author: ALTENBERND, Judge.

text:
    Howard BEAN, Appellant, v. Michael A. PREVATT, Appellee.
    No. 2D05-4005.
    District Court of Appeal of Florida, Second District.
    July 7, 2006.
    Rehearing Denied Aug. 17, 2006.

      Howard Bean, pro se.
    Lex Taylor of Lex Taylor, P.A., Lake-land, for Appellee.
   ALTENBERND, Judge.

Howard Bean appeals a final judgment that requires him to release insurance proceeds to Michael A. Prevatt, who holds a mortgage on Mr. Bean’s property. Mr. Bean received the insurance proceeds, which total over $12,000, for damages his property sustained during Hurricane Jeanne. Mr. Prevatt intends to apply the entirety of the insurance proceeds to the principal amount due on the mortgage (approximately $37,000), even though this will make it difficult or impossible for Mr. Bean to repair the significant structural damage to his mobile home. We reluctantly affirm this judgment because the agreement between the parties specifically authorizes this relief and no statute prevents it. However, we suggest the Florida Legislature consider some minimal regulation in this area to ensure that homeowners are reasonably permitted to rebuild in the aftermath of destructive hurricanes, at least when doing so will not impair another party’s security interest in the property.

Mr. Bean purchased a lot and mobile home from Michael A. Prevatt in Polk County on July 3, 2001. He paid $42,000 for the property. He made a down payment of $3000 and financed the rest with Mr. Prevatt at twelve percent interest, payable at $420 per month through September 2023. Pursuant to the agreement for deed the parties signed, Mr. Bean was required to pay the property taxes and “keep the improvements on said property in good repair and condition.” Another provision required Mr. Bean

[t]o keep the buildings now or hereafter on said land insured against loss by fire, windstorm and tornado to the extent to the value of such improvements, in some company or companies acceptable to the first party [Mr. Prevatt] with the loss payable to the first party as his interest may appear and to pay the premiums on such policy or policies when due and upon issue of such policies to promptly deposit them with the first party and agrees that the proceeds of any such insurance policies shall be applied to the payment of the indebtedness herein, or at the option of the first party, to the repair or replacement of the improvements upon said property.

Mr. Bean obtained insurance coverage from Foremost Insurance Company, which included standard coverage for windstorm damage. From our limited record, nothing suggests that Mr. Bean had any difficulties making proper payments and maintaining the property for the next several years. Then several hurricanes swept through Polk County in the fall of 2004. On September 26, 2004, Mr. Bean’s mobile home sustained significant structural damage during Hurricane Jeanne. The damage to the roof of the structure permitted water intrusion into the home where Mr. Bean lives with his daughter.

Mr. Bean filed a claim, and Foremost determined that it owed him $12,139.73 for repairs to his home. Foremost issued a check in that amount on October 19, 2004, payable to both Mr. Bean and Mr. Prevatt.

Mr. Bean approached Mr. Prevatt about signing the check so that Mr. Bean could use the proceeds to repair his mobile home. Mr. Prevatt refused to allow Mr. Bean to use this check to repair his mobile home. Instead, Mr. Prevatt demanded that Mr. Bean release the entire insurance settlement to him to apply to the principal balance of the mortgage indebtedness. This payment would effectively prepay the loan from Mr. Prevatt through approximately January 2016. Understandably, Mr. Bean wanted to fix his roof; he did not want to prepay his mortgage.

When the two men could not resolve this dispute, Mr. Prevatt filed an action to foreclose on the property. Mr. Bean retained a lawyer who filed an answer and a counterclaim for declaratory relief to determine rights to the insurance settlement. During the evidentiary hearing held before the trial court on these competing claims, the trial judge expressed concern for the apparent “Catch-22” in which Mr. Bean had been trapped:

THE COURT: Well, one of the issues that concerns me is the contract also doesn’t allow waste to occur. Is there any claim or potential future claim by [Mr. Prevatt] that they’re entitled to foreclose because of waste?
COUNSEL FOR MR. PREVATT: No, sir, not in this action.
THE COURT: Or future action?
COUNSEL FOR MR. PREVATT: (No response).

Mr. Bean’s lawyer was successful in preventing the foreclosure, but the trial court determined after the evidentiary hearing that Mr. Prevatt was entitled to all of the proceeds from the insurance settlement pursuant to the above-quoted provision in the contract, as well as attorneys’ fees and costs pursuant to another provision in the contract. However, the trial court ruled that, as a result of this judgment, Mr. Prevatt would be estopped from foreclosing on the property in the future based on Mr. Bean’s failure to repair the property.

Mr. Bean has represented himself in this appeal. He argues primarily that the check was for hurricane damage and that the language of his agreement with Mr. Prevatt only requires that he insure the mobile home for “windstorm and tornado” damage. He claims that he was not required to insure the property for hurricane damage and should be entitled to keep this check.

The argument that Mr. Bean makes on appeal was not properly preserved in the trial court. Even if this issue were preserved, the trial court’s ruling was legally correct. Hurricane losses are covered either by windstorm or flood insurance. See, e.g., Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So.2d 26 (Fla. 2d DCA 2004); Mierzwa v. Fla. Windstorm Underwriting Ass’n, 877 So.2d 774 (Fla. 4th DCA 2004). Although special deductibles may sometimes apply in the event of a hurricane, there is no standard policy that covers the risk of “hurricane.” It is clear that Foremost paid this claim under standard windstorm coverage. Thus, Mr. Bean cannot avoid the language of the agreement by arguing that the insurance check is not proceeds from a windstorm policy.

The agreement between Mr. Prevatt and Mr. Bean was an agreement for deed, but the relevant language is common in many standard mortgage agreements. Mr. Bean was obligated to keep the buildings on his property “insured against loss by fire, windstorm and tornado” to the extent of the value of such improvements and agreed “that the proceeds of any such insurance policies shall be applied to the payment of the indebtedness herein, or at the option of the first party, to the repair or replacement of the improvements upon said property.” Thus, as long as the outstanding indebtedness on the agreement exceeds the amount of the insurance settlement, the agreement gives Mr. Prevatt the sole and unfettered right to decide whether the insurance payment is used to repair Mr. Bean’s home. This is true, even though it would appear that Mr. Pre-vatt’s security interest in the property may be better protected by repairing the property rather than by accepting a partial payment of the mortgage.

Mr. Bean has not argued either before the trial court or on appeal that such a clause is invalid or unenforceable, nor is there any Florida case law that would appear to directly support such an argument. It should be obvious, however, that the economies of many Florida communities would have been devastated in 2004 if lenders had uniformly followed Mr. Pre-vatt’s lead. Fortunately, it appears that most lenders place such money into escrow and merely monitor the funds to assure that they are used to repair the properties that serve as collateral for their loans.

Given the facts of this case, however, the legislature may want to reasonably regulate these types of mortgage clauses to protect homeowners from unscrupulous lienholders who may seek to obtain the entire amount of the insurance proceeds without permitting necessary repairs, even when that decision may impair their security interest and may force the homeowner into default of other mortgage provisions. Some relatively simple regulations in this regard would ensure that communities are able to rebuild in the aftermath of serious storms.

We sympathize with Mr. Bean s plight. Nevertheless, the plain language of the agreement for deed provides that Mr. Pre-vatt has the sole discretion to determine how the insurance proceeds are applied.

Affirmed.

DAVIS and CANADY, JJ., Concur.

      . The agreement for deed permitted prepayment of "all or any portion of the unpaid balance ... with liability for interest to the date of prepayment only."

      . This holding is supported by case law. See Lamb v. Pike, 659 So.2d 1385 (Fla. 3d DCA 1995).

      . For a general discussion on other jurisdictions’ decisions on the enforcement of such clauses, see Patrick A. Randolph, Jr., Mortgagees’ Interests in Casualty Loss Proceeds: Evolving Rules and Risks, Practising Law Institute, Real Estate Law and Practice Course Handbook Series, at 427 (May 1997).

      . Certainly, a lienholder is entitled to protect its security interest in property. In cases in which that security interest is impaired by a casualty and cannot be adequately protected by repair to the property, the lienholder should retain the right to apply insurance proceeds to the principal of the debt. To balance adequately the legitimate interests of the lienholder and those of the homeowner, the legislature might consider a statute providing that a lender may not apply insurance proceeds solely to the principal indebtedness without permitting repair if (1) the borrower is not in default at the time of the casualty, (2) there are sufficient funds to complete the necessary repairs in accordance with state and local building regulations, (3) the repairs can be made within a reasonable time (e.g., within a year), and (4) the repaired value of the property will exceed the amount of the remaining principal on the loan.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Victor ROLLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1599.
    District Court of Appeal of Florida, Fifth District.
    July 11, 2006.
    Rehearing Denied Aug. 10, 2006.
    Victor Rolle, Immokalee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Echols v. State, 660 So.2d 782, 786 (Fla. 4th DCA 1995), and Garrett v. State, 693 So.2d 114, 115 (Fla. 2d DCA 1997).

PLEUS, C.J., THOMPSON and TORPY, JJ., concur.


text:
    James A. BONFIGLIO, Esq. attorney for James A. Hamilton, Sr. and Bonnie J. Hamilton, Appellants, v. EMC MORTGAGE CORPORATION, Appellee.
    No. 4D05-3593.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Rehearing Denied Aug. 31, 2006.

      James A. Bonfiglio of the Law Offices of James A. Bonfiglio, P.A., Boynton Beach, for appellant James A. Bonfiglio.
    Michele Stocker and Cory W. Eichhorn of Greenberg Traurig, P.A., Fort Lauder-dale, for appellee.
   PER CURIAM.

Appellant, Attorney James A. Bonfiglio, appeals from a final judgment denying his motion for attorneys’ fees and costs brought under the Truth in Lending Act (“TILA”). We affirm the trial court’s denial of Bonfiglio’s motion because Bonfiglio lacked standing to pursue his clients’ claim for attorneys’ fees and his clients were not successful in enforcing a TILA liability action at the trial court, as required to recover attorneys’ fees under TILA.

Attorney James A. Bonfiglio represented defendants James and Bonnie Hamilton in a suit brought by the EMC Mortgage Corporation to foreclose on a mortgage and note executed by the Hamiltons. The Hamiltons had signed a “negative” Authority to Represent with Bonfiglio in February 1998, in which the Hamiltons agreed to pay Bonfiglio the greater of either 40% of the amount the Hamiltons saved compared to the amount demanded by the Plaintiff in the litigation, or the court-awarded fee.

In response to EMC’s foreclosure action, the Hamiltons, represented by Bon-figlio, filed an answer and affirmative defenses, asserting various defenses under TILA, 15 U.S.C. § 1601 et seq. EMC then filed a Motion for Summary Judgment. The trial court granted EMC’s motion and entered Final Summary Judgment of Foreclosure in favor of EMC in the amount of $160,765.22. In the Final Summary Judgment of Foreclosure in favor of EMC, the court disposed of the Hamiltons’ TILA affirmative defenses, stating: “There are specifically also no genuine, material fact issues raised by the Hamiltons’ affirmative defenses, on which EMC is entitled to judgment as a matter of law.”

The Hamiltons subsequently appealed the Final Summary Judgment of Foreclosure to this Court. While the case was pending on appeal, EMC’s counsel sent Bonfiglio a letter indicating that the respective parties had settled the matter. The settlement documents waived Bonfig-lio’s right to attorneys’ fees.

Pursuant to the settlement agreement, the Hamiltons satisfied the judgment through a foreclosure sale, and accordingly, filed a Notice of Satisfaction of Judgment. On that same day, Bonfiglio, acting on his own behalf, filed a Notice of Charging and Retaining Lien, in which he requested that, in the event this case is resolved and the appeal is dismissed, the court enter an order determining the amount of fees and costs that are owed by EMC, and or the Hamiltons, for services rendered through judgment. Additionally, Bonfiglio filed a motion to tax costs and fees, seeking his attorney fees and costs against EMC and or the Hamiltons for services rendered through judgment.

At the hearing on Bonfiglio’s motion for attorneys’ fees, Bonfiglio explained to the court that he refused to sign the settlement agreement between the Hamiltons and EMC, which waived his attorneys’ fees. Bonfiglio also explained that when he learned of the settlement, he took no further action at this Court, leading to this Court’s dismissal for lack of prosecution. EMC’s counsel also conceded at the hearing that EMC agreed to waive attorneys’ fees under the mortgage contract in exchange for the Hamiltons dismissing the appeal. The trial court ultimately denied Bonfiglio’s motion for attorneys’ fees, finding that the TILA claims upon which Bon-figlio based his request for fees were insufficient at summary judgment.

On appeal, Bonfiglio argues that the settlement agreement between the Hamiltons and EMC was a “successful action” requiring the court to award him section 1640(a)(3) attorneys’ fees against EMC. The appellee, EMC, argues that the trial court’s denial of Bonfiglio’s motion for attorneys’ fees should be affirmed because Bonfiglio has no independent statutory right to attorneys’ fees under TILA as federal case law interpreting this section has held that the right to claim attorneys’ fees belongs to the plaintiff, not the attorney. Furthermore, EMC argues that no “successful TILA action” was ever brought by Bonfiglio’s clients, the Hamiltons, because the trial court granted summary judgment in favor of EMC and therefore Bonfiglio is not entitled to attorneys’ fees.

Federal law controls the award of fees authorized by 15 U.S.C. § 1640(a)(3). Citibank Fed. Sav. Bank v. Sandel, 766 So.2d 302, 303 (Fla. 4th DCA 2000). The statute governing the recovery of attorneys’ fees in TILA actions is 15 U.S.C. § 1640(a)(3), which provides in pertinent part, that:

(a) Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part ... is liable to such person in an amount equal to the sum of-(3) in the case of any successful action to enforce the foregoing liability or in any action in which a person is determined to have a right of rescission under section 1635 of this title, the costs of the action, together with a reasonable attorney’s fee as determined by the court.

15 U.S.C. § 1640(a)(3) (1995) (emphasis added).

First, we agree with the appellee, EMC, that Bonfiglio lacks standing to pursue an award of attorneys’ fees because the right to attorneys’ fees belongs to the client and not the lawyer. The case relied on by Bonfiglio is James v. Home Construction Co. of Mobile, Inc., 689 F.2d 1357, 1359 (11th Cir.1982). In James, the attorney represented the plaintiff on a statutory fee basis in an action for rescission and damages under TILA. Id. at 1357. The plaintiff successfully settled the case, obtaining cancellation of the mortgage on his home, cancellation of his indebtedness to the defendant, and $2,000 in cash. Id. In the settlement negotiations, fees for the attorney were expressly left open for the court to determine. Id. After the court dismissed the case with prejudice pursuant to the settlement, the attorney petitioned the court for an award of attorney’s fees under 15 U.S.C. § 1640(a)(3). Id. The Eleventh Circuit concluded that she was entitled to attorney’s fees. Id. at 1358. The court wrote:

Section 1640(a)(3) of the Truth-in-Lending Act creates a legal right to a fee award in a successful action for rescission. The fact that a plaintiff prevails through settlement should not weaken this claim to fees. Contrary to dicta in Smith v. South Side Loan Co., 567 F.2d 306, 307 (5th Cir.1978), suggesting that attorney’s fees are the right of the party suing, we find that it is the attorney who is entitled to fee awards in a TILA case, not the client. This finding is supported by cases holding that a court may directly pay the attorney, Carr v. Blazer Financial Services, Inc., 598 F.2d 1368, 1370 (5th Cir.1979), and that the award is not subject to setoff ...

Id. (some citations omitted). However, the holding in James has been questioned by the Seventh Circuit in Zeisler v. Neese, 24 F.3d 1000, 1001 (7th Cir.1994), where the court commented that the James holding “does great violence to the statutory language, with no clear offsetting benefit to the statute’s goals.” Not surprisingly, the Zeisler court concluded that the entitlement to attorneys’ fees belongs to the plaintiff and not the lawyer. Similarly, in Freeman v. B & B Associates, 790 F.2d 145, 148 (D.C.Cir.1986), the D.C. Circuit commented that “while we are sensitive to the concerns underlying ... the Eleventh Circuit’s holding in James, we do not think they support the creation of an attorney’s independent right of action under TILA for fees.” The court went on to explain that it disagreed with James “[t]o the extent that the language in James suggest a more general right of action under TILA by attorneys for their fees.” Id. at 149. Rather, the court read the rationale in James as “applicable solely to the issue of the attorney’s standing to seek attorneys’ fees.” Id.

Moreover, the Eleventh Circuit in Panola Land Buying Ass’n v. Clark, 844 F.2d 1506, 1512 (11th Cir.1988) agreed with the Freeman court’s analysis of James, stating that Freeman was an “excellent opinion.” Specifically, the court cited with approval the following from the Freeman opinion:

James involved an attorney’s standing to pursue his client’s claim for attorney’s fees under TILA. James is silent on the question of an attorney’s right of action where the client has expressly waived any claim to attorneys’ fees ... In fact, however, we read the rationale in James as applicable solely to the issue of the attorney’s standing to seek attorneys’ fees....

Id.

We agree with the analysis in Freeman and Panola that the holding in James has a narrow application and does not address the question of an attorney’s right of action where the client has expressly waived any claim to attorneys’ fees. In this case, the settlement documents waived Bonfig-lio’s right to attorneys’ fees. Therefore, we find that the limited application of James does not affect the outcome of the instant case and conclude that Bonfiglio has no independent statutory right to attorneys’ fees.

We also agree with EMC that even if Bonfiglio has standing to bring this appeal, his clients were not “successful” in enforcing a TILA action as required by 15 U.S.C. § 1640(a)(3) to recover attorneys’ fees, because the trial court granted summary judgment in favor of EMC, determining that the Hamiltons’ TILA affirmative defenses were not proper as a matter of law. Bonfiglio argues that this Court should award him attorneys’ fees based on First Federal Savings & Loan Ass’n v. Bezotte, 740 So.2d 589 (Fla. 4th DCA 1999). In Bezotte, the defendant filed an answer asserting affirmative defenses based on TILA and stated a counterclaim based on alleged TILA violations. Id. at 590. The trial court granted one of the defendant’s counterclaims based upon the alleged TILA violations. Id. Thereafter, the defendant filed a motion for costs and attorneys fees, and the trial court entered an order awarding fees. Id. This Court affirmed the final judgment related to the lodestar determination of the reasonable attorneys fee, although we reversed the trial court’s application of a multiplier. Id. at 591.

However, in Bezotte, the trial court granted one of the defendant’s counterclaims based upon the alleged TILA violations. Id. at 590. Here, the court granted summary judgment in favor of the plaintiffs (EMC) and against the defendants (the Hamiltons), who raised the TILA affirmative defenses. As such, the Hamiltons were not a prevailing party and therefore their defense was not a “successful action” that would entitle their attorney, Bonfiglio, to an award of attorneys’ fees.

For these reasons, the order denying Bonfiglio’s motion for attorneys’ fees is affirmed.

Affirmed.

GUNTHER, HAZOURI and MAY, JJ., concur.


author: STONE, J.

text:
    Jay WEINSTEIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-617.
    District Court of Appeal of Florida, Fourth District.
    July 12, 2006.
    Rehearing Denied Aug. 28, 2006.

      Jay Weinstein, Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We reverse the denial of Weinstein’s rule 3.800(a) motion to correct an illegal sentence imposed upon his violation of probation.

In 1992, Weinstein was initially sentenced to fifteen years in prison, followed by seven years probation. Following his release from prison on June 6, 1997, he violated probation by committing new offenses.

It was not until after his release from prison that an audit awarded him 645 days of additional provisional gain time. The audit was conducted pursuant to Gomez v. Singletary, 733 So.2d 499 (Fla.1998), cert. denied, 528 U.S. 822, 120 S.Ct. 67, 145 L.Ed.2d 58 (1999) (holding affected inmates are entitled to a retroactive award of provisional release credit). He argues that he should have been awarded this additional gain time nunc pro tunc and, therefore, he should be treated as having been released from prison and placed on probation 645 days earlier, on August 31, 1995. He asserts that, if so, he actually completed his probation before the warrant for violation of probation was filed. Had he received the correct amount of provisional credit, his entire sentence would have expired on August 31, 2002. He was arrested for delivery of cocaine on September 19, 2002.

A trial court has no jurisdiction to revoke probation unless the violation warrant is issued before the probationary term ends. Wilson v. State, 698 So.2d 1380, 1381 (Fla. 4th DCA1997).

The Department of Corrections affidavit states that Weinstein’s records were reviewed pursuant to Gomez on August 19, 2005. He, therefore, was unable to demonstrate that he was entitled to the earlier release until the Department of Corrections informed him of how much credit he was entitled to receive and informed him of the August 31, 1995, release date. The additional 645 days that he served beyond that date were, in fact, ultimately credited to the twenty-seven year sentence imposed upon his violation of probation.

Generally, a prisoner released through time served and provisional credit is placed on provisional release supervision, but if the prisoner, as here, was serving a split sentence of prison followed by probation, then the probation is substituted for the provisional release supervision. § 944.277(5), Fla. Stat. (1990).

In Mayes v. Moore, 827 So.2d 967 (Fla.2002), cert. denied, 539 U.S. 904, 123 S.Ct. 2245, 156 L.Ed.2d 114 (2003), the supreme court recognized, in analogous circumstances, that a recalculation of gain time is awarded nunc pro tunc.

In other words the Department records the gain time as if it had been awarded at the appropriate time in the past. When the Department does this, it refers to the date when the gain time should have been awarded as the “accrued date.” The date on which a data entry employee enters the gain time award into the computer and credits it to the inmate’s “account” or record is called the “posting date.”

Id. at 973. The issue in that case involved the forfeiture of the recalculated gain time. The court reasoned:

However, the “posting date” is not at all the relevant date for our consideration. The conditional release statute specifically provides for forfeiture of all gain time “earned up to the date of release.” Although petitioners’ 800 days of provisional credits were posted in 2000, they were earned in the mid 1990s, on the Department’s “accrued” date. Accordingly, the “accrued date” and not the “posting date” is the relevant date we must consider when determining whether late-awarded gain time may be forfeited. To do otherwise would result in inmates such as these petitioners receiving Gomez credits but not forfeiting them for a conditional release violation, while another inmate who received Gomez credits before being released on conditional release would forfeit the credits for a later violation. Because we find that petitioners’ provisional credits were properly forfeited, they are not entitled to relief on this issue.

Id. at 973-74 (citation omitted).

The reasoning in Mayes, that Gomez credit is awarded nunc pro tunc and treated “as if it had been awarded at the appropriate time in the past,” supports Weinstein’s argument. In this case, if the credit had been properly awarded when it accrued, Weinstein would have completed his probation before the violation of probation warrant was filed.

Certainly, if Weinstein’s probation had not been revoked, and was less than 645 days from expiration, he would have been entitled to an early termination of probation following the supreme court’s holding, in Gomez, that affected inmates must be awarded provisional credit retroactively.

We note that Weinstein apparently committed one of the new offenses, in case number 02-15864, on August 8, 2002, which was before his probation would have ended if he had received the proper provisional credit. However, the warrant for the violations did not issue until October 3, 2002. In State v. Hall, 641 So.2d 403, 404 (Fla.1994), the supreme court observed:

It has long been the rule that upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation pursuant to Section 948.06, F.S.

Therefore, if the revocation process was not initiated before the probationary term ended, the court lost jurisdiction to revoke probation. See also Howard v. State, 920 So.2d 787 (Fla. 4th DCA 2006); Slingbaum v. State, 751 So.2d 89 (Fla. 2d DCA 1999).

Following Gomez and Mayes, the credit must be treated as though it had been awarded when it should have accrued; therefore, Weinstein would have completed his probation before the revocation of probation proceedings were initiated.

We note that although the warrant for violation of probation was not filed until October, the date it was signed, not the date it was filed, is determinative. Nothing in the record indicates when the warrant was signed. Therefore, we reverse and remand with directions to determine whether the revocation process was set in motion before the probation period ended, and, if not, to vacate, for lack of jurisdiction, the revocation order and the sentence imposed.

GUNTHER and KLEIN, JJ., concur.

      . We note that the state asserts that Weinstein was previously unsuccessful in a mandamus petition and suggests that his only remedy is to seek review of that ruling. However, we have reviewed the mandamus and determined that the petition and the motion in this case do not address the same issue.

      . Although the state also argues that Wein-stein's claims are not supported by the record, it is undisputed that he is relying on official records from the Department of Corrections and a sworn affidavit from a correctional services administrator. The state does not dispute the accuracy or authenticity of the affidavit. See Wencel v. State, 915 So.2d 1270 (Fla. 4th DCA 2005) (finding in reviewing a 3.800(a) motion, the court can take judicial notice of official actions of an administrative arm of the executive branch).


author: SUAREZ, J.

text:
    Ina NEPOLA, Appellant, v. Thomas C. NEPOLA, Appellee.
    No. 3D05-1608.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Aug. 31, 2006.

      Bunnell, Woulfe, Kirschbaum, Keller, McIntyre, Gregoire & Klein and Nancy W. Gregoire, Fort Lauderdale, for appellant.
    Nancy Little Hoffmann, Pompano Beach, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

Ina Nepola (Wife) appeals a non-final order granting the former husband’s motion to dismiss her motion to enforce final judgment of dissolution of marriage. We reverse the granting of the motion to dismiss and remand for an evidentiary hearing below.

On August 17, 1999, the parties entered into a marital settlement agreement whereby it was agreed that “[t]he Husband shall transfer and convey by warranty deed to the Wife who shall take free and clear title to one piece of commercial real estate, to wit: 317 N. State Road 7, Hollywood, Florida 33021.” The trial court ratified and approved the agreement in a Final Judgment Granting Dissolution of Marriage dated June 1, 2000. The Final Judgment acknowledged that the parties transferred the real property pursuant to the marital settlement agreement and specifically stated:

(c) The Husband has transferred to the Wife all of his right, title, and interest in the property at 317 N. State Road 7 in Hollywood, Florida....

The trial court reserved jurisdiction to enforce the terms of the settlement agreement and the final judgment. On March 9, 2004, the Wife moved to enforce the final judgment and alleged that the 317 N. State Road property consisted of Lots 11, 12 and 13, and that the Husband had conveyed to the Wife Lots 11 and 12 by quitclaim deed, but that he failed, as agreed, to convey these lots by warranty deed. Moreover, she alleged that he failed to convey Lot 13 entirely, despite the fact that the legal description to the property included Lot 13, the lease to the property included Lot 13 and the previous transfers of the property included Lot 13. On March 9, 2004, the Wife moved to enforce the final judgment and sought to have her husband execute warranty deeds to all three lots pursuant to the marital settlement agreement. The husband executed a warranty deed only as to Lots 11 and 12. The Husband then moved to dismiss the Wife’s Motion to Enforce Final Judgment on grounds that it was untimely because it was in the nature of a motion to set aside and that the agreement provisions were not subject to modification. The trial court granted his motion to dismiss.

The Wife contends on appeal that all three lots were included in the 317 property as they were always treated as a single parcel. She alleges that the husband failed to convey the 317 property — including Lot 13 — pursuant to the clear terms of the marital settlement agreement which specifically required the Husband to transfer to the Wife the one piece of commercial real estate known as 317 N. State Road 7. She alleges that he has misrepresented that he “ha[d] transferred to the Wife all of his right, title, and interest in the property at 317 N. State Road 7 in Hollywood, Florida,” as stated in the Final Judgment Granting Dissolution of Marriage, which ratified and approved the marital settlement agreement and orders compliance with all of its terms and provisions. The Wife further contends that she was enti-tied to an evidentiary hearing on her motion to enforce. We agree.

We find that the ends of justice require a remand to the lower court to allow it an opportunity to conduct an evidentiary hearing to fully and fairly address the issue of whether the husband misrepresented to the trial court that he had transferred the entire piece of 317 N. State Road 7 property under the terms of the marital settlement agreement between the parties. Langer v. Langer, 919 So.2d 484 (Fla. 3d DCA 2005), and cases cited; Phillips v. Phillips, 466 So.2d 3 (Fla. 4th DCA 1985); Coleman v. Coleman, 404 So.2d 751 (Fla. 4th DCA 1981); 25A Fla. Jur.2d Family Law § 546, at 167 n. 9 (2002).

We therefore reverse the order granting the husband’s motion to dismiss and remand for an evidentiary hearing.

Reversed and remanded for further proceedings consistent herewith.


text:
    Pedro Juan VELAZQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-375.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Aug. 31, 2006.
    Pedro Juan Velazquez, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Morgan v. State, 911 So.2d 162 (Fla. 3d DCA 2005).


text:
    Angel MEDINA, Petitioner, v. The STATE of FLORIDA, Respondent.
    No. 3D06-1387.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Aug. 18, 2006.
    Angel Medina, in proper person.
    Charles J. Crist, Jr., Attorney General, for respondent.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Petition for belated appeal denied. Fla. R.App. P. 9.141(c); see Hurtado v. Singletary, 708 So.2d 974 (Fla. 3d DCA 1998).


text:
    Willette SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1239.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Aug. 31, 2006.
    Willette Smith, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Morgan v. State, 912 So.2d 642 (Fla. 5th DCA 2005).


author: WOLF, J.

text:
    Allen WAGGY, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5683.
    District Court of Appeal of Florida, First District.
    July 26, 2006.

      Appellant, pro se.
    Charlie Crist, Attorney General; Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, J.

The appellant seeks review of an order denying his claims for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The majority of the claims are without merit; however, the appellant’s claims attacking the trial court’s lack of subject matter jurisdiction over his convictions in lower tribunal case number 05-5314 necessitate that we reverse and remand for an evidentiary hearing.

On May 25, 2001, the appellant, pursuant to a plea of guilty in lower tribunal case number 00-11638 was convicted of two counts of lewd and lascivious or indecent act on a child less than 16 years of age and was sentenced to 15 years’ incarceration on count I and 5 years’ incarceration on count II, consecutively. On the same day, the appellant, pursuant to a plea of guilty, was convicted in lower tribunal case number 01-5314 of attempted capital sexual battery and lewd fondling. As a result of his plea in case number 01-5314, adjudication was withheld, and the appellant was placed on 10 years’ sex offender probation for each count, concurrently. Id.

In his motion for postconviction relief, the appellant asserts his charged offenses in lower tribunal case number 01-5314 were committed over fifteen years ago at a residential housing unit on Naval Air Station, Jacksonville. Section 6.04, Florida Statutes (1977), provides in pertinent part:

Whenever the United States shall contract for, purchase, or acquire any land within the limits of this state for the purposes aforesaid, in either of the modes above mentioned and provided, or shall hold for such purposes lands heretofore lawfully acquired or reserved therefor, and shall desire to acquire constitutional jurisdiction over such lands for said purposes, the Governor of this state may, upon application made to him in writing on behalf of the United States for that purpose, accompanied by the proper evidence of said reservation, purchase, contract, or acquisition of record, describing the land sought to be ceded by convenient metes and bounds, thereupon, in the name and on behalf of this state, cede to the United States exclusive jurisdiction over the land so reserved, purchased, acquired and sought to be ceded ... upon the express condition that this state shall retain a concurrent jurisdiction with the United States in and over the land or lands so to be ceded, and every portion thereof, so far that all process, civil or criminal, issuing under authority of this state, or of any of the courts or judicial officers thereof may be executed by the proper officers, thereof....

Section 6.04, Florida Statutes, grants the federal government exclusive jurisdiction over government owned territories which have been expressly ceded through application to the state governor, except those areas of concurrent jurisdiction regarding civil and criminal process. See Int’l Bus. Mach. Corp. v. Vaughn, 98 So.2d 747 (Fla.1957). Thus, the appellant’s assertion that the state lacked subject matter jurisdiction to try him for crimes occurring wholly on a military installation with exclusive federal jurisdiction may have merit depending on whether a state governor previously ceded NAS Jacksonville to the federal government as outlined in section 6.04, Florida Statutes.

The issue of subject matter jurisdiction is one of fundamental error that may be raised for the first time on appeal. See Oglesby v. State, 911 So.2d 1288 (Fla. 1st DCA 2005). Moreover, the entry of a plea does not foreclose a later claim premised on the trial court’s lack of subject matter jurisdiction. See Maddox v. State, 760 So.2d 89, 96 (Fla.2000). Furthermore, questions of fundamental error may be presented for the first time in a postcon-viction motion. See State v. Florida, 894 So.2d 941, 945 (Fla.2005); Smith v. State, 741 So.2d 576, 577 (Fla. 1st DCA 1999). The State’s assertion that the appellant waived this claim by accepting a defective information at the time he entered his plea in unconvincing. As discussed expressly in the cases cited by the State, “When a court lacks subject matter jurisdiction, it has no power to decide the case and any judgment entered is absolutely null and void, can be set aside and stricken from the record on motion at any time, and may be collaterally attacked.” See Young v. State, 439 So.2d 306, 308 (Fla. 5th DCA 1983); State v. Yaros, 728 So.2d 1201 (Fla. 2d DCA 1999).

The appellant has made a facially sufficient claim of ineffective assistance of counsel for his counsel’s failure to further investigate the lack of subject matter jurisdiction where he states that his counsel was aware of the incident’s locale at the time the appellant entered his plea. Further, even if the appellant had not made a facially sufficient claim of ineffective assistance of counsel, he may still move to collaterally attack a judgment that was rendered without subject matter jurisdiction. See Young, 439 So.2d at 308. Thus, we are constrained to reverse the trial court’s denial of the appellant’s postconviction claim and remand for an evidentiary hearing on the claim to determine whether the trial court lacked subject matter jurisdiction to convict the appellant in case number 01-5314.

AFFIRMED in part; REVERSED in part; and REMANDED.

WEBSTER and BROWNING, JJ., concur.


text:
    Robert HILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1484.
    District Court of Appeal of Florida, Third District.
    July 26, 2006.
    Rehearing Denied Sept. 5, 2006.
    Arnstein & Lehr and Carlos F. Gonzalez, Miami, for appellant.
    Charles J. Crist, Jr, Attorney General, and Thomas C. Mielke and Robin Hazel, Assistant Attorneys General, for appellee.
    Before COPE, C.J., and WELLS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Resta v. State, 698 So.2d 378 (Fla. 3d DCA 1997), review denied, 703 So.2d 477 (Fla.1997); Bermudez v. State, 603 So.2d 657 (Fla. 3d DCA 1992), review denied, 613 So.2d 1 (Fla.1992).


text:
    Michael BLACKSHEAR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2301.
    District Court of Appeal of Florida, First District.
    July 31, 2006.
    Michael Blackshear, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

KAHN, C.J., BARFIELD, and ALLEN, JJ., concur.


text:
    Candace LASTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2537.
    District Court of Appeal of Florida, First District.
    July 31, 2006.
    Candace Laster, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A) and 9.141(c)(5)(C).

KAHN, C.J., BARFIELD, and ALLEN, JJ., concur.


text:
    Dondrae WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3060.
    District Court of Appeal of Florida, First District.
    July 31, 2006.
    Dondrae Williams, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, C.J., BARFIELD, and ALLEN, JJ., concur.


text:
    Jonathan WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3148.
    District Court of Appeal of Florida, First District.
    Aug. 2, 2006.
    Jonathan Williams, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Edler v. State, 673 So.2d 970 (Fla. 1st DCA 1996).

ERVIN, WEBSTER, and THOMAS, JJ., concur.


author: WELLS, J.

text:
    Melanie CERASE, Appellant, v. Frederic R. DEWHURST, Appellee.
    No. 3D06-17.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.

      Schweitzer & Schweitzer-Ramras and Darlene Schweitzer-Ramras, Miami, for appellant.
    Jacqueline M. Valdespino, Miami, for ap-pellee.
    Before COPE, C.J., WELLS, J., and SCHWARTZ, Senior Judge.
   WELLS, J.

Melanie Cerase appeals from an order denying her petition for modification which sought permission as the primary residential parent to relocate from Miami-Dade to Citrus County. We find that the trial court abused its discretion in rejecting the General Magistrate’s findings of fact, conclusions of law, and recommendation and reverse.

The parties to this proceeding were divorced in 1997 when their daughter was approximately three and one half years old. The final judgment dissolving their marriage, among other things, ordered shared parental responsibility with the mother as primary residential parent. Since then, both parties have remarried.

On June 10, 2005, the mother sought to modify the final judgment to permit her to move with the minor child to Citrus County. The father objected to the request and the matter was referred to a magistrate under Florida Family Law Rule of Procedure 12.490 for resolution. Following an evidentiary hearing at which eleven witnesses testified, the magistrate made detailed findings of fact and, as to the criteria set forth in section 61.13(2)(d)l-6 of the Florida Statutes, concluded that relocation would likely improve the general quality of life for both the residential parent and the child; that although the mother had consistently facilitated visitation, the father had rarely taken full advantage of it; that substitute visitation was affordable, meaningful, and available; and that the relocation would be in the best interests of this child. The magistrate recommended granting the mother’s petition to relocate.

The trial court rejected this recommendation stating:

I) The evidence was not sufficient to demonstrate that [the child’s] general quality of life would be improved by the move from Miami-Dade County to Citrus, County, Florida. While the mother gave her opinion that the quality of life is better outside Miami, there were no sufficient facts upon which this opinion was based. For example, the mother testified that Crystal River, Florida was a nice small town where “people speak to you and say hello to you; that’s something that we just don’t have in Dade County (sic.) anymore.” While this may demonstrate the mother’s values, it is not a “fact” sufficient to substantiate a relocation. Moreover, opinions (without factual evidentiary support) about traffic or less congestion are also insufficient. The mother struggled to argue the schools [the minor child] would attend in Crystal River were equivalent to the schools in Miami. Yet even if the smaller classes in the B-rated school in Citrus County were just as good as the classes in the A-rated school she attends here, there still was no sufficient evidence to support the conclusions that [the child’s] life was likely to improve in Citrus County. Additionally, the mothr er would have to take a $9,000 pay cut in Citrus County. She offered her belief that the cost of living there was much lower (again, with no evidentiary support) and that this would off-set any decrease in salary. The statute, however, requires the mother to demonstrate how the quality of [the child’s] life would improve, not how her standard of living might theoretically remain the same. Similarly, the mother’s new husband wishes to open a new business in Crystal River. He hopes that this will allow him more time to spend with the family. Yet these “hopes” are not facts sufficient to substantiate a relocation.
2) The mother argued the father has not always exercised the visitation rights provided to him. The testimony demonstrated this was true when [the child] was an infant or a toddler. However, the evidence established that, since a change in the father’s work schedule in the last several years, the father’s visitation has greatly improved. [The child] is now a pre-teen and is spending more time with her father than ever.
S) The evidence was sufficient to establish that the mother would be likely to comply with any substitute visitation arrangements ordered.
4) There was no competent substantial evidence that the alternate visitation schedule would be adequate to foster a continuing meaningful relationship between the minor child and the father. If relocation were permitted, the father would not be able to participate in athletic or school events for this gifted child on a regular basis. The father is starting to do those things now and he should be permitted and encouraged to continue. There was no substantial competent evidence that one weekend a month (as proposed by the mother) would be an adequate alternative or that permitting the father to drive five and a half hours to Citrus County for an additional weekend if he so chooses would suffice. Moreover, the evidence established that the father seems to have a habit of spending a succession of single overnights with [the child], rather than multiple days in a row. There was no evidence presented that this was harmful to [the child] or that a switch to multiple days in a row (which would be required if the move were permitted) would be adequate to foster a continuing relationship between [the child] and her father or even whether it would be beneficial for this pre-teen.
5) The evidence was sufficient to establish that the cost of transportation is affordable to both parties.
6) The evidence was utterly insufficient to demonstrate that this move is in the best interest of the minor child. There were no sufficient facts presented upon which the General Magistrate concluded “(t)he move away from the crowded urban setting will allow a life with less stress on the entire family.” And even if there were, there was no evidence either that [the child] is suffering the ill effects of living in an urban environment or that the supposed benefits of a rural one so improve her life that it outweighs the interruption in her relationships with friends at school, with friends at soccer, with her singing, or with her father.

(Footnotes omitted).

These findings and conclusions apply the wrong standard.

Once a trial court appoints a magistrate to take testimony and make findings, it loses the prerogative of substituting its judgment for that of the magistrate. See Bragassa v. Bragassa, 505 So.2d 556, 558 (Fla. 3d DCA 1987); Shaw v. Shaw, 369 So.2d 81, 82 (Fla. 3d DCA 1979) (“When a trial judge determines to refer a matter to a master, the trial judge gives up the opportunity to observe the witnesses. Therefore, he is not in the same position as a trial judge who hears a case.”). Rather, it takes on the role of a reviewing court with responsibilities “similar to those of [an] appellate court in reviewing a trial court’s findings and determinations.” Reece v. Reece, 449 So.2d 1295, 1295 (Fla. 4th DCA 1984). Thus, where exceptions to a magistrate’s report and recommendation have been filed, a trial court reviews the record to determine whether the magistrate’s factual findings and conclusions are supported by competent substantial evidence, and whether the magistrate’s legal conclusions are clearly erroneous or whether the magistrate misconceived the legal effect of the evidence. See Robinson v. Robinson, 928 So.2d 360, 362 (Fla. 3d DCA 2006) (trial courts are bound by a magistrate’s factual findings if supported by competent substantial evidence and by a magistrate’s findings and recommendations unless they are clearly erroneous or the magistrate has misconceived the legal effect of the evidence); De Clements v. De Clements, 662 So.2d 1276, 1282 (Fla. 3d DCA 1995) (en banc) (noting that “the trial court may only reject [a magistrate’s] findings and conclusions if they are clearly erroneous or if the [magistrate] has misconceived the legal effect of the evidence presented”); Wright v. Wright, 516 So.2d 9, 9 (Fla. 3d DCA 1987) (trial court is bound by the general master’s factual findings when supported by competent evidence, and must uphold the master’s findings unless he misconceived the legal effect of the evidence); Reichman v. Reichman, 450 So.2d 1188, 1189 (Fla. 3d DCA 1984) (“The findings of fact and recommendations of a master should be approved and adopted by the trial judge unless they are clearly erroneous or the master has misconceived the legal effect of the evidence.”).

Rather than reviewing the record to determine whether competent evidence existed to support the magistrate’s findings and conclusions and to determine whether the magistrate misconceived the legal effect of the evidence or whether the magistrate’s conclusions were clearly erroneous, the court below reweighed the evidence to make different findings and to arrive at different conclusions. This was inappropriate. See Anderson v. Anderson, 736 So.2d 49, 50-51 (Fla. 5th DCA 1999) (confirming that in reviewing a magistrate’s findings and conclusions, a trial court does not make independent findings of fact or reach independent conclusions as to the legal effect of the facts).

Moreover, the record confirms that the magistrate’s findings and conclusions were fully supported by the evidence and that the magistrate neither misconceived the legal effect of the evidence nor committed error in recommending relocation. Significantly, the findings and conclusions clearly “pass the Canakaris test.” See Id. at 51 (concluding that the abuse of discretion standard established in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), is the standard to be applied in a child custody proceeding by a trial court when determining whether a magistrate’s conclusions are clearly erroneous or misconceive the legal effect of the evidence); Dorta-Duque v. Dorta-Duque, 791 So.2d 1148, 1149 (Fla. 3d DCA 2001) (applying the Canakaris abuse of discretion standard to a relocation request determination); Canakaris, 382 So.2d at 1203 (stating that an abuse of discretion is demonstrated when no reasonable person could come to the same conclusion as did the trier of fact).

Accordingly, we reverse the order rejecting the general magistrate’s report and recommendation and remand for approval of that report and recommendation.

Reversed and remanded with directions.


text:
    Terrell ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1957.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.
    Terrell Anderson, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See § 775.084, Fla. Stat. (2003); State v. Richardson, 915 So.2d 86 (Fla.2005); State v. Meeks, 789 So.2d 982 (Fla.2001).


text:
    John Anthony WYCHE, Appellant, v. Dashonya Denise WYCHE, Appellee.
    No. 3D05-2621.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.

      Sheldon Zipkin, North Miami Beach, for appellant.
    Schweitzer & Schweitzer-Ramras, and Darlene Schweitzer-Ramras, Miami, for appellee.
    Before COPE, C.J., and WELLS, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

John Anthony Wyche appeals an amended final judgment of dissolution of marriage. Because there is no trial transcript, our review is limited to any errors which may appear on the face of the amended final judgment. See Prymus v. Prymus, 753 So.2d 742 (Fla. 3d DCA 2000); Katowitz v. Katowitz, 684 So.2d 256, 257 n. 1 (Fla. 3d DCA 1996). We also take into account the clarification stated by the trial court in the hearing on the former husband’s motion for new trial and/or rehearing, for which hearing there was a transcript. We find no error in the trial court’s treatment of the marital home for equitable distribution purposes. Further, the trial court’s decision to award the former husband’s equity in the home to the former wife was within the trial court’s discretion, where the child support arrear-ages exceeded the former husband’s equity in the property.

Affirmed.


text:
    Rocky and Mary GIRON, Appellants, v. UGLY MORTGAGE, INC., et al., Appellees.
    No. 06-644.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.

      Devine Goodman Pallot & Wells and Guy A. Rasco, Miami, for appellants.
    Hite Baldwin and Bruce Baldwin; Jary C. Nixon and Victor H. Veschio and Tary L. Nixon; Hicks and Kneale and Dinah Stein, Miami, for appellees.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   SUAREZ, J.

The Girons appeal the denial of their motion to set aside a foreclosure judgment and judicial sale of real property based on defective constructive service of process. We affirm.

The Girons purchased the real property in question in 1996. Thereafter, they entered into a second mortgage which was eventually assigned to Ugly Mortgage Company. The Girons stopped paying on the second mortgage. The Girons claim to have moved from the residence the day prior to Hurricane Katrina and claim not to have moved back due to extensive damage. They also claim to have visited the property daily during the time period that Ugly Mortgage claims to have been attempting service of process.

Ugly Mortgage filed an action to foreclose the mortgage. Ugly Mortgage alleges it was unable to personally serve the Girons. It filed an affidavit of diligent search and claimed to have perfected constructive service pursuant to section 49.011, Florida Statutes (2005). A Final Summary Judgment of Foreclosure was entered and the property was sold pursuant to court order. The Girons then filed a Motion to Set Aside the Foreclosure arguing the Affidavit of Diligent Search filed by Ugly Mortgage was defective and, therefore, constructive service of process was improper. At the first hearing, the trial judge ordered that title to the property not be transferred, and ordered discovery taken as to constructive service. After an evidentiary hearing, the trial judge denied the Girons’ Motion to Set Aside the Foreclosure. He issued a lengthy detailed order finding the affidavit legally sufficient and finding that the mortgage company conducted an adequate search. The trial judge also detailed in his order that he did not find credible the Girons’ testimony that they had a contract pending to sell the house as well as other portions of their testimony. The Girons appealed.

Constructive service of process is proper only if personal service cannot be obtained and only in the kinds of cases listed in section 49.011, Florida Statutes (2005). If there is a challenge to constructive service, the trial court has the duty of determining not only if the affidavit of diligent search is legally sufficient but also whether the plaintiff conducted an adequate search to locate the defendants. See Southeast & Assoc., Inc. v. Fox Run Homeowners Assoc., Inc., 704 So.2d 694 (Fla. 4th DCA 1997). Our standard of review determines whether there was competent substantial evidence to support the decision of the trial judge. Hudson v. Pioneer Fed. Sav. & Loan Assoc., 516 So .2d 339 (Fla. 1st DCA 1987). We affirm the trial court’s order concluding that the Affidavit of Diligent Search is legally sufficient, and we find the trial court’s well reasoned decision that the Plaintiffs conducted an adequate search to locate the Girons prior to constructive service is supported by more than competent substantial evidence.

Affirmed.


text:
    Ismael SANCHEZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-589.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.
    Ismael Sanchez, in proper person.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for respondent.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Ismael Sanchez seeks mandamus relief to compel the circuit court to rule on a motion for rehearing filed on or about November 17, 2005. The State’s response to our order to show cause fails to describe any circumstances that would justify the continuing delay at this point. Accordingly, we grant the petition for writ of mandamus, and direct the circuit court to enter an order within thirty days either granting or denying Sanchez’s motion.

Petition for Writ of Mandamus Granted.


text:
    Trabon MARION, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-661.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.
    Trabón Marion, in proper person.

      Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Ragan v. State, 643 So.2d 1175 (Fla. 3d DCA 1994).


author: KELLY, Judge.

text:
    Saysinh KHIANTHALAT, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2592.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2006.
    James Marion Moorman, Public Defender, and Edward Lee Giles, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Saysinh Khianthalat appeals from his judgment and sentence for ■ committing a lewd, lascivious, or indecent act upon a child under the age of sixteen but over the age of twelve, solicitation to commit perjury, and tampering with a witness. We find no merit to his arguments on appeal and therefore affirm his judgment and sentences. However, we write to explain why we have rejected Khianthalat’s argument that he was wrongly denied a jury instruction on simple battery.

The State charged Khianthalat with nine counts of committing a lewd, lascivious, or indecent act upon a child twelve years of age or older but less than sixteen years of age under section 800.04(4), Florida Statutes (2002). The Information alleges that Khianthalat “engaged in sexual activity with [the victim], a child older than 12 years of age but less than 16 years of age.” At trial, the victim testified that she was thirteen years old when she first had sex with Khianthalat: “Well, at that time I was thirteen years old and didn’t know much. And I thought that since he was older than me, that it was okay and no one would find out, and we would just do our thing and no one would ever know.”

During the jury charge conference, Khi-anthalat asked the court to instruct the jury on simple battery as a lesser-included offense of committing a lewd, lascivious, or indecent act upon a child. The State objected because the information did not allege and the victim never testified that Khianthalat touched her against her will. Khianthalat argued that the instruction was proper because the minor victim could not legally consent. The trial court refused to give the instruction.

Khianthalat argues that the trial court erred when it refused to give the battery instruction. Battery is a category two permissive lesser-included offense to lewd, lascivious, or indecent act upon a child. Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, § 800.04. An instruction on a category two permissive lesser-included offense must be given when the pleadings and the evidence demonstrate that the lesser offense is included in the offense charged. State v. Von Deck, 607 So.2d 1388 (Fla.1992). The elements of battery are: (1) actually and intentionally touching or striking another person (2) against the will of the other. § 784.03(l)(a)(l), Fla. Stat. (2002). Khian-thalat contends that because the victim was a minor she was not legally capable of consenting to sexual activity; thus, he was entitled to a battery instruction even though the information did not specifically allege and the evidence did not establish that he touched the victim against her will. We disagree.

Khianthalat’s argument confuses the unavailability of consent as a defense to a charge of lewd, lascivious, and indecent act with a child with the legal presumption that a child under the age of twelve cannot consent to sexual activity. Examining the lineage of Florida’s sexual offenses makes the distinction between the two clear. Early cases indicate that Florida’s first rape statute simply codified the common law offense of rape. The statute defined rape as having carnal knowledge of a female age ten or older by force and against her will or of a female under the age of ten irrespective of consent. See McKinny v. State, 29 Fla. 565, 10 So. 732, 733 (1892).

In 1892, the legislature enacted a new statute that made it a misdemeanor to have “carnal intercourse” with any unmarried female under the age of sixteen. See Wilson v. State, 50 Fla. 164, 39 So. 471 (1905). In Wilson, the court addressed the effect of the new statute on the provision in the existing rape statute that dealt with females under the age of ten. The supreme court held that when the legislature enacted the statute, it had created a new crime, it had not repealed the existing rape law, even though the new misdemean- or statute on its face applied to all unmarried females under the age of sixteen. Id. at 471-72.

The court explained that before a child reaches the age of ten, “the law conclusively presumes that a child of such immature age is incapable of either consenting to or protesting against the act.” Id. Because of that presumption, intercourse with a female under the age of ten still constituted rape under the old statute. Id. After a child reached the age of ten, however, the law no longer presumed she could not consent; therefore, if she consented to intercourse, the act was not a crime under the existing rape law. Id. Accordingly, the court concluded that the purpose of the new statute was to criminalize consensual sexual intercourse with an unmarried female between the ages of ten and sixteen, not to repeal the rape law. Id.

The presumption of incapacity to consent is still embodied in current statutes defining sexual offenses. Section 794.011, Florida Statutes (2002), the sexual battery statute, reflects that the presumption of incapacity to consent ends at age eleven. Subsections (3), (4) and (5) define sexual batteries involving victims twelve or older. To constitute sexual battery under those subsections, the State must prove the victim did not consent. This requirement recognizes that a person twelve or older has the ability to consent.

In contrast, subsection (2)(a) provides: “[A] person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony.” This subsection of the sexual battery statute does not explicitly mention consent because it incorporates the presumption that “a child of such immature age is incapable of either consenting to or protesting against the act.” As noted by the court in Caulder v. State, 500 So.2d 1362, 1363-64 (Fla. 5th DCA 1986), in a prosecution for sexual battery on a child eleven years of age or younger, lack of consent is always an element because of the conclusive presumption that a child that age cannot consent. Thus, because lack of consent is an element of sexual battery under subsection (2)(a), the offense always includes a charge of simple battery as a necessarily lesser-included offense, just as it does under subsections (3), (4) and (5). Fla. Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, § 794.011.

Khianthalat’s argument that he was entitled to a jury instruction on battery as a permissive lesser-included offense fails because section 800.04(4), the statute under which he was charged, does not apply to children under the age of twelve; accordingly, the presumption of incapacity to consent is not applicable to offenses under that statute. Section 800.04(4) is intended to criminalize sexual activity with children twelve years of age or older but less than sixteen years of age even where the activity is consensual. See Welsh v. State, 850 So.2d 467 (Fla.2003). “The legislature enacted section 800.04 based on a ‘morally neutral judgment’ that sexual intercourse with a child under the age of sixteen, with or without consent, is potentially harmful to the child.” Jones v. State, 640 So.2d 1084, 1086 (Fla.1994) (quoting Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973)). The fact that section 800.04 eliminates consent as a defense necessarily implies that the sexual activity may be consensual, but nevertheless, the State, as a matter of policy, will ignore the consent because of its legitimate interest in protecting minors from sexual exploitation. See id. Because in this ease the presumption of incapacity to consent is inapplicable and the sexual activity was not against the minor victim’s will, Khianthalat was not entitled to an instruction on simple battery.

Accordingly, we affirm.

NORTHCUTT, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . Under English common law, sexual relations with a child of any age was not considered rape if the child consented, but an early English statute made carnal knowledge of a child under ten years of age a felony irrespective of consent. 2 Wayne R. LaFave, Substantive Criminal Law § 17.4(c), at 648 (2d ed. 2003). William Blackstone discussed the statute, 18 Eliz. C. 7, in his Commentaries on the Laws of England, in which he noted that “the consent or nonconsent [of a woman under the age of ten years] is immaterial, as by reason of her tender years she is incapable of judgment and discretion.” Blackstone, 4 Com-

        mentarles at *212; see also McKinny v. State, 29 Fla. 565, 10 So. 732, 733 (1892) (explaining that because it was believed that a child under age ten could neither consent nor protest, "it was anciently doubted whether rape could be committed upon a child under 10 years of age, and hence the statute, 18 Eliz. C. 7, § 4, was enacted”). The English statute was old enough to become part of the common law in the United States; however, states eventually enacted statutes codifying the offense. 2 LaFave, supra.

        . In 1901, the legislature amended the statute to increase the age to eighteen. Wilson v. State, 50 Fla. 164, 39 So. 471 (1905).

      . Section 794.011, provides in pertinent part:
      (3)A person who commits sexual battery upon a person 12 years of age or older, ■without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony....
      (4) A person who commits sexual battery upon a person 12 years of age or older without that person’s consent, under any of the following circumstances, commits a felony of the first degree....

      (5) A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof does not use physical force and violence likely to cause serious personal injury commits a felony of the second degree.
      (Emphasis added.)

      . If it did apply, battery would be a necessarily lesser-included offense, not a permissive lesser-included offense as Khianthalat contends. Khianthalat's argument is not without support, however. In Jackson v. State, 920 So.2d 737 (Fla. 5th DCA 2006), the court, relying on the presumption of incapacity where the victim was over the age of twelve, concluded that a defendant was entitled to an instruction on simple battery even though there was no allegation of nonconsensual touching.

      . Until section 800.04 was amended in 1999, it only criminalized consensual sexual activity because the statute specifically excluded sexual battery as a means of perpetrating the act. See Williams v. State, 922 So.2d 418 (Fla. 2d DCA 2006).


text:
    Michael ZEHFUS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-471.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2006.

      Appellant Michael Zehfus, pro se, Crest-view.
    Charles J. Crist, Jr., Attorney General and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

“The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available by motion in the sentencing court pursuant to rule 3.850.” Baker v. State, 878 So.2d 1236, 1245 (Fla.2004); see also Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981) (“[T]he remedy of habeas corpus is not available as a substitute for post-conviction relief under Rule 3.850, Fla. R.Crim. P.”).

AFFIRMED.

KAHN, C.J., BARFIELD and ALLEN, JJ., concur.


text:
    Earlie Defrench SANDERS, Appellant, v. STATE of Florida, o/b/o Megan Fortney BYERLEY, Appellee.
    No. 1D06-0979.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2006.
    Earlie Defrench Sanders, pro se, Appellant.
    Charlie Crist, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee; Patricia L. Parker, Jacksonville, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 19, 2006, the Court'has determined that the order expressly identified in the appellant’s notice of appeal, the January 11, 2006, Order Denying Motion for Appointment of Counsel, is not an appealable order. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

However, the Court notes the appellant’s earlier appeal of the October 10, 2005, Order on Defendant’s Motion to Vacate, in case number 1D05-5521, which was dismissed for failure to pay the filing fee. To the extent that the appellant is seeking review of the earlier order, this dismissal is without prejudice to the appellant to move to reinstate the earlier appeal.

ERVIN, WEBSTER, and THOMAS, JJ., concur.


text:
    James CLARK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2108.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2006.

      James Clark, pro se, Petitioner.
    Charlie Crist, Attorney General, and Diego Puig, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In light of the circuit court’s recent actions, we determine that the granting of mandamus relief is not warranted. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). However, we strongly encourage the circuit court to consider and dispose of the pending petition for writ of mandamus promptly.

ALLEN, DAVIS, and THOMAS, JJ., concur.


author: SHARP, W., Senior Judge. COBB, W.H., Senior Judge,

text:
    Heather MORCROFT, Guardian Ad Litem, Appellant, v. J.H., Father of C.H., J.H., etc., et al., Appellees.
    No. 5D05-3102.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.

      Heather Morcroft, Orlando, pro se.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellee J.H.
    Charles D. Peters, Orlando, for Appellee Department of Children and Families.
   SHARP, W., Senior Judge.

Morcroft, guardian ad litem of three minor children, appeals from a final order that dismissed a dependency action against the children’s father, after a trial. In this unusual case, the Department did not file a notice of appeal nor move to join Morcroft as an appellant, and was limited to filing an Answer Brief, in which it acknowledged it could neither argue to uphold the order on appeal nor oppose it. We reverse for further proceedings, as we determine the order was based on misstatements and misapplication of the law.

The facts are not in dispute. In March 2005, the Department sheltered the minor children after the father had engaged in a vicious assault on the mother in her home, and in the presence of the children. He struck her repeatedly on her body and head with an object (apparently a hammer). She suffered a fractured skull and other injuries and was hospitalized for a period of time.

The children were sheltered with the maternal grandmother. The dependency court issued a no-contact order against the father and the paternal grandmother. The father was ultimately charged with multiple criminal offenses: attempted first degree murder with a deadly weapon, aggravated battery with a deadly weapon, three counts of child abuse, and domestic violence.

In April 2005, the mother obtained a permanent injunction for protection from domestic violence against the father from the domestic relations division of the circuit court. The injunction prohibits the father from going near the family home, the mother’s place of employment, and the children’s day care location. It finds that the father willfully violated a prior temporary ex parte injunction based on earlier domestic violence, which the mother had obtained prior to this attack on' her. The father had notice of the temporary injunction, which may have precipitated the March incident of violence against the mother.

The permanent injunction also grants “temporary custody” of the children to the mother and the maternal grandmother, “DCF in charge,” and prohibits the father from having any contact with the children “until further order of the Court.”

On April 26, 2005, the mother was declared non-offending and the children were placed in her custody. An adjudicatory hearing regarding the father was held on July 12, 2005. At this hearing, the mother sought dismissal of the dependency petition against the father because she had obtained a permanent injunction against the father, and thus she argued, a finding of dependency against the father was not necessary. She testified she intended to file for dissolution of marriage from the father, although she had not yet done so. She further testified that since the attack and his subsequent incarceration for violating the temporary injunction, she had had no contact with the father.

At the adjudicatory hearing, the details of the father’s attack on the mother were established, as well as the circumstance that the children were present in the room at the time. Substantial competent evidence was also presented as to the impact of the attack on the children. When a protective investigator arrived at the scene, she found the children huddled in the back of a police cruiser, alone, their clothes covered in the mother’s blood. They were upset and shivering. One talked about being scared and hiding in the closet. Another interjected that “he hit Mommy, Mommy got hurt, Mommy’s bleeding in her head.” The first child described how his father grabbed Mommy by the neck and hit her on the face, neck and body. He was also afraid that Daddy might hurt him.

The mother also testified that after this incident of domestic violence, the children’s behavior changed. One was afraid everywhere they went, stayed close to her and asked a lot of questions about what happened to the father. Another became more aggressive and began to fight. There was no allegation or evidence that the father had ever physically abused the children.

The court declined to find the children dependent as to the father for several reasons. The trial judge announced that the evidence regarding emotional harm to the children in order to establish child abuse was inadequate because the Department had not presented an expert to testify in this regard, and one was required in a case where no physical harm was proven. It also declined to find prospective abuse as to the children because the Department had failed to establish a “cycle” of domestic violence in front of the children. The remaining basis for the trial court’s refusal to find the children dependent as to the father was that the parents are separated and an injunction is in place with a no-contact order. Thus, there is no threat to the children.

A trial court’s final ruling of dependency, vel non, is a mixed question of law and fact, and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record. T.G. v. Dept. Children & Families, 927 So.2d 104 (Fla. 1st DCA 2006).

With regard to the trial court’s statements of the law regarding the requirement of expert testimony for a finding of abuse and neglect, we respectfully disagree. No expert witness is required to bolster evidence regarding the detrimental effect of witnessing domestic violence on children in order to support a finding of dependency. D.D. v. Dept. of Children & Families, 773 So.2d 615, 618 (Fla. 5th DCA 2000).

Further, we think that the evidence was sufficient to have sustained a finding of dependency based on abuse. Chapter 39 defines a “dependent” child as one who is found by the court to have been abandoned, abused or neglected by his or her parents or one who is “at substantial risk of imminent abuse, abandonment or neglect by the parent or parents.” § 39.01 (14)(a)(f), Fla. Stat. (2005). “Abuse” is defined as “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2), Fla. Stat. “Harm” includes engaging in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child. § 39.01(30)(i), Fla. Stat. This includes domestic violence committed in the presence of a child. See B.C. v. Dept. of Children & Families, 846 So.2d 1273 (Fla. 4th DCA 2003); F.R. v. Dept. of Children & Families, 826 So.2d 449 (Fla. 5th DCA 2002).

It is unnecessary to present evidence of a “cycle” of domestic violence committed in front of the children in every case to sustain a finding of dependency. We have mentioned a pattern of domestic violence or a cycle of domestic violence as warranting a finding of abuse. See W.V. v. Dept. of Children & Families, 840 So.2d 430 (Fla. 5th DCA 2003); D.D.; F.R. However, a single act of domestic violence in front of the children, if it is sufficiently horrific, as here, is adequate. What if, in this case, the father had succeeded in killing the mother? He certainly tried.

In T.R. v. Department of Children and Families, 864 So.2d 1278 (Fla. 5th DCA 2004), a finding of dependency was upheld by this court based on one altercation in which a father threatened his live-in-girlfriend with a steak knife while she was holding their baby. Although not present in the room, his two teenagers were aware of the incident, having heard the shouting and commotion. In affirming, this court explained:

Should proof of one act of domestic violence — here T.R.’s threatening his girlfriend with a knife while she is holding their baby — suffice? In the cases cited above ... there were multiple incidents of domestic violence witnessed by the children involved. However, there are indications in the record in this case that T.R. had a domestic violence history including two prior battery charges and two petitions for domestic violence injunctions which were dropped. In addition, the domestic violence in this case was accomplished with a deadly weapon. On balance, we choose to affirm....

864 So.2d at 1280.

The other basis for the trial court’s order was that there is no present or future threat of harm to the children because the parents are separated and a no-eontact injunction is in place. Further, the father’s counsel argued that the father is in jail and facing a long incarceration for attempted first degree murder and other charges.

We are not reassured by these measures. At the time of the dependency hearing, the father was in jail based on his violation of a temporary injunction for domestic violence. He had not been incarcerated for the attempted first degree murder charge, nor was there any evidence it was actively being prosecuted. The permanent injunction upon which the trial court relied to find no present threat, appears to be “temporary,” regarding the custody of the children. It grants joint custody to the maternal grandmother, as well as the mother, and it contemplates continued involvement of the Department, as it expressly states “DCF in charge.”

If any one of the family law courts in the Ninth Circuit should be in charge of this case, it is the dependency court. Ample grounds exist to base a finding of dependency regarding the father as to these children based on both abuse and prospective abuse. A dependency adjudication against the father would presumably bar him from contact with the children, as does the permanent injunction, but it could also require him to attend domestic violence and anger management programs and address the basic causes of the problems which have brought him to this point in his life and that of his children. Based on this record, we do not know whether the father will be incarcerated for an extended term of imprisonment.

REVERSED and REMANDED.

MONACO, J., concurs.

COBB, W.H., Senior Judge, dissents with opinion.

COBB, W.H., Senior Judge,

dissenting:

While I do not disagree with the legal precepts set forth in the majority opinion, I do not see that oversight by the Department can afford the mother any realistic protection from her homicidal husband beyond that which she has already procured from the court, ie., a permanent injunction. The prospect of additional protection via “anger management” counseling strikes me as naive.

There is no reason to impose the intrusions of the Department upon the mother’s life against her wishes. Based upon the record before us, she is blameless, and the lower court has so determined. I would affirm.

      . Jurisdiction is based on Florida Rule of Appellate Procedure 9.146(b).

      . See M.A. v. Dept. of Children & Families, 906 So.2d 1226 (Fla. 1st DCA 2005).

      . While in this case the evidence established actual serious physical injury to the mother, such evidence is not essential to establishing domestic violence in a dependency setting. See F.R.

      . The Ninth Circuit has a domestic relations division of the circuit court which hears cases involving dissolution of marriage and injunctions for domestic violence.

      . See also M.S. v. D.C., 763 So.2d 1051 (Fla. 4th DCA 1999) (reversing order denying mother's petition for termination of father's parental rights where father murdered his girlfriend at home while children were present even though father had been convicted of murder and was serving sixty-year term of imprisonment).

      . The injunction, as additional protection for the mother and children, is in effect until further order of the court and its terms "may not be changed by either party alone or by both parties together.”


text:
    Barbara TERRELL, Appellant, v. Kay THOMPSON, Appellee.
    No. 1D05-0976.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2006.

      Christopher T. Wilson, Esquire of the Law Office of Gary Baker, P.A., Callahan, for Appellant.
    Kay Thompson, pro se, Appellee.
   PER CURIAM.

Barbara Terrell appeals from a Final Judgment of Injunction for Protection Against Repeat Violence entered against her. We reverse because no competent, substantial evidence supports the trial court’s ruling.

To enter an injunction for “repeat violence,” the trial court must find that there were “two incidents of violence or stalking committed by the respondent.” § 784.046(1)(b), Fla. Stat. (2004). “Violence” is defined to include “assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” § 784.046(1)(a), Fla. Stat. (2004). Competent, substantial evidence must support the trial court’s findings of two incidents of repeat violence. See Forrest v. Wilson, 889 So.2d 124, 124-25 (Fla. 1st DCA 2004).

We reverse the judgment entering the injunction in the present case because competent, substantial evidence does not support the finding of even a single act of violence (as defined by the statute) perpetrated by the appellant. See Perez v. Siegel, 857 So.2d 353, 354-55 (Fla. 3d DCA 2003) (explaining that verbal threats without an overt act creating a well-founded fear that violence was imminent were insufficient to qualify as assault under the statute).

Reversed.

ERVIN, BENTON, and BROWNING, JJ., concur.


text:
    Terry Williams BROWN, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D05-3421, 1D05-3422.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2006.
    Nancy A. Daniels, Public Defender, and John B. Kelly, III, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed. See Brannon v. State, 850 So.2d 452, 456 (Fla.2003) (“[T]he failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses [the appellant] from raising the error on direct appeal.”); Jones v. State, 876 So.2d 642, 645 (Fla. 1st DCA 2004) (“Sentencing errors are not reviewable on direct appeal unless they are preserved in the trial court, either by timely objection at sentencing or by a timely filed motion pursuant to Florida Rule of Criminal Procedure 3.800(b).”).

ERVIN, BENTON, and BROWNING, JJ., concur.


text:
    ACROCRETE, INC., Appellant, v. Anthony DERCK and Mary Derek, Stalnaker Construction, Inc., as Successor in Interest to and Continuation of Remodeling by Dave Stalnaker, Inc., Atrium Companies, Inc., Appellees.
    No. 1D06-0024.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2006.
    Keith E. Hope of the Hope Law Firm, P.A., Holmes Beach, for Appellant.
    Bruce D. Partington of Clark, Parting-ton, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellees.
   PER CURIAM.

The circuit court has certified that the missing portion of the transcript cannot be reconstructed and that the parties cannot prepare a stipulated statement of the evidence or obtain an approved statement of the evidence pursuant to Florida Rule of Appellate Procedure 9.200. Accordingly, the final order is reversed and remanded for a new final hearing.

REVERSED and REMANDED.

ALLEN, DAVIS, and THOMAS, JJ., concur.


text:
    Jose Antonio REYES, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-0681.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2006.

      Jose Antonio Reyes, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Jose Antonio Reyes seeks review of an order summarily denying his amended petition for writ of habeas corpus, in which he challenged the revocation of his conditional release supervision. His sworn allegations, which must be accepted as true for present purposes, included claims that he was improperly denied the assistance of. counsel, denied access to the evidence against him, and denied the right to cross-examine adverse witnesses.

We conclude that the amended petition adequately alleged a preliminary basis for concluding that Reyes was denied procedural protections to which he was entitled in the revocation proceedings. See generally Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); see also § 947.141(3), Fla. Stat. (2005). Under these circumstances, the circuit court’s failure to issue an order to show cause before adjudicating the merits of petitioner’s claims amounts to a departure from the essential requirements of law. See Duckworth v. Department of Corrections, 867 So.2d 550 (Fla. 1st DCA 2004).

Accordingly, the petition for writ of cer-tiorari is GRANTED, the order summarily denying the amended petition is QUASHED, and the matter is REMANDED to the circuit court for further proceedings.

ERVIN, POLSTON, and HAWKES, JJ., concur.


text:
    BILLY CARR CHEVROLET, INC., Appellant, v. DEBIS FINANCIAL SERVICES, INC., Appellee.
    No. 1D06-0950.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2006.
    John S. Mills of Mills & Carlin, Jacksonville; Douglas L. Smith of Burke, Blue & Hutchinson, P.A., Panama City; Robert G. Kerrigan of Kerrigan, Estess, Rankin & McLeod, LLP, Pensacola, for Appellant.
    Thomas Guilday and Catherine B. Chapman of Huey Guilday Tucker Schwartz & Williams, P.A., Tallahassee; Matthew Fu-qua, Marianna, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of April 4, 2006, the Court has determined that Count II of the Third Amended Complaint, for tortious interference with a business relationship, is related to Count I for holdover rent and damages, to such a degree that the January 25, 2006, Final Judgment as to Count II, does not constitute a partial final judgment subject to immediate review pursuant to Florida Rule of Appellate Procedure 9.110(k). Accordingly, the appeal is hereby dismissed as premature.

ERVIN, WEBSTER, and BENTON, JJ., concur.


text:
    ISOL AUTO SUPPLY, a/k/a, Frank Auto, employer below and its workers’ compensation carrier, The Hartford, Petitioners, v. Jorge DIAZ, Respondent.
    No. 1D06-2661.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2006.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Petitioners,
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied without prejudice to appellants seeking review after the Judge of Compensation Claims issues a final order on the merits of the claims pending below.

ALLEN, DAVIS, and THOMAS, JJ., concur.


text:
    Michael W. JOHNS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3941.
    District Court of Appeal of Florida, Fifth District.
    Aug. 8, 2006.
    James S. Purdy, Public Defender, and Robert Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Terry v. State, 846 So.2d 1232 (Fla. 5th DCA 2003).

PLEUS, C.J., ORFINGER and MONACO, JJ., concur.


text:
    The COCONUT GROVE PLAYHOUSE, INC., Petitioner, v. KNIGHT-RIDDER, INC., publisher of The Miami Herald, Respondent.
    No. 3D06-1550.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 2006.
    Akerman Senterfitt and Lawrence D. Silverman, Miami, for petitioner.

      Holland & Knight, LLP, and Sanford L. Bohrer, and Scott D. Ponce, Miami, for respondent.
    Before GREEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

The Coconut Grove Playhouse, Inc. [“Playhouse”], petitions for a writ of cer-tiorari- to quash an order of the circuit court requiring it to produce its confidential business information to respondent, Knight-Ridder, Inc., pursuant to section 119.07, Florida Statutes (2006), as a sanction for its failure to respond to a discovery subpoena. Based upon our finding that the order departs from the essential requirements of law, and causes material injury to the petitioner, for which there is no remedy on appeal, Martin-Johnson v. Savage, 509 So.2d 1097, 1099 (Fla.1987); State Farm Mutual Auto. Ins. Co. v. Kendrick, 780 So.2d 231 (Fla. 3d DCA 2001), we grant the petition and quash the order.

In May, 2006, KnighL-Ridder, Inc., which publishes “The Miami Herald,” filed a complaint against the Playhouse seeking inspection of its records under section 119.07. The complaint alleges that the Playhouse is “a public agency as defined by section 119.011(2),” Florida Statutes (2006), and is therefore required to produce its documents. On June 15, 2006, the trial court issued an order entitled “Alternative Writ of Mandamus and Order Setting Immediate Hearing.” The order required the Playhouse to produce the subject documents at a June 21 hearing, or show cause why the Playhouse is not a public agency and therefore not required to produce the documents. The following day, June 16, Knight-Ridder served a subpoena on the Playhouse for certain other documents to be produced at the hearing, to aid its discovery efforts to establish that the Playhouse is a public agency. At no time did the Playhouse produce the documents or seek a protective order.

At the hearing, Knight-Ridder argued that it was entitled to a default on its complaint against the Playhouse because it failed to respond to the subpoena by bringing the documents to the hearing. The Playhouse argued that the complaint did not make a prima facie case for public agency records disclosure under the statute, that the Playhouse was a not-for-profit corporation and was not a public agency required to disclose under the statute. The court entered an Order finding that the Playhouse had failed to comply with the subpoena and as a sanction therefore ordered the Playhouse to produce the documents requested in the complaint, essentially entering a default in Knight-Ridder’s favor. The Playhouse filed this petition.

The trial court’s order in this case is tantamount to a default judgment against the Petitioner for its failure to comply with the subpoena for discovery materials. Before the trial court can enter such an extreme sanction, the court must consider the factors set forth in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1994), for imposing such a severe sanction. Kozel requires that the court look at

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.

Kozel, 629 So.2d at 818. Typically, orders dismissing or defaulting parties for their failure to comply with discovery requirements must contain explicit findings. Commonwealth Fed. Savings & Loan Ass’n v. Tubero, 569 So.2d 1271, 1273 (Fla.1990). In Ham v. Dunmire, 891 So.2d 492, 496 (Fla.2004), the court reasoned: “Express findings are required to ensure that the trial judge has consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation.” In this case, the order contains no such consideration or findings, and nothing in the record supports a conclusion that such an extreme sanction is warranted in this case. See Ham, 891 So.2d 492, 500 (Fla.2004) (“trial courts [should] strike the appropriate balance between the severity of the infraction and the impact of the sanction when exercising their discretion to discipline parties to an action.”); Beauchamp v. Collins, 500 So.2d 294 (Fla. 3d DCA 1986); Wilson v. Form Works, Inc., 894 So.2d 1078 (Fla. 4th DCA 2005).

In the absence of the requisite findings, we hold that the court departed from the essential requirements of law in ordering the disclosure of the information alleged in the complaint. We therefore quash the order under review and remand to the trial court for further proceedings consistent with this opinion.

Certiorari granted; order quashed.