author: MONACO, J.

text:
    Ronald Allen SPARKLIN, Appellant, v. SOUTHERN INDUSTRIAL ASSOCIATES, INC., Appellee.
    No. 5D06-913.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2007.

      Aaron Metcalf of Abbott Law Firm, P.A., Jacksonville, for Appellant.
    John Bengier, Mitchell N. Silver, and George M. Meier, of Meier, Bonner, Musz-ynski, O’Dell Harvey, P.A., Orlando, for Appellee.
   MONACO, J.

The appellant, Ronald Allen Sparklin, appeals the order of the trial court granting the motion of the appellee, Southern Industrial Associates, Inc., for attorney’s fees and costs pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2004). Because the offer contained ambiguous nonmonetary terms, we reverse.

Mr. Sparklin was injured when the bed of a dump truck owned by Tom Waltz fell on him. Tom Waltz had purchased the truck from Bartow Ford Company, who contracted with Southern Industrial to assemble the vehicle. Southern Industrial had purchased the hoist system for use in assembling the bed of the dump truck from Venco Manufacturing, Inc. Mr. Sparklin filed a multi-count complaint against all of the involved parties: Yenco for strict liability for the defective design and manufacture of the hoist system and for simple negligence; Southern Industrial for strict liability for the inadequate and dangerous installation of the hoist, and for simple negligence in the installation of the hoist; Bartow Ford for strict liability for selling the truck in a defective condition and for simple negligence; and Waltz, Inc. and Tom Waltz, for negligence.

As the case progressed, Southern Industrial sent a proposal for settlement to Mr. Sparklin in which it offered him $150,000.00 for the “settlement of all claims of the Plaintiff RONALD ALLEN SPARKLIN ... that are, or may be, made by RONALD ALLEN SPARKLIN in the instant action in which this proposal is made and as alleged by the Plaintiffs pending complaint, or that could be raised by the Plaintiff as arising out of the incident, which is the subject of the Plaintiffs complaint.” The proposal required as one of its conditions the execution by Mr. Sparklin of a release in the form that was attached to the proposal.

The “General Release” attached to the offer contained the following language concerning its width and breadth:

RONALD ALLEN SPARKLIN, hereby acknowledges receipt of payment to him of the sum of ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00), which amount has been accepted in full compromise, settlement, and satisfaction of, and as sole consideration for this General Release, and also does hereby remise, release, acquit, relieve, and forever discharge SOUTHER [sic.] INDUSTRIAL ASSOCIATES and AUTO OWNERS INSURANCE COMPANY, and their past, present and future agents, servants, employees, officers, directors, shareholders, insurers, successors and assigns, and any persons, firms, or corporations in privity with any of them, of and from any and all manner of action and actions, suits, sums of money, trespasses, controversies, agreements, damages, losses, injuries, claims and demands whatsoever, including attorneys’ fees, in law or in equity, whether direct or indirect, and including claims for contribution, indemnity, and subrogation, which the undersigned now has or may hereafter have, or which he, his heirs, administrators, and executors can, shall, or may hereafter have, for all injuries, damages, and losses of any kind and character, both known and unknown, arising on account of or in any way relating to the accident on or about May IB, 2000, including all claims which were asserted or could have been asserted in [the subject lawsuit].
RONALD ALLEN SPARKLIN further agrees to remise, release, acquit, relieve, and forever discharge any person or entity and their past, present, and future agents, servants, employees, officers, directors, shareholders, insurers, successors and assigns from any and all claims based upon vicarious, derivative or technical liability for any act or omission on the part of Southern Industrial Associates.

Mr. Sparklin did not accept the offer, and in due time, it expired. Following a judgment in its favor, Southern Industrial moved for and was granted an award of attorney’s fees. Mr. Sparklin appeals arguing that the offer was invalid because the proposal for settlement and release were ambiguous and overbroad. We review the order utilizing a de novo standard. See Ambeca, Inc. v. Marina Cove Village Townhome Ass’n, Inc., 880 So.2d 811, 812 (Fla. 1st DCA 2004).

Section 768.79, Florida Statutes (2004), authorizes the use of an offer of judgment or demand for judgment in any civil action for damages, and governs the procedures whereby attorney’s fees may be awarded to the successful offering or demanding party. The statute is implemented by rule 1.442, Florida Rules of Civil Procedure, See Campbell v. Goldman, 959 So.2d 223 (Fla.2007); Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003). While neither the statute, .nor the rule specifically mention the use of a release in conjunction with an offer of judgment, they likewise do not prohibit them. Subsection (2)(D) of the rule,- however, does require the offering party to “state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal.” Presumably, a release would fit within the definition of a nonmonetary term.

In this regard our sister court for the Fourth District has specifically noted that the “fact that Plaintiffs are required to release Defendant for all claims which had accrued as of the date of the Proposal for Settlement does not invalidate the Proposal for Settlement.” See Bd. of Trustees of Fla. Atl. Univ. v. Bowman, 853 So.2d 507, 509 (Fla. 4th DCA 2003). This court has likewise previously approved the use of a release associated with an offer of judgment, but we have emphasized the limits of using such an instrument.

In Nichols v. State Farm Mutual, 851 So.2d 742 (Fla. 5th DCA 2003), decision approved, 932 So.2d 1067 (Fla.2006), for example, we observed that the terms of a proffered release are subject to the particularity requirement for conditions and nonmonetary terms contained within rule 1.442. We then held that the proposal for settlement used in that case was ambiguous, and thus unenforceable, because the general release associated with it could have required the plaintiff-insured to relinquish her first party insurance claim for uninsured motorist coverage against the defendant-insurer. We said in this connection that “[t]he terms and conditions of the proposal should be devoid of ambiguity, patent or latent.” Id. at 746.

Later in Dryden v. Pedemonti, 910 So.2d 854 (Fla. 5th DCA 2005), we reiterated the importance of particularity in such releases and held that the burden of clarifying the intent or extent of the language used in a settlement proposal cannot be inflicted on the party receiving the proposal. Once again we noted that where the release language had the potential effect of extinguishing first party PIP and health insurance claims in an auto accident case, the proposal for settlement was unenforceable against a plaintiff.

In the present case we are faced with a similar situation. Here, the problem is that there are multiple defendants, many of whom are bound together by the concept of privity, and two of whom are insured by the same insurance carrier. When the appellee, Southern Industrial, served its offer of judgment, the general release required by the offer to be executed by Mr. Sparklin would have released Southern Industrial and its insurer, Auto Owners Insurance Company, from all actions, suits, sums of money, trespasses, controversies, damages, losses, injuries, and so forth, arising out of the accident that was the subject matter of the suit, including all claims asserted or which could have been asserted. The ambiguity arises because Auto Owners insured both Southern Industrial and one of the other defendants, Tom Waltz, Inc., the owner of the truck and hydraulic hoist whose bed fell on Mr. Sparklin. Thus, accepting the offer of judgment might well have had the effect, unintended or otherwise, of releasing another party not named in the release.

Similarly, the General Release would have required Mr. Sparklin to release any “persons, firms, or corporations in privity with” Southern Industrial or Auto Owners for damages arising out of the subject accident. It appears that yet another of the defendants, Bartow Ford Company, was the retailer of the truck and hydraulic hoist, and had contracted with Southern Industrial to install the hoist. Thus, as a result of the privity language, yet another unnamed party could have been released.

Given the ambiguities contained in the release, it appears to us that the particularity requirement of rule 1.442 is offended by this offer of judgment. As lack of particularity is held against the offeror, we can only conclude that the offer of judgment is unenforceable. See Dryden.

Southern Industrial argues, however, that the language used is simply the “standard language” of a general release. That might well be correct with respect to the use of releases as part of the settlement of a civil suit. But this release is not part of a settlement negotiation during which the terms can be negotiated and the ambiguities addressed as part of the overall resolution of a lawsuit. The release incorporated by an offer of judgment is a take-it- or-leave-it proposal. The receiving party must attempt to evaluate the monetary offer, as well as the nonmonetary terms, in deciding whether or not to accept the offer. There is none of the usual give and take of a negotiation. If the nonmonetary terms are not spelled out with precision, the receiving party is left in an untenable position. Neither section 768.79, nor rule 1.442 was intended to effect that result.

We note, as well, that the cases relied on by Southern Industrial for the proposition that the broad language used in the release is acceptable because it is typical are all cases where there was only one defendant to be released. In Bowman, for example, there was only the Board of Trustees. Where there are multiple defendants, however, the likelihood of confusion is manifold and much greater care must be taken in crafting the release language so as to conform to the particularity requirement. Cf., Hibbard ex rel. Carr v. McGraw, 918 So.2d 967, 970-72 (Fla. 5th DCA 2005).

Accordingly, we reverse the order granting attorney’s fees to Southern Industrial and the amended final judgment that included the award of fees to Southern Industrial and remand this case to the trial court for further action consistent with this opinion.

REVERSED and REMANDED.

THOMPSON, J. and SMITH, T., Associate Judge, concur.

      . One might logically posit, in fact, that "the only enforceable ‘nonmonetary condition' allowable under the rule is one that does not go beyond what the offeror would be entitled to by operation of law, upon settlement.” See Dryden, 910 So.2d at 858 (Griffin, J. concurring); see also Nichols.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael E. DEBOLES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-38.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2007.
    Michael E. Deboles, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petitioner, Michael E. Deboles, seeks a writ of mandamus to compel the trial court to “review, hear and rule” on his motion for post-conviction relief. Because of the unreasonable amount of time that has elapsed since the filing of the post-conviction motion and the uncertainty concerning when a ruling will be forthcoming, we grant the writ.

Mr. Deboles originally filed his rule 3.850 motion asserting ineffective assistance of counsel on May 19, 2005. Eight days later the trial court dismissed the motion without prejudice because of a technical deficiency. On June 8, 2005, Mr. Deboles filed a procedurally sufficient motion.

Eleven months later on May 18, 2006, because the trial court took no action on his pending rule 3.850 motion, Mr. Deboles moved to amend his motion to add additional claims. The trial court granted the motion to amend on June 6, 2006. Having still received no ruling on his motion, Mr. Deboles on August 3, 2006, filed a motion to “review, hear and rule” on his motion. A month later he filed a document entitled “Notice of Intent to Mandamus.” Still no ruling was forthcoming.

On January 4, 2007, Mr. Deboles filed the present petition with this court seeking mandamus. On February 6, 2007, we ordered the Attorney General to respond to the petition. The Attorney General reported back that on February 13th the trial court had issued an order directing the State to respond to Mr. Deboles’ motion within a most generous sixty days. Nothing happened.

On March 12, 2007, we ordered the Attorney General to give us a status report on the processing of the 3.850 proceeding. On May 14th, the Attorney General reported that, incredibly, the State had failed to respond, and did not request additional time to respond to the trial court’s order of February 13th directing a response to the still pending 3.850 proceeding. .Despite the State’s failure to respond, the trial court nevertheless granted an additional thirty days response time for the State. We have run out of patience.

Mandamus is appropriate to compel a trial court to rule on a motion or petition within a reasonable time. See Lewis v. State, 934 So.2d 605 (Fla. 5th DCA 2006); Matthews v. Circuit Court, 515 So.2d 1065 (Fla. 5th DCA 1987). The present proceeding is now more than two years old. Significantly, at this point we have no way of knowing when a ruling by the trial court below will be forthcoming.

“While we are loath to interfere with a trial judge’s management of his or her docket,” we are concerned that the failure to rule on the motion filed by Mr. Deboles so long ago might impair his right of access to the courts. See Lewis, 934 So.2d at 605-06. Accordingly, we feel compelled to issue the writ of mandamus. See McBride v. State, 443 So.2d 416 (Fla. 4th DCA 1984).

We, therefore, direct the Honorable Daniel P. Dawson, or his successor to rule on the rule 3.850 motion filed by Mr. De-boles within thirty days of receipt of this order. If an evidentiary hearing is required, an additional sixty days will be allowed to conduct the same.

PETITION GRANTED; WRIT ISSUED.

PLEUS, MONACO and TORPY, JJ., concur.

      . We note that the petition reflects that it was provided to correction officials on November 2, 2006. It is entirely unclear why there was such a significant delay between the "mail box" rule filing of the petition and its ultimate arrival in this Court more than two months later on January 4, 2007.


text:
    EASTERN INDUSTRIES, INC., (“Eastern Industries”), Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and Mary E. Herron, Appellees.
    No. 1D06-4783.
    District Court of Appeal of Florida, First District.
    July 20, 2007.

      Kevin D. Obos and Robert C. Jackson, of Harrison, Sale, McCloy,. Thompson & Duncan, Panama City, for Appellant.
    James Garrity, of Marie A. Mattox, P.A., Tallahassee, for Appellees.
   PER CURIAM.

We affirm the award of unemployment benefits without comment, but write to explain our award of fees to Claimant as authorized by section 57.105, Florida Statutes (2006). Claimant moved for such fees in a timely manner, as contemplated in Florida Rule of Appellate Procedure 9.400. We grant that motion.

Section 57.105 authorizes a trial court to award fees and costs when

the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts.

§ 57.105(1), Fla. Stat. Such a finding is tantamount to a conclusion that the claim was frivolous when filed, or later became frivolous. See Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520 (Fla. 1st DCA 2003). Section 57.105 can also be the basis for aii award of appellate attorney’s fees, in accordance with section 59.46, Florida Statutes (2006). See Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414, 417-18 (Fla. 1st DCA 2002). An award of appellate fees under section 57.105 is appropriate here because Appellant knew or should have known that its claim on appeal lacked legal merit, in that the wording of the referee’s recommendation so clearly set forth the standards she used, and these standards were correct. Therefore, we GRANT Claimant’s motion for attorney’s fees.

BROWNING, C.J., POLSTON and HAWKES, JJ., concur.


text:
    William Harvey OETTMEIER, Appellant, v. Delores Elaine OETTMEIER, Appellee.
    No. 2D06-5540.
    District Court of Appeal of Florida, Second District.
    July 20, 2007.
    Debra A. Rowe, Fort Myers, for Appellant.
    Karen S. Beavin of McGowan, Lucarelli & Quinn, P.A., Naples, for Appellee.
   PER CURIAM.

William Oettmeier appeals from the trial court’s final judgment of injunction for protection against domestic violence without minor children based on the petition filed by his wife, Delores Oettmeier. Because the evidence presented failed to show that Mrs. Oettmeier had an objectively reasonable cause to believe that she was in imminent danger of becoming the victim of an act of domestic violence, we reverse.

On October 16, 2006, after approximately nine years of marriage, Mrs. Oettmeier asked her husband for a divorce and asked him to move out of the marital home, which she had owned in her own name since before the marriage. Mr. Oettmeier moved out the same day, and Mrs. Oett-meier changed the locks. After he departed, Mrs. Oettmeier found, inter alia, a loaded gun and a pair of slippers in a closet, which she viewed as a sign that Mr. Oettmeier planned to harm her. Notably, the gun turned out to be a BB gun. Mrs. Oettmeier maintained that she knew nothing about guns and had no way of knowing it was a BB gun. Regardless, after finding the gun, she placed it in the trunk of her car. Thereafter, on October 26, 2006, as Mrs. Oettmeier was returning home, she saw Mr. Oettmeier’s truck parked in plain view in her driveway. Upon realizing that he had somehow entered the home, she drove away, parked in a nearby parking lot, and called the sheriffs department to ask for an escort back to her home. Mr. Oettmeier had obtained the services of a locksmith, who made him a key, which he used to enter the home in Mrs. Oettmeier’s absence.

After being advised by the responding deputy that “there wasn’t anything he could do,” Mrs. Oettmeier filed a petition the next day for protection against domestic violence. In the petition, she noted that the parties were married for approximately nine years and that she had known Mr. Oettmeier for fourteen years. She further alleged that Mr. Oettmeier (1) moved out of the home on October 16, 2006, at her request, taking most of his personal belongings except, among other things, a loaded gun in the closet, which she concluded was a threat; (2) left angry messages on her cell phone and notes at the home; (3) “broke into” the home with the aid of a locksmith after having moved out; (4) spit on her face and pushed her away when she tried to kiss him,approximately nine months earlier; (5) is a very heavy drinker who becomes depressed and angry when he drinks; (6) beat on the door and walls of the home and on one occasion smashed a trash can in the kitchen; (7) threatened to make her life miserable if she did not offer to buy him out; and (8) has a mental health problem but does not take his medication. More important, Mrs. Oettmeier did not allege that Mr. Oettmeier ever physically harmed her or that he verbally threatened to' physically harm her.

During the hearing on her petition, Mrs. Oettmeier repeated most of the above and added that Mr. Oettmeier at some time during their relationship had once asked her to commit suicide with him. She further stated that he had several guns but that he reported only two of them in response to the temporary ex parte injunction order. She also testified that when she and the deputy returned to the home on the evening of October 26, they arrived to find Mr. Oettmeier in a bathroom and that from behind the bathroom’s locked door, he informed Mrs. Oettmeier of the extent to which he hated her and her family and told her that he was going to make her miserable “until the end.” Upon the termination of the cross-examination of Mrs. Oettmeier by Mr. Oettmeier’s attorney, the trial court announced that it would grant the injunction. Subsequently, Mr. Oettmeier made an unsworn statement to the court stating that the BB gun was only one of many things actually left in the house when he moved out on October 16, 2006, that he sold all of his other weapons long before that time, and that Mrs. Oettmeier was aware of this.

Section 741.30(l)(a), Florida Statutes (2006), provides that a person with “reasonable cause -to believe he or she is in imminent danger of becoming the victim of any act of domestic violence” may obtain an injunction for protection against domestic violence. See also Moore v. Hall, 786 So.2d 1264 (Fla. 2d DCA 2001). Although Mrs. Oettmeier’s allegations paint a picture of a heavy drinker, prone to depression and anger, who was irate about being kicked out of the marital home and was apparently convinced he was entitled to some sort of property division of Mrs. Oettmeier’s property, the incidents described by Mrs. Oettmeier do not support a reasonable fear of imminent domestic violence sufficient to support the issuance of a permanent injunction. Mrs. Oettmeier’s strongest contention supporting her belief that her husband meant to harm her involved the fact that he left a BB gun in the closet. However, on October 26, 2006, when she called the sheriffs department for assistance, the BB gun was in the trunk of her own car. Moreover, she testified that she gave Mr. Oettmeier “until [November 1] to get all of his furniture and his belongings out.”

Although an act of domestic violence need not be completed before one may seek injunctive relief, if fear alone is the “reasonable cause” alleged to support the injunction, then not only must the danger feared be imminent but the rationale for the fear must be objectively reasonable as well. Gustafson v. Mauck, 743 So.2d 614, 615 (Fla. 1st DCA 1999). Absent this objective reasonableness, a petitioner’s belief is unsubstantiated speculation that does not support the entry of an injunction: See id. at 615-16. Here, even considering the cumulative nature of Mrs. Oettmeier’s allegations and her history with Mr. Oettmeier, what was painted was a typical, albeit unfortunate, picture of a domestic relationship gone awry. See id. at 616 (holding that in determining whether a permanent injunction should issue, a court must consider the history of the relationship); see also Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005) (noting that general harassment does not suffice to establish a showing of violence or a threat of violence). The trial court remarked, “I believe that Ms. Oettmeier was afraid, nervous and in fear, so I’m going to grant the injunction, but I am certainly opened [sic] if you want to roll this into the divorce you can do that.” Thus; even if the trial court believed that Mrs. Oettmeier’s fear was subjectively real, the trial court set forth no rational basis to support why this fear should be deemed objectively reasonable. Having reviewed the record, we find no rational basis ourselves.

Finally, we note that the denial of a domestic violence injunction does not preclude the petitioner from seeking alternate remedies in domestic 'relations court, such as exclusive use and possession of a marital home. See Young, 901 So.2d at 373 (noting that a domestic violence injunction should not be used as a “temporary divorce,” especially in light of the potential, serious consequences, even if unintended, of a permanent injunction). Indeed, Mrs. Oettmeier’s attorney argued to the court:

Your Honor, if we could get a temporary order in this court to that effect and extend this temporary [sic] pending filing and getting the appropriate order in family court, that would probably allieve [sic] my client’s fears, but to totally dump this based on his promise not to do certain things, she had to call the sheriff to get [a deputy sheriff] to come into the house she was so afraid.

We conclude there was not competent, substantial evidence to support a finding by the trial court that Mrs. Oettmeier had an objectively reasonable fear of imminent domestic violence at the hands of Mr. Oett-meier. Therefore, the issuance of the permanent injunction constituted an abuse of the trial court’s discretion.

Accordingly, we reverse the trial court’s order and remand with directions to the trial court to enter an order vacating the permanent injunction.

DAVIS and VILLANTI, JJ., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . The record indicates that Mr. Oettmeier was never sworn as a witness and was not afforded the opportunity to present a defense or testify prior to the trial court’s announcement that it would grant the injunction. This is contrary to the intent of section 741.30(6), Florida Statutes (2006), and Florida Rule of Family Law Procedure 12.610(c)(1)(C), which contemplate a full evidentiary hearing prior to entering an injunction. See Lewis v. Lewis, 689 So.2d 1271 (Fla. 1st DCA 1997); see also Semple v. Semple, 763 So.2d 484. (Fla. 4th DCA 2000). However, Mr. Oettmeier does not raise this issue on appeal.

      . We do not dispute the appropriateness of Mrs. Oettmeier’s decision to seek the services of a deputy sheriff under these facts, only the trial court’s decision to grant a permanent injunction upon the limited evidence adduced at the return/final hearing.


author: SALCINES, Judge.

text:
    Erica Bonita BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3574.
    District Court of Appeal of Florida, Second District.
    July 20, 2007.
    Antonio R. Arnao of Law Office of Antonio R. Arnao, St. Petersburg, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Appellate counsel for Erica Brown has filed an Anders brief with this court. One of the possible issues raised by counsel was whether the trial court committed fundamental error by adjudicating Brown guilty of both second-degree murder and home invasion robbery. It is clear from the record that Brown entered a plea of nolo contendere only to the charge of second-degree murder. The judgment includes an adjudication for an offense to which she did not plead. This was fundamental reversible error to which no objection was required. See Cole v. State, 924 So.2d 962, 963 (Fla. 4th DCA 2006).

Accordingly, we reverse the adjudication for home invasion robbery and remand for the trial court to enter an amended judgment in accordance with the dictates of this opinion. The adjudication and sentence for second-degree murder is affirmed.

Affirmed in part, reversed in part, and remanded.

DAVIS and LaROSE, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . If this had been only a sentencing error, the issue would not have been preserved. See Nunez v. State, 912 So.2d 693, 693 (Fla. 2d DCA 2005) (holding unpreserved sentencing error, even if fundamental error, must be preserved through a timely filed Florida Rule of Criminal Procedure 3.800(b) motion).


text:
    Gregory Troy ANDERSON, a/k/a James Cobb, Doc # 514103, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-149.
    District Court of Appeal of Florida, Second District.
    July 20, 2007.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Gregory Troy Anderson appeals several convictions and the sentences entered thereon. He was charged with three offenses and, pursuant to a plea agreement, entered a guilty plea to two of the three offenses — criminal mischief and culpable negligence. The State entered a nolle pro-sequi on the remaining count for which Anderson was charged — throwing a deadly missile at, within, or into a building. We affirm Anderson’s convictions and sentences for criminal mischief and culpable negligence. However, because the corrected written judgment can be read to include an adjudication of guilt on the charge of throwing a deadly missile, we reverse and remand for correction of the judgment.

Anderson did not enter a guilty plea to the charge of throwing a deadly missile. The plea portion of the one-page form judgment and sentence, however, lists the three counts for which Anderson was charged and indicates that Anderson entered a guilty plea without specifying that Anderson’s plea was limited to counts two and three (the charges for criminal mischief and culpable negligence). The corrected written judgment then adjudicates Anderson guilty of “said charge,” again without limiting the adjudication to counts two and three only. Although the sentencing portion of the corrected judgment and sentence adequately indicates that Anderson was sentenced on counts two and three only, it does not rectify the erroneous adjudication of guilt on the charge to which Anderson did not enter a plea. The judgment, including the plea provision, must be corrected to reflect that Anderson entered his plea and was adjudicated guilty on counts two and three only.

Accordingly, we reverse the written adjudication to the extent it indicates a conviction for throwing a deadly missile and remand for the entry of a corrected judgment that clearly reflects that Anderson neither entered a plea nor was adjudicated on the charge of throwing a deadly missile. We affirm Anderson’s convictions and sentences in all other respects.

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

DAVIS and VILLANTI, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Julia Andino BRUNO, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2164.
    District Court of Appeal of Florida, Second District.
    July 20, 2007.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Julia Andino Bruno appeals judgments for resisting arrest with violence and battery on a law enforcement officer. We affirm Ms. Bruno’s judgments and sentences with the exception of the “monetary obligations order” requiring Ms. Bruno to pay $300 in attorneys’ fees for the services of the public defender pursuant to section 938.29(1), Florida Statutes (2005). The circuit court imposed this obligation without complying with the procedures required by section 938.29(5) and Florida Rule of Criminal Procedure 3.720(d)(1). ,

Ms. Bruno preserved -this issue for appeal by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In ruling on this, motion, the circuit court’s order acknowledged that the provisions of section 938.29(5) and rule 3.720(d)(1) had not been followed. The court sought to remedy this problem by striking the $300 in fees and immediately reimposing the fees. The order then provided Ms. Bruno the opportunity to file a written objection within thirty days. As authority for this procedure, the circuit court cited this court’s opinion in Miller v. State, 912 So.2d 1282 (Fla. 2d DCA 2005).

In Miller, the circuit court orally announced the imposition of $800 in fees for the services of the public defender at the sentencing hearing, and the defendant voiced no initial objection. The circuit court did not, however, inform Miller of his right to a hearing to contest the amount of the fees. Miller thereafter filed a motion to correct sentencing error challenging the imposition of the fees. We reversed the imposition of the fees but provided Miller with thirty days from the issuance of "our mandate to file a written objection to the amount of the fees, in the absence of which the circuit court could-reimpose the fees. 912 So.2d at 1283.

The- remedy afforded by this court in Miller is not appropriate as a circuit court’s response to a motion to correct sentencing error filed pursuant to rule 3.800(b)(2). By way of the motion to correct sentencing error, Ms. Bruno effectively objected to the imposition of the attorneys’ fees and invoked her right to a hearing on the subject. At that point, an appeal was pending before this court and the circuit court had limited jurisdiction for a period of sixty days to address the merits of the motion. The circuit court had to either strike the fees or hold a hearing to. consider Ms. Bruno’s objections; it could not enter an order reimposing the fees but permitting further circuit court proceedings on the matter upon future written objection.

We therefore remand this case for the circuit court to strike the portion of the judgments and sentences imposing $300 in attorneys’ fees. On remand, once our mandate issues, -the circuit court may reimpose attorneys’ fees only if it provides Ms. Bruno notice of its intent to do so and the opportunity to be heard at a hearing on the matter.

Affirmed; remanded to strike $300 attorneys’ fees.

NORTHCUTT, C.J., and VILLANTI, J., Concur.

      . The remedy in Miller is reminiscent of a procedure that this court frequently used pri- or to the enactment of the Criminal Appeal Reform Act (CARA) and -the promulgation of Florida Rule of Criminal Procedure 3.800(b). Prior to CARA, errors in cost judgments were often corrected on appeal even in the absence of an objection in the trial court. To avoid reversing similar attorneys' fees assessments in that period, this court would affirm the assessment subject, to the defendant’s, right to object to the assessment within thirty days of mandate. See Bourque v. State, 595 So.2d 222 (Fla. 2d DCA 1992). As this case demonstrates, the Bourque procedure became obsolete when defendants could make their objection to such assessments during the pendency of the appeal by filing a rule 3.800(b)(2) motion.


text:
    Sean DUFFY, Petitioner, v. Robert CROWDER, Sheriff of Martin County, Respondent.
    No. 4D07-2637.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2007.
    Steven T. Greene of the Law Offices of Steven T. Greene, Stuart, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Sean Duffy was charged with one count of aggravated stalking, a third degree felony. After a hearing, the trial court denied bond. Duffy asserts, inter alia, that because the State did not file a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132, a reasonable bond should have been granted.

We have previously stated:

Rule 3.132(a) allows the state to file a motion seeking pretrial detention at first appearance. When the state does not file such a motion, or the motion is facially insufficient, “the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of rule 3.131(b)(1).” Fla. R.Crim. P. 3.132(a).

Resendes v. Bradshaw, 935 So.2d 19, 20 (Fla. 4th DCA 2006). Denial of bond cannot be considered a “condition of release.” Id; see also Kelly v. State, 939 So.2d 1150 (Fla. 5th DCA 2006); Ho v. State, 929 So.2d 1155 (Fla. 5th DCA 2006); Nguyen v. State, 925 So.2d 435 (Fla. 5th DCA 2006). Although the transcript of the evi-dentiary bond hearing contains ample support for the court’s decision to impose pretrial detention on this aggravated stalking charge! because the state did not file a motion for pretrial detention, the court below was not authorized to impose pretrial detention.

We grant the petition insofar as the petitioner has shown his entitlement to a pretrial detention hearing upon a proper motion filed by the state under rule 3.132. The state shall have no more than three business days following the issuance of this opinion to file a motion for pretrial detention. Should the state fail to file such a motion, the trial court shall consider the “conditions of release” pursuant to rule 3.131. Petitioner shall remain in custody pending the determination of the issue of pretrial release or detention according to rules 3.131 and 3.132.

Petition Granted.

FARMER, KLEIN and TAYLOR, JJ., concur.


text:
    Theodore A. AVELLONE, Appellant, v. Susan E. AVELLONE n/k/a Susan E. Rice, Appellee.
    No. 1D06-5219.
    District Court of Appeal of Florida, First District.
    July 24, 2007.
    Theodore A. Avellone, pro se, Appellant.
    Joshua D. Zelman and Patricia M. Durst of Durst, Harnden & Zelman, PL, Tallahassee, for Appellee.
   PER CURIAM.

Appellee, the former wife, seeks review of the trial court’s Order Awarding Attorney’s Fees pursuant to Florida Rule of Appellate Procedure 9.400(c). In Avellone v. Avellone, 951 So.2d 80 (Fla. 1st DCA 2007), we affirmed the trial court’s order denying the motion for contempt and to enforce the Marital Settlement Agreement filed by Appellant, the former husband. In accordance with our order granting Ap-pellee’s motion for appellate attorney’s fees, the trial court held a hearing to determine the amount. In its order, the trial court found that fifty hours was a reasonable amount of time to spend representing Appellee on appeal and that $200 per hour was a reasonable hourly fee, for a total reasonable fee of $10,000. The trial court then subtracted the $4,000 retainer paid by Appellee from the $10,000 and ordered that Appellant pay the sum of $6,000 to Appellee’s attorney. Appellee moved for clarification and argued that the trial court’s order penalized her for paying the retainer. The trial court denied the motion without explanation. This review followed.

Because we are unable to discern from the face of the trial court’s order why it deducted the $4,000 retainer and ordered that Appellant only pay $6,000, we REVERSE the order and REMAND for further proceedings.

DAVIS, PADOVANO, and HAWKES, . JJ., concur.


text:
    Neil E. WILKINSON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-0098.
    District Court of Appeal of Florida, First District.
    July 24, 2007.
    Neil E. Wilkinson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This is a petition for a writ of certiorari seeking review of an order denying petitioner’s request for a writ of mandamus directed to the Secretary of the Department of Corrections, arising out of action taken by the Department on a disciplinary report filed against petitioner, an inmate. Because the petition for a writ of mandamus filed in the trial court sought review of quasi-judicial action by a lower tribunal (i.e., the Department), the Florida Rules of Appellate Procedure applied to the proceeding in the trial court. See Fla. R.App. P. 9.030(c)(3) (providing that circuit courts may issue “all writs necessary to the complete exercise of the courts’ jurisdiction,” including “writs of mandamus”), 9.100(a) (providing that the rule applies to proceedings invoking a court’s jurisdiction pursuant to rule 9.080(c)(3)). Here, the trial court afforded petitioner 20 days within which to reply to the Department’s response to the petition for a writ of mandamus. Before expiration of the 20-day period, petitioner filed a motion requesting appointment of counsel and a continuance of the time within which he must reply. Without ruling on that motion, the trial court denied the petition for a writ of mandamus on the merits.

Petitioner had no right to appointment of counsel in the trial court. See generally Wolff v. McDonnell, 418 U.S. 539, 570, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (there is no right to retained or appointed counsel in prison disciplinary proceedings). However, the trial court should not have ruled on the merits of the petition without first ruling on the motion requesting a continuance of the time within which petitioner must reply. See Fla. R.App. P. 9.300(b) (providing that, “[except as prescribed by subdivision (d) of this rule, service of a motion shall toll the time schedule of any proceeding in the court until disposition of the motion”); Forbes v. Crosby, 866 So.2d 198 (Fla. 1st DCA 2004) (quashing denial of a petition for a writ of mandamus entered without affording petitioner time to reply to the Department’s response). Accordingly, we grant the petition for a writ of certiorari; quash the trial court’s order; and remand to the trial court for further proceedings.

PETITION FOR WRIT OF CERTIO-RARI GRANTED.

WEBSTER, LEWIS, and THOMAS, JJ., concur.


text:
    Ricky HOPE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-749.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Ricky Hope, Punta Gorda, pro se.

      No appearance required for appellee.
   PER CURIAM.

Appellant, who was convicted of attempted first degree murder and sentenced to thirty years of imprisonment, appeals the trial court’s summary denial of his rule 3.850 motion alleging ineffective assistance of counsel. We affirm the summary denial in all respects except as to his claim (Ground 6) that trial counsel was ineffective in misadvising him that if he testified at trial, the state could inquire into the details of his prior convictions on cross-examination. As to this claim only, we reverse and remand for the trial court to either attach portions of files and records conclusively showing appellant is not entitled to relief or for an evidentiary hearing on appellant’s allegation that he was deprived of his right to testify by relying on his counsel’s erroneous advice. See Curtis v. State, 689 So.2d 423 (Fla. 4th DCA 1997); Hicks v. State, 666 So.2d 1021 (Fla. 4th DCA 1996).

KLEIN, TAYLOR and HAZOURI, JJ., concur.


author: BENTON, J.

text:
    The Child, D.L.T., Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6186.
    District Court of Appeal of Florida, First District.
    July 26, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

D.L.T., a juvenile, appeals his placement in a high-risk residential facility, instead of in a low-risk residential facility as recommended by the Department of Juvenile Justice (DJJ). The reasons the trial court stated for deviating from DJJ’s recommendation identified no need or other attribute of D.L.T.⅛ justifying his placement in a high-risk residential facility, rather than in the facility DJJ recommended. Accordingly, we reverse the disposition order.

D.L.T. was originally arrested on October 27, 2004, for possession of less than 20 grams of cannabis. He entered a plea of guilty and was placed on probation. On April 7, 2006, a petition alleging a violation of probation was filed, and he was found to have violated probation at an adjudicatory hearing on June 6, 2006. The predisposition report then ordered was filed on June 19, 2006, recommending that D.L.T. be placed in a low-risk residential facility.

On July 7, 2006, D.L.T. was arrested again, after certain cellular telephone calls were intercepted on April 14, 2006, and May 15, 2006. When arrested, the other party to the telephone conversations told an interrogator that D.L.T. had obtained cocaine from her to sell, and D.L.T. was charged with possession of cocaine and with conspiracy to sell cocaine. On October 3, 2006, he entered guilty pleas to both of these charges. D.L.T. admitted he discussed selling drugs, although he said that no sales were ever accomplished. Accepting his pleas, the trial court ordered an updated predisposition report.

At the ensuing disposition hearing on October 25, 2006, DJJ adhered to its original recommendation for commitment to a low-risk facility. After hearing defense counsel argue in favor of following DJJ’s recommendation, and listening to a tape of at least one of the intercepted telephone conversations, the judge ruled:

I had a question mark on this one also. I was also amazed at this recommendation.
You’re a drug dealer, long and the short of it. You’re a drug dealer and you happened to get caught, and you know, your brother is going away for life. You knew who to call. You knew the language. You’re just a drug dealer, and personally, I find that horrible.
I agree with the recommendation of the State. I think you are a high risk. I think it is absolutely amazing that they came back with low risk on a conspiracy charge.
I am going to adjudicate him delinquent, commit him to a high risk program. He is going to be placed in secure detention until he is placed in the program. He will be on post-commitment probation.

The trial court thus disregarded DJJ’s recommendation because D.L.T. was, she found, a drug dealer, because he had a brother sentenced to life in prison, and because she found “it is absolutely amazing that [DJJ] came back low risk on a conspiracy charge.”

A judge’s authority to deviate from DJJ’s recommendation under section 985.433(7)(b), Florida Statutes (2006), is not unbridled; the judge must act in conformity with the statute. See N.B. v. State, 911 So.2d 833, 834 (Fla. 1st DCA 2005).

A trial judge may not deviate from DJJ’s recommendation at a juvenile delinquency disposition hearing simply because the judge disagrees with the recommendation. See K.M. v. State, 891 So.2d 619, 620 (Fla. 3d DCA 2005). In order to deviate, a trial court must identify adequate reasons, grounded in the evidence, for disregarding the recommendation. See A.C.N. [v. State], 727 So.2d [368, 370 (Fla. 1st DCA 1999) ]. A judge may reweigh the same factors the Department considered and come to a different conclusion. But, when the court does so, the court “must set forth its reasons in the context of the needs of the child.” E.S.B. v. State, 822 So.2d 579, 581 (Fla. 1st DCA 2002). The judge's findings “must have reference to the characteristics of the restrictiveness level vis-a-vis the needs of the child.” Id. The judge must explain why the judge came to a different conclusion than the Department did, and explain why the new restrictiveness level is indicated.

Id. at 835-36. In the present case, the judge’s stated reasons for deviating from the recommendation did not meet these requirements, however frustrating it may have been for the judge that DJJ did not alter its recommendation in light of the additional conspiracy . and possession charges.

Even if D.L.T. was, in fact, a drug dealer, the judge did not explain why this required placement in a high-risk residential facility instead of in a low-risk residential facility. The judge did state that she believed the appellant was “a high risk” but did not explain what she meant by the term, why he was “a high risk,” or for what he was at high risk. As far as can be told from the record, her conclusion in this regard rests principally, if not entirely, on the supposition that he was a drug dealer, even though the State neither charged nor proved a single sale of drugs. While there may have been reasons that would have supported placement in a high-risk residential facility, the judge did not articulate them.

The judge’s comments about D.L.T.’s brother’s being sent away for life are wholly unsupported by any evidence of record. Even if D.L.T.’s brother has been sentenced to life in prison, moreover, his brother’s sentence would not be an appropriate basis for disregarding DJJ’s recommendation and meting out harsher punishment to D.L.T. “In order to deviate, a trial court must identify adequate reasons, grounded in the evidence, for disregarding the recommendation.” N.B., 911 So.2d at 835.

Reversed and remanded.

KAHN and VAN NORTWICK, JJ., concur.

      . Cocaine possession was one of the grounds alleged for probation violation. A subsequent delinquency petition was filed on May 23, 2006, alleging as a new law violation that D.L.T. had cocaine in his possession.

      . The State argued that DJJ's recommendation was a “slap in the face," given the additional offense of conspiracy to sell cocaine.

      . Section 985.433(7)(b), Florida Statutes (2006) provides:
      The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department. Any party may appeal the court's findings resulting in a modified level of restrictiveness under this paragraph.

      . Section 985.03(44)(d), Florida Statutes (2006), defines the high-risk restrictive level:

        High-risk residential. — Programs or program models at this commitment level are ■ residential and do not allow youth to have access to the community, except that temporary release providing community access for up to 72 continuous hours may be approved by a court for a youth who has made successful progress in his or her program in order for the youth to attend a family emergency or, during'the final 60 days of his or her placement, to visit his or her home, enroll in school or' a vocational program, complete a job interview, or participate in a community service project. High-risk residential facilities are hardware-secure with perimeter fencing and locking doors. Facilities shall provide 24-hour awake supervision, custody, care, and treatment of residents. Youth assessed and classified for this level of placement require close supervision in a structured residential setting. Placement in programs at this level is prompted by a concern for public safety that outweighs placement, in programs at lower commitment levels. The staff at a facility at this commitment level may seclude a child who is a physical threat to himself or herself or others. Mechanical restraint may also be used when necessary. The facility may provide for single cell oc- ’ cupancy.


text:
    VERIZON BUSINESS NETWORK SERVICES, INC., on behalf of MCI COMMUNICATIONS, INC., d/b/a Verizon Business Services; Global Tel*Link Corporation; and Public Communications Services, Inc., Petitioners, v. FLORIDA DEPARTMENT OF CORRECTIONS and Securus Technologies, Inc., Respondents.
    No. 1D07-3519.
    District Court of Appeal of Florida, First District.
    July 31, 2007.

      Cynthia S. Tunnicliff and Brian A. Newman of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee; Gary V. Per-ko and Wesley S. Haber of Hopping Green & Sams, P.A., Tallahassee; Allan P. Clark and John A. Tucker of Foley & Lardner, LLP, Jacksonville; Robert H. Hosay of Foley & Lardner, LLP, Tallahassee, for Petitioners.
    No appearance for Respondents.
   PER CURIAM.

Verizon Business Network Services, Inc., Global TePLink Corporation, and Public Communications Services, Inc., petition for review of a non-final order of an administrative law judge (ALJ) of the Division of Administrative Hearings that denied their renewed motion to compel production of documents. We deny the petition.

In Boyd v. Pheo, Inc., 664 So.2d 294 (Fla. 1st DCA 1995), this court observed that “orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm.”. Id. at 295. Although Boyd dealt with a petition for writ of certiorari, the “irreparable harm” analysis is also applicable to a petition for review of non-final administrative action. To establish an entitlement to interlocutory review of a non-final administrative order, petitioners bear the burden of demonstrating that review of the final agency decision would not provide an adequate remedy. See § 120.68(1), Fla. Stat. (2007). Boyd does recognize that there may be some limited exceptions to this géneral rule, and indeed, other Florida courts have undertaken extraordinary interlocutory, review in • circumstances where there would be no practical way to determine after judgment what the withheld evidence would have been and how it would have affected the result. See, e.g., Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000). Such would not appear to be the case here, however, since the disputed documents are identified in a privilege log and were reviewed in-camera by the- ALJ. Thus, the issue can be meaningfully addressed on appeal and an appropriate remedy fashioned if it is concluded that the ALJ’s ruling was in error. Accordingly, as petitioners have failed to demonstrate that review of the . final agency decision would not provide an adequate remedy, we decline to undertake review at this point.

The petition for review is DENIED.

BROWNING, C.J., KAHN and VAN NORTWICK, JJ., concur.


text:
    Raymond BAEZ, Petitioner, v. Henriette KOELEMIJ, Respondent.
    No. 4D07-1992.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.
    Genie Holcombe Rothman of Genie H. Rothman, P.A., Delray Beach, for petitioner.
    Jonathan S. Root, Boca Raton, for respondent.
   PER CURIAM.

Raymond Baez, the purported father in a paternity, time-sharing, and child support action, seeks relief barring Judge Martin H. Colin from continuing to preside over the case. Baez raises several grounds for prohibition relief. We find no merit in the arguments concerning the actions of Judge Colin during the hearings held on February 21 and 22, 2007, but grant the petition based on an apparent conflict of interest that would cause a reasonable litigant to have a well-grounded fear of not receiving a fair trial.

The test for determining the legal sufficiency of a motion for disqualification is whether the factual allegations “would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.” Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981); see also Hayes v. State, 686 So.2d 694, 695 (Fla. 4th DCA 1996), rev. dismissed, 691 So.2d 1081 (Fla.1997); Fischer v. Knuck, 497 So.2d 240 (Fla.1986). The facts alleged in a motion to disqualify need only show a movant’s well-grounded fear that the movant will not receive a fair trial. MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1334 (Fla.1990). In determining whether the allegations are sufficient, the facts must be taken as true and must be viewed from the movant’s perspective. Id.

In the instant case, Baez believed something was amiss concerning a possible conflict of interest involving Judge Colin and opposing counsel, Jonathan Root, which he decided to investigate. Baez learned that Root represented Betsy Savitt in another matter, and alleged there is an ongoing relationship between Ms. Savitt and Judge Colin, referring to Ms. Savitt as Judge Colin’s “girlfriend.” In fact, Baez learned that Judge Colin acted as a witness in an indirect criminal contempt case involving Ms. Savitt on her behalf while she was represented by Root. Finally, Baez alleged that Judge Colin was acting as a “ghost lawyer” by preparing pleadings and affidavits for Root during Root’s representation of Ms. Savitt.

While Judge Colin may not have been required to disclose this relationship because Ms. Savitt is not a spouse or relative of the third degree, see Code of Judicial Conduct Canon 3(E)(1)(d) and Florida Rule of Judicial Administration 2.330(d), it would seem disclosure of the relationship would have been prudent under the catchall phrase of the commentary of the judicial canons, which states that a judge should disclose information that the judge “might consider relevant to the question of disqualification.” Further, the mere fact that neither the canon nor the rule require disqualification or disclosure where the opposing counsel represented a “girlfriend” of a judge, disqualification is still appropriate where a reasonable litigant would have a well-grounded fear of not receiving a fair trial.

This court has granted relief in a case where the firm appearing ■ before Judge Andrews had represented Judge Andrews’s wife in an unrelated case. See J & J Towing, Inc. v. Stokes, 789 So.2d 1196 (Fla. 4th DCA 2001). We determined the motion to disqualify in that case was “legally sufficient in that it alleged that the judge’s wife was represented by [opposing party’s] counsel in a separate and apparently pending matter involving her individually and as a member of the Broward County School Board.” Id. at 1198. We find the distinction between a wife and girlfriend (or husband and boyfriend), as it relates to the appearance of bias or prejudice by the judge, to be a distinction without a difference. Because “the facts underlying the well-grounded fear must be judged from the perspective of the moving party[,]” we must consider Baez’s perspective. Id. As such, we find no reason to distinguish this case from J & J Towing as the same likelihood of bias would be apparent regardless of the legal definition of the relationship between Ms. Savitt and the judge.

Based on the foregoing, we grant the petition for writ of prohibition and direct the Chief Judge of the Fifteenth Judicial Circuit to have this case reassigned to a successor judge.

GUNTHER, TAYLOR and HAZOURI, JJ., concur.


author: WELCH, J.

text:
    Amanda G. LAMBERT v. Darren Paul LAMBERT.
    No. 2006 CU 2399.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2007.

      Brenda Braud, Hammond, for Plaintiff — Appellee Amanda G. Lambert.
    Bruce E. Unangst, Gonzales, for Defendant — Appellant Darren Paul Lambert.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   WELCH, J.

12In this appeal, the defendant, Darren Paul Lambert, challenges a trial court judgment awarding the plaintiff, Amanda G. Lambert, child support and interim spousal support. After a review of the record of these proceedings, we affirm the judgment of the trial court.

I. FACTUAL AND PROCEDURAL HISTORY

The parties in this matter, Amanda Lambert and Darren Lambert, were married on February 14, 2003. One child was born of their marriage, and Darren has custody of his three children from a prior marriage. On April 11, 2006, Amanda filed a petition for divorce requesting that the parties be awarded joint custody of their minor child, that she be designated as the child’s domiciliary parent, that she be awarded child support for the support of the minor child, and that she be awarded interim spousal support.

After a hearing on June 28, 2006, the trial court rendered judgment awarding the parties joint custody of the minor child, with Amanda designated as the child’s domiciliary parent; awarding Darren specific visitation with the minor child; ordering Darren to pay Amanda child support in the amount of $505.56 per month, retroactive to April 11, 2006; ordering Darren to pay interim spousal support to Amanda in the amount of $611 per month, retroactive to April 11, 2006, with payment of $111 of that monthly award deferred for six months; ordering Darren to maintain health insurance on the minor child until further order of the court and on Amanda until the rendition of a final judgment of divorce; awarding Amanda exclusive use of the community automobile in her possession and bordering Darren to pay the monthly note associated with that automobile; ordering Amanda to pay the automobile insurance premiums for the two community automobiles (including the automobile used by Darren) in the amount of $210 per month; and ordering Darren to pay the monthly credit card payments on the community credit card debt. A written judgment in conformity with the trial court’s ruling was signed on August 11, 2006, and it is from this judgment that Darren now appeals.

II. ASSIGNMENTS OF ERROR

On appeal, Darren contends that: (1) the trial court erred by imputing income to him when calculating his child support obligation; (2) the trial court abused its discretion when it refused to deviate from the child support guidelines considering his obligation to support the three minor children from his previous marriage of whom he has custody; and (3) the trial court abused its discretion in its award of interim spousal support to Amanda.

III. LAW AND DISCUSSION

A. Child Support

The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. See La. R.S. 9:315.1(A). Louisiana Revised Statutes 9:315.2 requires the court to calculate a basic child support obligation by combining the parents adjusted gross incomes, determining each party’s percentage share of the combined adjusted gross income, and applying these calculations to the schedule contained in La. R.S. 9:315.14. The total child support obligation is thereafter computed by adding together the basic child support obligation, the net child-care costs, the cost of the child’s health insurance premiums, extraordinary medical expenses, and other extraordinary expenses. La. R.S. 9:315.8(A). Each parent’s share of the total child support obligation is then determined by multiplying his or her percentage share of the | combined adjusted gross income by the total child support obligation. La. R.S. 9:315.8(C). Thereafter, the court fixes and awards, as a money judgment, the total child support obligation in favor of the domiciliary parent or parent with legal custody. La. R.S. 9:315.8(D). Generally, an award of child support is entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. Walden v. Walden, 2000-2911, p. 4 (La.App. 1st Cir.8/14/02), 835 So.2d 513, 517; Templeton v. Templeton, 2000-0536, p. 4 (La.App. 1st Cir.12/22/00), 774 So.2d 1257, 1260.

1. Darren’s Gross Income

To apply the guidelines, the court must initially determine the gross income of the parties. See La. R.S. 9:315.2(A). Income means the actual gross income of a party, if the party is employed to full capacity. La. R.S. 9:315(C)(5)(a). Income also means the potential income of a party, if the party is voluntarily unemployed or underemployed; in such a case, his gross income shall be determined as set forth in La. R.S. 9:815.11. La. R.S. 9:315(C)(5)(b) and 9:315.2(B). If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential (rather than actual gross income), unless the party is caring for a child of the parties under the age of five years. La. R.S. 9:315.11; see Walden, 2000-2911 at pp. 9-10, 835 So.2d at 530.

Voluntary unemployment or underemployment for purposes of calculating child support is a factual determination of good faith on the obligor-spouse. Romanowski v. Romanowski, 2003-0124, p. 6 (La.App. 1st Cir.2/23/04), 873 So.2d 656, 660. With regard to the factual findings made by the trial court in determining an award of child support, appellate review of such factual findings is subject to the manifest error/clearly wrong standard of review. See Romanowski, 2003-0124 at p. 8, 873 So.2d at 662; Walden, 2000-2911 at p. 4, 835 So.2d at 517.

Darren testified that he is employed by Shaw Services, L.L.C. as a piping system fabricator for Sunland Fabricators, and that he is paid $19.40 per hour. Darren further testified that he is not “guaranteed” to work 40 hours each week nor is he “guaranteed” overtime.

Although Darren failed to provide the trial court or Amanda with either a verified income statement showing his gross income or his most recent federal tax return, as mandated by La. R.S. 9:315.2(A), he did offer nine pay stubs as documentation of his current and past earnings. These pay stubs reflect the following: during the week of March 19, 2006, Darren worked 40 hours at the rate of $19.40 per hour and 2 hours at the overtime rate of $29.10 per hour; during the week of March 26, 2006, he worked 36 hours at the rate of $19.40 per hour; during the week of April 2, 2006, he worked 37 hours at the rate of $19.40 per hour; during the week of April 9, 2006, he worked 38.5 hours at rate of $19.40 per hour; during the week of April 16, 2006, he worked 39.25 hours at the rate of $19.40 per hour; during the week of April 23, 2006, he worked 15.5 hours at rate of $19.40 per hour; during the week of April 30, 2006, he worked 16 hours at the rate of $19.40 per hour; during, the week of May 7, 2006, he worked 35.75 hours at the rate of $19.40 per hour; and during the week of June 11, 2006, he worked 29.5 hours at the rate of $19.40 per hour. Additionally, the pay stub for the week of June 11, 2006, reflects that Darren’s year-to-date gross pay was $20,011.11.

Amanda testified that she is unemployed because she is caring for the minor child of the parties, who at the time of the hearing in the matter was approximately seven months old. Amanda offered into evidence obligation worksheet A, a worksheet used for the calculation of the total child support obligation under La. R.S. 9:315.8. According to this worksheet, she calculated Darren’s monthly gross | (¡income to be $3,363 (or $19.40 per hour, 40 hours per week). Based on this gross income, Darren’s child support obligation was calculated to be $505.56, plus the cost of the child’s health insurance premium.

After considering all of the evidence, the trial court concluded that Darren was capable of earning $19.40 per hour and working 40 hours per week, resulting in a monthly gross income of $3,363 being imputed to him for purposes of calculating child support. The trial court then set child support at $505.56 retroactive to April 11, 2006. On appeal, Darren does not dispute that $505.56 is the proper child support calculation under the guidelines for a gross income of $3,363 per month and that, he earns $19.40 per hour; however, he contends that the trial court erred in finding that he was voluntarily underemployed (ie., that he worked or was capable of working forty hours per week), thereby miscalculating his gross monthly income.

Based on our review of the record, we do not find that the trial court manifestly erred in determining that Darren was voluntarily underemployed and capable of working forty hours per week, or in imputing $3,363 in gross monthly income to Darren.

One of the nine weeks for which Darren provided his pay stub shows that he worked 40 hours, plus 2 hours of overtime, during the week. A review of all nine pay stubs indicates that Darren has consistently worked between 36 and 42 hours every week, with a few exceptions. Specifically, during the weeks of April 23 and April 30, 2006, the number of hours Darren worked decreased by more than half. Notably, the decrease in Darren’s work hours happened just after Amanda filed the petition for divorce in this matter. The other exception was during the pay period ending on June 11, 2006, when Darren worked 29.5 hours, and was just prior to the hearing of this matter.

| ./Furthermore, although Darren testified that the nine pay stubs submitted into evidence were for his last nine pay periods, a review of the dates of those pay stubs shows that no pay stubs were submitted by Darren for the weeks between May 7, 2006 and June 11, 2006. Yet during this time period, Darren’s year-to-date gross pay increased from $16,465.76 on May 7, 2006, to $20,011.11 on June 11, 2006 — an increase of $3,545.35 during that four week period, and importantly, $222.35 more than the gross monthly income imputed to Darren by the trial court.

Moreover, while Darren testified that he was not guaranteed to work forty hours per week or to work overtime, our review of the evidence indicates otherwise. Darren’s year-to-date gross income was $20,011.11 on June 11, 2006. Considering that time period from January 1, 2006 through June 11, 2006, encompasses approximately twenty-three weeks, a year-to-date gross income of $20,011.11 would yield a monthly gross income of approximately $3,770.21. This is approximately $407.21 per month more than the income imputed to Darren by the trial court at $19.40 per hour, forty hours per week. Thus, Darren must have worked at least 40 hours per week earning $19.40 per hour (if not more than that earning overtime pay), on a consistent basis in order for his pay stub to reflect a year-to-date gross income of $20,011.11 on June 11, 2006.

Accordingly, we find a reasonable basis exists in the record to support the' trial court’s factual finding that Darren was capable of working 40 hours per week and that Darren’s monthly gross income was $3,363 based on earning $19.40 per hour. Our review of the record indicates that these finding are not clearly wrong, and we do not find that the trial court manifestly erred in determining that Darren was voluntarily underemployed.

2. Request for Deviation from the Guidelines

Darren further contends on appeal that the trial court abused its discretion in | ^determining his child support obligation because the trial court should have deviated from the child support guidelines because he has custody of his three children from a previous marriage.

Louisiana Revised Statutes 9:315.1(Á) provides “There shall be a rebuttable presumption that the amount of child support obtained by the use of the guidelines set forth in this Part is the proper amount of child support.” The trial court may deviate from the guidelines only “if their application would not be in the best interest of the child or would be inequitable to the parties.” La. R.S. 9:315.1(B). In determining whether to deviate from the guidelines, the trial court may consider the legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party’s household. La. R.S. 9:315.1(0(2).

Louisiana Revised Statutes 9:315.1(0(2) does not allow an automatic deviation from the child support guidelines based solely on the obligation to support dependents who are not the subject of the action before the court and who are in that party’s household. But rather, all that is required by this statute is that the trial court consider the obligation to support a domiciliary child not a party to the proceedings as a basis for an adjustment of the child support obligation. See Pratt v. Wells, 2002-1032, p. 8 (La.App. 4th Cir.2/26/03), 840 So.2d 1230, 1235. Moreover, a deviation pursuant ’ to La. R.S. 9:315.1(C)(2) must be supported by an evi-dentiary basis. Guillot v. Munn, 96-0620 (La.6/21/96), 676 So.2d 86 (per curiam).

In this case, as the parent seeking the deviation, Darren had the burden of proving that an application of the child support guidelines would not be in the best interest of his child (with Amanda) or would be inequitable to him because of his expenses in connection with his obligation to support his other three children.

Darren testified that since June 2005, he has had custody of his three | ^children (ages fourteen, eight, and six) from a previous marriage, and that he does not receive any child support for these children from his ex-wife. With regard to his expenses for his three children, Darren testified that he does not pay rent, because he and the children reside with his mother. He pays $105.01 per week (or $420.04 per month) for health insurance on his entire family (Amanda, himself, and his four children or $70 per month per person), he pays $16.03 per week (or $62.12 per month) for dental insurance on his entire family (or $10.69 per month per person), he spends approximately $150-$200 per week on food for himself and his children (or approximately $645-$860 per month), and he spends approximately $11 — $12 per child each month on grooming expenses (haircuts).

Just prior to ruling on child support, the trial court inquired of the parties as to whether the guideline child support calculation of $505.56 took “into account that there are three other children?” Darren’s counsel replied “No.” Thereafter, the trial court rendered judgment setting Darren’s child support obligation at $505.56. This colloquy between the trial court and Darren’s counsel indicates that the trial court did in fact consider Darren’s obligation to support his other three domiciliary children, and thereafter in its discretion, chose not to deviate from the child support guidelines.

Bearing in mind the trial court s previous factual determination that Darren had a gross monthly income of $3,363, and that a strict application of the child support guidelines would yield a child support obligation of $505.56 and that Darren’s expenses associated with his children from his previous marriage total approximately $920.07 to $1,138.07 per month, we cannot say that an application of the child support guidelines would not be in the best interest of his child with Amanda or would be inequitable to him. Darren’s total monthly support obligations for his four children totals approximately $1,425.63 to $1,643.63 — less than half of his ■ gross monthly income. Thus, we cannot say that the trial court |inabused its discretion in its refusal to deviate from the child support guidelines. Rather, we find that the amount of child support obtained by the use of the guidelines, $505.56 per month, is the proper amount of child support. Accordingly, we hereby affirm the August 11, 2006 judgment of the trial court awarding Amanda child support in the amount of $505.56 per month.

B. Interim Periodic Spousal Support

Lastly, on appeal, Darren contends that the trial court erred in awarding Amanda interim spousal support in the amount of $611 per month because he does not have the ability to pay interim spousal support.

In a proceeding for divorce, the court may award an interim periodic support allowance to a spouse based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. La. C.C. arts. Ill and 113. Interim spousal support is designed to assist the claimant spouse in sustaining the same style or standard of living that he or she enjoyed while residing with the other spouse, pending the litigation of the divorce. Derouen v. Derouen, 2004-1137, p. 3 (La.App. 3rd Cir.2/2/05), 893 So.2d 981, 984. A spouses right to claim interim periodic support is grounded in the statutorily imposed duty on spouses to support each other during marriage, and thus provides for the spouse who does not have sufficient income for his or her maintenance during the period of separation. Derouen, 2004-1137 at p. 4, 893 So.2d at 984. Interim support preserves parity in'the levels of maintenance and support and avoids unnecessary financial dislocation until a final determination of support can be made. Id.

The trial court is vested with much discretion in determining an award of interim spousal support. Such a determination will not be disturbed absent a clear abuse of discretion. Romanowski, 2003-0124 at p. 11, 873 So.2d at 664. An abuse of discretion will not be found if the record supports the trial court’s | u conclusions about the means of the payor spouse and his or her ability to pay. Derouen, 2004-1137 at p. 4, 893 So.2d at 984.

The spouse seeking interim spousal support bears the burden of proving his or her entitlement to such support. Romanowski, 2003-0124 at p. 11, 873 So.2d at 663-64. To determine whether a claimant spouse is entitled to receive interim support, the trial court must assess the needs of that spouse, the ability of the non-claimant spouse to pay, and their standard of living during the marriage. Derouen, 2004-1137 at p. 4, 893 So.2d at 984

A claimant demonstrates the need for interim spousal support if she estab-' lishes that she lacks sufficient income or the ability to earn a sufficient income “to sustain the style or standard of living that [s]he enjoyed while [s]he resided with the other spouse.” Derouen, 2004-1137 at p. 4, 893 So.2d at 984 (quoting January v. January, 94-882, 94-883, p. 3 (La.App. 3rd Cir.2/1/95), 649 So.2d 1133, 1136). The needs of the claimant spouse have been defined as the total amount sufficient to maintain that spouse in a standard of living comparable to that enjoyed prior to the separation, limited only by the other spouse’s ability to pay. Derouen, 2004-1137 at pp. 4-5, 893 So.2d at 984.

Once the claimant spouse has established need, the court must examine the ability of the payor spouse to providé support. Derouen, 2004-1137 at p. 5, 893 So.2d at 985. If the needs of the claimant spouse surpass the ability of the other spouse to pay, interim spousal support should be fixed at a sum which will as nearly as possible be just and fair to all parties involved. Id.

In assessing a spouse’s ability to pay, the court must consider his or her means. “Means” includes any resource from which the wants of life may be supplied, requiring an assessment of the entire financial condition of the payor spouse. Id. “Entire financial condition” is not limited to income, but also includes any resource from which his or her needs can be supplied,, including a spouse’s |12earning capacity. Derouen, 2004-1137 at p. 6, 893 So.2d at 985.

In this case, in order to be entitled to interim periodic support, 'Amanda had the burden of proving not only that she lacked sufficient income to maintain the standard of living that she enjoyed while married, but also that Darren had the ability to pay.

As noted hereinabove, Amanda testified that she was unemployed because she is caring for the minor child of the parties. Amanda’s testimony regarding her monthly expenses or “needs” consisted of the following:

Q. And would you like for this court to award you interim spousal support, alimony?
■ . . A- Yes, ma'am.
Q., Do you feel that the figure of $611 would be appropriate looking at - your .. .■
..; form that you completed and filed into the record of this matter when you -filed to proceed in forma pauperis. It shows that your monthly expenses are $695, not counting your credit card payments and your car payments. Is that correct?
A. Yes, ma’am.
Q. And are you asking this Court to award you $611 for interim spousal support?
A. Yes, ma’am.

According to Amanda’s affidavit submitted as part of her motion to proceed' in forma pauperis, her monthly living expenses are as follows:

Rent $-0-(lives with mother at present)
Utffities $100 (to mother for portion of billsDl
Travel $ 60 (gas, car maintenance)
Food $200
Grooming $ 20
Auto ins. $160
Home ins. $-0-
Life ins. $-0-
Other ins. $-0-
I lgChristroas $ 15
“Education $-0-
Clothing $100 (includes the minor child)
Dry Cleaning None
Household supplies $ 10
Mise. $ 50
Total

Additionally, Amanda testified that she is also paying the automobile insurance premium on the community automobile in Darren’s possession because the premium is automatically deducted from her checking account, and that the total automobile insurance premium for the two community automobiles is approximately $210 per month.

Based on this evidence, we find that Amanda has sufficiently proven her need. Amanda’s monthly expenses on her affidavit exceed her income by $695. Darren does not challenge Amanda’s expenses or need, but rather, he asserts that his income is insufficient for him to pay her support, particularly given the child support obligation owed to her and his obligation to support his three children from his previous marriage.

Although the trial court determined that Darren’s gross monthly income was $3,363, the trial court made no factual findings with regard to Darren’s net monthly income, an important factor in determining his ability to pay interim spousal support. As we previously noted, Darren’s pay stub for the week ending on June 11, 2006, reflects that his year-to-date gross income was $20,011.11. That same pay stub reflects that his year-to-date net income was $15,035.84, which yields an approximate monthly net income of $2,832.84.

Darren’s evidence shows that his monthly living expenses, including the expenses associated with his three children from his previous marriage, total approximately $1,326-$1,553. Specifically, these expenses are as follows: rent — 1$0.0014 (he lives with his mother); automobile note $0.00 (the community automobile in his possession is paid for); food — approximately $645-$860 per month ($150-$200 per week); grooming and haircuts — $44-$48 per month ($11-$12 per person); Amanda’s automobile note — $347; mobile telephone — $45-$53; fuel — $120; credit card payments for the two community credit card debts — $125.

Considering Darren’s $2,832.84 net monthly income, and subtracting his and his three children’s combined monthly living expenses of approximately $1,326-$1,553, and monthly his child support obligation of $505.56, Darren still has approximately $774.28-$l,001.28 with which to pay interim spousal support. While we sympathize with the financial strain that has obviously been placed on Darren by the trial court’s award of interim spousal support, and believe that that a lower award would have certainly been more equitable and practical, particularly given the fact that Darren has four children to support, the record herein does support the trial court’s conclusions that Darren has the means or ability to pay spousal support to Amanda in the amount of $611. Therefore, we cannot say that the trial court abused its discretion in its award of interim spousal support to Amanda, and we are constrained to affirm the August 11, 2006 judgment of the trial court awarding Amanda interim spousal support in the amount of $611 per month.

IV. CONCLUSION

For the above and foregoing reasons, we do not find that the trial court manifestly erred by imputing income to Darren Lambert when calculating his child support | ^obligation or that the trial court abused its discretion in refusing to deviate from the child support guidelines, and we do not find that the trial court abused its discretion in its award of interim spousal support to Amanda Lambert. Therefore, the August 11, 2006 judgment of the trial court is hereby affirmed.

All costs of this appeal are hereby assessed to the appellant/defendant, Darren Paul Lambert.

AFFIRMED.

      . The trial court limited the hearing in this matter to 20 minutes, allowing "10 minutes per side.” Although we question the propriety of the imposition of a such a short time limitation in a case involving important issues such as child custody, child support, and interim spousal support, the parties in this matter have not asserted that their due process rights were violated or that they were prejudiced as a result of the trial court’s decision. See Goodwin v. Goodwin, 618 So.2d 579, 583-85.(La.App. 2nd Cir. 1993), writ denied, 623 So.2d 1340 (La.1993). Therefore, we are constrained to act.

      . A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party. La. R.S. 9:315(C)(5)(b).

      . No income was attributed to Amanda (nor could any income be imputed) since she is unemployed and caring for a child of the parties under the age of five. See La. R.S. 9:315.11.

      .
      [($20,011.11 •> 23 weeks) x 52 weeks] 12 months = $3,770.21.

      . We note that the both parties resided with Amanda’s mother during their marriage.

      .
      [($15,035.84 4 23 weeks) x 52 weeks] 4 12 months= $2,832.84.

      . Darren stipulated at the end of the hearing in this matter that Amanda could have exclusive use of the community automobile in her possession and that he would pay the monthly note associated with that automobile.

      . We note Darren Lambert also pays $420.04 per month for health insurance for his family and $64.12 per month for dental insurance for his family. However, Darren’s employer deducts this expense from Darren's gross pay prior to determining his net pay. Therefore for the purpose of evaluating Darren’s ability to pay interim spousal support, we need not consider this as a monthly expense that is paid out of Darren’s net monthly income.