author: VILLANTI, Judge.

text:
    In the Interest of T.H., a child. T.H., Appellant, v. Department of Children and Family Services and Melinda Barnes, as the guardian ad litem, Appellees.
    No. 2D07-2869.
    District Court of Appeal of Florida, Second District.
    April 4, 2008.

      Nancy B. Silva, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kelley R. Schaeffer, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Tracy L. Ellis, Orlando, for Appellee Melinda Barnes.
   VILLANTI, Judge.

T.H., the Father, appeals from the trial court’s order terminating his parental rights to his son, T.D.H. We reverse.

To justify termination of parental rights, the Department has the burden to show “by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child,” such as abuse, neglect, or abandonment. Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991). The supreme court has defined “clear and convincing evidence” as

an “intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.”

Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 614 n. 7 (Fla.2004) (Cantero, J., specially concurring) (quoting In re Davey, 645 So.2d 398, 404 (Fla.1994)); see also J.R. v. Dep’t of Children & Family Servs. (In re J.B.), 923 So.2d 1201, 1205-06 (Fla. 2d DCA 2006). Here, the Department sought termination of the Father’s parental rights on four grounds: abandonment under section 39.806(l)(b), Florida Statutes (2006), continuing involvement threatening the welfare of the child under section 39.806(l)(c), continued abandonment after a case plan under section 39.806(l)(e)(l), and a material breach of the case plan under section 39.806(l)(e)(2). However, because the Department did not present clear and convincing evidence on any of the grounds it alleged, the termination of the Father’s parental rights cannot stand.

Abandonment under § 39.806(l)(b)

The trial court first found that the Father had abandoned T.D.H. and thus that termination was proper under section 39.806(l)(b). The evidence does not support this conclusion.

At the adjudicatory hearing, the evidence showed that the Father and T.D.H.’s mother were unmarried and did not live together when T.D.H. was born on November 20, 2002. After T.D.H. was sheltered by the Department shortly after birth, the Department placed T.D.H. with the Father, where he lived from December 23, 2002, to April 11, 2003. In April 2003, T.D.H. was returned to his mother, but he was sheltered again a few months later. The Department placed T.D.H. with the Father again from March 25, 2004, until July 7, 2005. During this time, the Father was the sole caretaker of T.D.H. and was listed as a “nonoffending parent” in the Department’s petitions relating to T.D.H.’s mother.

The Father testified at the adjudicatory hearing that he has not been able to work full time since 1989. Instead, he lives on Social Security disability payments and the sporadic income he earns as a house painter when he is able to work. The Department was aware of the Father’s lack of employment and financial status when it placed T.D.H. with him in 2002 and 2004, and the Department presented no evidence that T.D.H. had not been well-cared for while in the Father’s custody.

T.D.H. was subsequently removed from the Father on July 7, 2005, after the Father left T.D.H. unsupervised with the mother while he visited relatives. Three weeks later, the Father was arrested for a violation of his pretrial release on charges unrelated to the care of T.D.H. The Father remained in jail until August 28, 2005, when he was released to house arrest. On October 10, 2005, the trial court approved a case plan for the Father with a goal of reunification; however, on October 17, 2005, the Father was arrested for a violation of his house arrest. He was then held in the Hillsborough County Jail until his trial in December 2005. After he was convicted at trial, the Father was transferred several times to several different prison locations. The Father testified without contradiction that he lost his Social Security disability benefits when he was jailed.

The evidence presented at the adjudicatory hearing showed that the Father visited T.D.H. at the Department’s facility at least once between his release from jail on August 28, 2005, and his rearrest on October 17, 2005. There was also some evidence in the Department’s file showing that the Father had visited T.D.H. at his daycare facility additional times between July 7, 2005, and October 17, 2005. There was no dispute that the Father’s supervised visits through the Department were limited by the fact that he was on house arrest. Moreover, there was no dispute that the Father was incarcerated as of October 17, 2005, and was therefore unable to have further visits with T.D.H.

The evidence at the adjudicatory hearing also showed that the Father sent letters to the Department on August 22, 2006, September 11, 2006, and January 28, 2007, inquiring as to the welfare and whereabouts of T.D.H. and requesting that T.D.H. be placed with the Father’s sister, who was a licensed foster care parent in Georgia, if he was not already placed there. The Department’s case manager admitted at the hearing that the Department did not respond to these letters from the Father. The Father also presented evidence that he sent two cards to his son through the Department’s caseworker. The Father received no response to these cards.

Based on this evidence alone, the trial court found that the Father had abandoned T.D.H. by failing to visit or support him. The trial court also found that the Father had failed to contact the Department to try to complete any of his case plan tásks. However, the evidence does not support these findings. Moreover, even if it did, the evidence does not support a finding of abandonment under section 39.806(l)(b).

Section 39.806(l)(b) permits the trial court to terminate a parent’s rights when the parent has “abandoned” the child, as that term is defined in section 39.01(1). Section 39.01(1) defines “abandoned” as

a situation in which the parent, ... while being able, makes no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. If the efforts of the parent ... to support and communicate with the child are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.

(Emphasis added.) The supreme court has noted that the phrase “while being able” in the statute prohibits a court from terminating parental rights when the alleged abandonment is involuntary. Wirsing v. Dep’t of Health & Rehabilitative Servs. (In re B.W.), 498 So.2d 946, 947 (Fla.1986). Moreover, incarceration does not, as a matter of law, constitute abandonment. Id. at 948; see also K.S. v. Dep’t of Children & Family Servs. (In re N.S.), 898 So.2d 1194, 1198 (Fla. 2d DCA 2005); L.N. v. Dep’t of Children & Family Servs. (In re E.D.), 884 So.2d 291, 294-95 (Fla. 2d DCA 2004). Thus, it is “improper to terminate parental rights if a parent is unable to financially provide for the child or to assume parental obligations due to incarceration.” J.T. v. Dep’t of Children & Family Servs. (In re T.B.), 819 So.2d 270, 272 (Fla. 2d DCA 2002). Instead, while incarceration is a factor that the court can consider in determining whether a child has been abandoned, the parent’s efforts, or lack thereof, to assume parental duties while incarcerated must be considered in light of the limited opportunities to assume those duties while in prison. Wirsing, 498 So.2d at 948.

For example, in Wirsing, the trial court found that the father had abandoned his children during his incarceration. The supreme court reversed, noting that the father had requested that his children be brought for a visit and that he had written letters to his children and to HRS. Id. The supreme court noted that the father had “used those means available to him in maintaining contact with his children” and thus had not abandoned them as that term is defined. Id.

Similarly, in L.N., the trial court found that the mother had abandoned her children because she had not contributed to the cost of their care while incarcerated. 884 So.2d at 294. This court reversed the trial court’s finding on this ground, noting that the mother was not financially able to provide for her children while she was incarcerated and that she had sent cards and letters and talked to them by phone to the extent permitted by her incarceration. Id. at 294-95.

Likewise, in T.C.S. v. State, Department of Health & Rehabilitative Services (In re G.R.S.), 647 So.2d 1025 (Fla. 4th DCA 1994), the trial court found that the father had abandoned his child while in prison. The Fourth District reversed, noting that the father had sent two letters to the child but had stopped corresponding when he got no response. Id. at 1027-28. In addition, the father had written to HRS on several occasions concerning his child, but got no response other than a mailed copy of the performance agreement. Id. at 1028. The court held that, “In view of appellant’s futile attempts to maintain a two-way communication between himself and the thirteen month old child (through the custodians) and his equally futile attempts to establish a two-way communication with HRS concerning his case, the record fails to show abandonment by clear and convincing evidence.” Id.

Here, as in T.C.S., the Department’s evidence does not establish abandonment. Like the father in T.C.S., the Father here sent two cards to T.D.H. but stopped corresponding when he got no response. In addition, like the father in T.C.S., the Father here wrote to the Department on three occasions concerning T.D.H. but got no response. In view of the Father’s efforts to maintain communication between himself and three-year-old T.D.H. and his efforts to establish communication with the Department concerning the placement of T.D.H., the record fails to show abandonment by clear and convincing evidence. See also J.R., 923 So.2d at 1206 (noting that when the father had attempted to maintain contact with his young child after incarceration and had demonstrated a strong interest in the child before incarceration, termination on the basis of abandonment was improper).

Further, the Department presented no evidence that the Father had abandoned T.D.H. by failing to provide for him financially while he was able. The evidence was undisputed that the Father had totally supported T.D.H. until T.D.H. was removed from his care in July 2005. After that time, the Father was either incarcerated or on house arrest. The Father’s uncontradicted evidence was that his Social Security payments stopped upon his incarceration. In the absence of some evidence that the Father was able to provide financial support for T.D.H. while incarcerated and that he failed to do so, termination of this Father’s parental rights on this basis is improper. J.T., 819 So.2d at 272; cf. C.A.H. v. Dep’t of Children & Families, 830 So.2d 939, 940-41 (Fla. 4th DCA 2002) (affirming termination because the mother failed to make any effort to provide for the child during the times when she was not incarcerated).

The Department failed to present any evidence, other than the fact of the Father’s incarceration, to establish that he abandoned T.D.H. The evidence does not show that the Father, who had previously assumed all parental responsibility for T.D.H. for several years, voluntarily abandoned those responsibilities upon his arrest and incarceration. Therefore, the trial court erred in finding that the Department proved its case on this statutory ground.

Threat Irrespective of Services under § 39.806(l)(c)

The trial court also found that termination of the Father’s parental rights was proper because the Father engaged in conduct toward T.D.H. that demonstrated that his continuing involvement with T.D.H. threatens T.D.H.’s life, safety, well-being, or health irrespective of the provision of services. This finding is also not supported by the evidence presented at the hearing.

This court has set forth the specific standard to be applied'when considering termination under section 39.806(l)(c):

[I]n order to terminate parental rights under section 39.806(l)(c), the trial court must find that the child’s life, safety, or health would be threatened by continued interaction with the parent regardless of any services provided to the parent. In essence, the trial court must find that any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent.

R.W.W. v. State, Dep’t of Children & Families (In re C.W.W.), 788 So.2d 1020, 1023 (Fla. 2d DCA 2001). This requires two separate findings: first, that continued interaction with the parent threatens the life, safety, or health of the child, and second, that this threat cannot be remedied by the provision of services. See M.H. v. Dep’t of Children & Families, 866 So.2d 220, 222-23 (Fla. 1st DCA 2004).

Here, the Department presented no evidence that T.D.H.’s life, safety, or health was ever threatened by interaction with his Father. The only possible exception was the one time the Father left T.D.H. unsupervised with his mother; however, the Department did not connect this single unsupervised visit with any harm to T.D.H. Further, all of the evidence presented at the adjudicatory hearing showed that the Father was considered by the Department to be a proper caregiver and a safe placement until his arrest in August 2005.

At the adjudicatory hearing and in this appeal, the Department contends that the Father’s lack of full-time employment and his prior arrests show that he posed a threat of harm to T.D.H. However, these facts were well known to the Department when it placed T.D.H. with the Father in 2002 and again in 2004. In addition, the Department was aware of the Father’s pending criminal charge when it placed T.D.H. with the Father in 2004 and when it chose not to seek termination of his parental rights at that time. The Department presented no evidence that the Father had not fully supported T.D.H. when T.D.H. was in his care or that the Father had committed any new criminal offenses since 2004. In light of these facts, none of the Department’s evidence establishes that T.D.H. was ever threatened with harm of any kind by his interactions with the Father.

Moreover, the Department did not prove that the Father presented a threat irrespective of services, primarily because the Department did not establish that it had ever made a good faith effort to provide services to the Father. Instead, the record shows that while the Department prepared four referrals for the Father, three were never provided to him. The remaining referral, which was for outpatient anger management treatment in Tampa, was mailed to the Father while he was in prison. Other than mailing this single referral, the Department’s witness admitted that the Department made no attempts to assist the Father in complying with his case plan tasks while he was incarcerated.

On this record, the trial court erred in finding that the Father presented a threat of harm to T.D.H. irrespective of the provision of services because the evidence showed that no services had ever been provided and nothing about the Father’s interactions with the Department established that the provision of services would be futile. Therefore, the termination cannot be affirmed on this ground.

Continued Abandonment under § 39.806(l)(e)(l)

The trial court also found that termination was proper because the Father continued to abandon T.D.H. after having been given a case plan. This ground is likewise unsupported by the evidence in the record.

Under section 39.806(l)(e)(l), termination of parental rights is proper when the child has been adjudicated dependent, a case plan has been filed with the court, and the child continues to be abused, abandoned, or neglected. J.R., 923 So.2d at 1207-08. Termination under this section is improper when the Department has failed to make diligent efforts to assist the parent in meeting the goals of the case plan offered. C.C. v. Dep’t of Children & Family Servs. (In re AD.C.), 854 So.2d 720, 721 (Fla. 2d DCA 2003); A.H. v. State, Dep’t of Children & Families (In re R.H.), 726 So.2d 377, 378 (Fla. 2d DCA 1999); K.J. v. Dep’t of Children & Family Servs., 906 So.2d 1183, 1184 (Fla. 4th DCA 2005).

For example, in C.C., the record showed that the Department was aware that the father was incarcerated, and it mailed a copy of his case plan to him. 854 So.2d at 721. However, the Department never contacted C.C. in any other way to assist him with his case plan or to facilitate his compliance. This court held that, in light of the Department’s concession that it did not meaningfully attempt to assist C.C. in performing his case plan tasks, the evidence was “woefully inadequate” to support a finding that C.C.’s rights could be terminated under section 39.806(l)(e)(l). Id.

Similarly, in T.M. v. Department of Children & Families, 905 So.2d 993 (Fla. 4th DCA 2005), the father was incarcerated when his case plan was accepted by the trial court. The record showed that the Department had “made no effort to assist the father in securing the type of services he would need to substantially comply with his case plan while in prison.” Id. at 997. Thus, the Fourth District found that termination was improper on this basis.

Here, the Father has been incarcerated for all but one week of the time since his case plan was accepted by the trial court. The Department’s efforts to assist the Father in complying with his case plan tasks were limited to mailing him a referral for outpatient services at a time when he could not take advantage of the referral due to his incarceration. Even when the Father sent letters to the Department asking about his son, the Department’s only response was to mail him an updated copy of a single referral. The Department’s own witness testified that the Department never made any attempt to assist the Father in finding the services he needed while he was incarcerated.

Because the Department presented no evidence that it took any meaningful steps to assist the Father in complying with his case plan, the evidence was insufficient to support a finding that the Father’s rights could be terminated under section 39.806(l)(e)(l), and the trial court erred in terminating the Father’s parental rights on this basis.

Material Breach under § 39.806(l)(e)(2)

In addition, the trial court found that termination was proper because the Father had materially breached the case plan. This finding is also not supported by the evidence.

The trial court supported its ruling on this issue by finding that the Father will not be able to comply with his case plan before the time for compliance has expired. However, the only evidence supporting this finding is the fact that the Father is currently in prison. Given the Department’s complete failure to take any steps to assist the Father in complying with his case plan tasks, the trial court erred by finding that the Father breached the case plan simply by virtue of his incarceration.

In its brief, the Department argues that the trial court’s finding that the Father breached his case plan is supported by the Father’s commission of criminal offenses after he received his case plan. However, the record is clear that the Father did not commit any criminal violations after he received his case plan. While the Father did have a prior criminal record of various drug offenses, those offenses occurred long before T.D.H. was born and the Department was aware of these offenses in 2002 and 2004 when it placed T.D.H. with the Father as the “nonoffend-ing parent.” Moreover, the Department was aware of the Father’s arrest on a charge of cruelty to animals when it placed T.D.H. with him in 2004; however, the Department did not seek to terminate the Father’s parental rights or even to have T.D.H. declared dependent at that time. The Father did not commit any new criminal offenses after T.D.H. was placed with him in 2004. Instead, the Father’s subsequent arrest was because of a violation of the terms of his house arrest. Moreover, even after the Father’s arrest for the violation of his house arrest in August 2005, the Department did not seek termination. Instead, it offered the Father a case plan with a goal of reunification. On these facts, the Father’s criminal record, which was well known to the Department long before any case plan was offered, cannot logically constitute a material breach of the case plan.

The Department also contends that termination is proper under section 39.806(l)(e)(2) because the Father took no steps toward completing his case plan tasks while he was not incarcerated, citing T.C. v. Department of Children & Families, 961 So.2d 1060 (Fla. 4th DCA 2007), and W.S. v. Department of Children & Families, 961 So.2d 1131 (Fla. 4th DCA 2007). However, those cases are distinguishable. In both T.C. and W.S., the record showed that the parents were not incarcerated for periods of time after their case plans had been accepted, and yet they did not take advantage of the Department’s referrals during their time at liberty. On those facts, the Fourth District found that the trial court was free to conclude that the parents had materially breached their case plans.

Here, however, the Father was at liberty for only one week after his case plan was accepted by the trial court. The Department presented no evidence that the single referral it prepared during that week was ever provided to the Father. Further, the Department presented no evidence that it had provided any assistance, meaningful or otherwise, to the Father in completing his case plan tasks while he was incarcerated. Thus, unlike in T.C. and TVS'., there was no evidence upon which the trial court could rely to conclude that the Father materially breached his case plan, and the trial court erred in terminating his parental rights on this basis.

Due Process Violation

Finally, while not raised by the Father in his brief to this court, we note that the face of the record establishes that a due process violation occurred when the trial court allowed counsel for the Father to withdraw but failed to appoint replacement counsel for a nine-month period even though the Father’s case plan at the time included termination of his parental rights as a concurrent goal. While this error does not form the basis of the reversal in this case, we address it because the error is capable of repetition.

When the Father’s case plan was accepted by the court on October 10, 2005, he was represented by counsel. The Father’s case plan had concurrent goals of reunification and termination of parental rights. However, on June 1, 2006, the trial court permitted the Father’s court-appointed counsel to withdraw. The trial court did not appoint replacement counsel for the Father until February 6, 2007, almost two months after the Department had filed its petition seeking to terminate the Father’s parental rights.

During the nine months that the Father was without counsel, the trial court held at least one judicial review hearing. The Father did not attend this hearing because he was incarcerated, and there is nothing in the record to indicate that he was even aware of the hearing. Needless to say, no counsel appeared on behalf of the Father since none was appointed at that time. At the judicial review hearing, the trial court found that the Father had not substantially complied with his case plan, and the trial court ordered the Department to restaff the case to change the goal from reunification to termination. Apparently, these findings and orders were based solely on the essentially ex parte representations made by the Department.

In proceedings involving the possibility of the permanent termination of parental rights, an indigent parent is entitled to the appointment of counsel. In the Interest of D.B., 385 So.2d 83, 90-91 (Fla.1980); A.C.N. v. Dep’t of Children & Family Servs. (In re L.N.), 814 So.2d 1142, 1143 (Fla. 2d DCA 2002). “The right to counsel in such cases is a fundamental right under the due process clauses of the Constitution of the United States and the Florida Constitution.” A.C.N., 814 So.2d at 1143-44 (citing D.B., 385 So.2d at 90). The purpose of appointing counsel is to ‘“ensure that the final result is reliably correct.’ ” A.C.N., 814 So.2d at 1144 (quoting J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060, 1068 (Fla.2000)).

Here, the Father had been found indigent and had been appointed counsel when T.D.H. was first sheltered at the age of one month. There is nothing in the record to indicate that the Father was suddenly not entitled to counsel six months after he was first provided with a case plan that had a concurrent goal of termination of his parental rights. Further, the Father was entitled to be represented at the judicial review hearing at which his compliance with his case plan, or lack thereof, was discussed. Had the Father had counsel at that juncture, counsel might have been able to bring the Department’s lack of meaningful assistance to the trial court’s attention and might have been able to assist the Father in his dealings with the Department so that he could have been given useful referrals for services while incarcerated. Thus, while not dispositive to the issues raised in this case, we caution the trial court to ensure that indigent parents facing the possible termination of their parental rights are afforded counsel as required.

Conclusion

Because the Department failed to present clear and convincing evidence to support any of the grounds for termination alleged in the Department’s petition, the trial court erred in terminating the Father’s parental rights. Accordingly, we reverse the order terminating the Father’s parental rights and remand for further proceedings. On remand, the Father should be given an opportunity to comply with his case plan tasks with the assistance of the Department. Should the Father fail to comply after a reasonable period of time, the Department may again seek termination.

Reversed and remanded.

CASANUEVA and SALCINES, JJ., Concur.

      . Our record contains very limited information about the Department's interactions with the mother. However, it appears that T.D.H. was removed from the mother because she had had two other children removed from her care and because she left him with an "inappropriate caregiver.” When the Father left T.D.H. with the mother in July 2005, her case plan provided for supervised visitation only, a fact of which the Father was aware.


source: Caselaw Access Project

author: SCHWARTZ, Senior Judge.

license: Public Domain

text:
    Johnny ALBERTIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2417.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.
    Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Albertie appeals from an order of restitution imposed after he pled guilty to possessing with intent to sell 818 compact disks, which he had unlawfully “burned” from legitimately purchased recordings. Because the restitution was ordered to the Recording Industry Association of America (RIAA), a trade association for record companies, rather than the particular companies (the exact identity of which was undetermined) whose recordings had been unlawfully reproduced, we reverse the order under review.

This holding is based on the determination that, as was held in the well-reasoned cases of People v. Colon, 8 Misc.3d 569, 798 N.Y.S.2d 856 (N.Y.Sup.Ct.2005), affirmed as modified, 46 A.D.3d 260, 847 N.Y.S.2d 44 (N.Y.App.Div.2007), and State v. Awawdeh, 72 Wash.App. 373, 864 P.2d 965 (1994), review denied, 124 Wash.2d 1004, 877 P.2d 1288 (1994), cert. denied, 513 U.S. 970, 115 S.Ct. 441, 130 L.Ed.2d 352 (1994), the RIAA does not qualify as a “victim,” which may be the subject of a restitution order under our statutes. See § 775.089(l)(c), Fla. Stat. (2006).- This, in turn, is the case because the RIAA neither itself suffered a “loss” from the forgery of its members’ compact disks, nor falls within the “conduit” exception to the rule requiring such a loss, as recognized in Seidman v. State, 847 So.2d 1144, 1146 (Fla. 4th DCA 2003). The exception applies when a collection agency merely passes along the sums received to the “real” victims. In this case, however, the RIAA does not remit any restitution received to the entity which made the recording, but rather in effect treats any restitution payments as general income, deducting them from the “dues” payments it requires from all of its members. Thus, the RIAA falls directly within the category of affected, but non-victim, third parties to which restitution may not be awarded. See Lewis v. State, 874 So.2d 18 (Fla. 4th DCA 2004); Jones v. State, 846 So.2d 662 (Fla. 2d DCA 2003); Sheppard v. State, 753 So.2d 748 (Fla. 2d DCA 2000); Eloshway v. State, 553 So.2d 1258 (Fla. 4th DCA 1989), review denied, 564 So.2d 486 (Fla.1990).

Reversed.

      . Section 775.089(l)(c) provides:
      The term "victim” as used in this section and in any provision of law relating to restitution means each person who suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant's offense or criminal episode, and also includes the victim’s estate if the victim is deceased, and the victim's next of kin if the victim is deceased as a result of the offense.

      . This determination makes it unnecessaiy to consider the appellant’s other arguments for reversal.


author: PER CURIAM.

text:
    Barbara A. ROLLE, Appellant, v. Leroy A. ROLLE, Jr., Appellee.
    No. 3D06-2257.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.

      Simon, Schindler & Sandberg, LLP, Roger J. Schindler, Miami, and Jose M. Sanchez, for appellant.
    Leroy A. Rolle, Jr., in proper person.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   PER CURIAM.

Barbara A. Rolle appeals the award of $500 per month bridge-the-gap alimony for a period of six years and one dollar per month as permanent periodic alimony. We conclude that the trial court erred in awarding bridge-the-gap alimony and failing to award the wife an appropriate amount as permanent periodic alimony and, therefore, we remand for further proceedings.

The parties were married for fourteen years and had two children. The petition for dissolution of marriage was filed in July 2004 but action on the petition was postponed to allow the parties to attempt reconciliation which proved unsuccessful. Eventually, the marriage was dissolved by entry of final judgment. The trial court awarded child support for the two minor children to be paid to the former wife as the primary residential parent by the former husband. The payments will terminate when each child reaches the age of eighteen years. The oldest child was born in 1991, and the youngest in 1993.

The evidence at trial established that the former husband earns substantially more than the former wife and that the former wife’s income would not substantially increase, while the former husband’s would not substantially decrease. The evidence established the former wife’s need for alimony in the amount of $500 per month. The trial court awarded this amount as bridge-the-gap alimony for six years, instead of permanent periodic alimony. The court explained that “[i]f the bridge the gap alimony is considered too long by the appellate court,.... the court very likely will make that permanent alimony.”

The trial court abused its discretion in failing to award the wife permanent periodic alimony. Bridge-the-gap alimony “is proper only where ‘the evidence suggests that the wife can be rehabilitated to a financial stature that would permit her to become self-supporting.’ ” Bible v. Bible, 597 So.2d 359, 361 (Fla. 3d DCA 1992) (quoting Lanier v. Lanier, 594 So.2d 809, 811 (Fla. 1st DCA 1992)). There is nothing in the record to indicate that the former wife will become self-supporting at the end of six years. At the conclusion of the six years of bridge-the-gap alimony, the wife will not be able to sustain the standard of living the parties established during the marriage. We therefore reverse the bridge-the-gap alimony award and remand with directions to redesignate the $500 per month amount as permanent periodic alimony. We affirm the remaining provisions of the final judgment.

Affirmed in part, reversed in part and remanded for an award of permanent periodic alimony.


author: ROTHENBERG, Judge.

text:
    Mario DE LA ROSA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2535.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.
    Mario De La Rosa, in proper person.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

In 1999, the defendant, Mario De La Rosa (“De La Rosa”), pled guilty to robbery, burglary with assault or robbery, and third degree grand theft. He was designated a habitual violent felony offender, and was sentenced to jail followed by a term of probation. In 2001, De La Rosa was found guilty of violating his probation, and the written sentencing order indicates that he was sentenced to a prison term as a habitual violent felony offender. Thereafter, De La Rosa’s conviction and sentence were affirmed on appeal. De La Rosa v. State, 846 So.2d 521 (Fla. 3d DCA 2003).

In August 2005, De La Rosa filed a motion pursuant to Florida Rule of Criminal Procedure 3.850, seeking postconviction relief, setting forth six grounds. The motion was filed beyond the two-year time limit set forth in rule 3.850(b), however, De La Rosa argued that, pursuant to rule 3.850(b)(3), his untimely motion should be considered because he retained two attorneys to file a timely rule 3.850 motion, but these attorneys, through neglect, failed to do so.

The trial court conducted an evidentiary hearing to determine whether De La Rosa was entitled to a belated rule 3.850 motion. After hearing testimony from De La Rosa, his mother, and the two attorneys, the trial court denied De La Rosa’s motion as time barred, finding that he “failed to prove that [the two attorneys] through neglect failed to file a motion for post conviction relief or even that they failed to perform the obligation for which they were retained on behalf of the defendant in this case.” This timely appeal followed.

De La Rosa contends that the trial court erred by finding that he did not prove that the two attorneys, through neglect, failed to file a timely motion for postconviction relief. We disagree as the trial court’s finding is supported by the evidence and testimony presented at the hearing. See Flowers v. State, 889 So.2d 123 (Fla. 4th DCA 2005).

Next, De La Rosa contends that even if this Court concludes that he failed to establish that he is entitled to a belated rule 3.850 motion, the trial court erred by denying several grounds of his motion as time barred where the arguments asserted in those grounds can be raised at any time in a motion to correct illegal sentence. Fla. R.Crim. P. 3.800(a).

While we agree that a claim raised pursuant to rule 3.850 may be treated as filed under rule 3.800(a) if cognizable under rule 3.800(a), De La Rosa’s assertion, that the State failed to serve him with a written notice of intent to habitualize prior to entering plea, is not a claim cognizable under rule 3.800(a). See Hope v. State, 766 So.2d 343, 344 (Fla. 5th DCA 2000) (holding that State’s failure to serve defendant with a written notice of intent to habitualize prior to entering plea “does not make his sentence illegal under rule 3.800(a) and may not be reviewed under that rule”). We, therefore, affirm the trial court’s denial of that claim.

We do agree, and the State has properly conceded, that De La Rosa’s argument — whether the trial court’s written sentencing order designating the defendant as a habitual violent felony offender comports with the trial court’s oral pronouncements at the revocation of probation hearing — is a claim that can be raised at any time under rule 3.800(a). See Wilder v. State, 967 So.2d 1004, 1005 (Fla. 1st DCA 2007) (holding that defendant’s claim that trial court’s written sentencing order, which includes a habitual felony offender designation, does not comport with trial court’s oral pronouncement, which did not include a habitual felony offender designation, is cognizable under a rule 3.800(a) motion, and therefore, trial court should have treated untimely rule 3.850 motion as one filed pursuant to rule 3.800(a)). As the trial court did not rule on the merits of this claim, and the postconviction record before us does not refute or support De La Rosa’s assertion, we reverse and remand to the trial court with directions to treat the argument as filed pursuant to rule 3.800(a), and to reverse the imposition of the habitual violent felony offender designation if the trial court’s oral pronouncements at the violation of probation proceedings do not indicate that De La Rosa was being sentenced as a habitual violent felony offender. See Catalan v. State, 911 So.2d 203, 204 (Fla. 3d DCA 2005) (holding that written order adjudicating defendant a habitual felony offender must be corrected to conform to trial court’s oral pronouncement of sentence, which did not include habitual felony offender adjudication).

Lastly, De La Rosa claims that the trial court used an illegal scoresheet when calculating his guidelines sentence. In sentencing De La Rosa, the trial court used a 1995 scoresheet which relied on a sentencing scheme later held to be unconstitutional in Heggs v. State, 759 So.2d 620 (Fla.2000). This Court, however, has previously determined that the Heggs ruling does not affect those properly sentenced as a habitual violent felony offender. See Jefferson v. State, 826 So.2d 1006 (Fla. 3d DCA 2001); McKenzie v. State, 738 So.2d 436, 436 (Fla. 3d DCA 1999); see also Arce v. State, 762 So.2d 1003 (Fla. 4th DCA 2000) (holding that a habitual offender sentence is not subject to the sentencing guidelines; therefore, defendant was not entitled to relief pursuant to Heggs). However, because we are remanding this case to determine whether De La Rosa’s habitual offender sentence comports with the oral pronouncement, if it is determined that the trial court’s oral pronouncement of sentence did not include a habitual violent felony offender designation, we remind the trial court that the defendant must be resentenced pursuant to the 1994, not the 1995, sentencing guidelines score-sheet.

Affirmed in part; reversed in part; and remanded with directions.


text:
    Erlis BAPTISTE-JEAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2041.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lisa A. Davis, Assistant Attorney General, for appellee.
    Before RAMIREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The only salient issue on this appeal from multiple convictions and life sentences stemming from a brutal home invasion burglary-robbery-kidnapping concerns the validity of the defendant’s conviction for carjacking under section 812.133, Florida Statutes (2003). The statute provides:

(1) “Carjacking” means the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, when in the course of the taking there is the use of force, violence, assault, or putting-in fear.
(3)(a) An act shall be deemed “in the course of committing the carjacking” if it occurs in an attempt to commit carjacking or in flight after the attempt or commission.
(b) An act shall be deemed “in the course of the taking” if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.

The issue is presented by the facts that after tying and beating the victim while attempting to discover the location of valuables in his home, Baptiste-Jean and an accomplice pulled his car keys from his pocket, continued to beat him, and left the house taking the stolen items with them. Then, after loading the car which was parked in the driveway, the perpetrator started the vehicle with the keys and drove away.

We conclude that, at the least, a jury question was presented as to whether these facts fall within the carjacking statute. Specifically, we reject the defendant’s argument, based largely on Flores v. State, 853 So.2d 566 (Fla. 3d DCA 2003), that the forcible taking of the keys within the home must be conceptually separated from the arguably non-forcible taking of the vehicle outside it so that it should not be said that the car was forcibly “jacked.” To the contrary, while the violence involved in taking the keys may have indeed occurred “prior to” stealing the car, it took place within a logically interrelated “continuous series of acts or events,” and thus “in the course of the taking” of the vehicle itself as provided in subsection 812.133(3)(b). See Price v. State, 816 So.2d 738 (Fla. 3d DCA 2002); Brown v. State, 806 So.2d 576 (Fla. 2d DCA 2002); James v. State, 745 So.2d 1141 (Fla. 1st DCA 1999); Cruller v. State, 745 So.2d 512 (Fla. 3d DCA 1999), approved, 808 So.2d 201 (Fla.2002); Smart v. State, 652 So.2d 448 (Fla. 3d DCA 1995), review denied, 660 So.2d 714 (Fla.1995). On this basis, the case is very much like Ward v. State, 730 So.2d 728 (Fla. 1st DCA 1999), disapproved on other grounds by Cruller v. State, 808 So.2d 201 (Fla.2002), in which car keys were forcibly taken from a supermarket shopper as she was returning a shopping cart before going back to her parked car. See also Price, 816 So.2d at 741; Brown, 806 So.2d at 578; James, 745 So.2d at 1143; Cruller, 745 So.2d at 512; Smart, 652 So.2d at 448.

On the other hand, the case so heavily relied on by the defendant, Flores, 853 So.2d at 566, involved a far more attenuated connection between the takings of keys and car. Thus, the court noted that while keys had been taken from the victim’s purse within her business and then used to take a car outside the establishment, “the victim ... was most likely unaware of the theft of her car due to her confinement in the bathroom,” id. at 570, and that “given the appellant’s announced reason for the holdup of the salon, it appears that his theft of the victim’s car was a fortuitous event occasioned only upon his subsequent discovery of the car keys in her purse as he searched for money.” Id. at 570 n. 5. Neither of these circumstances applies to this case in which the keys were forcibly taken directly from the victim’s person and the car was stolen with the victim’s knowledge — indeed, within his hearing.

It is also significant that the Flores court did not cite subsection (3)(b) which specifically provides that the required violence may occur “prior to” the taking of the vehicle. In contrast, we think that subsection (3)(b) is determinative of the result.

Affirmed.


author: COPE, J.

text:
    The STATE of Florida, Appellant, v. Joel G. LEBRON, Appellee.
    No. 3D06-1940.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.

      Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellant.
    Restani & McAllister, P.A. and Jeffrey H. Fink, Coral Gables, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   COPE, J.

This is the State’s appeal of an order suppressing statements made by Joel G. Lebrón. The trial court suppressed the pre-Miranda statement on the theory that one of the law enforcement officers asked a question which was the functional equivalent of interrogation, prior to the administration of Miranda warnings. The court suppressed the post-Miranda statement on the theory that the pr e-Miranda question rendered the post -Miranda statement inadmissible. We affirm as to the pr e-Miranda statement but reverse as to the post-Miranda statement.

Defendant-appellee Lebrón is charged with multiple offenses in connection with the abduction and murder of Ana Maria Angel and the abduction and attempted murder of Nelson Portobanco. The defendant was located by law enforcement officers in Orlando between 1:00 and 2:00 a.m. on April 29, 2002. The defendant was transported to the Orlando headquarters of the Florida Department of Law Enforcement (“FDLE”) prior to 2:40 a.m.

Upon arrival at the FDLE headquarters, the defendant was seated in the FDLE cafeteria with an FDLE agent. The agent was aware that no Miranda warnings had yet been administered. Other agents were looking for a tape recorder so that the defendant’s interview could be recorded if the defendant agreed to speak with them.

The agent initially said nothing to the defendant. After several minutes, the defendant’s demeanor changed and he began to cry. The agent said, “I hope you know what kind of trouble you are in.” The defendant replied, “Yes, I know. I killed her.” He said that he told her to get down on her knees and that the gun did not go off until the third time he pulled the trigger. After the defendant said this, the agent left the room to report this information to other agents because up until that moment, the law enforcement agencies had hoped that Ms. Angel was still alive. The defendant said nothing further at that time and was not asked any questions.

At 3:06 a.m. the officers had located a tape recorder and began administration of Miranda rights. The defendant signed the waiver form at 3:15 a.m. The defendant gave a detailed confession which included the abduction of both victims, the theft of the victims’ jewelry, credit cards, bank cards, and property, the sexual assault and murder of Ms. Angel, and the attempted murder of Mr. Portobanco.

The first question to be considered is whether the trial court correctly suppressed the defendant’s pr e-Miranda statement. The defendant was in custody, so Miranda warnings were required to be given before any interrogation.

“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). “A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.” Id.

We agree with the trial court that under the Innis decision, the agent’s statement amounted to interrogation. The reference to “how much trouble you are in” is clearly a reference to the underlying crime which caused the defendant to be in custody, and invites a response about that crime. As no Miranda warnings had been administered, we affirm that part of the trial court’s order which suppressed the pre-Miranda statement.

The next question is whether the defendant’s post-Miranda statements should have been suppressed. The trial court ruled that suppression was required by the United States Supreme Court’s decision in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

The decision in Seibert must be read with caution because there is no majority opinion. There is a plurality opinion, written by Justice Souter, representing the views of four Justices. The fifth vote was supplied by Justice Kennedy, who concurred in the judgment.

“When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....’” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). The narrowest grounds are found in the opinion of Justice Kennedy, concurring in the judgment. State v. Pitts, 936 So.2d 1111, 1136 (Fla. 2d DCA 2006).

We turn to the Seibert decision. In Seibert the police department followed an intentional procedure of question first, warn later. Under this procedure the officer would conduct a custodial interrogation without Miranda warnings until there was a confession. Seibert, 542 U.S. at 604, 124 S.Ct. 2601. Then the interrogating officer would administer Miranda warnings and question the suspect again, covering the same ground a second time. Id.

Seibert was taken to a police station and left in an interview room for fifteen to twenty minutes, after which she was questioned without Miranda warnings for thirty to forty minutes. Id. at 604-05, 124 S.Ct. 2601. After she confessed, Seibert was given a twenty minute coffee and cigarette break. Id. at 605, 124 S.Ct. 2601. The interrogating officer then turned on a tape recorder, administered Miranda warnings and confronted her with her earlier unwarned statements. Id. Seibert confirmed everything that she had stated in the unwarned interview. “The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid.” Id. at 616, 124 S.Ct. 2601.

The Supreme Court upheld the suppression of the confession. According to the plurality opinion, “Because this midstream recitation of warnings after ... unwarned confession could not effectively comply with Miranda’s constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.” Id. at 604, 124 S.Ct. 2601.

The plurality opinion made clear that the opinion was aimed at stopping a growing police practice of question first, warn later. The plurality opinion explained:

The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda. Although we have no statistics on the frequency of this practice, it is not confined to Rolla, Missouri. An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked. Consistently with the officer’s testimony, the Police Law Institute, for example, instructs that “officers may conduct a two-stage interrogation.... At any point during the pre-Miranda interrogation, usually after arrestees have confessed, officers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, officers will be able to repeat any subsequent incriminating statements later in court.” Police Law Institute, Illinois Police Law Manual 88 (Jan. 2001-Dec. 2003)_The upshot of all this advice is a question-first practice of some popularity, as one can see from the reported cases describing its use, sometimes in obedience to departmental policy.

Id. at 609-11, 124 S.Ct. 2601 (footnote omitted).

If the Seibert plurality opinion is confined to its actual facts, then it has no application here. That is so because Sei-bert involved the intentional use of the question-first technique: a complete and unwarned interrogation, followed by Miranda warnings, followed by an interrogation covering the same ground. In the present case there was a single statement by the agent (amounting to a one-question interrogation), but no thorough “question first” interrogation like that described in Seibert.

There are, however, statements in the Seibert plurality opinion which the remaining Justices of the Court interpreted to mean that the plurality wished to change the test to be applied in all circumstances where there is an unwarned statement followed by a warned statement. See id. at 621, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment); id. at 622-23, 627-28, 124 S.Ct. 2601 (O’Connor, J., dissenting) (representing the views of four Justices).

As already stated, Justice Kennedy’s opinion concurring in the judgment is the dispositive opinion. Addressing the exact issue now before us, Justice Kennedy stated that “it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning.” Id. at 620, 124 S.Ct. 2601 (citing Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)).

Justice Kennedy went on to say, “The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed.” Id. at 622, 124 S.Ct. 2601. That portion of Justice Kennedy’s concurrence is decisive here, for there was no deliberate use of the two-step strategy under the circumstances of the present case.

Both Justice Kennedy and the dissenting Justices stated that they continued to adhere to Elstad, which outlines the procedure to be employed where, as here, there has been an unwarned statement followed by a warned statement. Seibert, 542 U.S. at 619-22, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment); id. at 622-23, 627-29, 124 S.Ct. 2601 (O’Connor, J., dissenting). The Elstad decision states that where the first statement was voluntary but unwarned, “[t]he relevant inquiry is whether, in fact, the second statement was also voluntarily made.” Elstad, 470 U.S. at 318, 105 S.Ct. 1285. “[A] suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Id.

In the present case there was no claim that either the first statement or the second statement was involuntary, that is, coerced. See id. at 312-14, 105 S.Ct. 1285. The second statement was obtained after administration of Miranda warnings. It follows that the post-Mmmda statement should not have been suppressed.

For the stated reasons, we affirm the order insofar as it suppressed the pre-Miranda statement. We reverse the order insofar as it suppressed the post-Miranda statement.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

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

      . While the agent acknowledged that he hoped to provoke a response from the defendant, the Innis test is based on a reasonable person standard rather than the subjective intent of the police officer. Id.

      . Justice Kennedy went on to address the curative measures that would be needed where the two-step strategy has been used, id., but that discussion is not pertinent here.


text:
    David YOUNG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-374.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Magaly Rodriguez and William J. Selinger, Assistant Attorneys General, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   COPE, J.

David Young appeals his conviction for burglary. He contends that the trial court erred by overruling a defense hearsay objection and allowing testimony under the excited utterance exception to the hearsay rule. We conclude that no error has been shown.

At 2:00 a.m. on the crime date, defendant-appellant Young went to an apartment where his ex-girlfriend resided. He pounded on the windows and door. The ex-girlfriend opened the door and the defendant entered.

After the defendant was inside, he struck the ex-girlfriend, causing visible injuries to her face and lip; threw himself on another occupant of the home, who was visibly pregnant; and attacked a male occupant of the home with a pitcher. There was a resulting fight at the end of which the defendant and the male occupant were bloody. The fight was broken up only by the arrival of the police.

Under the State’s theory of the case, the defendant committed the crime of burglary by making a nonconsensual entry into the apartment with the intent to commit an offense therein. See § 810.02(l)(a), Fla. Stat. (2005). To establish nonconsensual entry the State relied on the excited utterance of the ex-girlfriend that when she opened the door, the defendant barged in.

The ex-girlfriend did not testify at trial. One of the police officers who came to the apartment in response to a call for emergency assistance interviewed the ex-girlfriend after the fight was broken up. The officer testified that the ex-girlfriend “was crying, she was shaking, she was upset, visibly upset.” The officer said that the ex-girlfriend appeared to be under the stress of the event that had occurred.

When the officer was asked what the ex-girlfriend told him, the defense objected and a sidebar conference followed. Defense counsel said, “I would object basically based on the fact that they haven’t established a time frame, so we have no idea how long afterwards this really was.” The State responded that “under the case law there is no specific time period. I have no problem asking another question that would establish this was a recent event.”

After the sidebar, the State then asked, “from the time that the 315 emergency backup call was issued over the radio to the time that you arrived, approximately how much time elapsed?” The officer replied, “Approximately four to five minutes.” Defense counsel said, “I renew my objection for the record.” The court overruled the objection and the officer went on to testify that when the ex-girlfriend opened the door to see who was at the door, the defendant barged in.

“A trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Alston v. State, 723 So.2d 148, 156 (Fla.1998); see also Williams v. State, 967 So.2d 735 (Fla.2007).

Under the Evidence Code, an excited utterance is “[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” § 90.803(2), Fla. Stat. (2005).

The essential elements of the excited utterance hearsay exception are “(1) there must be an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3)the statement must be made while the person is under the stress of excitement caused by the event.” State v. Jano, 524 So.2d 660, 661 (Fla.1988).

“[Tjhere is no bright-line test for how much time can pass before a statement can no longer be considered an excited utterance.” Strong v. State, 947 So.2d 552, 554 (Fla. 3d DCA 2006) (citing Jano, 524 So.2d at 663). In this case the only defense objection was that the State had failed to establish the time frame between the end of the incident and the officer’s encounter with the ex-girlfriend. The State cured this deficiency by establishing that the time frame was approximately four to five minutes. There is nothing facially impermissible about a four to five minute time frame. Instead, the Jano decision calls for a consideration of several factors, see 524 So.2d at 661-62, of which the time delay is one factor to be considered.

On this appeal the defendant contends that the ex-girlfriend had time to engage in reflective thought, see id. at 662, and that the objection should have been sustained. As no such argument was made in the trial court, the point is not preserved for appellate review. “[A]n objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.” Castor v. State, 365 So.2d 701, 703 (Fla.1978); see also Charles W. Ehrhardt, Florida Evidence § 104.2 (2007).

Affirmed.

      . Young was also convicted of one count of simple battery. He does not challenge that conviction on this appeal.


author: RAMIREZ, J.

text:
    Byron DAWSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2495.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.

      Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   RAMIREZ, J.

Appellant Byron Dawson seeks reversal of his conviction and sentence after a second trial. Based on a mistrial declared during the first trial, we conclude that Dawson’s right against double jeopardy was violated and we reverse.

Dawson was brought to trial on charges of possession of heroin, tampering with physical evidence, resisting an officer with violence, and battery on a law enforcement officer. The court agreed before voir dire to allow the defense to postpone opening statements until the following day. During voir dire, the prosecutor learned that the chemist who had tested the drugs involved in the case was leaving on vacation the next day. The trial previously had been continued because the original chemist was on leave and the evidence had been re-tested. The trial court gave the parties two options, either have the defense stipulate that the substance in question was heroin or re-test the substance again using a third chemist. The defense agreed to the stipulation.

The first witness for the prosecution was the arresting officer. The officer testified as to the events leading up to Dawson’s arrest and a small package falling from his person. Dawson grabbed the package and put it in his mouth and started chewing. After a struggle, the officer retrieved the small package. He was then shown State’s Exhibit 1-A, and he identified the baggie that was stuck to Dawson’s chin after he was handcuffed. He recognized the package, the indentation of Dawson’s teeth marks inside the package, and the markings. The defense objected when the prosecutor attempted to introduce the item into evidence. When the prosecution moved the exhibit into evidence “per the stipulation,” the defense asked for a sidebar and explained to the court that it had stipulated that the substance obtained from Dawson was heroin, but had not agreed that the evidence was admissible. It then requested to conduct a voir dire of the witness.

The defense established that the officer had placed the small baggies into a bigger evidence bag. The larger evidence bag contained two smaller baggies and a third baggie with teeth marks. The officer admitted that he could not identify written markings on the baggies and that they could have been from another case, but he identified the baggie with the teeth marks. The defense argued that the chain of custody had not been established and objected to the items being admitted into evidence. The prosecution argued that the defense had stipulated to the admission of the evidence and that if the chain of custody was going to be an issue, they would have called the chemist. Furthermore, it argued that the defense had not established any evidence of tampering with the exhibit.

The trial court recognized there was a problem with the chain of custody, and reasoned that the prosecution had been prejudiced by the defense’s request to postpone opening statements until the day after jury selection. The trial court stated it had three options: (1) allow the evidence to be admitted; (2) continue the trial until the chemist was available; or (3) declare a mistrial. The defense suggested a fourth option: to keep out the evidence. The prosecution argued for the first of the three options: to let in the evidence.

The court then inquired as to how long the chemist would be unavailable. Although the prosecutor initially stated that the chemist was on vacation for at least two weeks, he later hedged as follows:

MR. MARTINEZ: I could find out later today or tomorrow. I was told it was a vacation, leaving town. I didn’t inquire as to how long, once I found out they were stipulating to the evidence, there was no need.
But, I am guessing a vacation would be two weeks. And he left town. I know that when he comes back, if, in fact, it was two weeks. I don’t know.
I can find out.

Whereupon the court again inquired of the defense, who responded: “As per the option that you are not limited to, the defense has no position.” The trial court then declared a mistrial.

The defense subsequently moved to dismiss on the grounds that double jeopardy attached and that the mistrial was not based on manifest necessity. The motion was denied. At the second jury trial, Dawson was convicted of all charges.

The State contends that the defense caused the mistrial and that by failing to object Dawson waived his right against double jeopardy. Dawson asserts that double jeopardy attached after the mistrial and that the mistrial was not based on manifest necessity. We agree with Dawson and reverse.

Both the Florida and Federal Constitutions provide an accused with strong protections against double jeopardy. Florida courts have been clear with regard to mistrials. Where a jury is discharged without the defendant’s consent and without absolute necessity, the discharge is the equivalent of an acquittal and retrial is precluded. Pruitt v. State, 830 So.2d 895 (Fla. 2d DCA 2002).

Consent cannot be found in a defendant’s silence or failure to object or protest against an illegal discharge of the jury before a verdict is reached. Such conduct by the accused does not waive the constitutional prohibition against double jeopardy after the improper discharge of the jury. State ex rel. Williams v. Grayson, 90 So.2d 710 (Fla.1956). The requisite affirmative consent was not present in this case.

Additionally, the circumstances in this case did not rise to the level of manifest necessity. Although manifest necessity has not been given a bright line definition, where the circumstances leading to a mistrial relate to the unavailability of a critical prosecution witness, strict scrutiny is applied. Cohens v. Elwell, 600 So.2d 1224 (Fla. 1st DCA 1992).

Applying strict scrutiny, courts have found manifest necessity lacking in far more demanding circumstances than that of a vacationing chemist. See Id. (critical witness unavailable due to severe illness); Ostane v. Hickey, 385 So.2d 110 (Fla. 3d DCA 1980) (critical witness murdered on courthouse steps). While the unavailability of a critical witness can create a manifest necessity which would allow for a mistrial, the trial court should consider reasonable alternatives that would mitigate the situation and preserve the continuity of the trial. Ostane, 385 So.2d at 111.

In this case, the trial court assumed that a two-week delay was necessary, even after the prosecutor offered to verify that the vacation was indeed for two weeks. Furthermore, it is unclear what the chemist would have added to the chain of custody issue, given that the issue was markings and two different chemists had examined the evidence. Third, the court assumed that a two-week delay was impractical, without questioning the jury to determine the jurors’ availability. Finally, there is no explanation as to why the trial could not proceed on the other counts. Instead, the court summarily discharged the jury. A mistrial was unwarranted and Dawson’s subsequent retrial was barred.

This decision does not conflict with Adkins v. Smith, 205 So.2d 530 (Fla.1967), or State v. Sly, 459 So.2d 479 (Fla. 2d DCA 1984). The court in Adkins reasoned that comments made by the defense in the case showed the affirmative consent necessary to waive the right against double jeopardy. 205 So.2d at 531. Here, no comparable comments were made.

In Sly, the court found that a mistrial did not violate the defendant’s double jeopardy rights because it was granted for the benefit of the defendant. 459 So.2d at 481. In this case, the mistrial was granted in favor of the prosecution whose witness was unavailable. Therefore, Adkins and Sly are factually distinguishable and not at odds with this decision.

Accordingly, we reverse the denial of Dawson’s motion to dismiss and remand the case with instructions to discharge the defendant from the charges in this case.


author: SALTER, J.

text:
    MIAMI-DADE COUNTY, Appellant, v. DEERWOOD HOMEOWNERS’ ASS’N, etc., et al., Appellees.
    No. 3D07-946.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Monica Rizo and Craig E. Leen, Assistant County Attorneys., for appellant.
    Cooney, Mattson, Lance, Blackburn, Richards & O’Connor and Warren B. Kwavnick and John H. Richards, Ft. Lauderdale; Josephs Jack and Susan S. Lerner, Miami, for appellees.
    Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   SALTER, J.

Miami-Dade County appeals a final circuit court order dismissing with prejudice the County’s second amended cross-claim against Deerwood Homeowners’ Association (“Deerwood”) and Techlawn, Inc. (“Techlawn”). The issue presented is whether a landowner, Deerwood, and its maintenance company, Techlawn, may be liable to the County for injuries allegedly caused by tree roots growing under the surface of a County sidewalk. Finding no legally sufficient basis for such a claim in the pleadings, we affirm.

The trial court was required to assume that all of the allegations in the second amended cross-claim were true and to allow all reasonable inferences from those facts in favor of the County. Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006). We review that assessment de novo.

Pertinent Facts

Juan and Patricia Perdomo, husband and wife, filed claims against the County, Deerwood, and Techlawn after Mrs. Per-domo tripped and fell on a County sidewalk. The Perdomos alleged that roots from a tree near the sidewalk in the Deer-wood subdivision created a vertical separation in the concrete that caused Mrs. Per-domo’s fall.

The Perdomos alleged: (1) the County controlled the sidewalk and failed to maintain it; (2) Deerwood planted the tree and failed to maintain the tree’s root system; and (3) Techlawn, as Deerwood’s lawn maintenance company, also failed to maintain the tree’s roots.

After various pretrial motions and amendments to the pleadings, the trial court found that the County’s allegations failed to state a cause of action (and, as such, that Deerwood and Techlawn did not owe a legal duty to the County) and entered a final order of dismissal with prejudice in their favor. The County appealed.

Duty

The County argues that Deerwood and Techlawn undertook maintenance of the tree, and that both the Perdomos and the County relied on this maintenance. Once such an obligation is voluntarily undertaken, the County argues, it must be performed with reasonable care. The County cites this “voluntary undertaking” doctrine as an exception to the Florida Supreme Court’s holding in Sullivan v. Silver Palm Properties, Inc., 558 So.2d 409 (Fla.1990), which held that private landowners are not liable for injuries caused by subterranean roots growing under public rights-of-way.

Despite two amendments, however, the County was unable to plead operative facts regarding the alleged undertaking. “Gratuitously” planting a tree next to a sidewalk and “maintaining the tree for nine years” does not take Deerwood’s or Tech-lawn’s conduct out of the simple, clear rule elaborated in Sullivan. Legal conclusions unsupported by ultimate facts are not enough to state a cause of action. See Rishel v. Eastern Airlines, Inc., 466 So.2d 1136, 1138 (Fla. 3d DCA 1985). Since there were no specific facts pled to show that Deerwood or Techlawn undertook to maintain the tree’s roots or to repair the public sidewalk, the “voluntary undertaking” argument fails.

The County also alleged that it gives private owners, developers, and homeowners’ associations an information packet on their obligations when they obtain a permit to plant a tree. The second amended complaint states that “Deerwood would have received this packet if it properly sought a permit to plant a tree.” For reasons it has not explained, however, the County concedes that it has no records that Deerwood or Techlawn obtained any permit for the tree in question or thereby consented to maintain the roots or repair the sidewalk near the tree. As a result, the County was unable to plead such facts.

Similarly, no relevant duty is invoked by the County’s allegation that Deerwood is responsible under Chapter 19 of the Miami-Dade County Code for maintaining the tree and the area in which it is planted. That ordinance does not impose upon Deerwood or Techlawn the obligation to trim the tree roots below the County sidewalk or to repair the sidewalk, nor does it create a private cause of action against the abutting landowner for a breach of any such duty. We described an ordinance that does create such duties in Del Rio v. City of Hialeah, 904 So.2d 484 (Fla. 3d DCA 2005), but the County has not identified any comparable provisions in the County Code.

Finally, the County’s “zone of risk” argument, citing McCain v. Fla. Power Corp., 593 So.2d 500 (Fla.1992), is unavailing. In that case, the Florida Supreme Court found that the greater-than-usual risks created by buried electrical cables imposed a greater-than-usual duty on the utility to carefully mark the location of those cables before allowing excavation in the area. A landowner’s decision to plant a tree next to a sidewalk is not an analogous activity.

Conclusion

The County’s “voluntary undertaking” cases relate to factual settings in which a party owing no duty to third parties voluntarily assumes such a duty and may thereafter be liable for failing to act with reasonable care. Examples include a funeral director who organizes and leads a funeral procession, or a floor cleaning company cleaning up an unexpected spill outside the scope of the company’s normal work. In this case, however, the County apparently could not (because of its record-keeping), and therefore did not, allege that Deer-wood or Techlawn ever trimmed a tree root near the sidewalk, repaired the sidewalk, or agreed with the County to perform any such tasks. After first allowing the County two attempts to amend, the trial court correctly dismissed the County’s claims with prejudice.

Affirmed.


author: COPE, J. GERSTEN, C.J.

text:
    O.R. and M.L., Appellants, v. DEPARTMENT OF CHILDREN & FAMILY SERVICES and Guardian Ad Litem Program, Appellees.
    Nos. 3D07-1038, 3D07-1039.
    District Court of Appeal of Florida, Third District.
    April 9, 2008.

      Karl E. Hall, Jr., Miami, for appellant O.R.; Joseph P. George, Jr., Criminal Conflict and Civil Regional Counsel, Third Region of Florida, by and through Richard F. Joyce, Executive Assistant Regional Counsel, for appellant M.L.
    Karla Perkins; Hillary S. Kambour, for appellees.
    Before GERSTEN, C.J., and COPE and SUAREZ, JJ.
   COPE, J.

The question presented by this dependency appeal is whether the trial court can enter a default against the defendant parents in the middle of the trial. We conclude that the answer is no, and remand for further proceedings.

The Department of Children & Family Services (“Department”) filed a dependency petition against the father, O.R., and the mother, M.L., with respect to three minor children. The parents filed a denial and the case proceeded to trial. The parents were present for the first two days of the dependency trial, on November 16 and 17, 2006. The trial was scheduled to resume on January 24, 2007. The parents had been personally served with a summons to appear for that continued hearing date.

On January 24, the parents were not present. The court and the attorneys thought this was unusual because the parents had been present at all of the earlier proceedings. The attorneys did not know why the parents were not present, but moved for a continuance. The Department moved for a default.

The trial court denied the continuance and entered an order of dependency by reason of default. The order stated that the court’s ruling was without prejudice to the parents to provide proof of an emergency which prevented their appearance at trial, in which case the order would be set aside. Thereafter the mother’s counsel filed a motion to set aside the default dependency order, stating that she had traveled by automobile to New Jersey with the father and had car problems on the return trip. She stated that she did not have an independent means of traveling to court in time for the hearing. The trial court denied the motion. The parties timely appealed the dependency orders.

From a technical standpoint, the term “default” does not appear in the dependency statute. See Nickerson v. Dep’t of Children & Families, 718 So.2d 373, 374 (Fla. 3d DCA 1998). The statute does, however, contain the functional equivalent. In two situations, the failure of a defendant to appear can be deemed to be a consent to a dependency adjudication. See § 39.506(3), Fla. Stat. (2006).

First, “[fjailure of a person served with notice to personally appear at the arraignment hearing constitutes the person’s consent to a dependency adjudication.” Id. For this procedure to be available, the notice to appear must contain a statutory-warning. Id.' ; see Fla. R. Juv. P. 8.225(c)(1).

Second, if a person appears at the arraignment hearing and the court orders that person to appear personally at the adjudicatory hearing for dependency (giving the date, time, and place), “then that person’s failure to appear for the scheduled adjudicatory hearing constitutes consent to a dependency adjudication.” § 39.506(3), Fla. Stat. (2006); see also Fla. R. Juv. P. 8.330(c).

Neither of the two statutory situations occurred in this case. The parents entered a written plea, so no arraignment hearing was held. Since there was no arraignment hearing, there was no court order for the parents to appear at the adjudicatory hearing. And, as already stated, the parents did appear at the first two trial days.

The Department argues that a summons was issued requiring the parents to appear personally for the third trial day. The Department asks us to expand the consent statute to say that the parents must be deemed to have consented to the dependency adjudication where they failed to obey the summons and failed to appear for the third trial day.

Florida’s long standing public policy favors adjudication of disputes on the merits, see T.B. v. Dep’t of Children & Family Servs., 920 So.2d 170, 173 (Fla. 2d DCA 2006), and we decline the Department’s invitation to extend the statute beyond its plain words. The statute says nothing about imposing a consent where a parent appears for the initial trial day and then fails to appear on a subsequent day. As this court stated in Nickerson, “In the absence of any statute or rule allowing for the entry of defaults in these types of proceedings, we conclude that the trial court had no authority to enter a default judgment-” Id. (citing In re A.L., 711 So.2d 600 (Fla. 2d DCA 1998)) (reversing default adjudication entered without authority); In re M.M., 708 So.2d 990 (Fla. 2d DCA 1998) (same); see also N.L. v. Dep’t of Children & Family Servs., 960 So.2d 810, 812-13 (Fla. 3d DCA 2007) (failing to appear at a filing hearing could not be treated as consent to dependency order where statute did not authorize such procedure).

In other civil matters, the failure of a defending party to appear at trial is not a basis for imposition of a default. See Turner Props., Inc. v. Marchetta, 607 So.2d 506, 507 (Fla. 3d DCA 1992). There is no reason to believe that, in drafting the statute as it did, the Legislature intended to treat dependency matters any differently.

While a default was not authorized in the circumstances of this case, that is not to say that the trial needed to be stopped. When a defending parent fails to appear, but a consent adjudication is not authorized, the trial court has two choices: “(1) to proceed with the hearing by accepting testimony and evidence from those present, as well as argument of counsel, or (2) to continue the hearing.” In re A.L., 711 So.2d at 601 (footnote omitted). To be sure, we all agree that public policy favors speedy determinations in dependency cases, where a child’s immediate and future well-being is at stake. And, as between the two alternatives outlined in A.L., the better practice when a defending parent becomes absent midtrial is not to delay trial but to proceed with the hearing, accept testimony and evidence, hear argument of counsel, and resolve the matter as expeditiously as possible. This allows the court to avoid delay, parental or otherwise, in attending to the immediate needs of the child or children.

While the defense attorneys in this case moved for a continuance, they were unable to articulate any good cause for delaying the trial. The motion for continuance was properly denied. The Department should have proceeded with the presentation of its case, rather than seeking a default.

Because the default was unauthorized, we reverse the dependency adjudications as to both parents, and remand for a new trial.

Reversed and remanded for further proceedings consistent herewith.

SUAREZ, J., concurs.

GERSTEN, C.J.

(concurring in result only).

I respectfully disagree with the majority’s conclusion that a trial court cannot enter a consent by default against parents who fail to appear, after proper notice, in the middle of an adjudicatory hearing on dependency. Because the parents here can move to set aside the dependency adjudications, I concur in remanding to the trial court for further proceedings.

The Department of Children and Family Services (“the Department”) filed a dependency petition against the father, O.R., and the mother, M.L., concerning their three minor children. The parents appeared with court-appointed counsel and entered their denial to the petition. The parents’ denial supplanted a formal arraignment hearing.

The case proceeded to an adjudicatory hearing on November 16, 2006, which continued to the next day. The parents were present both days. The Department did not finish presenting its case, and the hearing was continued again. Ultimately, the case was reset, and the parents were given written notice to appear on January 24, 2007. The written notice advised the parents that “failure to respond to this notice or appear at this hearing constitutes consent to an adjudication of the children) as dependent.”

On January 24, 2007, counsel for both parents appeared, but the parents did not. The parents’ counsel moved for a continuance. However, the trial court denied the motion because the attorneys could not explain their clients’ failure to appear.

The trial court granted the Department’s motion for consent by default without prejudice. Thus, the parents were given the opportunity to explain the reason for their failure to appear on a subsequent motion to set aside the adjudicatory orders.

Both the statute and rule implicitly authorize entering a consent to dependency where parents do not appear for an adjudicatory hearing after proper notice. The controlling statute, which is our polestar, is subsection 39.506(3), Florida Statutes (2006). The controlling rule, which is our corollary polestar, is Florida Rule of Juvenile Procedure 8.330(c). Subsection 39.506(3) and rule 8.330(c) state:

If a person appears for the arraignment hearing and the court orders that person to personally appear at the adjudicatory hearing for dependency, stating the date, time, and place of the adjudicatory hearing, then that person’s failure to appear for the scheduled adjudicatory hearing constitutes consent to a dependency adjudication.

A consent by default provision appears in multiple places in the statutes and rules governing dependency and termination of parental rights cases. §§ 39.506(3), 39.801(3)(d), Fla. Stat. (2007); Fla. R. Juv. P. 8.330(c), 8.505(b), 8.510(a)(3), 8.525(d). Thus, the provision is an important part of the statutory framework for these proceedings.

I believe that courts must honor the legislative intent and policy behind a statute. See Byrd, v. Richardson-Greenshields Sec., Inc., 552 So.2d 1099 (Fla.1989). Therefore, I am troubled by the majority’s interpretation which restricts application of the consent by default provision here. Recent cases demonstrate the clear legislative intent and policy behind the consent by default provision.

In J.B. v. Florida Department of Children and Family Services, 768 So.2d 1060, 1065-66 (Fla.2000), the Florida Supreme Court noted that the intent behind the provision was to “swiftly move[] these cases toward resolution, while at the same time guarding the rights and liberties of the parties involved.” As the Court indicated, “[t]his provision is necessary to ensure that the object of the petition is not defeated by the parent’s neglect of the proceedings. It enables the trial court to bring a ... case to conclusion even if the parent has chosen not to participate.” 768 So.2d at 1067.

Allowing a trial court to enter a consent by default where a parent fails to appear for a continued hearing, after proper notice, comports with the legislative intent. The trial court can proceed to a timely adjudication regardless of the parental neglect. See, e.g., J.B. v. Dep’t of Children & Family Servs., 33 Fla. L. Weekly D159, — So.2d-, 2008 WL 53546 (Fla. 2d DCA Jan. 4, 2008).

A.J. v. Department of Children & Families, 845 So.2d 973 (Fla. 4th DCA 2003), also involved a multi-day dependency case. In A.J., the parents appeared for the first two days of trial and were notified to return for a third day. When the parents did not appear, the trial court entered a dependency order based on the consent by default provision. The Court rejected the parents’ contention that they were not adequately notified prior to default under the statute and rule. 845 So.2d at 976.

The majority relies on civil cases to negate the statute and rule. In a garden variety civil case, public policy favors adjudicating disputes on the merits, rather than by default. These cases are routinely handled by multi-member law firms, and three years of litigation is not uncommon. The nitty gritty world of juvenile court, however, is nothing like civil court.

Termination and dependency cases involve very different policy considerations. As the Court recognized in J.B.:

[Unwarranted delay is an evil that should be avoided in termination of parental rights proceedings. As a result of the backlog inherent in termination cases, many children are left in legal limbo as their custody status is argued in the courts. Additionally, these proceedings place a tremendous cost and hardship on the State. In response, the Legislature has attempted to resolve this monumental burden by enacting legislation which swiftly moves these cases toward resolution, while at the same time guarding the rights and liberties of the parties involved.

768 So.2d at 1065-66 (citation omitted).

Undoubtedly, public policy favors speedy determinations in termination and dependency cases. Although attentive to parental rights, the juvenile trial court does not mollycoddle the parents. The parents are not given the opportunity to stall the proceedings at will. After all, a child’s well-being and life hangs on the balance. Each day that passes without a final court determination is detrimental to the child’s welfare.

For this reason, I would affirm the trial court’s dependency adjudications. Nothing in the language of the statute and rule prohibits entering a consent by default in the middle of an adjudicatory hearing where the parents fail to appear after proper notice.

Because these parents attended all previously scheduled hearings, the wise trial court entered the dependency adjudications without prejudice. This gave the parents an opportunity to explain the reason for their failure to appear upon filing a subsequent motion to set aside the orders. See, e.g., E.S. v. Dep’t of Children & Family Servs., 878 So.2d 493 (Fla. 3d DCA 2004); A.J., 845 So.2d at 976.

Accordingly, I would affirm the dependency adjudications entered against O.R. and M.L. I concur with the majority’s result, remanding the case to the trial court for further proceedings. However, instead of remanding for a new trial, I would instruct the trial court to allow the parents to file properly verified motions to set aside the defaults.

       Subsection 39.506(3), Florida Statutes (2006), provides:
      (3) Failure of a person served with notice to personally appear at the arraignment hearing constitutes the person’s consent to a dependency adjudication. The document containing the notice to respond or appear must contain, in type at least as large as the balance of the document, the following or substantially similar language: "FAILURE TO PERSONALLY APPEAR AT THE ARRAIGNMENT HEARING CONSTITUTES CONSENT TO THE ADJUDICATION OF THIS CHILD (OR CHILDREN) AS A DEPENDENT CHILD (OR CHILDREN) AND MAY ULTIMATELY RESULT IN LOSS OF CUSTODY OF THIS CHILD (OR CHILDREN).” If a person appears for the arraignment hearing and the court orders that person to personally appear at the adjudicatory hearing for dependency, stating the date, time, and place of the adjudicatory hearing, then that person's failure to appear for the scheduled adjudicatory hearing constitutes consent to a dependency adjudication.

      . The father appealed directly from the adjudicatory order entered against him. The mother initially moved to set aside the adjudicatory order entered against her. However, before tire trial court ruled on the motion, the mother filed a notice of appeal to this Court. The filing of the notice of appeal invoked this Court’s jurisdiction. See Ferrara v. Belcher Indus., Inc., 483 So.2d 477 (Fla. 3d DCA 1986). Therefore, although the trial court subsequently ruled on the mother’s motion, it did not have jurisdiction to consider the motion.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. B.N. and State of Florida, Respondents.
    Nos. 4D08-717, 4D08-747 to 4D08-749, 4D08-751, 4D08-752.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.

      Jacob Jackson, Gregory D. Venz & John Copelan, Jr., Fort Lauderdale, for petitioner.
    Howard Finkelstein, Public Defender, and Diane M. Cuddihy Assistant Public Defender, Fort Lauderdale, for respondents.
   PER CURIAM.

These cases were brought to our court as six emergency petitions for writs of certiorari filed by the Department of Children and Families (DCF) and a petition for writ of habeas corpus not separately numbered, filed by juvenile B.N. Because all of the cases concerned the same juvenile in separate lower court cases and raised the same issues, we consolidated them. After ordering responses and replies, we issued an order granting the emergency petitions for writs of certiorari and quashing the trial court orders which had compelled DCF to take immediate custody of B.N. for secured placement for competency restoration services. We also granted B.N.’s emergency habeas petition and remanded to the trial court to order his release forthwith, subject first to consideration of Baker Act proceedings by the court and the parties. We indicated that an opinion would follow.

B.N. is a juvenile charged in several 2006 felony prosecutions in Broward Circuit Court’s Juvenile Division. He was adjudicated incompetent to proceed and committed to DCF. The order stated: “The Judge requests the immediate placement of this youth to AFYC (Apalachicola Forest Youth Camp) due to the substantial risk of dangerousness he poses to himself and others.” This order provided that DCF was to place B.N. in a treatment program to restore his competency pursuant to section 986.19(4), Florida Statutes.

When B.N.’s detention with the Department of Juvenile Justice was due to expire, the judge held a hearing on his future placement. He was advised that AFYC was the only residential facility for a juvenile declared incompetent and in need of secure placement for competency restoration services, and that it was at full capacity. There were other juveniles on a waiting list ahead of B.N. In orders entered on the same date in all of the eases involving this juvenile, the trial court directed DCF to take immediate custody of B.N. from the Department of Juvenile Justice upon the expiration of his juvenile detention holds, which would occur that day. This prompted the filing of the emergency petitions for writs of certiorari.

In its petitions for certiorari, DCF stated that AFYC had 48 beds for juveniles determined to be incompetent to proceed and who needed secure placement. It alleged that it had no other secure placement alternatives for juveniles declared incompetent to proceed, and that AFYC had a waiting list. B.N. was number eight on that list. It further alleged that B.N. was not in psychiatric crisis and had been receiving medication while in detention at the Department of Juvenile Justice. It alleged he was reportedly responding well. DCF argued that the trial court lacked authority to direct the immediate placement of a juvenile committed to the DCF as incompetent to proceed.

We granted the petitions for writs of certiorari and quashed the trial court orders because section 985.19(7), Florida Statutes, expressly limits the provision of competency restoration services for juveniles to available funding. See Dep’t of Children & Family Servs. v. M.H., 830 So.2d 849 (Fla. 2d DCA 2002), rev. denied, 839 So.2d 698 (Fla.2003). We also agree with DCF’s argument that the orders directing it to take immediate custody of B.N. constitute a violation of the separation of powers. Id.; see also State, ex rel. Dep’t of Health & Rehabilitative Servs. v. Nourse, 437 So.2d 221 (Fla. 4th DCA 1983).

With respect to B.N.’s emergency habeas petition, we granted relief because petitioner had already completed 21 days of juvenile detention for his offenses, and his hold thus expired. Section 985.24(2)(d), Florida Statutes, provides that a juvenile alleged to have committed a delinquent act or violation of the law may not be placed into secure, nonsecure or home detention “[d]ue to a lack of more appropriate facilities.” It follows that if a juvenile cannot be placed in such detention due to lack of more appropriate facilities, he surely cannot be held in that same detention once the statutory basis for his detention has expired, as occurred here.

We granted habeas corpus relief subject first to consideration of Baker Act proceedings under Chapter 394 by the trial court if appropriate, given certain findings by the trial court that petitioner was a threat to himself and others and to the community based on an escalating history of violence.

Certiorari granted, orders of the circuit court quashed; habeas petition granted, and petitioner ordered released forthwith, subject to consideration of Baker Act proceedings.

FARMER, GROSS and TAYLOR, JJ., concur.