author: CANADY, Judge.

text:
    Danny TORO, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1470.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 2007.
    Rehearing Denied April 16, 2007.
   CANADY, Judge.

Danny Toro appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reject Toro’s claims regarding his habitual felony offender designation. However, based on the State’s concession of error, we reverse and remand solely for the postconviction court to strike Toro’s three-year minimum mandatory term imposed on the kidnapping conviction.

Affirmed in part; reversed and remanded in part.

CASANUEVA and WALLACE, JJ„ Concur.


source: Caselaw Access Project

author: FARMER, J.

license: Public Domain

text:
    FREEDOM LIFE INSURANCE COMPANY OF AMERICA, Appellant, v. Kim WALLANT and Louis Borek, Appellees.
    No. 4D06-4610.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Rehearing Denied April 24, 2007.
    Elliot H. Scherker, Mark F. Bideau and Julissa Rodriguez of Greenberg Traurig, P.A., Miami, for appellant.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach; Jeffrey M. Liggio of Liggio Benrubi & Williams, P.A., West Palm Beach; Louis M. Silber of Silber Valente & Davis, P.A., West Palm Beach; and Edward H. Zeber-sky of Zebersky & Payne, P.A., Hollywood, for appellees.
   On Motion to Dismiss

FARMER, J.

We have in hand a non-final appeal of an order relating to arbitration. Specifically the order denied a motion to compel arbitration and to stay litigation in court pending the appeal. For the reasons expressed, we grant appellee’s motion to dismiss the appeal without prejudice to initial review of the order denying arbitration on appeal from the final judgment in the cause.

This case began more than 5 years ago with the filing of a complaint for a declaratory judgment and breach of contract. Plaintiff claimed to represent a class of defendant’s policy holders — making appropriate class action allegations. Another plaintiff was added one year later. In August 2002 defendant moved to compel arbitration and to abate the action in court. Several months later, the trial court held a hearing on the motion. On December 4, 2002, the trial court ruled that the arbitration provision was substantively unconscionable and that by active participation in the action defendant had waived its right to compel arbitration. Defendant did not appeal the order. Several weeks later, the trial court certified the class, and defendant did appeal the class certification order to this court. We affirmed certification under rule 1.220(b)(3) but reversed as to rule 1.220(b)(2). Freedom, Life Ins. Co. of America v. Wallant, 891 So.2d 1109 (Fla. 4th DCA 2004). Four months after our mandate issued on that appeal, defendant again sought to have the trial court compel arbitration. That motion was denied on October 30, 2006, and defendant has since appealed the second denial of its attempts to compel arbitration. See Fla. R.App. P. 9.130(a)(3)(C)(4) (court has jurisdiction to review non-final orders that determine “the entitlement of a party to arbitration”).

Relying on our recent decision in Wegner v. Schillinger, 921 So.2d 854 (Fla. 4th DCA 2006), plaintiffs now move to dismiss this appeal, arguing that the present circumstances are “virtually identical” to those in Wegner. The essential procedural facts are indeed strikingly alike, except that the time line in Wegner is more compressed than here. The interval between the first attempt to have arbitration in Wegner and the second was just eight months. Here the first motion to compel arbitration was denied four years before the second denial of arbitration. Of course, in this case, in between the first and second denials of arbitration there is the order of class certification and a consequent appellate affirmance of the order upholding the class. If anything these facts counsel even more strongly for the Wegner holding

In Wegner we explained:

“Florida law does not authorize multiple motions to compel arbitration. Section 682.03(1), Florida Statutes (2005), authorizes an ‘application to the court’ to proceed with arbitration, not applications .... Because an order denying a motion to compel arbitration is non-final, a motion for rehearing or reconsideration is not authorized. See Josephthal Lyon & Ross Inc. v. C & A Fin. Programs Inc., 709 So.2d 1384 (Fla. 4th DCA 1998).
Appellants had 30 days from January 24, 2005 to appeal the order denying their motion to compel arbitration. The pendency of a motion to dismiss did not toll the time for filing the notice of appeal. Appellants cannot avoid the consequences of their failure to appeal the January 24 order and revive their right to appeal by filing a renewed motion for arbitration after the time to appeal has expired.”

921 So.2d at 855. In addition to those reasons, we add the strong policy against piecemeal appeals. Multiple attempts to compel arbitration followed by an attempt at interlocutory review at the end of the chain suffers from being even more unjustifiable bit-by-bit review. Moreover, the essential nature of arbitration — agreed avoidance of court litigation in favor of faster, less cumbersome private dispute resolution — suggests that multiple attempts to assert it are not coherent with the right.

As to the validity of its multiple attempts to compel arbitration, defendant essentially argues “that was then, this is now.” Initially it relies on the first denial as being pre-certification — i.e. before the class was actually certified. We note that the order certifying the class was entered but a few weeks after the first order denying arbitration. Defendant does not explain why it did not appeal the order denying arbitration and then move to consolidate its later appeal of the order of certification. Nor does it address the fact that this action was filed as a class action; thus from the very beginning of litigation certification was foreseeable when it first sought to compel arbitration unsuccessfully. As plaintiffs point out, the initial order denying arbitration referred to the “action” not to the individual plaintiffs claim.

Defendant argues that this issue of appellate review is being raised for the first time in this court, that plaintiffs never argued to the trial court that defendant was barred from successive attempts to seek arbitration. We note that plaintiffs’ motion to dismiss is based solely on Weg-ner, a jurisdictional decision. Wegner’s policy of requiring prompt review of the first attempt to compel arbitration is a feature of the limitations on allowing any non-final review at all. To be sure, we do not understand how plaintiffs could have raised an issue of appellate jurisdiction in the trial court while the issue of arbitration was being successively argued.

Rule 9.130 certainly allows review of an order entered on the application to require arbitration, but there is nothing in the rule suggesting that the issue of replacing court litigation with arbitration could be raised repeatedly in the trial court until the party doing so finally decides to appeal on the issue. We emphasize that here the first attempt to compel arbitration resulted in a lengthy hearing, followed by a decision denying the motion both because of unconscionability and waiver of the right by conduct of the moving party. That decision was more than four years before the second.

Finally we take note of rule 9.130(g), which makes clear that the failure to take a timely appeal of the non-final December 4, 2002, order under rule 9.130(a) does not waive the issue from initial review in an appeal of the final judgment in the action. Defendant’s attempt to have review is thus not lost by a dismissal of this appeal; it is merely postponed to final review in the case. For the foregoing reasons, this appeal is

Dismissed.

GUNTHER and KLEIN, JJ., concur.

      . Our grant of the motion to dismiss this appeal makes all other pending motions and documents moot.


author: PER CURIAM.

text:
    Dennis William KAMASINSKI, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2540.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2007.
    Rehearing Denied April 10, 2007.
    Dennis W. Kamasinski, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We have for review an appeal by the appellant, Dennis William Kamasinski, of the denial by the trial court of his motion for new trial addressed to his conviction by a jury of premeditated first degree murder in 1985. We affirm. First, Mr. Kamasin-ski’s motion was filed well beyond the ten-day limitation contained in rule 3.590(a), Florida Rules of Criminal Procedure. Second, his motion was successive, and was properly denied on that ground, as well.

AFFIRMED.

GRIFFIN, THOMPSON and MONACO, JJ., concur.


author: ALTENBERND, Judge. STRINGER, Judge,

text:
    Gregory Dean HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4363.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.
    Rehearing Denied April 17, 2007.

      Stephen M. Grogoza, Naples, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Gregory Dean Holland appeals his judgments and sentences for nine counts of lewd or lascivious battery on a child twelve years of age or older, but less than sixteen. We affirm the judgments, but reverse the sentences. The trial court incorrectly concluded that it had no discretion to impose a downward departure sentence in this case. Although the trial court had the option not to exercise its discretion, it did have discretion to impose a downward departure sentence. We are not certain whether the trial court would have exercised discretion to impose a lower sentence if it had appreciated that it had this authority. Accordingly, we reverse the sentences to give the trial court an opportunity to exercise such discretion if it so chooses.

J.D. was twelve years old in 2001 and living in Lee County, Florida, when he logged onto an instant messaging chat room on the Internet. He identified himself as “12 male Florida.” Mr. Holland was a twenty-four-year-old college graduate working for a large computer corporation in Texas. He responded to J.D.’s message. The child and the young man established a relationship over the Internet, and Mr. Holland gave his telephone number to J.D. J.D. called Mr. Holland, and eventually Mr. Holland came to visit J.D. in Florida during the summer of 2001. During this first visit, the two of them engaged in mutual oral sex. Over the course of their relationship on at least four occasions, they engaged in mutual oral sex. For each of these four occasions, Mr. Holland was charged with two counts of lewd or lascivious battery — one count for oral sex performed by the juvenile on Mr. Holland and one count for oral sex performed by Mr. Holland on the juvenile. See § 800.04(4)(a), Fla. Stat. (2001-2003). Finally, in 2003 when J.D. was fourteen, the juvenile penetrated Mr. Holland’s anus with his penis. This resulted in a final count of lewd or lascivious battery.

Mr. Holland was convicted of all nine counts of lewd or lascivious battery. We affirm these convictions without further comment.

Lewd and lascivious battery under the criminal punishment code is a level 8 offense. The primary offense scores 74 points and the eight additional offenses score 296 points. Because all nine offenses involved sexual penetration, an additional 80 points was added for each offense, totaling 720 points for victim injury. Thus, although Mr. Holland had no prior offenses, the points on the scoresheet totaled 1090 points and the lowest permissible prison sentence was 796.5 months’ or 66.3 years’ incarceration for this collection of second-degree felonies. We agree with Judge Stringer that even if this score seems disproportionately high, that is not a valid basis for a downward departure sentence. This high score, however, creates a circumstance in which there is, merely as a matter of mathematics, a much larger range of discretion in which to apply a downward departure sentence than exists in the case of most first-time offenders facing convictions for second-degree felonies.

At sentencing, Mr. Holland argued that the trial court should consider a downward departure sentence because although the young boy could not legally consent to the sexual activity, factually he had been an initiator and willing participant in the illegal conduct. Mr. Holland relied on State v. Rife, 789 So.2d 288 (Fla.2001), which involved numerous acts of heterosexual conduct between an adult defendant and a seventeen-year-old female victim.

The trial court reviewed Rife and then expressed its opinion that the supreme court would not reach the same result in a case involving a twelve-year-old victim. Twice the trial court judge stated that the law did not give a judge discretion to impose a downward departure sentence under these circumstances. Ultimately, the trial judge stated: “I will sentence the defendant to the bottom of the guidelines based upon the evidence that I’ve heard. What I might have done and [what] I would do if things were different, it’s not for me to decide here.” The trial court sentenced Holland to 66.3 years’ incarceration, followed by lifetime probation.

The reasoning employed by the supreme court in Rife does not restrict its holding to eases involving victims who are approaching legal age. The relevant statute allows the trial court to use as a mitigating circumstance a finding that “the victim was an initiator, willing participant, aggressor, or provoker of the incident.” § 921.0016(4)(f), Fla. Stat. (2001-2003). Because the statute does not exempt cases in which the victim is a child, it applies in this case. Accordingly, the trial court had discretion to decide whether to impose a downward departure sentence.

Affirmed in part, reversed in part, and remanded.

WALLACE, J., Concurs.

STRINGER, J. Concurs specially with opinion.

STRINGER, Judge,

Concurring specially.

I concur in both the decision to affirm Mr. Holland’s convictions and in the decision to reverse Mr. Holland’s 66.3-year prison sentence. I write to emphasize that this court does not intend to minimize the seriousness of Mr. Holland’s offenses against the young victim in this case. I also suggest that the imposition of a downward departure sentence may be difficult in lewd and lascivious battery cases such as this.

I understand the temptation for the trial court to consider imposing a downward departure sentence in a case like Mr. Holland’s to ensure that the punishment is proportionate to the degree of the offense designated by the legislature. The offense of lewd and lascivious battery on a child between twelve and sixteen years of age is a second-degree felony, which is subject to a statutory maximum sentence of fifteen years in prison. §§ 775.082(3)(c), 800.04(4)(a), Fla. Stat. (2001-2003). However, under the Criminal Punishment Code, the imposition of victim injury points for penetration may result in a sentence that far exceeds the statutory maximum. When the lowest permissible sentence under the Code exceeds the statutory maximum, the trial eourt must impose the sentence required by the Code unless the court has a valid reason to impose a downward departure sentence. §§ 921.0024(2), .0026, Fla. Stat. (2001-2003).

In this case, although Mr. Holland committed a second-degree felony, he was subject to a sentence of between 66.3 years and life in prison unless the court departed downward. Mr. Holland’s minimum sentence exceeds the maximum sentence he would have faced had he committed many first-degree felonies, including murder. Thus, if a trial court were to impose a downward departure sentence in a case like Mr. Holland’s, it would ensure that the punishment was proportionate to the degree of the offense when compared to crimes that the legislature has designated as a higher degree. However, this is not a valid statutory basis for departure. See § 921.0026.

The statutory basis for a downward departure at issue in this case is that “[t]he victim was an initiator, willing participant, aggressor, or provoker of the incident.” § 921.0026(2)(f). I agree with the majority that the supreme court’s decision in State v. Rife, 789 So.2d 288 (Fla.2001), applying this statutory basis for downward departure is not restricted to victims who are approaching legal age. However, I seriously doubt that the twelve-year-old child victim could be construed as a “willing participant” in a “relationship” with a man twice his age. Mr. Holland solicited the child on the internet, engendered the child’s trust, and then took advantage of this trust by arranging for secret meetings with the child in motel rooms near the child’s home. Of course, whether the child’s participation in sexual acts during these secret meetings rendered him a “willing participant” in the ineident[s] is an issue for resolution by the trial court.

      . During the sentencing hearing, the trial court did not explain on the record how the 66.3 years of incarceration was to be allocated among the nine offenses. The written sentences for each of these second-degree felonies impose nine identical concurrent terms.

      . We note that since the supreme court's decision in Rife, the legislature has not amended the statute to prevent its application to minors or to children younger than some specified age.


text:
    Leroy BACH, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3851.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.
    Rehearing Denied April 26, 2007.

      Leroy Bach, Doral, pro se.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion for postconviction relief. He claims newly discovered evidence that his plea agreement to violation of probation was breached when the court later found him to be a sexual predator, several years after his sentencing for violation of probation. His original plea agreement, which resulted in probation, provided for designation as a sexual offender. However, when he violated the terms of his probation, the trial court was free to impose any sentence which it could have lawfully imposed before placing him on probation. See Aponte v. State, 810 So.2d 1008, 1010 (Fla. 4th DCA 2002) (“The events which bring about a revocation open a new chapter in which the court ought to be able to mete out any punishment within the limits prescribed for the crime.”). Appellant’s original crimes occurred prior to October 1, 1995, and section 775.21, et. seq., Florida Statutes (1993), required his designation as a sexual predator based on his qualifying convictions, without the necessity of an evidentiary hearing. See § 775.23, Fla. Stat. (1993). Therefore, we agree with the trial court that he has not alleged any legally sufficient ground for relief.

In a motion for rehearing in the trial court, he also raises a claim of affirmative misadvice. This claim cannot be entertained for the first time on rehearing. Even if we thought that he could state such a claim, it would be barred as successive if it were treated as a new motion. See Reid v. State, 745 So.2d 363 (Fla. 4th DCA 1999).

STEVENSON, C.J., STONE and WARNER, JJ., concur.


author: ORFINGER, J.

text:
    James T. MARSHALL, Appellant/Cross-Appellee, v. Betty Lou MARSHALL, Appellee/Cross-Appellant.
    No. 5D06-967.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2007.
    Rehearing Denied April 3, 2007.

      Elise A. Singer, Melbourne, for Appellant/Cross Appellee.
    Judith E. Atkin, Melbourne, for Appel-lee/Cross-Appellant.
   ORFINGER, J.

James T. Marshall (the “former husband”) appeals a final judgment dissolving his marriage to Betty Lou Marshall (the “former wife”). The former husband contends that the trial court erred in awarding $1 and exclusive use and possession of the marital home as permanent alimony to the former wife. Further, he claims that although the court found that he was totally disabled and relies on his retirement pay as his sole income, it ordered that he pay the former wife one-half of his retirement income, awarded his one-half share of the former wife’s 401k account as lump sum alimony, and required him to maintain a life insurance policy, which named his adult children as beneficiaries. Because there is no trial transcript, our review is limited to errors that may appear on the face of the amended final judgment. See Mayfield v. Mayfield, 929 So.2d 671, 672 (Fla. 5th DCA 2006). In the absence of an adequate transcript on appeal, a judgment that is not fundamentally erroneous must be affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

A trial court has considerable discretion in determining an award of alimony. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Ondrejack v. Ondrejack, 839 So.2d 867 (Fla. 4th DCA 2003). Permanent alimony is appropriate where the requesting spouse cannot support herself in accordance with the lifestyle of the marriage. See Bucknam v. Shelton, 849 So.2d 1204, 1206 (Fla. 5th DCA 2003). However, before a court can determine the proper amount of an award of alimony, the court must first determine the actual need and the ability to pay. Beck v. Beck, 852 So.2d 934 (Fla. 2d DCA 2003).

Based on the facts found by the trial court, we conclude that the court did not abuse its discretion in its award of $1 permanent periodic alimony to the former wife. This amount accommodated the former husband’s claim of disability at the time of trial but leaves open the possibility of increasing the former wife’s alimony in the event that the former husband’s ability to pay changes. See Ellis v. Ellis, 699 So.2d 280 (Fla. 5th DCA 1997) (affirming nominal award of alimony), disapproved on other grounds by Acker v. Acker, 904 So.2d 384 (Fla.2005).

In addition, as permanent alimony, the court granted the former wife exclusive possession of the marital home, formerly held as tenants by the entirety, until her death or remarriage. This was error. In Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980), the supreme court held that an award of exclusive possession of the marital home is proper where such award is directly connected to the obligation to pay support or is temporarily necessary to prevent reduction in the value of the subject property. However, the grant of exclusive possession of the marital home must serve some “special purpose.” The critical question is whether the award is equitable and just given the nature of the cause. Id.; Arze v. Sadough-Arze, 789 So.2d 1141 (Fla. 4th DCA 2001); Todd v. Todd, 734 So.2d 537 (Fla. 1st DCA 1999).

Here, the parties have no minor children. The parties’ incomes are relatively the same, and, thus, there is no great disparity in the financial circumstances of the parties. The former husband is disabled while the former wife is able bodied, has stable income and ready employability, and they have very few assets. It appears that the effect of awarding the marital home to the former wife until her death or remarriage was to force the husband from his modest economic status to a state of relative impoverishment. Based on these facts, this Court cannot sustain the trial court’s award of exclusive possession of the home to the former wife until her death or remarriage. These circumstances mandate a partition sale of the marital home. See Boynton v. Boynton, 636 So.2d 53, 55 (Fla. 2d DCA 1994).

Moreover, as the former husband points out, the parties entered into a temporary property/asset settlement agreement, which was approved by the trial court. In that agreement, the parties agreed that “they [would] sell the home and divide the profits from the sale equally.” Yet, in its final judgment, the court awarded the former wife exclusive use and possession of the marital home until she dies or remarries, contrary to the terms of the agreement. The trial court offered no reason for its failure to observe the parties’ agreement regarding the marital home. Moreover, no request to set aside the agreement appears in the record, and the court failed to address the impact of the agreement in the final judgment.

Lastly, the trial court erred in distributing the marital assets unequally, ultimately favoring the former wife. Section 61.075(1), Florida Statutes (2006), requires the trial court to distribute marital assets and liabilities between the parties beginning with the premise that an equal distribution should occur. However, where a justification is shown, a trial court may make an unequal distribution. In making an unequal distribution “a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be ‘shortchanged.’ ” Canakaris, 382 So.2d at 1204.

Under the trial court’s equitable distribution scheme, the former wife was awarded a majority of the assets. Yet, apart from finding that the former wife was living at poverty level (an interesting finding in light of its later finding that the former wife had given the parties’ adult daughter $13,800 in marital funds without the former husband’s knowledge), the final judgment fails to identify that factor, or any other factor as a justification for an unequal distribution. A court must provide a legally sufficient factual basis for its unequal distribution of marital assets. Carr v. Carr, 779 So.2d 311, 312 (Fla. 2d DCA 1999); Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996). We conclude that the trial court erred by awarding the former wife her entire 401k account as lump sum alimony, exclusive possession of the marital home until her death or remarriage as permanent alimony, and one-half of the former husband’s retirement income as well as survivor benefits, without making a specific findings of fact to justify the unequal distribution.

The parties were married for thirty-seven years and their children were adults at the time of the dissolution. The former wife has a net monthly income of $1,247 and a 401K plan, which had a present market value of $6,968.85. The former husband earns $2,459 per month, gross, from his civil service retirement pension. The trial court awarded the former wife one-half of this pension. Based on this distribution, the former wife’s monthly income is $2,476.50, while the former husband has a $1,229.50 gross income per month on which to live. The former husband’s income does not include his obligation to pay one-half of the marital home’s expenses while the former wife resides there. The former wife was also given the former husband’s one-half interest in her 401k plan and exclusive possession of the marital home (valued at $208,000 with a $15,450 mortgage) until her death or remarriage.

“[W]here the husband’s income is nearly exhausted on obligations imposed by the final judgment, leaving him with practically no money to support himself, reasonable persons could not differ as to the impropriety of the actions taken by the trial court.” Gentile v. Gentile, 565 So.2d 820, 822 (Fla. 4th DCA 1990), disapproved on other grounds by Acker. The cumulative effect of the equitable distribution plan renders the trial court’s judgment an abuse of discretion. See, e.g., Radziwon v. Radziwon, 710 So.2d 748, 748—49 (Fla. 4th DCA 1998) (holding that trial court abused its discretion where former husband was left with only $709 per month to support himself after paying alimony while former wife would have $2,128.85 available for her needs).

The final judgment of dissolution is reversed in part and affirmed in part. Specifically, we affirm the $1 permanent alimony award and the dissolution of the parties’ marriage, but reverse the remainder of the final judgment.

REVERSED IN PART; AFFIRMED IN PART AND REMANDED.

LAWSON and EVANDER, JJ., concur.

      . It appears that that former husband attempted to reconstruct the record as allowed by Florida Rule of Appellate Procedure 9.200(b)(4). However, the former wife objected to the proposed statement of facts. The trial court was unable to settle and approve a statement of the evidence.

      .In her Answer Brief, the former wife claims that by stipulation of the parties, the trial court divided the former husband’s civil service retirement benefits. Thus, she contends that he cannot now complain about that distribution. A review of the record does not support this contention. The Temporary Property/Asset Settlement Agreement provides that the intangible assets, including the pension plans, would be decided by the court or the parties and their attorneys. The former wife's second amended pretrial statement, which was filed two days before the final hearing, stated that one of the issues involved the intangible assets and requested that the former husband’s civil service retirement benefits be divided retroactively to the date of filing with the former wife receiving survivor benefits.

      . From the former husband's financial affidavit, it appears that his net monthly income is $1,734.87. (The 2004 retirement benefits booklet calculates his net income as $1,802.27). Thus, based on the court’s distribution plan he would be required to live off of $867.43, while the former’s wife monthly net income would be $2,114.43.

      . The trial court also erred in requiring that the former husband keep his adult children as the beneficiaries under his life insurance policy. Absent a written agreement, a court has no jurisdiction to render orders requiring a parent to name adult children as the beneficiaries of life insurance policies. Instead, a parent can only be required to maintain life insurance on his own life for the benefit of his minor children. Eagan v. Eagan, 392 So.2d 988, 989-90 (Fla. 5th DCA 1981); Bosem v. Bosem, 279 So.2d 863, 865-66 (Fla.1973).


author: SHAHOOD, J.

text:
    WYNN DRYWALL, INC., a/k/a Larry Wynn Drywall, Inc., Appellant, v. AEQUICAP PROGRAM ADMINISTRATORS, INC., f/k/a Professional Insurance Underwriters, Inc., Appellee.
    No. 4D06-4171.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.

      William H. Andrews and Colin A. Thak-kar of Coffman, Coleman, Andrews & Gro-gan, P.A., Jacksonville, for appellant.
    Michael A. Goldstein, Fort Lauderdale, for appellee.
   SHAHOOD, J.

Wynn Drywall, Inc. (“Wynn Drywall”) appeals the trial court’s non-final order denying its motion to transfer venue for forum non conveniens under section 47.122, Florida Statutes (2006). We reverse and remand with instruction to the trial court to transfer venue to the Fourth Judicial Circuit in Duval County.

Aequicap Program Administrators, Inc. (“Aequicap”) filed a complaint against Wynn Drywall in the Seventeenth Judicial Circuit in Broward County. The complaint sought recovery of money allegedly owed as a premium for workers’ compensation insurance coverage for eighteen contractors to whom Wynn Drywall subcontracted work. Wynn Drywall’s position was that each of the subcontractors had a valid exemption for the policy period. Wynn Drywall filed a motion to transfer venue to the Fourth Judicial Circuit in Duval County based on forum non conve-niens. The motion was based on Wynn Drywall’s assertion that all of the fact witnesses in the suit are located in Duval County or do business there, and that all of the records applicable to the suit are also located there.

Wynn Drywall submitted the affidavit of its president, Wanda Wynn, in support of the motion to transfer venue. Wanda Wynn stated that Wynn Drywall has its principal place of business in Duval County and has no offices in Broward County. The affidavit explained that Wynn Drywall entered into the insurance policy at issue through Cecil W. Powell & Co., an agent whose principal place of business is in Duval County. Wanda Wynn also stated that Aequicap subcontracted Ken Nosftz of National Risk Services in Jacksonville to audit Wynn Drywall’s records to determine if all the insurance premiums were properly paid. The affidavit included a list of the names and addresses of the subcontractors used by Wynn Drywall during the policy of insurance at issue. It showed that eleven of these contractors are in Duval County, and the remaining seven are located nearby.

The trial court conducted a hearing on the matter and denied Wynn Drywall’s motion to transfer venue.

Section 47.122, Florida Statutes (2006), provides: “For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.”

The standard of review of a trial court’s denial of a motion for change of venue is' abuse of discretion. Morrill v. Lytle, 893 So.2d 671, 673 (Fla. 1st DCA 2005). “A plaintiffs forum selection is presumptively correct. The burden is on the defendant to establish before the trial court that either substantial inconvenience or undue expense requires a change for the convenience of the parties or witnesses.” Safety Nat’l Cas. Corp. v. Fla. Mun. Ins. Trust, 818 So.2d 612, 613 (Fla. 5th DCA 2002). “[W]hen a forum non conveniens challenge is raised, it is incumbent upon the parties to submit affidavits or other evidence that will shed necessary light on the issue of the convenience of the parties and witnesses and the interest of justice.” Eggers v. Eggers, 776 So.2d 1096, 1098 (Fla. 5th DCA 2001). “The most important consideration of the three statutory factors in section 47.122 is the convenience of the witnesses.” Brown & Williamson Tobacco Corp. v. Young, 690 So.2d 1377,1379 (Fla. 1st DCA 1997). The court must know who the witnesses are and the significance of their testimony in order to consider the convenience of the witnesses. Id. (citing Hu v. Crockett, 426 So.2d 1275, 1279 (Fla. 1st DCA 1983)).

Aequicap relies on Gale Porter, Temporary Help, Inc. v. Hartford Fire Insurance Co., 633 So.2d 64 (Fla. 4th DCA 1994). We distinguish Porter from this case. In Porter, the appellant was sued to recover workers’ compensation insurance premiums. Id. at 64. The trial court denied appellant’s motion to transfer venue from Broward County to Hillsborough County. Id. This court devoted just one sentence to rejecting appellant’s forum non conveniens argument as without merit. Id. This court then proceeded to examine whether venue was proper under section 47.051 rather than forum non conveniens under section 47.122. Although Porter was a suit for payment of workers’ compensation insurance premiums, it is not helpful in analyzing this case due to its brief treatment of the forum non conveniens argument.

We stated in Porter that “there is very little of substance in the record to support either parties’ contentions.” Id. at 65. In contrast, in this case Wynn Drywall presented an affidavit identifying the witnesses who would testify regarding the insurance, policy at issue, specifically the insurance agent from whom it purchased the insurance, the auditor who conducted the audit in the case, and the subcontractors for whose coverage the premiums are allegedly due and owing. All of these witnesses are located in or near Duval County.

Aequicap presented no affidavit or other evidence in opposition to the motion. We decline to consider the exhibits attached to Aequicap’s answer brief that are not found in the record and the factual assertions based on those exhibits. See Dorsett v. Dorsett, 902 So.2d 947, 950 n. 2 (Fla. 4th DCA 2005); Thornber v. City of Ft. Walton Beach, 534 So.2d 754, 755 (Fla. 1st DCA 1988). Although Aequicap argues that many of its witnesses are located in Broward County, there is no evidentiary support in the record specifying the identity of these witnesses and the .substance of their proposed testimony that the trial court could have used to evaluate this assertion. We find that Wynn Drywall has demonstrated that Broward County is a forum non conveniens.

Accordingly, we reverse and remand with instructions to transfer the action to the Fourth Judicial Circuit in Duval County.

Reversed and Remanded.

STEVENSON, C.J., and KLEIN, J„ concur.


text:
    Joseph Francis MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3380.
    District Court of Appeal of Florida, First District.
    March 21, 2007.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order revoking his probation. Following an evi-dentiary hearing, the trial court found that appellant had violated condition 7 of his probation by not “work[ing] diligently at a lawful occupation,” and condition 18 by “viewing], own[ing] or possess[ing] any obscene, pornographic, or sexually explicit ... material.” Accordingly, the trial court revoked appellant’s probation and sentenced him to ten years in prison. We have reviewed the photographs that supported the trial court’s finding that appellant had violated condition 18 and conclude that no reasonable person would find those photographs to be “obscene, pornographic, or sexually explicit” as those terms are commonly understood. Accordingly, we conclude, further, that the trial court abused its discretion when it made the contrary finding. See, e.g., State v. Carter, 835 So.2d 259, 262 (Fla.2002) (the standard of review on appeal of an order revoking probation is abuse of discretion) (citations omitted); Perez v. State, 919 So.2d 347, 363 (Fla.2005) (no abuse of discretion will be found unless the trial court’s ruling is arbitrary, fanciful or unreasonable, and no reasonable person would reach the conclusion reached by the trial court) (citation omitted). It is not clear from the record whether the trial court would have revoked appellant’s probation and imposed the same sentence based solely on a violation of condition 7. Accordingly, we reverse and remand for reconsideration of the revocation and sentencing decisions. See Taylor v. State, 734 So.2d 1171, 1172-73 (Fla. 1st DCA 1999).

REVERSED and REMANDED, with directions.

ALLEN, WEBSTER, and ROBERTS, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Jorge LLERENA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3140.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.

      Jorge Llerena, in proper person.
    Bill McCollum, Attorney General, Orlando, for appellee.
    Before GERSTEN, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Jorge Llerena (“Llere-na”), appeals the trial court’s order denying his Motion to Correct Jail Credit Award and Motion to Clarify and Enforce Sentence. In addition to appealing this order, Llerena petitions this court for “emergency relief.” We treat Llerena’s request for “emergency relief’ as a request for an expedited appeal and grant the request. As to the order on appeal, we affirm in part, reverse in part, and remand with instructions.

Based upon the limited record provided, it appears that Llerena was arrested and charged with various offenses under the following case numbers:

91-29927: Arrested on August 21, 1991; released on August 22, 1991; and rearrested on February 27,1992.
92-5367: Arrested on February 25, 1992.
92-7094: Arrested on February 25, 1992.
92-7194: Arrested on February 26, 1992.
92-7229: Arrested on February 27, 1992.
92-7732: Arrested on February 27, 1992.
92-25131: Arrested on July 18,1992.

Llerena remained in custody from February 25,1992 until May 21, 1993, at which time Llerena entered guilty pleas to the charges in each case and he was sentenced. All sentences were ordered by the trial court to run concurrent. When Llerena’s custody was transferred from the Miami-Dade Department of Corrections to the Florida Department of Corrections to begin serving his prison sentences, Llerena was given credit for the time he served on each case prior to his plea, as follows:

(1) 91-29927 — 452 days
(2) 92-5367 — 452 days
(3) 92-7094 — 452 days
(4) 92-7194 — 451 days
(5) 92-7229 — 450 days
(6) 92-7732 — 450 days
(7) 92-25131 — 308 days

Llerena received thirty year sentences in each case except for case number 91—29927, in which he was sentenced to five years. Llerena claims that he has completed his sentences in the first six cases, wherein he was awarded 450 to 452 days credit for time served. Llerena, therefore, argues that because the trial court ordered that his sentences run concurrent to each other, he is entitled to immediate release. The Florida Department of Corrections, however, claims that because Llerena was not taken into custody in case number 92—25131 until July 18, 1992, he served 142 days less on that case prior to his plea, and as a result, he is not due to be released until October 21, 2007.

We conclude that both the local and the state departments of corrections have correctly calculated the credit Llere-na is entitled to receive for the time he served in custody prior to his pleas. The issue which must be resolved is whether in case number 92—25131, when the trial court ordered that the sentence run concurrent with the other sentences imposed, it additionally ordered that the sentence be coterminous with the other sentences imposed. Concurrent sentences do not necessarily begin at the same time, and unless they are ordered to be coterminous, they will expire on different dates. See Knight v. State, 832 So.2d 172, 172 (Fla. 3d DCA 2002)(affirming denial of motion for post-conviction relief as “plea colloquy contains no indication that the sentence was to be coterminous with any other sentence”).

We, therefore, affirm the trial court’s order to the extent that it addresses Llere-na’s Motion to Correct Jail Credit Award; reverse as it relates to Llerena’s Motion to Clarify and Enforce Sentence; and remand with instructions to the trial court to examine the plea transcript, clerk’s notes in the court file, and the judgment and sentence in case number 92—25131, and to determine whether the sentence was ordered to be coterminous with the other sentences imposed. The trial court’s findings should be explained in its order either granting or denying relief.

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


author: ALTENBERND, Judge.

text:
    Jolanda W. JULIUS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1170.
    District Court of Appeal of Florida, Second District.
    March 23, 2007.

      James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Jolanda W. Julius appeals a final judgment convicting her of two counts of child abuse pursuant to section 827.03(1), Florida Statutes (2004). The two counts arose out of wounds Ms. Julius inflicted on two of her children. Ms. Julius does not challenge the conviction for count 1, which involved her fourteen-year-old son. However, she argues that the evidence was insufficient to support the conviction for count 2, which involved her eight-year-old daughter. She relies upon a quote from our opinion in King v. State, 903 So.2d 954, 955 (Fla. 2d DCA 2005), review denied, 908 So.2d 1058 (Fla.2005), to argue that she could not be convicted of felony child abuse because she inflicted only “significant bruises or welts” upon the younger child. We affirm the conviction. We write to distinguish this case from King.

On December 21, 2004, at approximately 7 p.m., a woman in a car noticed two children walking down the road. She was on her way to a nearby hospital. She stopped to question the children and ultimately brought them with her to the hospital, where she turned them over to law enforcement. Apparently the older child received some medical treatment for his injuries, but the younger child did not require any significant treatment.

The children reported that they were running away after having received a beating by their mother. According to the children, the altercation began when their mother was in a hurry to get to work on time and the children were unable to find her shoe. The children testified that the mother beat them with the wooden leg of a table, which had a metal screw at the top to connect it to the table top. Apparently, the family had recently moved and the table had not been completely reassembled. The younger child had bruises on her arms and wrists from this beating. She also had bruises around her neck, which she testified were the result of another recent incident in which her mother tried to choke her. There was evidence that the choking occurred within the time frame alleged in the information. The older boy had similar, albeit somewhat more severe, injuries.

As a result of these events, the State filed an information charging Ms. Julius with aggravated child abuse, a first-degree felony, see § 827.03(2), Fla. Stat. (2004), for the injuries to her son, and child abuse, a third-degree felony, see § 827.03(1), for the injuries to her daughter. The two counts were tried together and both children testified. Ms. Julius did not testify, but her earlier statements to the police were introduced into evidence. In those statements, she acknowledged that she had been unable to find her shoe and some money on the morning of the incident, but she denied punishing the children or hitting them with the table leg. She claimed that the worst implement she ever used in disciplining the children was a yardstick.

On count 1, the jury convicted Ms. Julius of the lesser-included offense of child abuse of her son. On count 2, the jury convicted Ms. Julius, as charged, to child abuse of her daughter. She was sentenced to two concurrent terms of three years’ imprisonment.

Ms. Julius argues that she was entitled to a judgment of acquittal on count 2. She argues that the injuries to her daughter were not sufficiently severe to support a conviction for child abuse. In effect, Ms. Julius asserts a parental privilege to inflict corporal punishment as a full legal defense to this count. To support her argument, she quotes the following portion of King, 903 So.2d at 955: “[S]pankings that result in ‘significant bruises or welts’ do not rise to the level of felony child abuse, which requires ‘more serious beatings that do not result in permanent disability or permanent disfigurement.’ See State v. McDonald, 785 So.2d 640, 646 (Fla. 2d DCA 2001).”

In King, this court reviewed the child abuse conviction of a school administrator who had paddled a child in conformity with an established school disciplinary policy. The parents of each child at the school had been informed of and consented to that policy. According to our opinion, the paddling left “significant welts and bruises on [the child’s] buttocks as a result of the paddling, but [the injuries] did not require medical treatment.” Id. at 955. We classified the paddling as “corporal punishment” and held, “[T]he spanking did not constitute felony child abuse as a matter of

law.” Id. at 955, 956; see also State v. Figarola, 788 So.2d 1109 (Fla. 3d DCA 2001) (holding that father’s act of twice striking son in the face, splitting his lip, and forcing child to eat food as punishment for child’s failure to eat the dinner father prepared and served was not felony child abuse as a matter of law).

This case is obviously distinguishable on its facts from King and Figarola. Both King and Figarola involved cases in which the defendant could legitimately argue that the questioned conduct was “discipline.” In King, the spanking was an act of discipline performed pursuant to a school conduct policy. The striking of the son in Figarola was also an attempt by a parent to address the perceived misconduct of a child who refused to eat. As we stated in McDonald, “we recognize that drawing a line between prohibited child abuse and permissible corporal punishment, administered by parents who believe in this form of discipline, is not an easy task.” 785 So.2d at 647.

This case, however, does not legitimately involve the “spare the rod, spoil the child” debate. There is no evidence that Ms. Julius used a wooden table leg with a protruding screw as a legitimate form of discipline to punish some specific misbehavior of the two children. While using such a weapon on the arms and legs of these children might well have been child abuse even if used as a legitimate form of discipline, we do not need to decide that question because the jury in this case was free to decide that Ms. Julius was beating her children as an outlet for her own frustration over the loss of her shoe and without any disciplinary purpose. The same is true for the bruises on the neck of this child. Nothing in this record suggests that the choking was thought by Ms. Julius to be an act of discipline.

Indeed, contrary to Ms. Julius’s argument, the State might have been able to proceed on a charge of aggravated child abuse for the injuries to both the son and daughter. Under section 827.03(2), aggravated child abuse occurs when a person “maliciously punishes” a child. Based upon amendments to this statute in 2003, “maliciously” is defined as

wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustifiable pain or injury.

§ 827.03(4).

The evidence in this case would have permitted a jury to find that no reasonable parent would have attacked their children with a table leg for any “valid reason” and that the primary purpose of the act was to cause the children unjustifiable pain or injury. As a result, the trial court correctly denied the motion for judgment of acquittal. The judgment, based upon the jury verdict for two counts of child abuse, is affirmed.

Affirmed.

CASANUEVA and VILLANTI, JJ., Concur.

      . This is not the first time this argument — that pursuant to King felony child abuse requires "something more” than "significant welts or bruises” — has been made. See S.J.C. v. State, 906 So.2d 1115, 1117 n. 2 (Fla. 2d DCA 2005).

      . Ch.2003-130, § 1, Laws of Fla.


author: KLEIN, J.

text:
    STATE of Florida, Appellant, v. Jeffrey Scott RATNER, Appellee.
    No. 4D04-2513.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    James L. Eisenberg and Kai Li Aloe Fouts of Eisenberg & Fouts, P.A., West Palm Beach, for appellee.
   KLEIN, J.

This non-final appeal has been remanded by the Florida Supreme Court. State v. Ratner, 948 So.2d 700 (Fla.2007). The issue presented involves the Confrontation Clause of the Sixth Amendment as interpreted by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

This case arises out of a domestic violence incident in which the wife refused to testify and involves her statement to a police officer. Immediately after an alleged battery, the wife got in her car and drove to a nearby police station, which was only minutes away. The testimony of the officer, which the state seeks to admit in evidence, includes the following:

A. I was in the parking lot sitting in my police car. A car pulled into the parking lot. A lady got out of her car. I saw her walking toward me. It was apparent that she had either been battered or had an accident. Her eyes were swollen. She was bleeding from the left eyebrow, and she was crying. I stepped out of my vehicle and my exact words were, my goodness what happened to you?

Q. What was her reply?
A. Her reply was, I want to report that my husband beat me up, punched me, knocked me down and kicked me in the face.

The officer further testified that he immediately took her into the police station and instructed the dispatcher to call the paramedics to take her to the hospital.

The state filed a motion in limine, seeking to admit the wife’s statement implicating her husband, as an excited utterance. The county court denied the motion based on Crawford and certified the question as one of great importance:

SHOULD THE DECISION OF THE UNITED STATES SUPREME COURT IN CRAWFORD V. WASHINGTON, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) BE INTERPRETED TO PRECLUDE THE ADMISSION OF A STATEMENT WHICH WOULD OTHERWISE BE ADMISSIBLE UNDER THE EXCITED UTTERANCE EXCEPTION TO HEARSAY?

Whether we review a certified question is discretionary under rule 9.030(b)(4)(B). We are exercising our discretion not to answer the certified question, because our review of the record indicates that, despite the wording of the certified question, the trial court has not yet found if the statement was admissible as an excited utterance. If the wife’s statement to the officer does not qualify as an excited utterance, it would be inadmissible, and there will be no need to address whether Crawford applies.

In order for the statement to the officer to be admissible as an excited utterance, the state would have to demonstrate that the wife did not have time for reflective thought between the beating and the statement to the officer. Stoll v. State, 762 So.2d 870 (Fla.2000). There is evidence that, after she was battered, the wife gathered up her small child and dog, put them both in the car, and then drove to the police station. On this record, the state has not carried its burden of demonstrating that there was no time for reflective thought.

Trial judges, before certifying questions of great public importance to be answered by appellate courts, should resolve any preliminary issues which could make the question moot, such as the excited utterance issue in this case.

We accordingly transfer the appeal to circuit court.

SHAHOOD and POLEN, JJ., concur.


text:
    The STATE of Florida, DEPARTMENT OF REVENUE, on behalf of Linda Ford BRINSON, Appellant, v. Clinnie BRINSON, III, Appellee.
    No. 3D05-1080.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.
    Clinnie Brinson, in proper person.
    Bill McCollum, Attorney General, Orlando, and William H. Branch, Assistant Attorney General, for appellant.
    Before GERSTEN, RAMIREZ, and SUAREZ, JJ.
   PER CURIAM.

The Department of Revenue (the “DOR”), appeals the trial court’s order granting Clinnie Brinson’s (“the father”), petition to vacate final judgment. We reverse.

In 1992, the court entered a final judgment of .dissolution of marriage for Linda Brinson, (the “mother”) and the father. The court awarded the mother and father shared parental responsibility of their one minor child, and ordered the father to pay child support. The mother represented to the father that he was the biological father of the child, and the father had no reason to believe otherwise.

In 1995, the mother told the father that he was not the biological father of the child. Thereafter, the father, through a DNA test, confirmed that he was not the child’s father. The father then filed a petition to vacate final judgment, alleging that the mother committed fraud upon him and the court. The father requested that the court vacate the paternity and child support provisions of the dissolution final judgment.

The father was unable to find the mother, and therefore unable to personally serve her with a copy of the petition to vacate final judgment. After DOR accepted service on behalf of the mother, the father filed a motion for summary judgment. The trial court granted the summary judgment, and vacated the paternity and child support provisions of the dissolution judgment.

DOR appeals contending that the trial court erred in granting the final judgment because the father’s petition alleges intrinsic fraud, which is time-barred under Florida Rule of Civil Procedure 1.540(b). Under Florida Rule of Civil Procedure 1.540(b), a party may seek relief from judgment on grounds of intrinsic fraud within one year of entry of the judgment. The father, however, submits that the mother’s misrepresentations were extrinsic fraud, and thereby the one-year statute of limitations does not bar his claim. We disagree with the father.

In Parker v. Parker, 950 So.2d 388 (Fla. 2007), the Florida Supreme Court recently addressed the issue of whether a wife’s misrepresentation of paternity in a dissolution of marriage proceeding is extrinsic or intrinsic fraud. The Supreme Court found that this type of misconduct is intrinsic fraud, and therefore, relief must be sought within one year. Parker, 950 So.2d at 389. The Court explained its rationale by detailing the distinction between extrinsic and intrinsic fraud.

The Court defined extrinsic fraud as conduct which is collateral to the issues tried in a case, and explained that extrinsic fraud occurs where a defendant has somehow been prevented from participating in his or her case. Parker, 950 So.2d at 391. The Court further explained that intrinsic fraud applies to fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried. Specifically, the Court found a judgment obtained upon false testimony, where the parties were heard, is considered a matter tried or one that could have been tried, and is therefore intrinsic fraud. Parker, 950 So.2d at 391.

The Court also addressed the policy considerations behind this result. The Court found that public policy favors protecting the best interests of the child over protecting the interests of one parent defrauded by the other parent in the midst of dissolution proceedings. Parker, 950 So.2d at 393.

We note, however, that last term, the Legislature addressed a similar issue called the “paternity fraud law.” See § 742.18, Fla. Stat. (2006). This new law gives men the right to stop making child support payments if they gain newly discovered evidence that the child is not theirs. The law requires the man to file a court petition within ninety days of obtaining a paternity test. The father in this case may be able to seek relief under this new law.

While we sympathize with the father in this case, especially because he has no contact or a current relationship with the minor child, we are bound by the Florida Supreme Court’s Parker decision. Accordingly, we reverse the trial court’s order as time-barred under Parker.

Reversed.


text:
    Antoine MUSEAU, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-198.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Antoine Museau, Clermont, pro se.
    No appearance required for appellee.
   PER CURIAM.

Antoine Museau appeals the denial of his rule 3.800(a) motion to correct illegal sentence. We affirm all points, but note that, within his first issue, he claims a discrepancy between the written sentence and oral pronouncement. This court has held that the claim is not cognizable through a rule 3.800(a) motion. See Campbell v. State, 718 So.2d 886 (Fla. 4th DCA 1998). Museau’s motion was not sworn.

Consequently, we affirm the denial of relief, but without prejudice to Museau seeking relief pursuant to rule 3.850, if time allows. See Moreland v. State, 944 So.2d 485 (Fla. 4th DCA 2006); Wilbon v. State, 944 So.2d 397 (Fla. 4th DCA 2006); Renaud v. State, 901 So.2d 1032 (Fla. 4th DCA 2005), review dismissed, 926 So.2d 1241 (Fla.2006); see also Covell v. State, 891 So.2d 1132 (Fla. 4th DCA 2005). As in Wilbon, we certify conflict with Fitzpatrick v. State, 863 So.2d 462 (Fla. 1st DCA 2004), and Berthiaume v. State, 864 So.2d 1257 (Fla. 5th DCA 2004). See 944 So.2d at 397 (on rehearing).

STEVENSON, C.J., GROSS and TAYLOR, JJ., concur.


author: WOLF, J.

text:
    Vincent ROEBUCK, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2882.
    District Court of Appeal of Florida, First District.
    March 30, 2007.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Lylen Rivera and Betty J. Chera-mie, Assistant Attorneys General, Tallahassee, for Appellee.
   WOLF, J.

Following a jury trial, appellant, Vincent Roebuck, was convicted of lewd and lascivious battery with a person 12 years of age or older but less than 16 years of age. Appellant raises five issues on appeal. We affirm as to all issues. However, in affirming as to appellant’s first issue, we certify conflict with Cliburn v. State, 710 So.2d 669 (Fla. 2d DCA 1998), and Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988), to the extent these cases create a false reporting exception to section 90.610, Florida Statutes (2005).

At appellant’s trial, the victim, A.B., testified that appellant, a friend of the family, stopped by her home one afternoon while she was alone and forced her to engage in sexual intercourse. Appellant attempted unsuccessfully to impeach A.B. regarding a prior incident of false reporting.

In proffer, A.B. acknowledged that she had previously falsely accused her brother of physical abuse several years prior to the instant case. A.B. explained that she had fallen asleep on a couch while ironing and hit the cord, causing the iron to fall on her face. She stated that she was questioned regarding the incident by school officials, and that, when she responded to these questions with the truth, no one believed her story. A.B. further testified that, after three hours of continued questioning, she lied to school officials and told them that her brother had burned her face with the iron. She explained that her brother spent six months in a juvenile detention facility as a result of this report. Following the proffer, the trial court ruled to exclude the evidence as irrelevant and improper impeachment evidence.

In his first issue, appellant asserts the trial court erred in preventing him from introducing evidence that A.B. had previously falsely accused her brother of physical abuse. Section 90.610, Florida Statutes, provides that a party may attack the credibility of any witness through the presentation of evidence establishing that a witness has been (1) convicted of a crime punishable in excess of one year’s imprisonment, or (2) convicted of a crime of dishonesty or false statement. Thus, as a general rule, credibility may not be attacked by proof that a witness committed specific acts of misconduct which did not end in a criminal conviction. See Jackson v. State, 545 So.2d 260, 264 (Fla.1989).

However, the Second District has recognized an exception to section 90.610 where a witness has previously falsely reported an incident to authorities even though the witness has never been convicted of the false report. The exception was first noted in Jaggers, 536 So.2d at 321. But see Williams v. State, 386 So.2d 25, 26 (Fla. 2d DCA 1980) (reversing based on trial court’s failure to allow evidence of a prior false report where credibility of the witness was crucial to the defense, without expressly acknowledging that such a ruling was based on an exception to section 90.610).

In Jaggers, the defendant sought to elicit testimony regarding an alleged victim’s previous incident of false reporting in which the child accused her father of sexual abuse and later recanted that statement. In Jaggers, the Second District wrote:

From the state’s argument at trial in support of its objection to that cross-examination testimony, it appears that the state concedes that the witness did make such a charge against her father and then admit to its falsity. The trial court sustained the state’s objection and refused to allow the attempted impeachment of that critical witness by the proffered testimony. That restriction on cross-examination was both erroneous and highly prejudicial. The state succeeded in persuading the trial court to restrict appellant’s cross-examination on the basis of the very broad general principle of law that the credibility of a witness may not be impeached by proof that the witness has committed specific acts of misconduct.... However, for every broad general principle of law, there seems to be an exception applicable to particular circumstances. Section 90.405(2), Florida Statutes (1985) allows proof of specific incidents of conduct where that evidence is offered to prove a particular trait of character. In this case, that trait of character was that the witness may be inclined to lie about sexual incidents and charge people with those acts without justification.
... Evidence that is relevant to the possible bias, prejudice, motive, intent or corruptness of a witness is nearly always not only admissible, but necessary, where the jury must know of any improper motives of a prosecuting witness in determining that witness’ credibility.

Jaggers, 536 So.2d at 327 (emphasis added) (citations omitted). The Second District next addressed the exception in Clibum, 710 So.2d at 670. In Clibum, the court wrote:

[I]n Jaggers v. State, 536 So.2d 321, 327 (Fla. 2d DCA 1988), where the witness previously had made a false allegation of sexual abuse, we noted that evidence relevant to a prosecuting witness’s possible bias or corruptness is admissible. When assessing a key witness’s credibility, the jury must know about any improper motives. Id.

This court has never expressly adopted the Second District’s precedent in this regard. See Baker v. State, 804 So.2d 564 (Fla. 1st DCA 2002) (acknowledging the Second District’s exception while declining to expressly adopt the exception where any error would have been harmless in light of defendant’s confession); Reeves v. State, 862 So.2d 60 (Fla. 1st DCA 2003) (declining to rule on applicability of the Second District’s false reporting exception because the witness in question had not admitted that her previous accusation was false); State v. Taylor, 928 So.2d 473 (Fla. 1st DCA 2006) (again declining to rule on the Second District’s false reporting exception where certiorari review did not require the same standard of review as the direct appeal of a conviction). However, for the following reasons, we respectfully decline to adopt the exception and certify conflict with the line of cases adopting a false reporting exception to section 90.610, Florida Statutes.

First, the Legislature adopted the express wording of section 90.610, Florida Statutes, in an effort to bar all character impeachment based on prior misconduct that did not involve a criminal conviction. The plain language of section 90.610, Florida Statutes, authorizes impeachment with only prior convictions; there is no exception written into or considered by the statute. When a statute is clear on its face, the plain meaning must control. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 943 So.2d 823 (Fla. 1st DCA 2006) (stating that when a statute is not ambiguous on its face, the plain meaning should control). Although Federal Rule of Evidence 608(b) specifically allows character impeachment through prior misconduct without a criminal conviction requirement, the Florida Legislature chose to adopt our evidence code without this language. See In Re Holder, 945 So.2d 1130, 1133 (Fla.2006) (quoting State v. Mozo, 655 So.2d 1115, 1117 (Fla.1995), for the proposition that courts should endeavor to implement the legislative intent of statutes). Professor Charles Ehrhardt, an acknowledged expert on Florida evidence, states:

Occasionally decisions ignore the limitation and permit impeachment with prior acts of misconduct of a witness when they involve prior false accusations of a crime by the witness.
The drafters of the Code specifically intended not to adopt provision similar to Federal Rule 608(b) because it did not reflect the existing Florida law and because they felt the possibility for abuse of this type of evidence was great.

C. Ehrhardt, Florida Evidence § 610.8 (2006 Edition). The statute as written properly implements legislative intent, and it is not for this court to add unwritten provisions to the statute where the statute is clear on its face.

Second, in Jaggers and Clibum, the Second District provided for an exception from the statute without articulating a specific legal reason for its creation. These cases highlight the existence of other statutory provisions that would allow the evidence notwithstanding section 90.610’s pri- or conviction requirements as support for the exception’s creation. Specifically, the cases justify the use of the false reporting evidence (1) to establish bias or motive pursuant to section 90.608(2) Florida Statutes; or (2) when character or a trait of character of a person is an essential element of a charge, claim, or defense pursuant to section 90.405(2), Florida Statutes. However, neither of these provisions would apply in the instant case. In this case, the previous false accusation involved AB.’s brother, not appellant; the false report concerned a dissimilar crime and the proffered evidence did not establish a motive on A.B.’s part to lie about the charged offense.

The evidence also could not be admitted based on the witness’s character because AB.’s character was not an essential element of the defense or charge. Cases in which character is actually at issue are “relatively rare” and do not impede on the traditional rule that specific incidents of misconduct are generally not admissible to prove character. See Dragovich v. State, 492 So.2d 350 (Fla.1986). Were this court to expand the narrow application of section 90.405(2)’s character at issue provision to all cases in which the veracity of a witness is pertinent to the proceedings, section 90.610’s confinement of impeachment evidence to only prior convictions would be rendered meaningless.

We are not unmindful that, based on the facts of a particular case, due process may require germane cross-examination of a witness regarding a prior incident of false reporting. See Coco v. State, 62 So.2d 892 (Fla.1953) (holding that the right of cross-examination derives from both due process concerns as well as the Sixth Amendment, and a defendant’s right to a full and fair cross-examination is absolute). However, in the instant case, the facts as presented at trial do not support the finding of a due process violation. In Florida, section 90.403, Florida Statutes (2004), authorizes the exclusion of otherwise relevant evidence where the evidence’s prejudice outweighs its probative value. Such a balancing test is authorized and does not violate due process. Id. In the instant case, the prior incident of false reporting did not involve appellant and was not made con-

cerning allegations of sexual abuse. As such, the evidence lacked the necessary relevance needed to amount to a due process violation. See § 90.403, Fla. Stat.; Lewis v. State, 591 So.2d 922, 925 (Fla. 1991) (quoting Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988), for the proposition that the trial court may limit examination of a witness “to take account of such factors as ‘harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that [would be] repetitive or only marginally relevant.”).

For these reasons, this court affirms appellant’s conviction. In doing so, we certify conflict with Clibum and Jaggers to the extent they create a false reporting exception to section 90.610, Florida Statutes.

AFFIRMED.

VAN NORTWICK and LEWIS, JJ., concur.

      . Some examples of when character might be at issue include: (1) when a civil litigant is sued for negligence in driving a vehicle and opposing counsel seeks to admit evidence of a prior incident of negligent driving; or (2) when a defamation suit hinges on the truthfulness of the accusing parties statements. C. Ehrhardt, Florida Evidence § 405.3 (2006 Edition).