author: RAMIREZ, J.

text:
    Isaac WASHINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1771.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing Denied Feb. 25, 2008.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   RAMIREZ, J.

Isaac Washington appeals the trial court’s final judgment of adjudication and order of commitment as a sexually violent predator under the Jimmy Ryce Act. We affirm because we conclude that the trial court did not abuse its discretion in admitting deposition testimony during Washington’s civil commitment as a sexually violent predator under the Jimmy Ryce Act.

Washington challenged the Jimmy Ryce Act on due process and equal protection grounds, arguing that the statute imper-missibly allowed the admission of hearsay evidence. He also argued that the admission of the deposition testimony infringed upon his confrontation right. Washington’s argument was based upon the State’s attempt to introduce the testimony of a victim that had testified in a 1986 case in which Washington initially was charged with a sex offense, but then pled guilty to a third-degree felony of false imprisonment. The trial court allowed the admission of the witness’ testimony into evidence concluding that the deposition testimony was reliable and that the State had established the witness’ unavailability.

We agree with Washington that constitutional due process protections under the Florida and United States Constitutions apply to civil commitment proceedings. Kephart v. Hadi, 932 So.2d 1086, 1090 (Fla.2006). However, we find no abuse of discretion in the trial court’s determination that the deposition testimony of the victim was sufficiently reliable hearsay. Under the act providing for the Involuntary Civil Commitment of Sexually Violent Predators, hearsay may be admissible:

(5) Hearsay evidence, including reports of a member of the multidisciplinary team or reports produced on behalf of the multidisciplinary team, is admissible in proceedings under this part unless the court finds that such evidence is not reliable. In a trial, however, hearsay evidence may not be used as the sole basis for committing a person under this part.

§ 394.9155(5), Fla. Stat. (2005).

In arguing that the deposition testimony should be excluded, Washington primarily relies on Jenkins v. State, 803 So.2d 783, 785 (Fla. 5th DCA 2001) (“Permitting police reports containing unsworn allegations of serious sexual misconduct into evidence in this case without providing Jenkins any opportunity to confront the witnesses denied him a fair trial.”).

The court in Jenkins examined police reports from cases that involved allegations of sexual misconduct that were ultimately resolved by pleas to non-sexual offenses. Id. at 786. Those reports contained statements from witnesses who reported to officers what others had told them. Id. The court stated that a distinction was required between reports that contained unchallenged and unchallengeable hearsay and reports which related to cases in which the respondent has pled or been convicted. Id. at 785. “It is only the latter that have an indicia of reliability.” Id.

In contrast to Jenkins, the testimony against Washington was not multiple levels of hearsay in a police report, but rather it was the direct testimony, under oath, of the victim, elicited by Washington’s lawyer at the time, whose motive was to defend him against charges of sexual battery. Rather than merely adopting police reports as a factual basis for a plea, Washington affirmatively used the evidence adduced in the deposition to his benefit at the time to successfully negotiate for a reduction of the sexual battery charge to false imprisonment. To permit respondent to use the deposition testimony to his benefit in a criminal prosecution, but forbid the State to use that same testimony in a subsequent civil proceeding would be illogical and unfair.

In reaching its final ruling to accept the deposition testimony into evidence, the court below examined not only the reliability of the testimony, but also examined the unavailability of the witness. The State showed through the testimony of its investigator that it had been unable to procure the attendance or testimony of the witness by process or other reasonable means. The investigator’s testimony established that a service called AutoTrack was the main tool used by the State Attorney’s Office to locate witnesses or defendants, along with counsel checks, computer checks, the county computer, and the White Pages. Until that day, these checks had been unavailing, producing only an address in Opa-Locka where Ms. Wiggins did not live. That morning, the investigator discovered a New York telephone number through AutoTrack where Ms. Wiggins apparently lived, and the investigator reached her in a call placed to that number. The State then correctly argued that there was no method to compel an out-of-state witness to testify in a civil proceeding.

The deposition testimony was not the only evidence at trial. The experts based their opinions in large part upon evidence that was otherwise admissible at trial. The State’s expert based her conclusions on six sexual incidents that she found to be clinically significant in evaluating Washington. Four of these incidents were detailed to the jury through non-hearsay evidence. The fifth incident was considered by Dr. Swan in her report, but not detailed to the jury by prior agreement.

We thus conclude that the trial court did not abuse its discretion in admitting the witness’ deposition testimony. We thus affirm the trial courts order of adjudication and commitment.

Affirmed.

      . To reach our result, we need not decide whether the court’s ruling on unavailability was necessary. See Masters v. State, 958 So.2d 973, 976 (Fla. 5th DCA 2007), and the majority and concurring opinions in Pesci v. State, 963 So.2d 780 (Fla. 3d DCA 2007).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Israel LAKE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1762.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ and LAGOA, JJ.
   PER CURIAM.

This is a direct appeal by the defendant, Israel Lake, of his conviction on charges of armed robbery with a firearm, armed burglary, and impersonating a police officer during the commission of a felony. The point raised in this direct appeal is a claim for ineffective assistance of counsel. We affirm the conviction without prejudice to Lake’s ability to raise this point in a subsequently filed motion made pursuant to Florida Rule of Criminal Procedure 3.850.


text:
    Edgar Alfonso TOVAR, Appellant, v. Pelayo Rogelio SILVERIO, Appellee.
    No. 3D06-2323.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rosenthal Rosenthal Rasco, Aventura, and Nicholas I. Gerson, Miami, and Steve M. Bimston, for appellant.
    Quintaros, Prieto, Wood & Boyer and Manuel R. Lopez, for appellee.
    Before GERSTEN, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. Chamizo v. Forman, 933 So.2d 1240 (Fla. 3d DCA 2006); Byrne-Henry v. Hertz Corp., 927 So.2d 66 (Fla. 3d DCA 2006).


text:
    J.R., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, et al., Appellee.
    No. 3D07-659.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Sanford Rockowitz, for appellant.
    Karla Perkins, Miami, for appellee, Department of Children and Family Services.
    Hillary S. Kambour, for appellee, Guardian Ad Litem Program.
    Before GERSTEN, C.J., and GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See M.S. v. Dep’t. of Children & Families, 765 So.2d 152 (Fla. 1st DCA 2000).


author: ROTHENBERG, Judge.

text:
    Douglas A. BRICEÑO, Appellant, v. BRYDEN INVESTMENTS, LTD., Appellee.
    No. 3D07-1948.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.

      Garbett, Stiphany, Allen & Roza, and Philip A. Allen, III, Miami, for appellant.
    Tew Cardenas LLP, and Joseph A. De-Maria, Matías R. Dorta, and Maria N. Vernace, Miami, for appellee.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, Judge.

The plaintiff, Douglas A. Briceño (“Bri-ceño”), appeals from a non-final order denying his motion for temporary injunction. We affirm.

Briceño filed suit against Bryden Investments, Ltd. (“Bryden”), a Cayman Islands corporation, seeking, in part, the imposition of a constructive trust and equitable lien on $2,000,000 held in an account at Wachovia Securities, LLC (‘Wachovia”). The amended complaint alleges as follows. As part of a transaction to purchase Venezuelan bonds through an investment broker, Briceño, as instructed, wired a total of $2,000,000 to “First Clearing LLC, Account Number 5050000000631 for further credit to Bryden Inv. Inc. [Bryden Inc.], Account Number 1842 7051.” Briceño never received the bonds, and he later learned that Bryden Inc. does not exist, and that Wachovia account # 1842 7051 belongs to Bryden. In addition to the amended complaint, Briceño filed an ex parte motion for temporary injunction, seeking to preserve the $2,000,000 in the Wachovia account, pending resolution of his constructive trust claim.

The trial court granted Briceño’s request for a temporary injunction, preventing the transfer or dissipation of the $2,000,000 in the Wachovia account. Thereafter, the trial court also granted Briceño’s Motion for Final Default Judgment, imposing an equitable lien and constructive trust on the $2,000,000 in favor of Briceño, and awarding prejudgment interest and costs in the amount of $136,420.38 to Briceño. Moreover, the Final Default Judgment dissolved the temporary injunction as moot. As required by the Final Default Judgment, Wachovia transferred the $2,000,000 to Briceño.

Following the transfer of the $2,000,000 to Briceño, the trial court granted Bry-den’s motion to vacate the Final Default Judgment, and ordered Briceño to deposit into the court’s registry the $2,000,000 plus interest that accrued while Briceño had possession of the $2,000,00o.

After the Final Default Judgment was vacated, Bryden filed a Motion for Immediate Disbursement of Interest, seeking release of $136,164.38 that remained in the Wachovia account. Bryden scheduled its motion for July 5, 2007, and two days before the scheduled hearing, Briceño delivered a “Motion to Reinstate Temporary Injunction Over Interest Proceeds Accruing on Enjoined Funds” (“Motion for Temporary Injunction Over Interest Proceeds”), requesting that the trial court enjoin the release of the accrued interest in the Wachovia account, pending the litigation of its constructive trust claim.

Following the July 5, 2007 hearing, on July 10, 2007, the trial court granted Bry-den’s Motion for Immediate Disbursement of Interest, authorizing Wachovia to disburse the accrued interest, which now totaled $154,000. The trial court also granted Briceño’s request for a stay. Thereafter, on July 18, 2007, the trial court denied Briceño’s Motion for Temporary Injunction Over Interest Proceeds, subject to the stay provision of the July 10, 2007 order. This non-final appeal followed.

In this non-final appeal, Briceño argues that the trial court abused its discretion by denying his Motion for Temporary Injunction Over Interest Proceeds, as the accrued interest is part of the res of the constructive trust. We disagree.

“A trial court has wide discretion to grant or deny a temporary injunction and an appellate court will not interfere with the exercise of such discretion unless the party challenging the grant or denial clearly shows an abuse of that discretion.” Perry & Co. v. First Sec. Ins. Underwriters, Inc., 654 So.2d 671, 671 (Fla. 3d DCA 1995); see also Cohen Fin., LP v. KMC/EC LLC, 967 So.2d 224, 226 (Fla. 3d DCA 2007) (“In reviewing a trial court’s ruling on a request for a temporary injunction, we must affirm unless the appellant establishes that the trial court committed a clear abuse of discretion.”).

In Florida, an injunction cannot be entered to prevent a party from using or disposing of his assets prior to the conclusion of a legal action. See Pianeta Miami, Inc. v. Lieberman, 949 So.2d 215, 217 (Fla. 3d DCA 2006) ("It is well settled that an injunction cannot be used to restrain the use of a party's unrestricted assets prior to the conclusion of an action at law."); Weinstein v. Aisenberg, 758 So.2d 705, 706 (Fla. 4th DCA 2000) ("Even where the party seeking injunctive relief alleges that the opposing party may dissipate bank assets, a judgment for money damages is adequate and injunctive relief is improper, notwithstanding the possibility that a money judgment will be uncollectible."); Lawhon v. Mason, 611 So.2d 1367, 1368 (Fla. 2d DCA 1993) ("An injunction cannot be used to enforce money damages or prevent a party from disposing of assets prior to the conclusion of an action at law."); Kon over Realty Assocs., Ltd. v. Mladen, 511 So.2d 705, 706 (Fla. 3d DCA 1987) (“It is entirely settled by a long and unbroken line of Florida cases that in an action at law for money damages, there is simply no judicial authority for ... any restraint upon the use of a defendant’s unrestricted assets prior to the entry of judgment.”) (footnote omitted).

An exception to this general rule, however, is that a trial court may enter a pretrial injunction to protect the res of a constructive trust. See Blecher v. Dreyfus Brokerage Servs., Inc., 770 So.2d 1276, 1277 (Fla. 3d DCA 2000) (holding that injunctive relief is "appropriate to protect the res in a claim for constructive trust"); Castillo v. Vlaminck de Castillo, 701 So.2d 1198, 1199 (Fla. 3d DCA 1997) (“[W]e reassert the appropriateness of injunctive relief to protect pendente lite what is asserted to be the res of a trust implied by operation of law.”); Korn v. Ambassador Homes, Inc., 546 So.2d 756, 757 (Fla. 3d DCA 1989) (holding that “a temporary injunction lies to freeze the res of an alleged constructive trust upon a showing ... that the res is in a probable danger of dissipation and that there is a reasonable likelihood of success on the merits with respect to the constructive trust claim”).

In the instant case, contrary to Bri-ceño’s argument, the res of the alleged constructive trust is limited to the $2,000,000, and does not include interest that accrued while the res was in Bryden’s possession in the Wachovia account. We acknowledge that if Briceño prevails on the merits, not only would he be entitled to recover the $2,000,000 res, but he would be entitled to prejudgment interest and costs. However, Briceño is not entitled to injunc-tive relief to protect the accrued interest in order to ensure the collection of the prejudgment interest and costs. Therefore, we conclude that, on the merits, the trial court did not abuse its discretion by denying Briceño s Motion for Temporary Injunction Over Interest Proceeds.

Briceño also argues that this Court must reverse the order denying his motion for temporary injunction because the trial court failed to specify its reasons for denying the motion. We disagree.

Florida Rule of Civil Procedure 1.610(c), titled “Form and Scope,” provides as follows:

Every injunction shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document, and shall be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them who receive actual notice of the injunction.

(Emphasis added). Pursuant to rule 1.610(c), a trial court “shall specify” the reasons for its decision only when it enters an injunction. See E.S. Thomas & Assocs., Inc. v. Powell, 827 So.2d 396, 397 (Fla. 2d DCA 2002) (‘We recognize that trial courts are required to specify the reasons for their decisions only when temporary injunctions are granted. Fla. R. Civ. P. 1.610(c). However, it would have been easier to assess the correctness of the trial court’s order [denying the temporary injunction] if some explanation had been provided.”). Therefore, the trial court’s failure to specify its reasons for denying Briceño’s Motion for Temporary Injunction Over Interest Proceeds does not warrant reversal.

We do not address the remaining arguments raised by Briceño as they lack merit. Accordingly, we affirm the order under review.

Affirmed.

      . This order was stayed, and Briceño remains in possession of the $2,000,000.


text:
    Javon MASON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1529.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing Denied Feb. 21, 2008.
    Javon Mason, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GREEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Javon Mason, pro se, appeals two orders denying post-conviction relief in six lower tribunal cases that culminated in a 1999 sentencing. This is the tenth proceeding brought in this Court by him or on his behalf arising from those cases.

Finding no error in either of the rulings below, we affirm each of them. Because Mason did not respond to the show cause order of October 25, 2007 relating to his successive and unsuccessful petitions and appeals, we take the further step of directing the clerk of this Court to reject for filing any further notices of appeal, motions, or petitions for post-conviction or extraordinary relief arising out of any or all of the captioned circuit court case numbers unless such pleadings are signed by a member of The Florida Bar. See Walker v. State, 814 So.2d 516, 517 (Fla. 3d DCA 2002).

Affirmed.


text:
    James HALE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-971.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    James Hale, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Bennett v. State, 550 So.2d 107 (Fla. 4th DCA 1989).


text:
    Domonique SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1957.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing Denied Feb. 21, 2008.
    Domonique Smith, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Fabian LOGREIRA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2911.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing Denied Feb. 25, 2008.
    Fabian Logreira, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.800(c).


text:
    Gregory WITT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2936.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing Denied Feb. 21, 2008.
    Gregory Witt, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal from an order denying without a hearing the defendant’s Rule 3.800 motion to correct his sentence by vacating the designation and sentence as a habitual violent felony offender pursuant to section 775.084(4)(b), Florida Statutes (1995):

THIS CAUSE having come on to be heard upon the Motion to Correct Illegal Sentence, which was filed in the Office of the Clerk at the Circuit Court on August 17, 2007, and the Court having considered same, together with the response filed by the State, denies the defendant’s motion without further hearing on the following grounds:
The defendant states in his motion that he was arrested on the instant case on December 14th, 1995. In support of his motion the defendant cites Johnson v. State, 765 So.2d 914 (Fla. 2d DCA 2000). A reading of Johnson shows that the defendant is not entitled to relief. In his motion, the defendant states that he was released on conditional release on June 13th, 1994. Thus, the defendant was in actual custody of the Florida Department of Corrections through June 12, 1994. This is well within the five-year time limit that would permit the defendant to be sentenced as a habitual violent offender.
Thus, by the defendant’s own recitation of facts in his motion he has demonstrated that he is not entitled to relief.
We agree.
Affirmed.


text:
    Daniel NAVARRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2953.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Jason T. Forman, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Rodriguez-Grave v. State, 847 So.2d 564 (Fla. 3d DCA 2003).


text:
    Terrence HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2990.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.

      Terrence Harris, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed, without prejudice to file a legally sufficient motion. See Spera v. State; 971 So.2d 754 (Fla.2007).


text:
    Zachary CARR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3083.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Zachary Carr, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, Judge.

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

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

Reversed and remanded for further proceedings.


author: SUAREZ, J.

text:
    Adekoye OJURONGBE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1537.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Rehearing Denied Feb. 25⅛ 2008.

      Ronald Haber, Miami, for appellant.
    Bill McCollum, Attorney General and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ and LAGOA, JJ.
   SUAREZ, J.

Adekoye Ojurongbe appeals from the trial court’s order denying his Florida Rule of Criminal Procedure Rule 3.850 motion to vacate judgment alleging the trial court failed to advise him of the deportation consequence of his 1989 plea. Based on State v. Green, 944 So.2d 208 (Fla.2006), we reverse and remand for proceedings consistent with this opinion. At the same time, we caution that Mr. Ojurongbe’s deportation status may still, after all is said and done, lie in the hands of the United States Citizenship and Immigration Services.

In 1989, Mr. Ojurongbe, a citizen of Nigeria living in the United States, entered a nolo contendere plea and was found guilty of the charge of unlawful sale or purchase of cannabis. Adjudication was withheld and he received credit for two days of time served. On August 16, 1990, he was again arrested on a charge of unlawful sale or possession of cannabis. He again took a plea and was found guilty, adjudication withheld, on September 6, 1990.

It appears from the pleadings that in 1992, Mr. Ojurongbe applied for an immigrant visa and alien registration. It also appears that he failed to list these two convictions on his application for immigration. He was given lawful permanent residency status that same year.

On February 21, 2006, Mr. Ojurongbe was given notice by the United States Immigration and Naturalization Service to appear for removal proceedings. The reasons listed for removal are that he was convicted or admitted to violating a State law concerning a controlled substance, and that he fraudulently misrepresented facts on his 1992 residency application when he failed to list his 1989 and 1990 convictions.

Mr. Ojurongbe filed a motion to vacate the 1990 conviction claiming that when he entered his plea he was not advised by the court that he could be subject to deportation. The trial court granted his motion on March 8, 2007. The conviction was vacated and nolle prossed. Mr. Ojurongbe now argues that this conviction is no longer a basis for removal. Whether this is true or not is not within this Court’s jurisdiction.

Mr. Ojurongbe then filed the present motion to vacate the 1989 conviction claiming, once again, that, when he accepted the plea, the trial court failed to inform him that he could be subject to deportation. The trial court denied his motion to vacate finding that the fact he failed to list the conviction on his application serves as additional grounds for deportation. Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002) (defendant may not avail himself post-conviction relief for failure of the trial court to advise him/her of potential deportation consequences, if the defendant is otherwise subject to deportation pursuant to another criminal conviction).

The additional ground for removal argued by the State and relied upon by the trial court is not the 1990 conviction. The State argues, and the trial court agreed, that even if the 1989 conviction were now vacated, Mr. Ojurongbe would still be subject to deportation as the removal papers state that he is subject to deportation not only because of the 1989 conviction, but also because he failed to disclose it in his 1992 application for residency. The grounds given for removal by the United States Citizenship and Immigration Service are that he violated a law or regulation of the United States relating to a controlled substance, and that he procured his immigrant visa by fraud or by willfully misrepresenting the material fact that he was convicted in the circuit courts of Florida for such a violation in both 1989 and 1990. Specifically, the removal papers state:

On the basis of the foregoing, it is charged that you are subject to removal from the United States pursuant to the following provision(s) of law:
Section 237(a)(1)(A) of the Immigration and Nationality Act ... aliens who have been convicted of, or who admit committing acts which constitute the essential elements of violation of (or a conspiracy to violate) any law or regulation of a State ... relating to a controlled substance;
4. You procured your immigrant visa by fraud or by willfully misrepresenting a material fact, to wit: You failed to reveal on your Application for Immigrant Visa and Alien Registration dated August 13, 1992, that you were, on June 7, 1989, convicted in the circuit court of Florida ... for the offense of unlawful sale or purchase of cannabis, in violation of Florida statute ...
5. You procured your immigrant visa by fraud or by willfully misrepresenting a material fact, to wit: You failed to reveal on your Application for Immigrant Visa and Alien Registration dated August 13, 1992, that you were, on September 6, 1990, convicted in the circuit court of Florida ... for the offense of unlawful sale or purchase of cannabis

The question presented is if the 1989 conviction is vacated, does the fact that Mr. Ojurongbe failed to list it on his application serve as a separate ground for removal? If it does, then Prieto would apply and the trial court may exercise its discretion and not vacate the conviction. If it does not, then it would be an abuse of discretion for the trial court not to vacate relying on Prieto. It is not “another conviction” as referred to in Prieto. No case was cited to this Court on this specific issue. The question of whether or not Mr. Ojurongbe’s failure to list the 1989 conviction would be a separate ground for removal is not a question for the state court to decide, but appears to be a question for the immigration courts to decide. Therefore, the trial court was not correct in denying the motion to vacate based upon these facts and relying upon Prieto.

Reversed and remanded.

      . We do not reach the second issue raised on appeal as this opinion is dispositive.

      . The trial court’s order was not based upon the defendant’s failure to produce a trial transcript of the plea hearing. See State v. Green, 944 So.2d at 218 (The trial court has the discretion of denying a motion to vacate if the defendant does not have conclusive proof that he was not informed of the possibility of deportation.)


text:
    Edward Joe YOUNG, Appellant,v. The STATE of Florida, Appellee.
    No. 3D07-3211.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Edward Joe Young, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and RAMIREZ, and CORTIÑAS, JJ.
   PER CURIAM.

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

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

Reversed and remanded for further proceedings.


text:
    Oliver YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3706.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2008.
    Oliver Young, pro se, Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Wiley v. State, 604 So.2d 6 (Fla. 1st DCA 1992) (when the motion attacks the conviction it must be brought under rule 3.850); Burchfield v. State, 907 So.2d 614 (Fla. 1st DCA 2005)(declining to construe a rule 3.800(a) motion as a rule 3.850 motion because the motion failed to comply with the pleading requirements found in rule 3.850).

BENTON and POLSTON, JJ., concur.

WEBSTER, J., concurs in result only.


text:
    A.H. BLAKE, Appellant, v. MIAMI-DADE COUNTY, Florida, a county; and Carlos Alvarez, as Mayor of Miami-Dade County, Florida and as Supervisor of Registration for Miami-Dade County, Florida, Appellees.
    No. 3D08-87.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2008.
    Rehearing Denied Jan. 25, 2008.
    Stanley H. Beck, Hallandale Beach; Langbein & Langbein, P.A., and Evan J. Langbein, Miami, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Cynthia Johnson-Stacks, Assistant County Attorney, for appellees.
    Before COPE, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of a final judgment denying appellant’s challenge to the ballot title and summary contained in Miami-Dade County Resolution No. R-1242-07. That Resolution placed on the ballot a proposed amendment to the Miami-Dade County Home Rule Charter which proposes changing the property appraiser from an appointed to an elected office. The appellant brought suit, contending that the ballot title and summary are materially inaccurate. The trial court issued a final order on January 14, 2008, rejecting appellant’s claims and declining to grant injunc-tive relief against the ballot measure. This expedited appeal followed.

We conclude that no error has been shown, and affirm the order below.

Affirmed.


author: KELLY, Judge.

text:
    YODER BROTHERS, INC., Appellant, v. James WEYGANT, Appellee.
    No. 2D06-1935.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.

      Edmund J. McKenna and Jennifer Mon-rose Moore of Ford & Harrison LLP, Tampa, for Appellant.
    Jason L. Gunter of Webb, Scarmozzino & Gunter, P.A., Fort Myers, for Appellee.
    Richard E. Johnson, Tallahassee, for Amicus Curiae The National Employment Lawyers Association, Florida Chapter.
   KELLY, Judge.

Yoder Brothers, Inc., challenges the order of the trial court denying its motion for attorney’s fees pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2004). We conclude that the trial court correctly determined that awarding attorney’s fees pursuant to Yoder Brothers’ proposal for settlement was inconsistent with section 760.11(5), Florida Statutes (2004), and therefore affirm.

James Weygant sued Yoder Brothers alleging quid pro quo sexual harassment in violation of the Florida Civil Rights Act of 1992 (FCRA). Yoder Brothers served an offer of judgment pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79. After Yoder Brothers prevailed at trial, it moved for attorney’s fees pursuant to its offer of judgment. The trial court denied the motion after concluding that the offer of judgment statute conflicted with section 760.11(5), which governs awards of attorney’s fees in actions brought under the FCRA. On appeal, Yoder Brothers contends that the trial court erred in interpreting the two statutes. We disagree.

The question presented in this appeal is one of law; specifically, whether the trial courts interpretation of the statutes at issue was proper. Therefore, the applicable standard of review is de novo. See B.Y. v. Dept. of Children Families, 887 So.2d 1253, 1255 (Fla.2004).

The FCRA’s attorney’s fee provision states in pertinent part:

In any action or proceeding under this subsection, the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs. It is the intent of the Legislature that this provision for attorney’s fees be interpreted in a manner consistent with federal case law involving a Title VII action.

§ 760.11(5). Thus, this statute creates discretionary authority permitting a court to award reasonable attorney’s fees under the guidelines typically used for actions brought pursuant to Title VII of the Civil Rights Act of 1964. See McCoy v. Pinellas County, 920 So.2d 1260, 1262 (Fla. 2d DCA 2006). Attorney’s fees may not be awarded to a defendant in a Title VII case unless a plaintiffs claim is frivolous, unreasonable, or groundless. Chñstiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Yoder Brothers has not argued that Weygant’s claim was frivolous, unreasonable, or groundless. Accordingly, Yoder Brothers cannot recover fees under section 760.11(5).

Yoder Brothers nevertheless claims it may recover its fees pursuant to its offer of judgment. Weygant contends that section 768.79, the offer of judgment statute, is inapplicable because it conflicts with the legislature’s expressed intent to limit when attorney’s fees may be awarded to a prevailing defendant in an action brought under the FCRA. See § 768.71(3) (providing that “[i]f a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply”). We agree with Weygant that by incorporating the federal case law governing awards of attorney’s fees under Title VII into section 760.11(5), the legislature has limited when a prevailing defendant may obtain an award of fees. Thus, permitting a defendant to obtain an award of attorney’s fees pursuant to the offer of judgment statute when it would be precluded from doing so under section 760.11(5) seems to us to be inconsistent with what the legislature intended when it expressly adopted federal case law governing awards of attorney’s fees under Title VII. See Jones v. United Space Alliance, LLC, 494 F.3d 1306 (11th Cir.2007); cf. Moran v. City of Lakeland, 694 So.2d 886 (Fla. 2d DCA 1997). Accordingly, we affirm the order of the trial court denying Yoder Brothers’ motion for attorney’s fees.

Affirmed.

SALCINES and WALLACE, JJ., concur.

      . § 760.10, Fla. Stat. (2004).


text:
    In re Jane DOE 07-B.
    No. 1D07-4991.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2008.

      Linda G. Miklowitz, Tallahassee; Randall C. Marshall, Rebecca Harrison Steele, and Benjamin James Stevenson of ACLU Foundation of Florida, Inc., Miami, for Appellant.
   PER CURIAM.

This court previously granted relief on an expedited basis in this case concerning section 390.01114, Florida Statutes (2007), the Parental Notice of Abortion Act (“the Act”). In such cases, Florida Rule of Appellate Procedure 9.110(n), requires that the “district court of appeal shall render its decision on the appeal as expeditiously as possible and no later than 10 days from the filing of the notice of appeal.” We now write to explain our reasons for granting relief.

Appellant, a resident of Georgia, filed a petition for judicial waiver of parental notification of termination of pregnancy in the Leon County Circuit Court. Section 390.01114(4)(a) provides that a “minor may petition any circuit court in a judicial circuit within the jurisdiction of the district court of appeal in which she resides for a waiver of the notice requirements.... ” The circuit court determined that it did not have jurisdiction because the minor did not reside within the jurisdiction of this court. Appellant argued below that section 390.01114(4)(a) was a venue provision and that the statute did not address jurisdiction. The trial judge expressed his sympathy for the minor and stated that based on the sworn petition and the anticipated testimony of the minor, he “would have no problem granting” the petition. Nevertheless, the circuit court dismissed the petition finding that it did not have jurisdiction to hear the case.

On appeal to this court, appellant argued that the circuit court erred as a matter of law in holding that it lacked jurisdiction to hear the petition. Appellant asserted that when a minor is a nonresident of the state, Florida law compels a conclusion that she may file a petition for judicial waiver in any circuit court in the state. In Womancare of Orlando v. Agwunobi, 448 F.Supp.2d 1293 (N.D.Fla.2005), a facial challenge to the Act was filed. The federal district court accepted the argument of the Florida Department of Health that the judicial waiver statute is available to a minor resident from another state who may file a petition in any judicial circuit in Florida. The Department of Health contended that in the absence of a specific venue provision in the Act, the general venue statute controlled and would allow a nonresident minor to petition any circuit court for a waiver. Id. at 1306. The federal district court considered the constitutional claim that the Act impermissibly limited an out-of-state minor’s accessibility to a judicial waiver procedure in violation of her right to travel and rejected it as inconsistent with Florida law finding that jurisdiction exists in Florida circuit courts to consider a waiver petition from out-of-state minors, noting that it was “axiomatic, moreover, that Florida’s venue provisions neither confer nor eliminate a court’s jurisdiction.” Id.

There is a distinction between venue and jurisdiction. “Venue is one thing; jurisdiction is another. They are not synonymous. Venue concerns ‘the privilege of being accountable to a Court in a particular location.’ Jurisdiction is ‘the power to act,’ the authority to adjudicate the subject matter.” Walters v. State, Dep’t of Health & Rehab. Servs., 332 So.2d 684, 685 (Fla. 1st DCA 1976). “The general venue statute controls all actions brought under the common law or pursuant to a statute not containing specific provisions concerning venue....” Lane v. Hemophilia of the Sunshine State, Inc., 793 So.2d 992, 994 (Fla. 2d DCA 2001). Section 47.011, Florida Statutes (2007), the general venue statute, provides that a legal action may be brought where the defendant resides, the cause of action accrues, or the property in litigation is located. Under Florida law, a plaintiffs choice of venue is usually favored if the election is one which has been properly exercised under applicable statutes. Houston v. Caldwell, 359 So.2d 858 (Fla.1978).

Section 390.01114(4)(a) is not a jurisdictional statute, but is rather a venue provision. See In re Amendments to the Rules of Juvenile Procedure, 934 So.2d 438, 438 (Fla.2006) (amending rule 8.805 to “delete the statement requiring that petitions for judicial waiver be filed in ‘any circuit court within the appellate district in which the petitioner resides as provided by section 390.01114(4)(a), Florida Statutes.’ The statutory provision speaks for itself and there is no need to include a venue provision in the procedural rule”). Although the Act provides that a minor shall file a petition in the circuit court within the jurisdiction of the district in which she resides, as Womancare noted, the Act is silent about the venue for nonresident minors who wish to obtain a judicial waiver in Florida. The Act does not expressly prohibit nonresidents from seeking an abortion in Florida nor does it expressly prohibit nonresidents from seeking a judicial waiver in Florida. See Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (holding unconstitutional the provision in a Georgia abortion statute limiting abortions to Georgia residents); Ind. Planned Parenthood Affiliates Ass’n, Inc. v. Pearson, 716 F.2d 1127 (7th Cir.1983) (stating that if the Indiana parental notification statute “barred out-of-state minors from employing the judicial bypass procedure, it would be unconstitutional because the effect would be to prohibit mature out-of-state minors from having abortions in Indiana”). In Womancare, the court found that for out-of-state minors, jurisdiction exists in the circuit courts to consider a judicial waiver petition and because no venue was specified, no venue was preferred.

This court has stated that remand for a new hearing is not authorized in a judicial waiver case because “remand for a new hearing would have violated the legislative intention for this type of proceeding to progress through the judicial system without delay and within the time limits specified in section 390.01114.” In re Doe 06-C, 948 So.2d 30, 33 (Fla. 1st DCA 2006) (citing In re Doe, 932 So.2d 278 (Fla. 2d DCA 2005), and In re A.S., 909 So.2d 524 (Fla. 1st DCA 2005)). In Doe, the Second District Court of Appeal stated that remand for the purpose of supplying appropriate findings of fact would violate the legislative intention that judicial waiver petitions progress through the justice system without delay. The Second District court stated:

To carve an exception for orders that lack the mandatory findings necessary for appellate review would be beyond our constitutionally-assigned purview, would violate the letter of the appellate rule, and would contravene the clearly expressed intention of the legislature. Moreover, we are loath to deviate from a carefully crafted statutory and procedural scheme for resolving issues that are both deeply personal and widely debated. Such a course is fraught with the danger of undermining public and individual confidence in the ability or willingness of our government to devise clear rules for deciding these difficult questions and to adhere to them.

Doe, 932 So.2d at 283. Similarly, in AS. this court stated that section 390.01114(4) provides:

that the trial court is allowed only two days to complete its work on the case (unless the time has been extended at the request of the minor), that the district court of appeal is allowed only ten days to complete its work on the case, and that if either of these courts fails to complete its work on time, the petition must be granted.

AS., 909 So.2d at 525. Doe 06-C, Doe, and AS. all suggest that the legislature intended to impose a strict procedural scheme in section 390.01114 and established a bright line rule against remand for a new hearing.

Accordingly, we previously issued an order which reversed the circuit court’s order dismissing the petition for judicial waiver of parental notification and remanded with directions to forthwith enter an order granting the petition and directing the clerk of the circuit court to place a certificate to that effect in the file and provide appellant with a certified copy of that certificate.

REVERSED and REMANDED with instructions.

BROWNING, C.J., BARFIELD and BENTON, JJ., concur.


text:
    Anthony SMALLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6464.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2008.

      Anthony Smalls, pro se, Appellant.
    Bill McCollum, Attorney General, Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand for further proceedings.

Pursuant to a guilty plea, appellant was sentenced as an habitual felony offender to 15 years in prison for burglary of a dwelling, concurrent with one year in prison for battery. In his motion, appellant raised several claims. We affirm without discussion the summary denial of all except the claim that his guilty plea was involuntary because his counsel advised him to enter the plea to burglary of a dwelling when no factual basis existed to support the charge. Specifically, appellant alleges that, had his counsel been aware of the definition of a dwelling, he would have known that the detached garage involved in appellant’s crime did not qualify as a dwelling. Appellant further alleges that, had his counsel properly advised him regarding the elements of burglary of a dwelling, he would not have entered a plea.

Before appellant entered his plea, the state offered its factual basis, which included the representation that appellant broke into a detached garage in the victim’s enclosed yard. Unfortunately, appellant was not asked whether the state’s recitation of the facts was accurate. A detached garage may qualify as part of a dwelling if the yard is “substantially enclosed.” See McAllister v. State, 859 So.2d 611 (Fla. 1st DCA 2003). However, appellant has alleged that the victim’s yard was not “substantially enclosed” and that, as a result, the garage did not qualify as part of a dwelling. The portions of the record attached by the trial court to its order do not establish that the yard was, in fact, “substantially enclosed.” If appellant’s allegation is correct, no factual basis existed to support a conviction for burglary of a dwelling. Appellant further claims that he would not have entered his guilty plea but for his counsel’s ineffectiveness. As such, appellant’s allegations constitute a facially sufficient claim for ineffective assistance of counsel. See Brazeail v. State, 821 So.2d 364, 367-68 (Fla. 1st DCA 2002) (stating that the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is satisfied when the defendant states that, but for counsel’s errors, he would not have pleaded guilty); Sassnett v. State, 838 So.2d 650, 652 (Fla. 1st DCA 2003) (reversing a summary denial of a rule 3.850 claim for ineffective assistance of counsel because defense counsel appeared to have been unfamiliar with the elements of burglary of a dwelling).

We reverse the summary denial of that portion of appellant’s motion that claims his attorney was ineffective because the attorney advised him to enter a plea to burglary of a dwelling when no factual basis existed to support that charge. Should the trial court again summarily deny this claim on remand, it shall attach to the order such portions of the record as conclusively show that appellant is entitled to no relief; otherwise, it shall hold an evidentiary hearing. In all other respects, the order is affirmed.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WEBSTER, BENTON, and POLSTON, JJ., concur.


author: KLEIN, J.

text:
    Marc BARRETT, Appellant, v. Dean R. BARRETT and Bradford H. Barrett, Appellees.
    No. 4D06-4744.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.

      Theodore R. Dempster, Miami, for appellant.
    Susan Fleischner Kornspan of Green-berg Traurig, P.A., West Palm Beach; Elliott H. Scherker, Elliot B. Kula and Brigid F. Cech Samóle of Greenberg Traurig, P.A., Miami, for appellees.
   KLEIN, J.

Marc Barrett appeals a judgment which permanently removed him as trustee of a family trust and found that he owed the trust several hundred thousand dollars. He argues that the court erred in denying his motion to amend his answer to allege that he was discharged in bankruptcy from any indebtedness to the trust. We affirm.

The trust was created by Marc Barrett’s father who died in 1973. The beneficiary was Marc’s mother, and the mother and her three sons, one of which was Marc, were co-trustees. Many years later Marc’s brothers became aware that Mare had obtained money from the trust when he was undergoing personal financial problems around 1982 to 1984. Marc acknowledged a debt to the trust and agreed to the amount of the indebtedness being deducted from future distributions. Marc also agreed that he would no longer be involved in the management of the trust; however, he formally remained as a trustee.

In 2005, when Marc was again experiencing financial difficulties, he attempted to interfere with the management of the trust, and his brother’s filed this lawsuit seeking to have him removed as co-trustee and a declaratory judgment ordering that any funds improperly taken from the trust by Marc would be deemed advancements, to be recouped as an offset against future disbursements to Marc from the trust.

The first issue Marc raises, and the only one we address, is the denial of his motion to amend his answer to raise the defense that any money he owed the trust had been discharged in bankruptcy. The complaint was filed in October, 2005, and seventeen days before the trial in July, 2006, Marc filed a motion for leave to amend with his proposed amendment attached. The proposed amendment alleged that Marc had gone through a bankruptcy in 1985 in Colorado and that the indebtedness to the trust was based on promissory notes he had executed in the early 1980’s before the bankruptcy. His motion to amend asserted:

2. The Defendant also wishes to assert the affirmative defense of discharge in bankruptcy. In attempting to respond to the Plaintiffs Request for Production of Documents, the Defendant recently traveled to Denver, Colorado to review his bankruptcy file. The Defendant filed a personal and business bankruptcy proceeding in the United States Bankruptcy Court, District of Colorado in 1985. The Defendant was uncertain to what extent the Plaintiffs, the mother Helen Barrett and/or the trust were claimants in that proceeding. The Defendant’s review of the court file reflects that the Plaintiffs, Helen Barrett and the trust were all noticed and participated in the bankruptcy proceeding. The Defendant received, in 1986, a bankruptcy discharge, which effectively discharged all of the claims asserted in these proceedings. Accordingly, the discharge in bankruptcy operates as an absolute bar to the claims asserted in these proceedings.

Significantly, Marc did not attach any documents to support his statements about the bankruptcy. The court entered an order denying the motion to amend without prejudice.

The non-jury trial did not begin as scheduled in July, 2006, but did take place at the end of September, 2006. At the beginning of the trial, Marc asked the court to continue the trial for a week or two stating that the bankruptcy court had reopened his bankruptcy case. The court refused to delay the trial but agreed to “incorporate whatever the bankruptcy court says” into the final judgment. No orders or any other documents from the bankruptcy court were filed.

Amendments to pleadings under rule 1.190 should be liberally granted when justice requires, but the closer a case is to trial when amendment is requested, the less likely a denial of amendment will be an abuse of discretion. Zikofsky v. Robby Vapor Sys., Inc., 846 So.2d 684 (Fla. 4th DCA 2003).

If Marc, who alleged that he had just reviewed the court file of his bankruptcy, had attached documents supporting his proposed affirmative defense that these claims were discharged, we have no doubt that the trial court would have allowed him to amend. Notably, the court denied the motion without prejudice, and the trial was postponed for several months, yet Marc made no effort to support his claim by attaching documents. Under these circumstances the court did not abuse its discretion in denying the motion.

We have considered the other issues raised and find that they are without merit.

FARMER and HAZOURI, JJ., concur.


text:
    Javier Dejesus VENTURA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-872.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2008.
    Rehearing Denied Feb. 21, 2008.

      Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lisa A. Davis, Assistant Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and CORTINAS, JJ.
   RAMIREZ, J.

Javier Dejesus Ventura appeals his conviction on two counts of robbery with a weapon, and his sentence to thirty years as a prison releasee reoffender (PRR). He claims the trial court erred in: (1) denying his motion for mistrial and in failing to give an appropriate curative instruction after the lead detective commented upon his right to remain silent, and (2) relying on hearsay to sentence him as a PRR. We affirm.

I.

Ventura was charged with three counts of armed robbery with a deadly weapon (a pellet rifle) of three different victims. At trial, Vladimiro Rojas testified that at about two a.m. on October 31, 2002, he was walking from a café toward his car at Collins Avenue and 8th Street with Silvina Burstein and her friend. At the corner, a car pulled up next to them. The car was a brown Ford, a Crown Victoria or a Grand Marquis. Two men got out with guns and demanded their property. One man was skinny; the other was fat. The skinny one had his head shaved, was wearing a white and black tank shirt, and was holding a gun that looked like a rifle. Rojas gave them his cellular phone and jacket. The two men took his friends’ things and ran back to their car.

When the car left, Rojas summoned police and reported what had happened. The police officers told him they had stopped the car he had described. An officer drove Rojas and his friends to where they had stopped the car, on the MacArthur Causeway. They brought out the suspects. Rojas identified Ventura as the person who pointed the gun at him, and he also identified the car. He also identified Ventura in the courtroom as the person who had pointed the gun at him.

Silvina Burstein corroborated Rojas’s testimony. She reported that at about two a.m. on October 31, 2002, she was walking with Rojas and her friend when she was robbed. Two men came at her and demanded her property; one of them had a gun-he was tall and thin with short hair. She gave them her purse, with her cell phone and credit cards. They drove off in a big, old greyish silver car. Police arrived and subsequently told Burstein that a car had been stopped on the MacArthur Causeway. The police took the victims there, and she identified the car, and identified Ventura as one of her assailants. She also identified Ventura in the courtroom.

Detective Teppenberg identified a photograph of Rojas, with the property taken from him in the robbery and subsequently recovered from inside the car where Ven-tura was apprehended, a photograph of Burstein, with the property taken from her in the robbery and subsequently recovered, and a photograph of a BB rifle recovered by police during the investigation. During Detective Teppenberg’s testimony, the following transpired:

Q. And when you got there what did you do?
A. Well, I spoke to the victims and to the officer. [Their] stories were consistent to that offense report about what had occurred in the robbery. I also had requested I.D. to take pictures of the recovered stolen property. Along with the victims, the defendant’s [sic] wouldn’t give any statements.
[Defense counsel]: I reserve a motion on that.

A few moments later, Detective Teppen-berg further testified:

Q. You were informed by the officer what they did [at] the scene?
A. Yes. The suspects were in custody and the defendant then declined to make statements.
[Defense counsel]: I reserve a motion.
THE COURT: Noted.

The State rested following Detective Teppenberg’s testimony, and the jury was removed from the courtroom. Defense counsel then moved for a mistrial on the ground that Detective Teppenberg had improperly told the jury that Ventura had refused to make a statement explaining the stolen property in the vehicle when he was entitled to exercise his right to remain silent, and such comment before the jury was improper and highly prejudicial.

The trial court commented that the detective’s remarks had been improper, but indicated they did not warrant a mistrial. The court denied the motion. The jury was then brought in, and closing arguments proceeded.

On Ventura’s motion, the court granted a judgment of acquittal as to Count 2 of the Information, alleging a robbery from the third victim, who had not testified. Only Counts 1 and 3 were submitted to the jury. The jury found Ventura guilty of two counts of robbery with a weapon, as a lesser offense of armed robbery with a deadly weapon. Ventura moved for a new trial on the ground that Detective Teppen-berg’s comments on Ventura’s exercise of his right to remain silent had deprived him of a fair trial. The trial court denied the motion. The trial court sentenced Ventura to thirty years in state prison as a PRR. Ventura then moved, pursuant to Rule 3.800(b), to correct the sentence on the ground that the State had not submitted competent proof that he met the criteria for sentencing as a PRR sentence.

The trial court denied the motion, holding that the documents in the record were under seal, and thus self-authenticating documents, and that they authenticated themselves as public records admissible under the hearsay exception for public records, under Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006). The trial court further held that the documents were public records admissible under the public records exception to the hearsay rule under Yisrael. The trial court found that Ventu-ra’s release date was sufficiently shown by these public records.

II.

The State does not contest the fact that it cannot use Venturas silence to infer guilt. See Love v. State, 438 So.2d 142, 144 (Fla. 3d DCA 1983). It attempts to defend the detectives statement on the basis that the prosecutor did not elicit the testimony from Detective Teppenberg. We fail to see how this makes the statement any less harmful. The lead detective is as much a member of the prosecution team as the attorney asking the question. The fact that the prosecutor did not elicit the statement may mitigate the attorneys action, but the State has an obligation to prepare its witnesses. Even the most cursory trial preparation should have avoided the detective’s testimony. Thus, whether intentional or negligent, the prosecution is not guiltless.

But neither is defense counsel, who merely reserved a motion. By not requesting an immediate sidebar, counsel left open the possibility that the witness would repeat the accusatory silence of Ventura, as indeed occurred. Counsel also could have attempted to establish how these unsolicited comments crept into the trial, whether it was the detective’s idea to poison the jury, or whether it had been planned with the prosecutor. This detective testified that she had been with the Miami Beach Police Department for twenty-two-and-one-half years. She was a trained criminal investigator. We fail to see how the detective’s comment, twice repeated, could have been anything other than an intentional cheap shot at Ventura’s constitutional rights. Yet, defense counsel’s lackadaisical attitude would seem to indicate that this Court is more offended than defense counsel, who, on this record, never made a valid objection, but merely reserved one. There was no contemporaneous objection.

“Error involving comment on silence must be evaluated under a harmless error analysis.” State v. Hoggins, 718 So.2d 761, 772 (Fla.1998). “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict ...” State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986). We conclude that the detective’s testimony was improper, but harmless beyond a reasonable doubt given the overwhelming evidence of guilt.

III.

As to Ventura’s argument that the trial court erred in relying on hearsay to sentence him as a PRR, no such objection was made by defense counsel during the sentencing hearing. Furthermore, Ventura has never alleged that the document relied upon by the court contains an error. Finally, had a proper, timely objection been made, we agree with Yisrael v. State, 938 So.2d at 546, that the letter in evidence could be properly considered by the trial court under the public records exception to the hearsay rule, subsection 90.803(8), Florida Statutes (2005). subsection 90.803(8) provides that:

Public Records and Reports: Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

As this Court stated in Ward v. State, 965 So.2d 308 (Fla. 3d DCA 2007):

Under Florida law, the Department has a statutory duty to obtain and place in its permanent records information as complete as may be practicably available on every person who may become subject to parole ... An inmate’s release date is the type of information falling within this statutory duty.

Id. at 309 (citations omitted).

Affirmed.


author: WARNER, J.

text:
    Richard Allen WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3027.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In his appeal from his convictions for attempted murder and robbery with a weapon, appellant claims that the charging document was fundamentally flawed, as the state charged him with attempted felony murder, which is not a crime. He did not object to the information, however, which also charged him with attempted first-degree murder. As the case was actually tried on that charge, we conclude that the fundamental error doctrine does not apply and affirm his conviction for attempted murder. He also contends that the court should have granted a judgment of acquittal as to the robbery charge. We reverse the robbery conviction, as the evidence was insufficient to sustain the conviction.

The victim, Glen Moore, left a bar in the early morning hours and was accosted in the parking lot of the bar. Someone in a group of people grabbed an aluminum bat and began beating Moore. He begged them to stop, telling them to take his wallet which contained $17.00. The beating continued, and he was dragged along the ground and thrown into the trunk of a car. When the car stopped, three or four people pulled him out of the trunk, dragged him along the ground, and one kicked him in the face. At this point, his assailants left. Moore next remembers calling for help and trying to crawl. Someone approached and pointed a flashlight in his face. He realized it was a police officer. Crime scene investigators secured the scene. Moore’s wallet could not be located.

The police observed appellant White walking his dog close to the scene. One of the officers engaged White in conversation and noticed blood on him. Because White had an outstanding warrant, the police arrested him. Blood tests on White’s clothing revealed a match for Moore’s blood. He was then charged in connection with the assault on Moore.

With respect to the attempted murder charge, the information alleged that:

RICHARD ALLEN WHITE ... did unlawfully attempt to commit murder in the first degree in that Richard Allen White, while engaged in the perpetration of or the attempted perpetration of the crime of Robbery, did cause great bodily harm to Glen Moore, a human being, by intentionally kicking and striking him repeatedly which could have caused the death of the said Glen Moore, contrary to F.S. 782.04(l)(a), F.S. 777.011, F.S. 777.04(1) and F.S. 812.13(2)(c).

Section 782.04(l)(a), Florida Statutes, defines murder in the first degree as the “unlawful killing of a human being: 1. When perpetrated from a premeditated design to effect the death of the person killed or any human being” or “2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate” a robbery. Section 777.04(1), Florida Statutes, provides, “A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt....” Section 812.13(2)(c) provides the elements of the crime of robbery.

White never objected to the information, and, without objection, the court instructed the jury on the definition of attempted first-degree premeditated murder, pursuant to 782.04(l)(a) and 777.04, on count I and robbery with a weapon on count II. The jury found White guilty as charged in both counts. White appeals his conviction and sentences.

White argues for the first time on appeal that he was charged with and convicted of the non-existent crime of attempted felony murder in count I. Alternatively, because the state did not effectively charge White with attempted felony murder, White’s due process rights were violated.

A defendant can challenge the validity of a charging document for the first time on appeal in certain circumstances. In Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006), we held, “A conviction for a non-existent crime is fundamental error that can be raised at any time.... ” In addition, “a conviction on a charge not made by the indictment or information,” even if valid under Florida law, “is a denial of due process of law” and “is a defect that can be raised at any time-before trial, after trial, on appeal, or by habeas corpus.” State v. Gray, 435 So.2d 816, 818 (Fla.1983). This holding is reiterated by Florida Rule of Criminal Procedure 3.610(a) which permits the court to grant a motion in arrest of judgment when “[t]he indictment or information on which the defendant was tried is so defective that it will not support a judgment of conviction.” “The reason for this provision is to discourage defendants from waiting until after a trial is over before contesting deficiencies in charging documents which could have easily been corrected if they had been pointed out before trial.” Du-Boise v. State, 520 So.2d 260, 264 (Fla. 1988).

White argues that the information charged him with attempted felony murder, which is not a crime. See State v. Gray, 654 So.2d 552 (Fla.1995). However, the holding in Gray was superseded by section 782.051, Florida Statutes, which makes “attempted felony murder” a crime. Assuming White’s interpretation of the information is accurate, namely that the information charged White with attempted felony murder, he was not charged with a non-existent crime in light of section 782.051.

White also claims that the defective information violated his due process rights, because he was convicted of a crime not charged in the information. Although conviction of a crime not charged in the information may be a denial of due process and fundamental error,

the failure to include an essential element of a crime does not necessarily render an indictment so defective that it will not support a judgment of conviction when the indictment references a specific section of the criminal code which sufficiently details all the elements of the offense.

Fulcher v. State, 766 So.2d 243, 244-45 (Fla. 4th DCA 2000). The information charging White included the statutes which set forth the crimes of both attempted premeditated murder and attempted felony murder. Because the information in this case “references a specific section of the criminal code,” namely, sections 782.04(l)(a) and 777.04(1), “which sufficiently detail[] all the elements of the offense,” the state provided White with sufficient notice to prepare his defense. Fulcher, 766 So.2d at 244-45.

Finally, any defect in the information did not prevent White from a defense at trial. Both the prosecution and the defense tried the case as an attempted premeditated murder case, and the court instructed the jury on attempted premeditated murder. We conclude that no fundamental error occurred and affirm his conviction for attempted murder.

As to the conviction for robbery, we conclude that the evidence was insufficient to support the conviction. In the information, White was charged with violating section 812.13(1), (2)(b), Florida Statutes (2004), which provides:

“Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

On appeal, this court’s concern is “whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.” Sigler v. State, 805 So.2d 32, 34 (Fla. 4th DCA 2001) (quoting Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981)). In addition, the “appellate court undertakes a de novo review of the sufficiency of the evidence to support the verdict.” Id.

The state presented circumstantial, rather than direct, evidence that a robbery occurred. The victim testified that he possessed a wallet containing $17.00 before the incident, and an officer testified that the victim did not have a wallet when discovered. Arguing that this evidence was insufficient to support a robbery-charge, White moved for a judgment of acquittal; however, the court denied this motion.

“When the evidence against a criminally accused person is circumstantial, a motion for judgment of acquittal should be granted if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Brothers v. State, 853 So.2d 1124, 1125 (Fla. 5th DCA 2003). See also Sanders v. State, 344 So.2d 876, 876-77 (Fla. 4th DCA 1977) (“circumstantial evidence must be so strong and convincing as to exclude every reasonable hypothesis except the defendants’ guilt and must exclude any reasonable hypothesis of the defendants’ innocence”). However, the evidence must be viewed in the light most favorable to the state. Bryant v. State, 789 So.2d 1042, 1043 (Fla. 4th DCA 2001).

The state asserts that the facts in this case are the same as those in Ferguson v. State, 417 So.2d 631 (Fla.1982), superseded by statute on other grounds as stated in Merck v. State, 763 So.2d 295 (Fla.2000), wherein the court upheld the robbery charge. Ferguson was found guilty of two counts of first-degree murder, one count of robbery, and several other crimes. One victim, Brian Glenfeld, was discovered behind the wheel of his car and the other, Belinda Worley, was discovered in a wooded area nearby. Glenfeld’s father testified that when the two left the house earlier that evening, he saw that Belinda was wearing two rings, a gold bracelet, and a pair of earrings and that Brian had a wallet containing some cash. Belinda was no longer wearing any of this jewelry when found and her earlobe was torn, presumably when the earring was taken. In addition, Brian’s wallet was found empty in Belinda’s purse a few feet from her body.

The court denied defendant’s motion for judgment of acquittal and the jury found him guilty on both counts. The defendant argued that because the bodies were left in a wooded area overnight, a passerby could have taken the jewelry and money. On appeal, the supreme court applied the following principal: “In circumstantial evidence cases the evidence must not only be consistent with guilt but also be inconsistent with any reasonable hypothesis of innocence.” Id. at 635. Applying this rule to the facts, the court held, “We agree with the state that this is not a reasonable hypothesis of innocence: there was evidence that the jewelry was taken with some degree of violence; it rained very hard that night; and the bodies were found just a few hours after sunrise.” Id.

White, on the other hand, argues that the underlying facts are similar to those in Sanders v. State, 344 So.2d 876 (Fla. 4th DCA 1977). In Sanders, the victim exited a bar with a wallet containing forty dollars in his back pocket. The defendants walked behind him and helped him to his feet when he stumbled. Subsequently, the victim discovered his wallet was missing. Several witnesses provided conflicting testimony regarding the incident. One saw the defendants take something from the victim’s pocket and throw it in a canal, another thought he saw the defendants pick the victim’s pocket but later said all he saw was a downward movement of one defendant’s hand, another saw the defendants take something from the victim’s front pocket. The victim first said no one reached into his pocket but later said his pockets were searched by the defendants. The police searched the defendants and a nearby canal but failed to find the victim’s missing wallet or money. Although the state presented evidence that the victim’s wallet was present before the incident and missing after, therefore raising the inference that it was taken by the defendant, we held that the evidence was still insufficient to exclude every reasonable hypothesis except that of guilt. Id. at 876-77.

We believe that this case is more like Sanders than Ferguson. The state’s evidence that a robbery occurred consisted of Moore’s testimony that he had his wallet on him before the attack, and an officer’s testimony that the wallet was missing when he first found Moore. Moore’s memory of the day in question is vague, in part because he drank heavily and in part because of the extent of his injuries. He testified that when attacked, he had his wallet and believed it contained seventeen dollars. Like Sanders, the police in this case never discovered Moore’s empty wallet. Unlike Sanders, where the state presented several witnesses who testified to observing the defendants take something from the victim’s pocket, the state could not present any witnesses and could merely assert that Moore had his wallet before the incident and did not have it afterwards. It is equally plausible, assuming Moore had the wallet when he was attacked, that it fell out of his pocket as he was being dragged by White and the other attackers. There is simply no legally sufficient evidence to show that White took the wallet. We thus reverse his conviction for robbery with a weapon.

Affirmed in part, reversed in part, and remanded to vacate the conviction for robbery with a weapon.

FARMER, J., and CONNER, BURTON C., Associate Judge, concur.


text:
    REAL INVESTMENTS, LLC, Petitioner, v. The OAKS GROUP, INC., Respondent.
    No. 4D06-2124.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.

      Carol C. Asbury of Asbury & Associates, P.A., Boynton Beach, for petitioner.
    Jeffrey A. Rynor, Pamela A. Chamber-lin, Sheryl S. Natelson, and Jason M. Folk of Mitrani, Rynor & Adamsky, P.A., Miami, for respondent.
   KLEIN, J.

The purchaser seeking enforcement of a real estate contract seeks certiorari review of an order dissolving a lis pendens. The order was entered because purchaser did not post a bond to cover the damages to the seller in the event the purchaser did not prevail in the litigation. We initially stayed this appeal as being moot, because the trial court entered a summary judgment in favor of the seller. Our reversal of the summary judgment, Real Investments LLC v. Oaks Group, Inc., 969 So.2d 1204 (Fla. 4th DCA 2007), makes the bond issue ripe, but we deny relief.

The contract, which became effective in February, 2005, provided for a sales price of $2.9 million. At the hearing to determine the amount of the lis pendens bond, the seller provided evidence that there were preconstruction contracts for 76 of 114 condominiums to be built on the property, that $1 million dollars was es-crowed for those condominiums, and that the seller had obtained a $17 million dollar construction loan. If all 114 units were sold, the sales total would be about $30 million dollars, and if a lis pendens made it impossible for the sales to close, the annual cost of carrying the units would be from $1.5 to $1.7 million dollars. It would also result in the construction loan going into default.

The amount of a lis pendens bond should bear a reasonable relationship to the amount of damages which will “likely result if it is later determined that the notice of lis pendens was unjustified.” Med. Facilities Dev. v. Little Arch Creek Props., 675 So.2d 915, 918 n. 2 (Fla.1996). A trial court has broad discretion as to the amount of the lis pendens bond. Id.

Although the trial court did not explain how it calculated the bond amount of $1,287,241, the seller put on evidence to the effect that it would suffer substantially more in damages. The purchaser has failed to demonstrate that the amount is not supported by competent substantial evidence. We accordingly find no abuse of discretion and deny the petition.

SHAHOOD, C.J., and STEVENSON, J., concur.


text:
    Wilfredo DELGADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-675.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2008.
    Rehearing and Rehearing En Banc Denied Jan. 30, 2008.

      Bennett H. Brummer, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill Kramer Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and SUAREZ and CORTIÑAS, JJ.
   On Motion for Rehearing

SUAREZ, J.

We grant the defendant’s motion for rehearing, set aside the opinion of February 14, 2007, and substitute the following opinion:

The defendant appeals the denial of his motion under Florida Rule of Criminal Procedure 3.800(a) on grounds that his sentence was greater than that allowed by law due to the incorrect calculation of his scoresheet points. We affirm the trial court’s denial of the defendant’s 3.800(a) motion.

Acknowledging the concession by the State as to the correct calculation of the defendant’s scoresheet, which would not have resulted in the lowering of his sentence, we hold that the validity of the reasons for the trial court’s departure from the guidelines scoresheet sentence cannot be attacked by a 3.800(a) motion. Concepcion v. State, 944 So.2d 1069 (Fla. 3d DCA 2006); Isom v. State, 915 So.2d 183 (Fla. 3d DCA 2005); see also Wood v. State, 867 So.2d 590 (Fla. 5th DCA 2004).

Therefore, the trial court was correct in denying the 3.800(a) motion.

Affirmed.


text:
    Rosenia WILLIAMS, Appellant, v. Samuel PRIMERANO, Appellee.
    No. 4D07-1710.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.

      Richard G. Bartmon of Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for appellant.
    Jonathan D. Wald of Law Office of Stuart R. Manoff & Associates, West Palm Beach, for appellee.
   WARNER, J.

A mother appeals an order transferring temporary custody of her minor son to his father. She claims that she was denied due process, because the father had moved for a “child pick-up order” and did not request a change of primary physical residence of the child, which had not yet been determined. We agree that the trial court denied the mother due process in determining primary physical residence of the child at the hearing on the pick-up order and reverse.

The father and mother are parents of the minor son, born in 2004. They have never married, although they were living together in Florida at the time of the child’s birth. Six months after the child’s birth, the mother was staying in Minnesota and contemplated moving back to that state. Around that time, during a visit by the mother to Florida, the parents executed a shared parental responsibility agreement in which they agreed that the mother would be the primary residential parent, should the parties separate. The agreement also contained a provision acknowledging that the mother may elect to move permanently to Minnesota, if the parties separated. The shared parental responsibility agreement would not be used to prevent such a move.

Two years after the agreement was signed, the father filed a Verified Petition to Determine Paternity and for Related Relief in which he requested the court to determine paternity, child custody, parental responsibility, visitation, and child support. On the same date, the father also filed a Motion for Ex Parte or Emergency/Expedited Relief for a child pick-up order. The father alleged that his paternity was established through a DNA test, although he acknowledged that prior legal paternity proceedings were voluntarily dismissed. He also alleged that the mother wrongfully removed or wrongfully detained the minor child from his custody, leaving him a note that she was taking the child to Minnesota, where she would be staying with her mother. The father asserted that the child was in immediate danger of harm, asserting allegations of neglect against the mother.

The court denied the emergency ex parte request for a child pick-up order. The father then set a hearing, noticing only the motion for a pick-up order. The mother filed a response to the motion for child pick-up order in which she asserted that the father’s motion was not properly before the court and should be summarily denied as there was no order granting custody of the minor child to the father or which determined parental responsibility of the parties, and that he had no standing to make the request. She also cited section 744.301(1), Florida Statutes, which provides that the mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child, unless a court of competent jurisdiction enters an order stating otherwise. Despite the limited nature of the hearing, the trial court entered an order granting the father’s motion for “temporary change of custody,” appointing the father as the temporary primary residential parent, and directing the father to travel to Minnesota to pick up the child. The mother appeals this ruling.

A fundamental requirement of due process is “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). A trial court cannot determine matters not noticed for hearing or award relief not sought by the pleadings. Hendershot v. Hendershot, 742 So.2d 444, 445 (Fla. 4th DCA 1999); Maras v. Still, 927 So.2d 192, 193 (Fla. 2d DCA 2006). With respect to child custody matters, “the trial court commit[s] reversible error in changing primary residence, even on a temporary basis, at a hearing that was not noticed for that issue.” Gelato v. Basch, 658 So.2d 664, 665 (Fla. 4th DCA 1995). In Maras, the Second District reversed modification of temporary residential custody where the father’s motion sought joint custody but not a change in the mother’s status as primary residential custodian. 927 So.2d at 193. The court reasoned that the mother was given no warning that the primary residential custody of her child was at stake. Id.

Likewise, in this case the mother was not given notice that her primary residential custody of the child was at stake. The father had requested a child pick-up order, not a determination of primary physical residence. “The mother of a child born out of wedlock is the natural guardian of her child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.” § 744.301(1), Fla. Stat. See also Perez v. Giledes, 912 So.2d 32 (Fla. 4th DCA 2005). A pick-up order permits a court to obtain the physical presence of a child within the jurisdiction so that it can adjudicate issues of custody or to enforce an already granted right of custody. It is not a vehicle by which an initial determination of custody is made.

The mother was denied due process of law by the trial court’s determination that the father be the primary residential parent of the child. We reverse the order of the trial court and remand for further proceedings.

FARMER, J., and CONNER, BURTON C., Associate Judge, concur.


author: WELLS, Judge.

text:
    Judith W. FELDMAN, Appellant, v. CITY OF NORTH MIAMI, Florida, et al., Appellees.
    No. 3D07-1491.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2008.

      Ron Bradley Kurtz, Hollywood; Lowy and Cook and Ronald S. Lowy, Miami Beach, for appellant.
    Weiss Serota Helfman Patoriza Cole & Boniske and Joseph H. Serota, Miami, for appellee City of North Miami; Gray Robinson and George N. Meros, Jr., and Andy V. Bardos, Tallahassee, for appellee North Miami Community Redevelopment Agency-
    Before WELLS, ROTHENBERG and SALTER, JJ.
   WELLS, Judge.

Judith Feldman appeals from a final summary judgment in the City of North Miami’s favor, rejecting Feldman’s claim that a Municipal Charter Amendment adopted by popular vote was invalid because the ballot summary violated section 101.161 of the Florida Statutes. We agree that the ballot summary language is not clearly and conclusively defective and will not therefore warrant relief. See, e.g., Kainen v. Harris, 769 So.2d 1029, 1030 (Fla.2000) (citing Florida League of Cities v. Smith, 607 So.2d 397, 399 (Fla.1992) for the proposition that “no relief is possible unless the ballot summary is clearly and conclusively defective”).

Affirmed.

      . Section 101.161 in pertinent part provides:
      Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word "yes” and also by the word "no,” and shall be styled in such a manner that a "yes” vote will indicate approval of the proposal and a "no” vote will indicate rejection.... Except for amendments and ballot language proposed by joint resolution, the substance of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure.
      § 101.161(1), Fla. Stat. (2007).


text:
    Joseph R. RAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2728.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2008.

      Joseph R. Ragan, pro se, Appellant.
    Bill McCollum, Attorney General, Charlie McCoy, Senior Assistant Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion. The appellant asserts that a three-year mandatory minimum sentence was improperly imposed pursuant to section 775.087(2), Florida Statutes (1982), because there were no specific jury findings indicating the appellant personally possessed a firearm. The trial court failed to provide record attachments that conclusively refute the appellant’s claim that the jury verdict did not find that he actually possessed the firearm, as required to impose a three-year minimum mandatory sentence for commission of an offense with use of a firearm. See Knight v. State, 800 So.2d 702, 702 (Fla. 1st DCA 2001). No other claim was adequately pleaded. See Lauramore v. State, 949 So.2d 307 (Fla. 1st DCA 2007).

We, therefore, reverse the trial court’s order and remand for the court to attach records conclusively refuting the appellant’s claim of insufficient jury findings, or to resentence the appellant without the three-year minimum mandatory sentence.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

WEBSTER, BENTON, and POLSTON, JJ., concur.


text:
    Dimitrius CONLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-3332.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2008.
    Dimitrus Conley, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Dimitrius Conley appeals the trial court’s order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief. Moreover, after reversal and remand to the trial court, the appellant may wish to file a petition for writ of habeas corpus in order to request immediate release from custody, as his contention is that his sentence has been completely served.

Reversed and remanded for further proceedings.