acre parcel knowing that it was landlocked. Additionally, we note that in the pro se answer brief filed by Raymond and Deborah Burseh, they confirmed that they knew that the property was landlocked. The answer brief provides: “Tobin’s contention that we knew we were landlocked is true....”

Accordingly, we reverse the denial of the motion for attorney’s fees and remand. Tobin’s motion for entitlement to attorney’s fees sought fees against the plaintiffs and plaintiffs’ counsel. Upon remand, the trial court is directed to hold an evidentiary hearing to determine whether the plaintiffs’ attorney “acted in good faith, based on the representations of his or her client as to the existence of those material facts.” § 57.105(1), Fla. Stat. (2002). If the trial court determines that the plaintiffs’ attorney acted in good faith, fees are to be assessed only against Raymond and Deborah Burseh.

Reversed and remanded.

      . Section 57.105(1) provides as follows:
      (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing parly in equal amounts by the losing party and losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
      (a) Was not supported by the material fact necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts.
      However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney’s fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

      . This Court has granted Jonathan E. Bursch’s motion to stay this appeal. Therefore, this opinion is applicable only to Raymond and Deborah Bursch.


author: FLETCHER, Judge.

text:
    Franklin PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-217.
    District Court of Appeal of Florida, Third District.
    March 30, 2005.
    Martin L. Roth, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   FLETCHER, Judge.

Franklin Perez appeals from the trial court’s denial of postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

On June 30, 1997, Perez, a citizen of Nicaragua, pleaded guilty to the third degree felony of accessory after the fact. Prior to taking the plea the trial court advised Perez that “[T]he law requires that I advise you that it is possible that the immigration authorities could take some action against you, such as throwing you out of the country. I doubt that will happen, but the possibility exists. Do you understand that?” [January 27, 1997 Plea Colloquy at 6; Appellant’s Motion to Vacate, Exhibit C at 6]. Perez answered, ‘Tes,” and went on to voluntarily and intelligently take the plea.

Several years later, in August 2004, the United States Immigration and Naturalization Service served Perez with a Notice to Appear, citing his status as an alien and his 1997 conviction. Perez then moved to vacate his plea in state court, claiming that the trial court gave him insufficient warning of possible deportation consequences of his plea. We conclude, however, that the trial court’s deportation warning fulfilled the requirements of Florida Rule of Criminal Procedure 3.172(c)(8). The warning did not use vague language; although the trial court did not use the exact wording of the rule, the warning clearly apprised Perez that one of the possible consequences of his plea was deportation.

Affirmed.

      . The rule requires that a trial court, when determining the voluntariness of the plea, shall inform the defendant "that if he or she pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service.”


author: SCHWARTZ, Senior Judge. GERSTEN, Judge

text:
    Gary Lamar POLITE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2819.
    District Court of Appeal of Florida, Third District.
    April 13, 2005.

      Bennett H. Brummer, Public Defender and Carlos F. Gonzalez, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before GERSTEN and WELLS, JJ, and SCHWARTZ, Senior Judge.
   ON MOTION FOR REHEARING

SCHWARTZ, Senior Judge.

We set aside the opinion of August 11, 2004 and substitute the following opinion.

The defendant appeals from a conviction and sentence for resisting arrest with violence. The primary issue at the trial, presented by highly disputed evidence on the question, was whether, in resisting a purported arrest by the “victim” Munoz, who was in plain clothes and undercover, the defendant actually knew or should have known that he was indeed a police officer. There is no doubt this is an indispensable element of the crime in question. Cooper v. State, 742 So.2d 855 (Fla. 1st DCA 1999). During both the closing and rebuttal portions of the prosecutor’s final argument however, he specifically, erroneously informed the jury that it was not necessary to establish that fact to convict the defendant. The trial judge’s refusal, upon appropriate objections an.d requests for curative instruction, to disabuse the jury of this erroneous notion and to inform it of the correct law, with the result that it was affirmatively misled as to the only real defense in the case, requires a new trial. Smith v. State, 273 So.2d 414 (Fla. 2d DCA 1973), cert. denied, 278 So.2d 628 (Fla.1973); Quaggin v. State, 752 So.2d 19 (Fla. 5th DCA 2000), and cases cited; Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974), cert. denied, 312 So.2d 756 (Fla.1975).

The state’s reliance on O’Brien v. State, 771 So.2d 563 (Fla. 4th DCA 2000), review denied, 791 So.2d 1100 (Fla.2001) is misplaced. O’Brien simply upholds the sufficiency of the standard jury instructions on the crime, which were given in this case, but which, as the prosecutors deftly exploited, are essentially neutral on the knowledge question in the case. It does not deal in any way with an uncorrected misrepresentation by the prosecutor as to the applicable law which is the decisive factor here. E.g., Harvey v. State, 448 So.2d 578, 581 (Fla. 5th DCA 1984)(“The trial judge in this case should have corrected the misleading instruction. This instruction, the prosecutor’s repeated misstatements of the law and the obvious jury confusion deprived Harvey of a fair trial so as to constitute fundamental error which requires reversal even in the absence of timely objections.”); see 15 Fla. Jur.2d Criminal Law § 1823 (2004).

Reversed and remanded for a new trial.

WELLS, J., concurs.

GERSTEN, Judge

(dissenting).

I respectfully dissent. The trial court did not abuse its discretion in denying both the defendant’s request for special instructions and the defendant’s motion for mistrial. The majority’s opinion is contrary to established law and will now allow the unreasonable subjective beliefs of a perpetrator to undermine the prosecution of resisting arrest crimes.

The pertinent record facts are as follows: Officer Munoz observed the defendant tampering with several parking meters in an attempt to extract coins. Officer Munoz, meanwhile, was dressed in street clothes because he was working undercover. In order to identify himself as a police officer, Officer Munoz pulled out his police badge and handcuffs and yelled “Police, you’re under arrest.” Officer Munoz demonstrated for the jury how he approached the defendant and placed the obvious shiny side of his police badge facing the defendant.

Officer Munoz attempted to grab the defendant’s wrist and ordered the defendant not to resist. The defendant pulled back and escaped Officer Munoz’s grip. When Officer Munoz attempted to regain control, the defendant tried to punch the officer and then fled the scene. Officer Munoz requested a BOLO for the defendant.

Officer Santiago, who was working regular patrol that evening, heard the BOLO and approached the defendant. Officer Santiago identified himself as an officer and directed the defendant to stop. The defendant submitted to Officer Santiago’s authority without a struggle. Officer Santiago testified that the defendant told him he did not know whether or not Officer Munoz was a police officer.

At trial, the theory of defense was that the defendant did not know Officer Munoz was a police officer. During closing argument, the State argued that they did not need to prove that the defendant knew Officer Munoz was a police officer. Defense counsel objected and requested a curative instruction to inform the jury that the defendant actually had to believe that Officer Munoz was a police officer. The court denied the curative instruction and subsequent motion for a mistrial. Thereafter, the jury found the defendant guilty of tampering with a parking meter and resisting an officer with violence. The defendant was sentenced to seven and a half years imprisonment as a prison releasee reoffender and a habitual felony offender.

It was neither error nor a misstatement of law for the prosecutor to state, “Do I have to prove it to you that the Defendant knows the officer is a police officer. I don’t have to prove that to you.” The prosecutor continued the argument by stating: “Does it say that [the State needs to prove the defendant knows the officer is a police officer] anywhere? But you know what, ladies and gentlemen, when you think about it, it doesn’t make sense. It doesn’t make sense. How could he have not known it was a police officer? He says, police, you are under arrest. He has this bright shiny badge. Now they want— remember they said, well; are you positive it was the shiny part out? Well, if it was flipped over, it says police officer on there.”

This argument did not mislead the jury. Florida law provides that whoever knowingly and willfully resists, obstructs, or opposes any officer is guilty of a third degree felony, see section 843.01, Florida Statutes (2003), and that a person is not justified to use force to resist arrest by an officer where the officer “is known, or reasonably appears, to be a law enforcement officer.” See § 776.051(1), Fla. Stat. (2003). Therefore, in proving the crime of resisting an officer with violence, the State must prove that:

(a) the defendant knew the person was an officer, or
(b) the defendant should reasonably have known the person was an officer.

Contrary to the majority’s opinion, the State was not required to prove that the defendant “knew” the person who flashed the badge and handcuffs and shouted “police, you’re under arrest” was in fact an officer. Rather, the State could present circumstantial evidence that the defendant “should reasonably have known” that Officer Munoz was an officer. See § 776.051, Fla. Stat. (2003).

Moreover, the court properly denied the request for special instructions and motion for mistrial because the State had encouraged the jury to rely on the standard jury instructions for the law upon which both the State and defense had already agreed. See Damren v. State, 696 So.2d 709 (Fla.l997)(proseeutor’s improper comment on the law constituted harmless error due to the proper instructions to the jury); State v. DiGuilio, 491 So.2d 1129 (Fla. 1986); O’Brien v. State, 771 So.2d 563 (Fla. 4th DCA 2000).

In O’Brien v. State, the court determined that the standard jury instruction sufficiently provides the necessary legal standards for resisting an officer with violence by including the knowledge element in the instructions. O’Brien v. State, 771 So.2d at 563. This Court should follow O’Brien. There is no need to give a special instruction if all of the elements are contained in the standard jury instruction. Ray v. State, 755 So.2d 604 (Fla.2000).

In conclusion, because the comments by the prosecutor in closing and rebuttal did not misstate the law, and because there was ample evidence that Officer Munoz reasonably appeared to be a law enforcement officer, I would affirm the conviction and sentence in all respects. O’Brien v. State, 771 So.2d at 563.

      . The alleged crime occurred on December 16, 2002, as Officer Munoz of the Miami-Dade County Police Department was working undercover in the downtown Miami area. He was wearing a t-shirt, a plaid button down shirt and pants. Officer Munoz observed Gary Polite, a homeless man, shaking several parking meters in an attempt to extract coins. Officer Munoz removed his badge and approached the defendant, stating “Police, you’re under arrest.” The officer tried to grab the defendant’s wrist but the defendant pulled away. The officer told him not to resist. The defendant’s upper clothing slipped off and the defendant was able to get out of Officer Munoz’s grasp. The defendant attempted to hit the officer and fled the scene. Officer Munoz sent out a BOLO for the defendant.
      Officer Santiago was also working patrol that evening, not undercover, and received Officer Munoz’s BOLO call. Shortly thereafter, Officer Santiago observed the defendant riding his bike. The defendant got off the bike and started walking toward the police officer. Officer Santiago identified himself as an officer and directed the defendant to stop. The defendant submitted to officer Santiago’s authority without a struggle. Officer Santiago testified as a defense witness and stated that the defendant told him he did not know whether Officer Munoz was a police officer.

      . The prosecutors stated in part:
      MS. MARTYAK: Now, defense counsel called Officer Santiago to the stand. Remember what he told you? They asked, did the defendant say anything and he said, yes. He said that he wasn’t sure if Officer Munoz was a police officer. And you were here. Do I have to prove it to you that the defendant knows the officer is a police officer?
      MS. SAYFIE: Judge, I am going to object.
      MS. MARTYAK: Anywhere does it show here?
      MS. SAYFIE: That is a misstatement of the law.
      THE COURT: Overrule the objection.
      MS. MARTYAK:- I don’t have to prove that to you.

      MR. MIN: Counsel refers to this board and points out the word knowingly. What does the defendant on this board have to know? He has to know that he is resisting. He has to know that he is obstructing, and he has to know that he is opposing. That’s all he has to know. That word knowingly goes to those accidents where he just all of a sudden moved your arm back.

      That knowingly goes to that element. Knowingly resisted, knowingly obstructed, knowingly opposed. Did he knowingly and willfully swing his arms? Did he knowingly and willfully resist? Did he knowingly and willfully oppose? That’s what the word knowingly goes to.
      Nowhere in this jury instruction or in the instructions that the Judge is going to read to you or in the instructions that you are going to get and take back to the juiy room with you nowhere are you going to see the words that he knew he was a police officer.

      . See note 2.


text:
    Kristoffer HURLSTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-692.
    District Court of Appeal of Florida, Third District.
    May 4, 2005.
    Kristoffer Hurlston, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, FLETCHER and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Matthews v. State, 891 So.2d 596 (Fla. 3d DCA 2004); McBride v. State, 884 So.2d 476 (Fla. 4th DCA 2004).


text:
    Leonard McCRARY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-629.
    District Court of Appeal of Florida, Third District.
    May 4, 2005.
    Leonard McCrary, in proper person.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and RAMIREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Leonard McCrary appeals the summary denial of his Rule 3.800(a) motion for credit for time served. Based on the state’s proper confession of error, we reverse and remand to the trial court with instructions to correct the defendant’s sentence to reflect the credit for jail time served when he was in the Department of Corrections’ custody from April 3, 2000 to April 15, 2002. Apparently, the trial court did not check the box instructing the Department of Corrections to compute and apply credit for the time previously served in state prison. See § 921.0017, Fla. Stat. (2004). Thus, because the July 15, 2002 sentence does not direct the Department of Corrections to give credit for this time served, the trial court’s order denying relief is reversed and the case is remanded to the trial court for the correction of the defendant’s sentence. See Johnson v. State, 881 So.2d 88 (Fla. 5th DCA 2004).

Reversed and remanded with instructions.