author: TAYLOR, J. WARNER, J.,

text:
    Walter DENDY and Neal Bross, Appellants, v. STATE of Florida, Appellee.
    Nos. 4D05-3682, 4D05-3961.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.
    Rehearing Denied May 25, 2007.

      Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellants.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Walter Dendy and Neal Bross appeal their convictions for the murder of Leonard Houda. We affirm on all grounds raised by appellants, but write to address one point on appeal. Appellants contend that the trial judge erred in not disqualifying herself because of her prior involvement in this matter as a prosecutor. We disagree and affirm.

In the first trial of this matter, separate juries convicted Dendy of second degree murder and Bross of third degree murder. We reversed both convictions because appellants’ confessions, which were introduced at trial, had been obtained through use of the Broward Sheriffs Office’s defective Miranda rights form. Dendy v. State, 896 So.2d 800 (Fla. 4th DCA 2005), and Bross v. State, 898 So.2d 1027 (Fla. 4th DCA2005).

Retrial of this case was assigned to Circuit Court Judge Eileen O’Connor, a former federal prosecutor. After the jury was selected, but before the first witness testified, appellants orally moved for mistrial. They advised Judge O’Connor that they had just discovered a letter, dated February 9, 2001, from Assistant State Attorney Edward Walsh addressed to then-Deputy Assistant United States Attorney Eileen M. O’Connor. In the letter, Walsh wrote that a state warrant had been issued for John Doe a/k/a James Cassidy for “Theft of Identity.” He stated that there was reason to believe that Cassidy had left the State of Florida and requested assistance in issuing an Unlawful Flight to Avoid Prosecution (UFAP) warrant. James Cassidy a/k/a Emilio Charafardin became a key witness against appellants. Appellants expressed their concern about the judge’s prosecutorial role in bringing this witness from California back to Florida.

Upon reviewing the letter, Judge O’Con-nor stated that the letter from Ed Walsh was an Extradition Unit Request and that, as the managing assistant, she would not have handled it. The letter was addressed to her only because of her supervisory role in the U.S. Attorney’s Office at that time. She explained that her involvement, if any, would have been limited to the administrative task of assigning the routine request to an assistant U.S. Attorney; she would not have seen the letter nor assisted in obtaining the UFAP warrant. Judge O’Connor allowed appellants time to confer with counsel concerning their motion for mistrial. After a brief recess, appellants renewed their motion for mistrial and moved for recusal as well. Judge O’Con-nor gave appellants time to prepare and file a written motion to disqualify.

Appellants’ motions to disqualify alleged that James Cassidy a/k/a Emilio Charafar-din was the key witness against appellants, and that, after the letter was sent to now Judge O’Connor, a warrant issued for Cha-rafardin’s arrest in Palm Springs, California. Broward Sheriffs Office, detectives traveled to Palm Springs, California and, in the course of executing the warrant for identity theft, obtained a confession from Charafardin regarding the Houda murder. The confession implicated appellants, Den-dy and Bross. Appellants alleged that they had reason to fear that they would not receive a fair trial before Judge O’Con-nor in light of her prosecutorial involvement in the case. Judge O’Connor denied their motions as legally insufficient.

At trial, the prior trial testimony of Emilio Charafardin a/k/a James Cassidy was read to the jury. According to Charafar-din’s testimony, Walter Dendy hired Cha-rafardin to pour sulfuric acid on Leonard Houda. Charafardin then found Neal Bross to help him with the acid attack. Charafardin testified that Bross carried out the attack, with Charafardin acting as the getaway driver. Houda later died after suffering severe acid burns to his body, multiple organ failure, and sepsis due to chemical burns. In the weeks following the deadly attack, as the police closed in, Charafardin went to Palm Springs, California, where he was arrested on the UFAP warrant. He subsequently confessed to the Houda murder and implicated both Dendy and Bross.

Appellant Dendy was found guilty of Second Degree Murder and sentenced to life imprisonment. Appellant Bross was found guilty of Third Degree Murder and sentenced to fifteen years imprisonment.

Whether a motion to disqualify is legally sufficient is a question of law. Therefore, the, proper standard of review is de novo. Chamberlain v. State, 881 So.2d 1087, 1097 (Fla.2004), cert. denied, 544 U.S. 980, 125 S.Ct. 1669, 161 L.Ed.2d 495 (2005). Florida Rule of Judicial Administration 2.160 governs the disqualification of trial judges. It sets forth the grounds for such a motion:

(d) Grounds. A motion to disqualify shall show:
(1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or
(2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

When faced with a motion to disqualify, a trial judge must determine whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. See Zuchel v. State, 824 So.2d 1044, 1046 (Fla. 4th DCA 2002). A judge confronted with a motion to disqualify “may only determine whether the motion is legally sufficient and is not allowed to pass on the truth of the allegations.” Livingston v. State, 441 So.2d 1083, 1086 (Fla.1983).

Appellants argue that their allegations regarding Judge O’Connor’s apparent role in procuring the UFAP warrant for Charafardin were sufficient to create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. They assert that their motions and “the records” showed that Judge O’Connor “had some function in a prosecutorial capacity in this case prior to indictment, assisting law enforcement in obtaining an interstate arrest warrant.” However, neither the allegations in their motions nor any attachments to the motions sufficiently established this. Although appellants did allege that a federal warrant issued for Charafardin and that Broward detectives obtained a confession from him implicating appellants, appellants did not allege that Judge O’Connor actually participated in procuring the arrest warrant. At best, the motions to disqualify suggest that Judge O’Connor may have participated in obtaining the warrant because the UFAP request letter was addressed to her. Further, even if appellants had alleged some actual participation by the judge, appellants did not allege a sufficient connection between the judge’s role in the Charafar-din warrant and the prosecution of appellants in this case for the motion to have been legally sufficient. The warrant that was sought and issued for Charafardin was based on his flight from prosecution on an unrelated “Theft of Identity” charge. The motions did not allege that Judge O’Con-nor was made aware of any connection between Charafardin and the murder charges against appellants or that she sought the warrant to secure him as a witness against appellants in this murder ease. We believe that Canon 3E(1) of the Code of Judicial Conduct is instructive on this point.

Subsection (1) of Canon 3E requires that “a judge disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where ... (b) the judge served as a lawyer ... in the matter in controversy....” Here, there is no allegation that Judge O’Connor ever served as a lawyer in this murder prosecution. The fact that Charafardin, upon his arrest on the UFAP warrant for identity theft, ended up confessing and implicating appellants in this murder case does not qualify Judge O’Connor as having previously served as a lawyer in this case. Cf. Penoyer v. State, 945 So.2d 586 (Fla. 2d DCA 2006) (holding that a defendant’s allegation that the trial judge also served as prosecutor for the underlying conviction entitled him to have his postconviction motions heard by another judge); Ryals v. State, 914 So.2d 285 (Miss.App.2005) (holding that judge was required to recuse himself from hearing post-conviction relief motion because he served a prosecutorial role in the same underlying criminal case).

Here, appellants’ motions failed to set forth legally sufficient reasons for disqualification. The motions were based on speculation and were too vague in alleging that the judge had “some prosecutorial involvement in the case.” We hold that the facts alleged would not create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. In so holding, we distinguish this case from those wherein the judge is alleged to have been actually involved in the prosecution of the defendants moving for disqualification. See Duest v. Goldstein, 654 So.2d 1004 (Fla. 4th DCA 1995) (holding that the trial judge’s assistance in prosecuting defendant at his first trial, while the judge was an assistant and supervising state attorney of the division in which defendant was tried, created a reasonable basis for concern); Roberts v. State, 161 So.2d 877 (Fla. 2d DCA 1964) (holding that a judge was disqualified to preside over the defendant’s case where the judge had earlier appeared in the prosecution as county solicitor and had interviewed the witnesses against the defendant and filed the informations against him).

Affirmed.

GROSS, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I must respectfully dissent. I see no difference between this case and Duest v. Goldstein, 654 So.2d 1004 (Fla. 4th DCA 1995). There, the judge was recused for his involvement as an assistant state attorney in the prior prosecution of the defendant. His only participation in that proceeding was as the supervising state attorney for the division in which the defendant was being tried. His assistance was limited to entering the courtroom while the defendant’s trial was ongoing and handing a document to the prosecutor. Here, the judge was the supervising attorney at the U.S. Attorney’s office and sent the request for a warrant to the assistant U.S. Attorney in charge of issuing the warrants. The warrant allowed the key witness in appellant’s case to be detained and questioned, leading to the incriminating testimony in this case. I think appellant would have a reasonable fear that the judge would be biased against him in that she set in motion the assistance of the U.S. Attorney’s office in obtaining the crucial evidence in this case.

      . The opinion in Dendy’s appeal also held that a comment by the prosecutor in closing argument was improper. See Dendy, 896 So.2d at 804.

      . 18 U.S.C.A. § 1073 makes it a federal offense to flee and move in interstate commerce with intent to avoid prosecution under state law.

      . Appellants filed an emergency petition for writ of prohibition in our court, which we denied in Case No. 4D05-2891.

      . Appellants have not argued on appeal that Judge O'Connor took on an adversarial role requiring disqualification when commenting on her lack of involvement in the UFAP warrant during the hearing on their motion for mistrial.


source: Caselaw Access Project

author: ROTHENBERG, Judge.

license: Public Domain

text:
    Ronnie BYNUM, Petitioner, v. Timothy RYAN, Director, Miami-Dade County Corrections and Rehabilitation Department, and The State of Florida, Respondents.
    No. 3D07-985.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.

      Bennett H. Brummer, Public Defender, and John E. Morrison, Assistant Public Defender, for petitioner.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for respondent the State of Florida.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

The defendant, Ronnie Bynum, petitions for a writ of habeas corpus to remedy his illegal pretrial incarceration with no bond. We grant the petition for writ of habeas corpus and remand to the trial court to set a reasonable bond taking into consideration the criteria as set forth in section 903.046, Florida Statutes (2005).

On May 20, 2005, the State of Florida (“State”) filed an information against the defendant for DUI with serious bodily injury and property damage resulting from an accident that had occurred months earlier. The defendant, however, was never arrested on that charge, was not booked on that charge, and the trial court did not set any conditions for pretrial release. Therefore, the defendant was not placed on pretrial release pursuant to sections 903.047-903.0471, Florida Statutes (2005).

Subsequently, the defendant was arrested on an unrelated misdemeanor charge and the trial court ordered him held without bond pursuant to section 903.0471, Florida Statutes, for violating the conditions of his pretrial release. We find, however, that because the defendant has never been booked or given a pretrial release order establishing the conditions for his pretrial release, he could not have violated his pretrial release conditions. The trial court, therefore, had no authority to order that the defendant be held without bond in this instance.

The Miami-Dade County Corrections and Rehabilitation Department shall deliver the defendant to the trial court within 24 hours and the trial court is directed to set a reasonable bond after considering the criteria contained in section 903.046, Florida Statutes and any other factors to insure the defendant’s appearance before the court, the safety of the community, and the orderly administration of justice.

Petition for writ of habeas corpus GRANTED and this cause is remanded for further proceedings consistent with this opinion.

This opinion shall take effect immediately notwithstanding the filing or disposition of any motion for rehearing.


author: VILLANTI, Judge.

text:
    Aaron CECEMSKI, Appellant, v. Ashly Ann CECEMSKI, Appellee.
    No. 2D06-2391.
    District Court of Appeal of Florida, Second District.
    April 20, 2007.
    J. Christopher Lombardo and Jennifer L. DeVries of Woodward, Pires & Lom-bardo, P.A., Naples, for Appellant.
    No appearance for Appellee.
   VILLANTI, Judge.

Aaron Cecemski appeals the relocation granted in the final judgment of dissolution of his marriage to Ashly Cecemski. Mr. Cecemski does not challenge the dissolution of marriage itself, the trial court’s decisions regarding child support or shared parental responsibility, its designation of Mrs. Cecemski as the primary residential parent, or related matters. Mr. Cecemski challenges only the trial court’s decision to allow Mrs. Cecemski to relocate from Marco Island, Florida, to Louisiana with the couple’s then two-year-old daughter. Because the trial court’s decision to grant relocation was not supported by competent substantial evidence, we reverse.

In deciding a request for relocation, including a request made prior to a final judgment of dissolution, section 61.13(2)(d), Florida Statutes (2005), requires a trial court to consider the following factors:

1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child.
2. The extent to which visitation rights have been allowed and exercised.
3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.
4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.
5. Whether the cost of transportation is financially affordable by one or both parties.
6. Whether the move is in the best interests of the child.

See Borchard v. Borchard, 730 So.2d 748, 749-50 (Fla. 2d DCA 1999); Kuntz v. Kuntz, 780 So.2d 1022, 1023 (Fla. 4th DCA 2001). Under section 61.13(2)(d), there is no presumption in favor of, or against, relocation. Further, although the record must reflect that the trial court considered the statutory factors, section 61.13(2)(d) does not require the court to make specific findings regarding the factors. Mian v. Mian, 775 So.2d 357, 359 n. 2 (Fla. 2d DCA 2000).

Here, it is readily apparent that the trial court considered the six statutory factors because it commendably expressly noted each factor in the final judgment. On appeal, we cannot reweigh the evidence considered by the trial court. See. Kuntz, 780 So.2d at 1023. Instead, we must affirm if substantial competent evidence exists to support the trial court’s decision. See Berrebbi v. Clarke, 870 So.2d 172, 173 (Fla. 2d DCA 2004) (reversing an order granting relocation because the trial court’s findings were not supported by substantial competent evidence); Kuntz, 780 So.2d at 1023 (affirming a decision denying relocation because the trial court’s findings were supported by substantial competent evidence). However, after a thorough review of the record on appeal, we find that the facts in virtually every pertinent matter of consequence do not provide substantial competent evidence to support the trial court’s findings, and hence, it was reversible error to grant the request for relocation. We note that factual findings often provide support for more than one statutory factor, but under the facts of this case, it is not necessary for us to address which finding pertains to which factor; the net result is that the trial court’s ultimate conclusion — that the move was in the child’s best interest — is simply not justified by the evidence presented.

For example, in its first pertinent finding, the trial court found that Mrs. Cecem-ski could not “afford to rent her own apartment” and that “there is little affordable housing available on Marco Island.” However, the trial transcript reveals no evidence — expert testimony, lay testimony, stipulation, judicial notice, or otherwise— regarding the housing market on Marco Island. Therefore, the trial court’s assessment of Marco Island’s affordable housing market, even if it seems intuitively correct, is supposition or conjecture, which axiomatically cannot support the conclusion that Mrs. Cecemski could not afford to rent her own apartment.

The trial court further found that the child’s general quality of life would improve by relocating to Louisiana because Mrs. Cecemski “would be able to be gainfully employed, living in a home with her grandmother, and the child would be enrolled in a daycare program at a much earlier time” than if they were to stay in Marco Island. On the contrary, Mrs. Ce-cemski testified that she did not have a job lined up in Louisiana nor had she even applied for any jobs in Louisiana. In fact, she anticipated taking a job in Louisiana that paid significantly less than her existing job in Marco Island.

Moreover, although Mrs. Cecemski testified that she planned to live rent-free with her nontestifying grandmother, the grandmother’s house was located next door to Mrs. Cecemski’s parents’ house. This is problematic because the trial court also found that Mrs. Cecemski’s parents were drug users with whom the minor child would not be permitted to visit without the presence of “an appropriate qualified professional, non-family third party visitation facilitator.” The trial court did not arrange for the appointment of such a facilitator nor were the parties ordered to obtain the court’s approval for their own chosen facilitator. Further, regardless of this omission, the trial court made no findings as to the affordability or viability of such a facilitator, and enforcement and jurisdictional issues would still remain. Thus, such uncontrolled proximity to Mrs. Cecemski’s parents was not likely to foster an improved quality of life for the child.

In considering the fourth statutory factor of whether a substitute visitation schedule would “foster a continuing meaningful relationship between the child and [Mr. Cecemski],” the trial court discussed at considerable length both parties’ drug use and then found that a particular substitute visitation schedule “should be implemented” without specifying how or why the substitute schedule related to the parties’ drug use. The visitation schedule provided that, every six weeks until the child turns five years old, Mrs. Cecemski was to drive south from Louisiana with the child, and Mr. Cecemski was to drive north from Marco Island. After driving for seven to eight hours each, the parties would meet halfway, “probably in the Florida Panhandle area,” so Mr. Cecemski could spend the weekend with the child. The trial court defined the weekend- period as extending from 9 a.m. on Saturday through 7 p.m. on Sunday. In between these weekend visits, “to further facilitate visitation and contact,” Mrs. Cecemski was to send videotapes and pictures of the child to Mr. Cecemski, the parties were to “attempt to obtain videocams for their computers to effectuate ‘videocam’ visitation,” and Mrs. Cecemski was to “coordinate frequent and liberal telephone contact” between the child and Mr. Cecemski. The trial court also suggested that Mr. Cecemski could videotape himself reading stories and then Mrs. Cecemski could play the tapes for the child. More important, there was no evidence to support the trial court’s underlying assumption that the parties could realistically overcome the obvious obstacles associated with complying with the visitation scheme’s framework, such as time, distance, finances, computer and videocam access or ownership, and work schedules; nor was there any evidence suggesting that such a substitute visitation scheme would generally be in the child’s best interests — the sixth factor of section 61.13(2)(d), acting as a linchpin, summarizing the other five factors.

Neither does the final judgment expressly find that this substitute visitation schedule would foster a continuing meaningful relationship, and based on the record before us, we do not see how the trial court could have made such a finding. The testimony was clear that both parties have very limited financial resources. Consequently, here, a recurring weekend visitation getaway to the Florida Panhandle from Marco Island and Louisiana, among other things, is a concept that seems more impractical than practical. For example, as argued by Mr. Cecemski compliance with the trial court’s order, at a minimum, would entail both parties renting hotel rooms for Saturday night or making the drive home and back, requiring expensive fuel and eating up precious visitation time; they may also need hotel rooms for Friday night and Sunday night unless they planned to drive the seven to eight hours overnight before beginning the weekend at 9 a.m. on Saturday and after ending the visitation at 7 p.m. on Sunday. In addition, Mr. Cecemski would need to plan father/daughter activities, some of which would likely cost money that he cannot afford. This particular schedule with its long drives and short visits is not likely to foster any type of meaningful relationship between the child and Mr. Cecemski. See Doherty v. Padgett, 942 So.2d 464, 465 (Fla. 2d DCA 2006) (expressing concern that a long drive for a weekend visit wás not in the child’s best interest).

Further, the plan to meet halfway does not appear to have been proposed by the parties, except to the extent that Mrs. Cecemski, in response to a question posed by her attorney, testified that she would be willing to drive to Marco Island or meet in the middle. Although Mrs. Cecemski makes no appearance in this appeal, she may also be aggrieved by the substitute visitation scheme’s infringement on her quality time with her daughter along with what appears to be an impossible financial burden.

In addition to the impractical visitation schedule, there was no evidence to support a finding that videos and phone calls with this child would foster a continuing meaningful relationship in lieu of the traditional visitation the child was enjoying with her father and his family before the substitute visitation schedule was engineered by the trial court. This court has repeatedly held that an adequate substitute visitation schedule is not expected to foster the same type or an equivalent degree.-of relationship between the child and the secondary residential parent as was occurring before relocation. See Fredman v. Fredman, 917 So.2d 1038, 1041 (Fla. 2d DCA 2006); Buo navolonta v. Buonavolonta, 846 So.2d 649, 650-51 (Fla. 2d DCA 2003); Wilson v. Wilson, 827 So.2d 401, 403 (Fla. 2d DCA 2002). Rather, the substitute visitation schedule must merely foster a continuing meaningful relationship. Id. Indeed, if relocation required that the same type of relationship be maintained, it is unlikely that relocation would ever be granted. See Fredman, 917 So.2d at 1041; Buona-volonta, 846 So.2d at 651. Here, it is obvious that the substitute visitation schedule will not foster the same type of relationship between the child and Mr. Ce-cemski. However, it surely will not adequately foster a continuing meaningful relationship either.

In closing, it appears that the trial court struggled with this “sad and difficult” case, searching for the ability to fashion its desired relief — to allow relocation with substitute visitation and at the same time, despite distance, enforcement, financial, and jurisdictional issues, still ensure the child’s best interest — without DCF’s involvement or that of its counterpart in Louisiana.

Because there was no substantial competent evidence to support the trial court’s decision allowing relocation, it was an abuse of discretion to grant Mrs. Cecem-ski’s request for relocation. Accordingly, we reverse and remand for the trial court to enter an order vacating that portion of the final judgment allowing relocation and for further proceedings as appropriate on remand. In all other respects, the final judgment is affirmed.

Reversed in part, affirmed in part, and remanded with instructions.

SILBERMAN and LaROSE, JJ., Concur.

      . The parties stipulated to a settlement of marital personal property and liabilities, which the trial court approved.

      . Although the final judgment grants relocation to Louisiana in general, we presume that Mrs. Cecemski planned to move to Lake Charles, Louisiana, because she grew up there.

      . Mrs. Cecemski’s motion for relocation was filed after Mr. Cecemski’s petition for dissolution. All issues were tried together and determined under the umbrella of the same final judgment for dissolution of marriage.

      . We note that the requirements provided for by section 61.13(2)(d) were deleted and different requirements were implemented in the newly added section 61.13001, effective October 1, 2006. See ch.2006-245, § 2, Laws of Fla. However, the old requirements of section 61.13(2)(d) apply to the present case because the trial was held on January 17, 2006, and the final judgment for dissolution was rendered on April 19, 2006, prior to the statutory change. See § 61.13001(ll)(b), Fla. Stat. (2006).

      . Unquestionably, the trial court faced numerous issues — -jurisdictional and otherwise— in attempting to fashion its desired relief. Partially in light of these issues, the trial court noted during the trial that it wanted to get the Department of Children and Family Services (DCF) involved and required a local DCF representative to sit in on the subsequent hearing at which the court announced its partial ruling granting relocation. Despite the parties' lifestyles, the accusations lodged by each party against the other, and certain negative admissions made by each party, the DCF representative stated that she did not anticipate the filing of a dependency action. Nevertheless, albeit with good intentions, the trial court attempted to overcome these insurmountable impediments on its own.


author: STRINGER, Judge.

text:
    Estelle M. WHITTLESEY, n/k/a Estelle Mirande, Appellant, v. Horace M. WHITTLESEY, Jr., Appellee.
    No. 2D05-5399.
    District Court of Appeal of Florida, Second District.
    April 20, 2007.

      Ellen Ware and Jeanie E. Hanna of Ware Law Group, P.A., Tampa, for Appellant.
    Lorena L. Kiely of Law Office of Lorena L. Kiely, Tampa, for Appellee.
   STRINGER, Judge.

Estelle M. Whittlesey, the Former Wife, seeks review of the final judgment which dissolved her marriage to Horace M. Whittlesey, Jr., the Former Husband. The Former Wife raises several issues regarding the equitable distribution and alimony awards. We reverse for reconsideration of both awards based on our conclusion that the filing of the October 1991 Belgian divorce action did not trigger the cut-off date for identifying marital assets and liabilities.

The parties met in Mexico and married there in 1982., The Former Wife is French, and the Former Husband is an American born in Mexico to American parents. At the time of the marriage, the Former Husband worked as the general manager of American Standard Corporation in Mexico. The Former Wife quit her job as a translator for the Mexican government shortly before the 1981 birth of the parties’ first child. The parties’ second child was born in 1982, and their third child was born in 1984.

The Former Husband transferred to American Standard’s Thailand office in 1985, and the family lived in Thailand until 1990. The Former Husband’s generous salary and benefits allowed the family to live a lavish lifestyle which included a penthouse, chauffeurs, private schools for the children, maids, and frequent vacations. In 1990, the Former Husband was promoted and transferred to Ideal Standard Europe in Brussels, Belgium. There the higher cost of living resulted in a somewhat reduced, but still relatively affluent, lifestyle.

In October 1991, the Former Wife filed a divorce action in Belgium, but the divorce did not proceed after the Former Husband moved to China to work for American Standard’s Asian division in July 1993. The Former Wife and the children moved to the south of France to live with the Former Wife’s family shortly after the Former Husband moved to China. The Former Wife and children relocated to Spain in 1996, and the Former Wife remains there today. The Former Husband took early retirement in 2000 and moved to Florida. He filed for divorce in Hills-borough County, Florida, in November 2000.

One of the issues at trial was the cut-off date for identifying the parties’ marital assets. The Former Wife argued that the cut-off date should be the date the Former Husband filed the petition for dissolution of marriage in Florida, which was November 2000. The Former Husband argued that the cut-off date should be the date the Former Wife filed the Belgian divorce action, which was October 1991. The trial court determined that October 1991 was the appropriate cut-off date to identify the parties’ marital assets.

The final judgment of dissolution of marriage equitably divided the parties’ marital assets using the October 1991 cutoff date to identify which assets were marital. As part of this process, the final judgment determined that the Former Husband’s Thailand stock, which he sold in 2001 for nearly $800,000, was a nonmarital asset. The final judgment also awarded the Former Wife monthly permanent periodic alimony of $2500.

On appeal, the Former Wife raises two challenges to the equitable distribution award. First, the Former Wife argues that the trial court should not have used October 1991 as the date to identify the parties’ marital assets. Second, the Former Wife argues that even using the October 1991 date, the trial court erred in classifying the Thailand stock as a non-marital asset. The Former Wife also raises two challenges to the alimony award. First, the Former Wife argues that the alimony award is not supported by proper factual findings. Second, the Former Wife argues that the trial court failed to address her request for life insurance to secure the alimony award. We will address these arguments in turn.

Equitable Distribution

A. Cut-Off Date For Identifying Marital Assets

Section 61.075(6), Florida Statutes (2000), provides, in pertinent part:

The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.

(Emphasis added.) The trial court held that filing the Belgian divorce action triggered the cut-off date for identifying marital assets as “the date of the filing of a petition for dissolution of marriage” under this section. The court reasoned that the legislature’s use of the phrase “a petition for dissolution of marriage” instead of “the petition for dissolution of marriage” indicated its intent to allow the filing of any petition for dissolution to trigger the cutoff date for identifying marital assets. The court explained that the legislature could have used the phrase “the petition for dissolution of marriage,” which, according to the court, would refer to the specific petition filed for consideration by the trial court. The court also concluded that by choosing the earliest of the above three events to trigger the cut-off date, the legislature intended that the assets and liabilities acquired after the parties indicate an intent to live separately be considered non-marital. The court found that the parties in this case had a “de facto divorce” from the time the Former Wife filed the divorce action in Belgium.

This case appears to present a question of first impression in Florida. The legal question before this court is whether the filing of the Belgian divorce action triggered the cut-off date for identifying marital assets and liabilities under section 61.075(6). We recognize that section 61.075(6) does not specifically require that the petition for dissolution of marriage be filed in a Florida jurisdiction in order to trigger the cut-off date. However, we cannot accept the trial court’s conclusion that the legislature’s use of the phrase “a petition for dissolution of marriage” instead of the phrase “the petition for dissolution of marriage” requires trial courts to identify marital assets as of the date of filing any petition for dissolution in any country in the world at any time in the past.

Furthermore, we do not agree with the trial court’s conclusion that the legislature intended that the assets and liabilities acquired after the parties indicate an intent to live separately be considered nonmari-tal. If this were the case, the legislature would have chosen the date of separation as one of the trigger dates under section 61.075(6). Instead, the legislature chose three dates on which the parties took legal action to set the divorce process in motion.

This case is hopefully unique in that the original dissolution action remained unresolved for almost ten years in a foreign country before a petition for dissolution was finally filed in Florida. The record is devoid of evidence regarding the Belgian court’s actions in the divorce proceedings or the status of the case when the Former Husband left Belgium in 1993. We note that the Former Husband could probably have precluded consideration of assets he acquired after October 1991 if he had just made himself available for the Belgian divorce proceedings.

Under the unusual circumstances in this case, we find that the filing of the Belgian divorce action did not trigger the date for identifying marital assets and liabilities under section 61.075(6). We therefore reverse and remand for the trial court to use November 2000 as the cut-off date for identifying marital assets and liabilities.

B. Thailand Stock

In 1988 or 1989, the Former Husband purchased a $50,000 interest in American Standard stock for $25,000 of his own money plus $25,000 loaned to him by American Standard. The Former Husband’s interest was acquired as a result of Black & Decker’s attempted hostile takeover of American Standard. American Standard incurred massive debt to fend off the attack but survived to become a private company. In order to encourage its executives to extraordinary levels of performance, American Standard offered an opportunity to buy shares by matching money through loans. In 1998, American Standard issued the stock certificates to the Former Husband after it went public. The Former Husband sold the stock certificates in 2001 for nearly $800,000.

The final judgment determined that the Thailand stock was a nonmarital asset based on its conclusion that the shares were acquired after the October 1991 cut-off date. The Former Wife argues that the Thailand stock was a marital asset because it was issued prior to the October 1991 cut-off date for identifying marital assets. Our determination that the trial court should have used November 2000 as the cut-off date for identifying marital assets renders the Former Wife’s argument moot because the stock certificates were issued to the Former Husband in 1998. Therefore, the trial court should consider the Thailand stock as a marital asset for purposes of equitable distribution on remand.

Alimony

A. Factual Findings

This court’s determination regarding the proper cut-off date for the identification of marital assets renders the Former Wife’s argument regarding alimony moot to the extent that the court must reconsider the award in ■'conjunction with the parties’ assets as identified in the new equitable distribution award. In order to assist the court with this task on remand, we offer the following observations. We understand that determining the parties’ standard of living is difficult because they have not lived together since 1991 and, for most of the marriage, they lived the lavish lifestyle of ex-patriots in impoverished countries. However, the court must still consider the Former Wife’s actual need and the Former Husband’s ability to pay in determining alimony. See Beck v. Beck, 852 So.2d 934, 937 (Fla. 2d DCA 2003); O’Connor v. O’Connor, 782 So.2d 502, 503-04 (Fla. 2d DCA 2001). The final judgment currently does not make sufficient findings on either factor.

B. Life Insurance

The final judgment does not address the Former Wife’s request that the Former Husband obtain life insurance to secure alimony. On remand, the court should consider this issue as well. It appears that the Former Husband does currently have a life insurance policy for $537,000 and that the children are the current beneficiaries. However, we express no opinion on the merits of the issue.

Reversed and remanded.

ALTENBERND and SILBERMAN, JJ., Concur.


author: FULMER, Chief Judge.

text:
    Alonzo Lamart EDISON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2765.
    District Court of Appeal of Florida, Second District.
    April 20, 2007.

      James Marion Moorman, Public Defender, and Sarah E. Warren, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Chief Judge.

Alonzo Edison was charged with one count of trafficking in cocaine by possession pursuant to sections 893.135(l)(b) and 777.011, Florida Statutes (2003), and one count of possession of methylenedioxy-methamphetamine (MDMA; ecstasy) pursuant to section 893.13(6)(a). He was tried with three codefendants and convicted of both charges. On appeal, Edison challenges the judgment and sentence for his conviction on the cocaine charge only. We therefore affirm as to his conviction on the MDMA charge without comment. However, we reverse as to the conviction on the trafficking in cocaine charge because the trial court erred in denying, as to Edison, the four defendants’ joint motion for judgment of acquittal after the State presented no independent proof of Edison’s control over the cocaine in question.

After a police officer conducted surveillance on one side of a duplex and noted the comings and goings of forty to fifty people over the course of an hour or so, a SWAT team served a search warrant via the front door of the residence using loud distraction devices. The twelve people in the residence all attempted to run out the back door at the same time. Edison was the first person out the door; he was able to run past the police perimeter but was quickly caught. Two others also made it out the door on foot and were caught by police, while the remaining nine individuals fell to the ground near the door and were easily apprehended. Police found a large quantity of cocaine in plain view in the common areas of the residence, including crack cocaine in various stages of processing in the kitchen, and some weapons. There was no fingerprint evidence on any of the drug packages or weapons. Police found five pills, which turned out to be MDMA, and $1380 in cash in Edison’s pocket.

After the State rested, one of Edison’s codefendants moved for a judgment of acquittal, arguing that the State had not presented sufficient evidence of constructive possession as to any of the defendants. Edison’s counsel adopted the motion. Noting that this was a “very close case,” the trial court denied the motion. The jury found Edison and his three codefen-dants guilty as charged.

On appeal, Edison argues that the State failed to present a prima facie case of constructive possession of the cocaine found in the residence. The definition and elements of constructive possession are summarized in the Florida Standard Jury Instructions in Criminal Cases 25.10, which the trial court read to the jury:

Constructive possession means the thing is in a place over which the person has control, or in which the person has concealed it.
If a thing is in a place over which the person does not have control, in order to establish constructive possession the State must prove the person’s (1) control over the thing [and] (2) knowledge that the thing was within the person’s presence . . . . []

Thus, the State was required to prove that Edison was able to exert control over the cocaine and knew that the cocaine was in his presence. Because Edison does not address the knowledge element on appeal, we will limit our discussion to the control element. Edison properly frames his argument in terms of whether the motion for judgment of acquittal should have been granted, thus allowing the issue of control to go to the jury. See Isaac v. State, 730 So.2d 757, 758 (Fla. 2d DCA 1999) (“Whether a defendant had dominion and control over contraband is generally a fact issue for the jury, but a judgment of acquittal is proper when there is no evidence from which dominion and control can be inferred.”).

One general principle applicable to possession cases is that “[m]ere proximity to contraband is not enough to establish dominion and control.” Id. Instead, “the evidence must establish the defendant’s conscious and substantial possession, as distinguished from mere involuntary or superficial possession, of the contraband.” Id. Furthermore, because any possession on the part of Edison would have been nonexclusive, given that the State presented no evidence tying any of the four suspects directly to the cocaine, the control element cannot be inferred but must be established by independent proof. See Green v. State, 667 So.2d 208, 211 (Fla. 2d DCA 1995).

Our review of the record compels us to conclude that the State failed to present sufficient evidence that Edison had control over the cocaine. As a preliminary consideration, because there was no evidence that Edison was the owner or an occupant of the residence, the court could not infer that he had the ability to control the cocaine simply because it was in plain view in the common areas. Compare Taylor v. State, 319 So.2d 114, 116 (Fla. 2d DCA 1975) (holding that circumstantial evidence of guilt emanating from the defendant’s proximity to illicit drugs in plain view was equally susceptible to the reasonable hypotheses that the defendant was a mere visitor and that the drugs were in the possession and control of the owner or other occupant of the premises), with Brown v. State, 428 So.2d 250, 252 (Fla.1983) (holding that proof of the discovery of illegal drugs in plain view in the presence or two or more joint occupants of the premises is sufficient to support a conviction for constructive possession).

The State argues, however, that additional facts circumstantially support its prima facie case. First, the State points out that because Edison was the first person to run out the back door when the SWAT team served the search warrant and because the back door exited from the kitchen, Edison must have been in the kitchen at the time. It would therefore not be unreasonable for the jury to infer, the State argues, that Edison was involved in cooking, thus controlling, the crack cocaine. We conclude, however, that this argument represents an impermissible stacking of inferences. See I.F.T. v. State, 629 So.2d 179, 180 (Fla. 2d DCA 1993) (“Where two or more inferences in regard to the existence of a criminal act must be drawn from the evidence and then pyramided to prove the crime charged, the evidence lacks the conclusive nature to support a conviction.”). Here, given that the testimony indicated that the SWAT team’s entry at the front door and the suspects’ rapid exit out the back door occurred virtually simultaneously, we agree that it is reasonable to infer that Edison was in the kitchen at that moment. Beyond this, however, it cannot necessarily be inferred that Edison was cooking or controlling the crack cocaine. For one thing, the length of time that Edison was in the kitchen prior to his exit cannot be determined from the evidence. The State presented no evidence on whether cocaine residue was found on Edison. Furthermore, because three individuals including Edison were able to run out the back door quickly enough to avoid the pile-up suffered by the remaining suspects, it can just as easily be inferred that it was one or both of the other two individuals who were in the kitchen cooking the crack cocaine. As such, the fact that Edison was the first out the back door does not constitute sufficient evidence of ability to control the cocaine.

The State argues next that flight itself can serve as circumstantial evidence of guilt. Although we acknowledge that “[ejvidence of flight is relevant to infer consciousness of guilt where there is a sufficient nexus between flight and the crime with which a defendant is charged,” Powell v. State, 908 So.2d 1185, 1187 (Fla. 2d DCA 2005), here there is no necessary connection between Edison’s attempt to run out the back door and any control he may have had over the cocaine. Edison’s and the others’ flight can be explained by the distraction devices used by the SWAT team when it entered the residence, which created a scene of chaos according to one of the testifying officers. At worst, Edison’s flight can be taken as evidence that he was aware of the illegal activity taking place in the residence, but it does not necessarily imply that, among the twelve people in the house, he was able to exert control over the cocaine.

Finally, the State argues that the large amount of cash found on Edison’s person is evidence from which a jury could conclude that he was guilty of trafficking in cocaine by possession. The State cites to Barnes v. State, 838 So.2d 641 (Fla. 5th DCA 2003), to support its argument. Barnes, however, is distinguishable. Barnes was one of two passengers in the back seat of a vehicle. He was observed by officers placing clear baggies of a green leafy substance into a cigar box, which he threw into the back of the vehicle when confronted by the officers. The box was found to contain marijuana in wrapped baggies and over $4000 in currency. Barnes was charged with possession with intent to sell. In his defense, he testified that he was routinely paid in cash and did not have a bank account. Id. at 641. The court concluded that Barnes’ motion for judgment of acquittal was properly denied; the packages of the drugs and the cash found together with them “support[] the inference that [Barnes] intended to sell the drugs.” Id. at 641-42.

As these facts indicate, Barnes does not support the State’s position, for at least two reasons. First, in Barnes the cash and the contraband were found together. Here, in contrast, there was no evident physical connection between the cash and the contraband found in the house. Second, the issue in Barnes was whether the cash supported the intent element of a charge of possession with intent to sell. Possession as such was not at issue; the recital of facts presented above indicates that Barnes was in physical possession of the baggies of marijuana, irrespective of the cash. Here, however, we are concerned with whether Edison’s cash somehow demonstrates control, thus constructive possession, and Barnes does not help resolve this issue. See also Stevens v. State, 782 So.2d 550 (Fla. 5th DCA 2001) (large amount of cash found on defendant supported cocaine possession charge in conjunction with evidence that defendant was one of two men seen by deputy holding a cigar tube containing cocaine).

As with the kitchen-related evidence, we are forced to conclude that Edison’s possession of cash does not necessarily imply control over the cocaine in the residence. The cash may well have been drug-related, but the State presented no evidence to demonstrate that the cash was tied to the cocaine or that Edison’s possession of the cash represented control over the cocaine.

In conclusion, we affirm as to Edison’s conviction on the MDMA charge and reverse Edison’s judgment and sentence as to the trafficking in cocaine charge with directions that he be discharged as to the trafficking in cocaine charge only.

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

CASANUEVA and SALCINES, JJ., Concur.

      . Each of Edison's codefendants was charged with one count of trafficking in cocaine by possession only.

        . In the published instructions, the numbered list has a third element — "(3) knowledge of the illicit nature of the thing” — based on Chicone v. State, 684 So.2d 736 (Fla.1996); see also Brown v. State, 428 So.2d 250, 252 (Fla.1983) (listing three elements of constructive possession). At the charge conference, however, the trial court and parties discussed several variations on the jury instruction, and the court, over the defendants’ objection, decided to omit the third element, based on section 893.101. In section 893.101(2), the legislature found that "knowledge of the illicit nature of a controlled substance is not an element of any offense under [chapter 893, Florida Statutes].” On appeal, Edison does not contest the omission of the third element from the instructions read to the jury.


author: PER CURIAM.

text:
    Eric T. FRAZIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5760.
    District Court of Appeal of Florida, First District.
    April 20, 2007.
    Eric T. Frazier, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

WOLF, DAVIS, and THOMAS, JJ., concur.


text:
    Robert L. SMITH, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D07-0471.
    District Court of Appeal of Florida, First District.
    April 20, 2007.

      Robert L. Smith, pro se, Petitioner.
    Bill McCollum, Attorney General, and Pamela Lutton-Shields, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002); Fla. R. Civ. P. 1.440(a).

WOLF, DAVIS, and THOMAS, JJ., concur.


text:
    Carlton J. CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1133.
    District Court of Appeal of Florida, First District.
    April 20, 2007.
    Carlton J. Clark, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, DAVIS, and THOMAS, JJ., Concur.


author: RAMIREZ, J.

text:
    Jeffrey CHODOROW and Linda Chodorow, Appellants, v. PORTO VITA, LTD., Turnberry Court Corp.; Green Development Associates, Inc.; Bella Vista Mid-Rise South Condominium Association, Inc.; Porto Vita Construction Co.; Robert M. Swedroe Architect-Planners A.I.A., P.A.; and Robert M. Swedroe, Appel-lees.
    No. 3D05-2303.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.

      Murai, Wald, Biondo, Moreno & Brochin and Gerald Wald, Coral Gables and Allen P. Pegg; Levey, Airan, Shevin, Roen, Kel-so, Corona, Herrera, Miami, for appellants.
    Becker & Poliakoff and Steven Lesser and Daniel L. Wallach and Neil H. Levin-son, Fort Lauderdale; Daniels, Kashtan, Downs, Robertson & Magathan and Madelyn Simon Lozano and Joseph G. Weiss, Coral Gables, for appellees.
    Before GREEN, RAMIREZ, and CORTINAS, JJ.
   RAMIREZ, J.

Jeffrey Chodorow and Linda Chodorow appeal the dismissal of their complaint with prejudice and the final judgment entered against them in their action arising from an underlying claim for construction defects. We reverse, finding that the trial court incorrectly engaged in fact finding and summary adjudication during its review of the motion to dismiss.

The Chodorows are the owners of a penthouse unit. They sued the appellees, including the developer/seller, developers’ general partners, builder, condominium association, and the architect and his architectural firm, as a result of the Owners’ discovery of interior water leaks, which caused damage to the unit and its contents. .

The original complaint contained eight counts. Four amended complaints followed, all of which were the subject of multiple defense challenges. The defense challenged the timeliness of the Owners’ claims in the form of multiple motions to dismiss, arguing that the claims were time-barred because the Owners filed their action more than four years after the discovery of the initial water intrusion. The trial court entered numerous dismissal orders in which it directed the Owners to revise their pleadings. This led to the filing of a fifth amended complaint, including forty-five counts that involved segregated defect references based upon different theories and defendants.

The Owners alleged that, throughout their ownership of the unit, they experienced multiple incursions of water. They claim that these incursions occurred at different times, in different places, and for completely different and unrelated reasons, each of which manifested itself differently from the others. The cause of each was latent and hidden. They also alleged that they first noticed a water incursion a month after they moved into the unit, and that the remaining leaks surfaced thereafter.

The trial court dismissed with prejudice the Owners’ claim against all of the parties as to defect one, concluding that the Owners’ suit was untimely and that the Owners knew or should have known that they had a cause of action for that defect upon its discovery. The trial court subsequently dismissed the claims against all of the parties as to defects two through six, except the claims filed against the architect and the association, which remain pending.

We agree with the Owners’ argument that the trial court failed to confine itself to the facts alleged in the four corners of the complaint as the trial court is required to do on the review of a motion to dismiss. The trial court exceeded the restrictive scope of review of a motion to dismiss when it dismissed the complaint with prejudice.

A motion to dismiss is designed to test the legal sufficiency of a complaint and not to determine any factual issues. The Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006). Unlike a motion for summary judgment, the trial court may not rely on facts adduced in depositions, affidavits, or other proofs. Jordan v. Griley, 667 So.2d 493 (Fla. 3d DCA 1996). All allegations of the complaint must be taken as true and all reasonable inferences drawn therefrom must be construed in favor the non-moving party. Greene, 926 So.2d at 1199; Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003).

The trial court here considered factual material beyond the facts alleged in the four corners of the complaint. Whether or not the Owners knew or should have known that they had a cause of action for the first defect upon its initial discovery is a fact that did not affirmatively appear on the face of the complaint. It is thus a question of fact that should be raised by affirmative defense and decided by a jury. Whether or not there was an act or omission that served to toll the statute of limitations period is yet another fact that did not affirmatively appear on the face of the complaint. This fact determination is likewise one that should be determined by the trier of fact.

Additionally, if the analysis of a claim is factually intensive, it is better addressed on a summary judgment motion, or at trial, but certainly not on a motion to dismiss. Susan Fixel, 842 So.2d at 208. This case is indeed factually intensive. It calls for an in-depth analysis of the limitations defense, and this inquiry and fact-finding process cannot be accomplished on a motion to dismiss. We therefore reverse the orders under review, and remand this cause to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

      . The Owners initially appealed the trial court’s dismissal with prejudice of the claim as to defect one and this Court dismissed the appeal without prejudice. See Chodorow v. Porto Vita, Ltd., 883 So.2d 807 (Fla. 3d DCA 2004).


author: FARMER, J.

text:
    Richard BRUCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1496.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    Rehearing Denied May 18, 2007.

      Michael Salnick of the Law Offices of Salnick & Fuchs, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   FARMER, J.

Arriving at the scene of a fatal automobile accident, a police officer saw indications that the driver may have been under the influence of alcohol when the accident occurred. Also, inside the driver’s vehicle was a cooler with four bottles of beer and an open bottle of bourbon whiskey. She retrieved a blood-alcohol testing kit from her patrol car — placed there barely a month earlier — and proceeded to have it used to draw blood from the driver, which was later tested. The results showed an illegal blood alcohol level. The driver was charged with DUI manslaughter and for causing injury. During pretrial discovery it became apparent that the kit was used by the officer 28 days after the expiration date placed on its label by its manufacturer. Driver was convicted and appeals.

The principal contention on appeal is that the test results for a kit used after the lapse of the expiration date on the label should be presumed unreliable. In the evidentiary hearing on defendant’s motion to suppress the test results, the State adduced this evidence. Dr. Jesse Bidanset is a forensic toxicologist. He has specialized knowledge of blood alcohol testing procedures and is familiar with the kit used in this case. The blood test kit contains a glass evacuation tube into which the sample is drawn (“vaeutainer”). The vacutainer holds a sealed vacuum. Each vacutainer also contains a preservative and an anticoagulant. The vacuum assures a specific volume of blood draw to mix with the specific amount of chemicals already placed therein.

Before the kit is used, it is possible for the vacutainer’s interior vacuum to deteriorate, which could result in a smaller volume of blood being drawn. A normal sample volume is 9-10mm. Manufacturers of these kits place expiration dates on them as part of their warranties concerning the sufficiency of the vacuum to draw the correct amount of blood for a proper sample. The expiration date does not relate to the preservation of the blood sample or affect its integrity once drawn and closed.

In this case, the vacutainer used by the officer had a normal vacuum. A normal size blood sample was drawn. The anticoagulant worked as indicated, the sample revealing some clots. Also the blood-alcohol level test result matched the result of the breath-alcohol test.

Other witnesses testified. The technician who performed the analysis on the kit testified she noted the expiration date and the fact that it was used after the date of expiration. She would not recommend using kits after their expiration date. The technician who administered the test said that he too would prefer using kits before their expiration dates. Defendant adduced no evidence calling into question the reliability of the specific test result in this case. Based on this testimony, the trial judge denied the motion to suppress and permitted the blood-alcohol test results to be admitted as evidence.

Under Florida’s Implied Consent Law, certain evidence of DUBAL creates a presumption that the driver was impaired. § 316.1934(2)(c), Fla. Stat. (2006) (results of any test administered in compliance with §§ 316.1932 and 316.1933 give rise to the presumption that driver was impaired). To give rise to the presumption of impairment, the tests must comply with regulations promulgated by the Florida Department of Law Enforcement. § 316.1933(2)(b), Fla. Stat. (2006). The blood-alcohol evidence admitted in this case complied with section 316.1933(2)(b).

The Supreme Court decisions on the admission of blood-alcohol test results in DUI prosecutions have evolved over the last decade. The backdrop for these evolving cases has been the holding in 1980 that the admission of any evidence of alcohol content generally must comport with essential due process. State v. Bender, 382 So.2d 697 (Fla.1980). Bender specified that under the common law, evidence of blood alcohol levels in a DUI prosecution will comply with due process when the evidence shows that (1) the testing procedure is reliable, (2) the test was performed by someone qualified to do so on equipment proper for that purpose, and (3) expert testimony explains the science behind the test and the outcome. 382 So.2d at 699. In Robertson v. State, 604 So.2d 783 (Fla.1992), the court held that the statutory presumption of impairment is not available when the State has not complied with section 316.1933(2)(b).

Then in State v. Miles, 775 So.2d 950 (Fla.2000), the court made clear that evidence complying only with the Bender common law holding does not permit the statutory presumption of impairment under the Implied Consent Law. The court said that the common law approach of Bender and the statutory presumption are mutually exclusive because the presumption is contingent on compliance with the statute. Miles, 775 So.2d at 956-57. In Cardenas v. State, 867 So.2d 384, 395 (Fla.2004), the court held that improperly instructing the jury as to the presumption of impairment when the evidence of blood alcohol has been admitted only under the common law test — and not under the statute-does not constitute fundamental error and is subject to the harmless error analysis of Goodwin v. State, 751 So.2d 537 (Fla.1999), and State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

These holdings yield the following result in this case. There is no challenge to the blood alcohol evidence as not being in compliance with the FDLE regulations. The FDLE regulations do not specify compliance with any expiration date on the kit employed. The failure of the FDLE regulation to require that the test kits be used before any expiration date is not a violation of due process where, as here, the evidence supports the scientific reliability of this test done with an expired date. The use of a test from a kit with an expired date is not per se error. Hence the general jury verdict on both the impairment alternative and the DUBAL alternative is not reversible because the jury was instructed on the presumption of impairment. Both DUI alternatives were supported by proper evidence.

Affirmed.

SHAHOOD and MAY, JJ., concur.

      . See § 316.193(l)(a) and (b), Fla. Stat. (2006) ("A person is guilty of the offense of driving under the influence ... if the person is driving ... a vehicle within this state and (a) the person is under the influence of alcoholic beverages ... when affected to the extent that the person’s normal faculties are impaired; [or] (b) the person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood ... ”). In this case, the test results showed a blood alcohol level of 0.15 grams. Defendant was prosecuted both for driving while impaired by alcohol and, alternatively, for driving with an unlawful blood alcohol level (DUBAL). The verdict form is general; the jury was not asked to differentiate between impairment and DUBAL.


author: CORTIÑAS, Judge.

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Jose WEJEBE, Respondent.
    No. 3D06-2334.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.

      Judson Chapman, General Counsel and Jason Helfant, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, for petitioner.
    Hersch and Talisman and Richard Hersch, Coconut Grove, for respondent.
    Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
   CORTIÑAS, Judge.

The Department of Highway Safety and Motor Vehicles seeks second-tier certiorari review to determine whether the circuit court, sitting in an appellate capacity, properly quashed a Department of Highway Safety and Motor Vehicles’ administrative order suspending Jose Wejebe’s driver’s license under section 322.2615, Florida Statutes (2005).

On October 14, 2005, Jose Wejebe was pulled over around 11:00 p.m. after a police officer observed him speeding and driving recklessly. After stopping Wejebe, the officer suspected that he was intoxicated. Wejebe failed two field sobriety tests and was placed under arrest for driving under the influence, reckless driving, and felony fleeing and eluding. After being placed under arrest, Wejebe agreed to take a breathalyzer test. The test was given on an Intoxilyzer 5000, serial number 66-002194 (“Intoxilyzer 66-002194”), and the test results indicated that Wejebe had a breath-alcohol level of .107 and .095. Wej-ebe was subsequently charged with driving under the influence, a misdemeanor.

On November 7, 2005, in an unrelated DUI case, a Monroe County Court judge entered an order finding that Intoxilyzer 66-002194 “was out of substantial compliance with FDLE as of February 2004 when the instrument gave an out of tolerance reading and continues to be out of compliance.” Amended Order Granting Motion to Exclude Breath Test Evidence, State v. Reich & Stephenson, Nos. 2004 MM 3036 K and 2005 MM 0149 (Fla. Monroe Cty. Ct. Nov. 7, 2005). The judge, Peary Fowler, further recommended that the machine “should be taken off line immediately and subject to a complete overhaul.” Id. Based on this order, Wejebe successfully moved the county court to exclude evidence of his breathalyzer results because he had been tested on the same intoxilyzer, Intoxilyzer 66-002194. Judge Fowler granted his motion on January 18, 2006. Order Granting Motion to Exclude Breath Test Evidence, State v. Wejebe, No. 05-CT-3306-K (Fla. Monroe Cty. Ct. Jan. 18, 2006).

Apart from the criminal charges pending against Wejebe, the Department of Highway Safety and Motor Vehicles (“DHSMV”) administratively suspended Wejebe’s driver’s license at the time of his arrest. See § 322.2615, Fla. Stat. (2005). Wejebe sought formal review of this six-month suspension, as provided by section 322.2615, Florida Statutes. At the administrative hearing on his license suspension, Wejebe raised the issue of Intoxilyzer 66-002194 being out of substantial compliance. Specifically, Wejebe advised the administrative hearing officer of Judge Fowler’s order in Reich. Wejebe also called two witnesses to testify that the machine was out of substantial compliance on the date of Wejebe’s arrest, and that there was no evidence in the inspection and maintenance records that proper remedial actions were taken to ensure the accuracy of the machine’s results. As the two witnesses explained, FDLE procedures require an in-toxilyzer machine that renders an out of tolerance reading to be taken off-line, inspected, and kept out of service until the reason for the erroneous reading can be determined and corrected. These witnesses further testified that unless this is done, the machine is deemed out of compliance, even if subsequent monthly inspections render proper results.

In conjunction with the testimony of these witnesses, Wejebe introduced FDLE/ATP Form 16 (Florida Department of Law Enforcement Alcohol Testing Program, Agency Inspection Procedures) into evidence. Form 16 provides: “[i]f any analytical check or test indicates that the instrument does not comply with Chapter 11D-8, determine the cause and take corrective action. If unable to correct, remove the instrument from service and notify the Alcohol Testing Program Regional Inspector.” FDLE/ATP Form 16, Florida Department of Law Enforcement Alcohol Testing Program, Agency Inspection Procedures, incorporated by reference Fla. Admin. Code Ann. R. 11D-8.017.

Here, the evidence indicated that Intoxi-lyzer 66-002194 gave an out of tolerance reading during its February 2004 inspection, a faulty reading on a “mouth alcohol” test during the December 2004 inspection, and failed the monthly inspection in January 2005, yet nothing in the maintenance and inspection logs indicated that Intoxi-lyzer 66-002194 was taken out of service and repaired.

Wejebe’s two witnesses also testified in the Reich proceeding before Judge Fowler. They testified that during that proceeding, Laura Barfield, the director of FDLE’s Implied Consent Programs, admitted that Intoxilyzer 66-002194 was out of compliance because it was not repaired after it failed the February 2004, December 2004, and January 2005 inspections. Wejebe then introduced a copy of Ms. Barfield’s testimony into evidence. After the hearing, Wejebe filed as supplemental authority Judge Fowler’s order excluding his breathalyzer test results; however, the record is unclear whether the hearing officer received this filing prior to issuing a final order, as the notice of supplemental authority and the final order are both dated February 2, 2006.

DHSMV introduced no testimony after Wejebe’s presentation. DHSMV only entered into evidence the monthly maintenance reports for August 2005 and September 2005, the months immediately preceding Wejebe’s arrest, which indicated that Intoxilyzer 66-002194 passed those inspections. After reviewing all the evidence, the administrative hearing officer concluded that the machine was in compliance and that the testimony of Wejebe’s two witnesses was unpersuasive. Accordingly, DHSMV issued a final order sustaining the six-month suspension of Wejebe’s driver’s license.

Wejebe then petitioned the circuit court for a writ of certiorari. Upon receipt of a petition for writ of certiorari, a circuit court sits in an appellate capacity and is authorized to determine: “(1) whether the agency accorded the parties procedural due process; (2) whether the agency observed the essential requirements of law; and (3) whether the agency’s action is supported by competent and substantial evidence.” Dep’t of Highway Safety & Motor Vehicles v. Garcia, 935 So.2d 542, 543 (Fla. 3d DCA 2006) (citations omitted). Here, the circuit court granted Wejebe’s petition and quashed the final administrative order. The circuit court found the administrative order departed from the essential requirements of law because collateral estoppel barred re-litigation of the admissibility of the breath test results from Intoxilyzer 66-002194. The circuit court also found that the agency’s action was not supported by competent and substantial evidence because DHSMV failed to put forth sufficient evidence that Intoxilyzer 66-002194 was functioning properly in light of Wejebe’s evidence, and that DHSMV departed from the essential requirements of law by relying on the breath test results in suspending Wejebe’s driver’s license.

DHSMV now petitions this court for a writ of certiorari, contending that the circuit court erred in granting Wejebe’s petition. “In reviewing the final order of the circuit court acting in its appellate capacity, the district court is limited to determining whether the circuit court afforded the parties procedural due process and applied the correct law.” Id. (quoting Dep’t of Highway Safety & Motor Vehicles v. Dehart, 799 So.2d 1079 (Fla. 5th DCA 2001)). DHSMV does not contend that the circuit court violated its procedural due process rights. Thus, the only issue we can review is whether the circuit court applied the correct law.

DHSMV contends that the circuit court misapplied the law by erroneously shifting the burden of proof to DHSMV to prove Intoxilyzer 66-002194 was in compliance, and by concluding that Judge Fowler’s order excluding the breath test results was binding on the DHSMV hearing officer under collateral estoppel. On this first issue, the circuit court concluded as follows:

The issue of collateral estoppel aside, at the very least, the Appellant [Wejebe] by submitting copies of the prior trial court proceedings (his own as well as the orders entered in Reich and Stephen-sor&[)] suppressing the breath test results from this particular machine was at least sufficient to shift the burden to the Department to show that the machine was accurate and operating in compliance with applicable FDLE regulations.
The evidence presented in the record to the hearing officer by the Department in the form of documents was not sufficient to show that the machine was or had been operated in compliance with FDLE standards in the absence of evidence that the machine had been repaired or the reason for the recorded failures explained.
Accordingly, the court must conclude that the hearing officer departed from the essential requirements of the law in utilizing the results of Appellant’s October 14, 2005 tests to sustain the suspension of driving privileges. There is no proof that the machine was ever repaired or adjusted nor has there ever been given a reason for the three failed tests. A driver’s privilege to operate a motor vehicle in Florida should not turn on such questionable evidence and Florida drivers as well as that [sic] of our visitors should be not subject to losing their licenses to drive or being convicted of driving while under the influence from readings from machines proven to be inaccurate and proven to not be properly maintained in accordance with the governing performing standards for such instruments designed to assure the accuracy of such instruments.

We find that the circuit court applied the correct law. In the initial instance, DHSMV is not required to prove that the intoxilyzer machine was -in compliance. Dep’t of Highway Safety & Motor Vehicles v. Mowry, 794 So.2d 657, 659 (Fla. 5th DCA 2001). Instead, the driver has the burden of establishing that the intoxilyzer machine was not in compliance. Id. However, once a driver submits proof that an intoxilyzer machine was not in substantial compliance with the appropriate regulations, DHSMV must prove that there was substantial compliance. See Dep’t of Highway Safety & Motor Vehicles v. Farley, 633 So.2d 69, 71 (Fla. 5th DCA 1994). Because this is the law that the circuit court applied, there is no error.

Further, the evidence before the administrative hearing officer was that FDLE itself, through its director of Implied Consent Programs, Laura Barfield, testified in a previous proceeding1 that In-toxilyzer 66-002194 was out of substantial compliance because it failed monthly inspections and was never repaired or taken out of service. Additionally, Wejebe’s two experts testified that, based on their review of the maintenance and inspection logs for Intoxilyzer 66-002194, Intoxilyzer 66-002194 failed inspections, but was never repaired as required by FDLE regulations. In response, FDLE introduced no evidence that Intoxilyzer 66-002194 did not fail inspections, that Intoxilyzer 66-002194 was repaired after the failed inspections, or that FDLE regulations do not require repair after failed inspections. Thus, the circuit court had no choice but to conclude that the breathalyzer test results were not competent; substantial evidence to support the administrative hearing officer’s finding that Wéjebe had a breath-alcohol level of .08 or higher.

Because the circuit court applied the correct law to its adjudication of Wejebe’s petition, we find no grounds upon which to grant DHSMVs petition. Additionally, because the circuit court’s order can be upheld on this ground alone,' we need not address the circuit court’s alternative holding that collateral estoppel barred relitigation of this issue.

Petition denied.

      . Wejebe called Rick Swope and Kirk Salva-tori as expert witnesses. Mr. Swope testified that he is an engineer who has experience testing the Intoxilyzer 5000 and that he was a certified breathalyzer technician and a repair and maintenance technician for nine years. In fact, Mr. Swope has testified about the Intoxilyzer 5000 approximately 700 times. Mr. Salvatori testified that he was the Monroe County Sheriff's Office Agency Inspector for the intoxilyzer machines as well as a maintenance officer for the intoxilyzer machines. He testified that both his agency inspector certification and his maintenance officer certification are currently valid.


author: PER CURIAM. SCHWARTZ, Senior Judge

text:
    Bridgette A. SPENCE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, etc., et al., Appellee.
    No. 3D06-813.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.

      Bridgette A. Spence, in proper person.
    John D. Maher, Tallahassee, for appel-lee, Commission.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Miller v. Fla. Unemployment Appeals Comm’n, 768 So.2d 1218 (Fla. 4th DCA 2000)(stating that referee is responsible for weighing and resolving conflicting evidence and judging credibility of witnesses); see also Meats v. Sports Info. Enters. Ltd., Inc., 664 So.2d 8 (Fla. 3d DCA 1995); Kan v. P.G. Cook Assocs., 566 So.2d 932, 933 (Fla. 3d DCA 1990)(“The decision of an appeals referee must be affirmed if it is supported by competent substantial evidence.”).

FLETCHER and SHEPHERD, JJ., concur.

SCHWARTZ, Senior Judge

(dissenting).

Although the majority is quite correct in indicating that there is evidence which supports the determination below, I believe, after careful consideration of the record and the oral arguments of the parties, that the testimony of the employer’s witness is unworthy of belief and that the result in this case therefore effects a manifest injustice to which I cannot in conscience agree. See Fla. Nat’l Bank v. Sherouse, 80 Fla. 405, 86 So. 279 (1920); Newman v. Smith, 77 Fla. 633, 82 So. 236 (1918); Progressive Express Ins. Co. v. Schultz, 948 So.2d 1027 (Fla. 5th DCA 2007); Star-Rite Indus., Inc. v. Levey, 909 So.2d 901 (Fla. 3d DCA 2004), review denied, 919 So.2d 435 (Fla.2005); Miami-Dade Police Dep’t v. Martinez, 838 So.2d 672 (Fla. 3d DCA 2003), review dismissed, 851 So.2d 729 (Fla.2003); Branam v. Aqua-Clear Pools, Inc., 672 So.2d 69 (Fla. 3d DCA 1996); Ziontz v. Ocean Trail Unit Owners Ass’n, Inc., 663 So.2d 1334 (Fla. 4th DCA 1993); Uhley v. Tapio Constr. Co., Inc., 573 So.2d 390 (Fla. 4th DCA 1991), review denied, 583 So.2d 1037 (Fla.1991).


author: HAZOURI, J.

text:
    Sally HEPBURN, Appellant, v. ALL AMERICAN GENERAL CONSTRUCTION CORP., d/b/a All American General Construction Corporation, Appellee.
    No. 4D06-4740.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    Rehearing Denied May 24, 2007.

      John M. Stewart of Stewart & Evans, P.A., Vero Beach, for appellant.
    Lisa D. Harpring, Vero Beach, for ap-pellee.
   HAZOURI, J.

Sally Hepburn appeals from a trial court order granting All American General Construction Corporation’s motion to vacate a final judgment. We reverse with directions for the trial court to reinstate the judgment.

The following lists the sequence of events which led to the entry of the default final judgment. On October 21, 2005, Hepburn filed a one-count complaint alleging violation of a misleading advertising statute. On December 6, 2005, a motion for default was filed and on December 9, 2005, a clerk’s default was entered. On December 19, 2005, Hepburn filed her motion for entry of final judgment after default alleging the damages were liquidated. On December 22, 2005, a final judgment after default was entered by the trial court.

Thereafter, on January 9, 2006, Hepburn filed her motion for issuance of a writ of garnishment. A writ of garnishment was entered on January 10, 2006. On January 23, 2006, All American retained counsel. A paralegal for All American’s counsel contacted Hepburn’s counsel, inquiring whether Hepburn’s counsel would consent to vacating and setting aside the final default judgment. Hepburn’s counsel would not agree to set aside the default final judgment. Hepburn’s counsel had no authority to agree to vacate and set aside the final default judgment and advised the paralegal that a motion to vacate would have to be filed. On January 28, 2006, attorneys G. Russell Petersen and Barbara L. Sadaka filed their notice of appearance on behalf of All American. No further action was taken by or on behalf of All American until June 9, 2006, when a motion to vacate the default final judgment was filed. In the motion, All American alleged that its registered agent had been served with the complaint, the default, and the final judgment, but that its registered agent never forwarded these documents to the corporation. A hearing on the motion was held on August 24, 2006. Thereafter, the trial court granted the motion to set aside the default final judgment.

For a trial court to grant a motion to set aside a default final judgment, the moving party must show: (1) the failure to file a responsive pleading was the result of excusable neglect; (2) the moving party has a meritorious defense; and (3) the moving party acted with due diligence in seeking relief from the default. Cinkat Transp., Inc. v. Maryland Cas. Co., 596 So.2d 746 (Fla. 3d DCA 1992).

Hepburn argues that the four-month delay between the time All American found out about the default judgment and the time All American’s counsel actually filed a motion to vacate was not an exercise of due diligence and precludes the granting of the motion to vacate. We agree. In a case strikingly similar to the instant case, the Third District recently held that a six-week delay in filing a motion to vacate a default after receiving notice constitutes a lack of due diligence as a matter of law. See Lazcar Int’l Inc. v. Rene Caraballo, 32 Fla. L. Weekly D769, — So.2d —, 2007 WL 837197 (Fla. 3d DCA Mar.21, 2007). Absent competent substantial evidence of some exceptional circumstances explaining the delay, a six-week delay in filing a motion to vacate a default judgment after receiving a notice constitutes a lack of due diligence as a matter of law. See id. at 5, at-.

In the instant ease, the only explanation given by All American’s counsel for the four-month delay in learning about the default final judgment and then filing the motion to vacate the final judgment was contained in a letter dated February 2, 2006, from attorney Sadaka to Hepburn’s counsel. The letter stated that attorney Petersen was on vacation until February 6 and that the firm would be moving to vacate the final judgment after default. In the record before us, there is an absence of competent substantial evidence of some exceptional circumstances explaining this four-month delay. We therefore reverse and remand with directions that the trial court reinstate the judgment.

Reversed and Remanded with Directions.

WARNER and POLEN, JJ., concur.


text:
    Edwige MONSANTO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2738.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

POLEN, SHAHOOD and GROSS, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Anthony THOMAS, Appellee.
    No. 3D06-1689.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.
    Bill McCollum, Attorney General, and Laura Moszer, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellee.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

The trial court erred by imposing a downward departure sentence upon the defendant, over the State’s objection, without providing a written statement delineating the reasons for the departure. See Fla. R.Crim. P. 3.701(d)(11); State v. Sherman, 909 So.2d 963 (Fla. 3d DCA 2005); State v. Jones, 579 So.2d 884 (Fla. 2d DCA 1991); State v. Brown, 542 So.2d 1371 (Fla. 4th DCA 1989). Accordingly, we reverse and remand for further proceedings.


text:
    Renard JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1084.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    Renard Johnson, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Gillis v. State, 807 So.2d 204, 206 (Fla. 5th DCA 2002) (mere allegation of mental incompetence unsupported by corroborating evidence is legally insufficient to state a claim for postconviction relief).

GUNTHER, WARNER and GROSS, JJ., concur.


text:
    Demetrius BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1008.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.

      Demetrius Brown, Cocoa, pro se.
    No appearance required for appellee.
   PER CURIAM.

We dismiss the appeal from the denial on the merits of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(c) as a non-appealable order. See Howard v. State, 914 So.2d 455 (Fla. 4th DCA 2005); Oser v. State, 699 So.2d 844 (Fla. 4th DCA 1997).

STONE, WARNER and FARMER, JJ„ concur.


text:
    James DIEUDONNE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-900.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.
    James Dieudonne, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s Motion to Allow Correct Jail Credit. The trial court correctly credited petitioner with the 215 days he served in jail before sentencing. Our affirmance is without prejudice to petitioner seeking additional credit from the Department of Corrections for time he served in jail following sentencing and petitioning the circuit court in Leon County for a writ of mandamus if relief is not forthcoming after exhausting his administrative remedies. Grant v. State, 837 So.2d 1075 (Fla. 4th DCA 2003); see also Bush v. State, 945 So.2d 1207, 1211 (Fla.2006) (holding that proper venue to challenge a DOC sentence-reducing credit determination is the circuit court in Leon County where DOC has its headquarters).

GUNTHER, WARNER and TAYLOR, JJ., concur.


text:
    Woodrow D. PUGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-651.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2007.

      Woodrow D. Pugh, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant, Woodrow Pugh, appeals a trial court order summarily denying his motion to correct illegal sentence filed pursuant to rule 3.800(a), Florida Rule of Criminal Procedure, in which he challenged his sentence as being misapplied by the Department of Corrections. The Department of Corrections applied Pugh’s sentences consecutively, while the trial court ordered them to be applied concurrently. We affirm the order under review, without prejudice to Pugh’s ability to file a petition for writ of mandamus in the Leon County circuit court after he fully exhausts his administrative remedies. The record is silent as to whether Pugh has yet exhausted his administrative remedies. King v. State, 665 So.2d 377 (Fla. 4th DCA 1996).

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

      . See Bush v. State, 945 So.2d 1207, 1213-14 (Fla.2006).


text:
    L.B., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 3D06-891.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.
    Greer Davis Wallace, Miami, for appellant.
    Hillary S. Kambour; Karla Perkins, Miami, for appellees.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The judgments under review terminating the mother’s parental rights to A.M. and A.M., and adjudicating S.F. dependent as to her are both entirely vacated for lack of evidence to support these conclusions. This decision is without prejudice to any further proceedings which may be justified by events occurring after the judgments.

Vacated and remanded.


text:
    John H. CROXDALE, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-5384.
    District Court of Appeal of Florida, First District.
    April 26, 2007.

      John H. Croxdale, pro se, Petitioner.
    Kathleen Von Hoene, General Counsel, and Sean T. Garner, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. See Crockett v. Singletary, 723 So.2d 911 (Fla. 1st DCA 1999) (alleged failure to properly award credit pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), is properly remediable by motion pursuant to Florida Rule of Criminal Procedure 3.800).

WOLF, DAVIS, and THOMAS, JJ., concur.


text:
    Quentin V. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1100.
    District Court of Appeal of Florida, First District.
    April 26, 2007.
    Quentin V. Jackson, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered appellant’s response to our show cause order of March 12, 2007, this appeal is dismissed, and appellant’s motion for extension of time is denied as moot.

DISMISSED.

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