author: WALLACE, Judge.

text:
    M.H. and A.H., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 2D07-1006.
    District Court of Appeal of Florida, Second District.
    March 28, 2008.

      Jean Marie Henne, Winter Haven, for Appellants.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa; Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee; Douglas B. Sherman, Bartow; Jerome F. Major, Lakeland; and Gregory D. Venz, Tallahassee, for Appellee.
   WALLACE, Judge.

M.H. and A.H. (collectively, the Foster Parents) appeal a final administrative order of the Department of Children and Family Services (DCF) that denied their application for the renewal of a foster care license. Because DCF erred in rejecting the recommended order’s conclusion of law that the agency had to demonstrate by a preponderance of the evidence that the Foster Parents had violated section 409.175, Florida Statutes (2005), and Florida Administrative Code Rule 65C-13.010, we reverse the final administrative order and remand with instructions for DCF to enter a final order in accordance with the recommended order.

I. FACTS AND PROCEDURAL HISTORY

A. The Factual Background

M.H. and A.H. were foster parents for one boy and two baby girls. C.S., one of the two girls, was crying frantically on the night of December 19, 2005. A.H. heard C.S. and hurried to the bedroom C.S. shared with the other girl because she feared C.S. would wake up the other girl, who was ill. A.H. picked up C.S. by her left arm and C.S. slipped slightly, but A.H. retained her grip on the child’s left arm. As A.H. picked up C.S., A.H. heard a “pop” similar to the noise created by cracking a knuckle. When A.H. lifted C.S. in this manner, A.H. injured C.S., causing a small chip fracture about a millimeter thick in the child’s left elbow. The Foster Parents timely sought appropriate medical care for .C.S., and .they reported the child’s injury to DCF. On December 29, 2005, DCF removed the three foster children residing with M.H. and A.H.

B. DCF’s Notice of Denial

When the Foster Parents sought to renew their foster care license in 2006, DCF denied their application. In a letter to the Foster Parents notifying them of the denial of their application, DCF alleged that the injury to C.S. constituted child abuse and was a violation of the safety standards promulgated in Florida Administrative Code Rule 65C-13.010. DCF explained its decision as follows:

Child Protection Team Medical Director, Dr. William Brooks, reviewed the emergency room records and child’s x-rays and concluded the injury was child abuse. Dr. Brooks sought a second opinion from Dr. Guidi, a-pediatric radiologist at Tampa General Hospital. Dr. Guidi also concurred with Dr. Brook[s’] findings. Both doctors agreed that' the injury required significant pulling force and could not be considered accidental.
It is the responsibility of the Central Zone Licensing Office to make a determination whether a foster home is in compliance with the- .standards .for licen-sure set forth in the Florida Administrative Codes [sic] and the Florida Statutes. Your lack of compliance with safety standards towards the foster children that were in your home at the time of the incident which are governed by Florida - Administrative Code 65C[-]13.010 prohibits [DCF] from re-licensing your home.
Please note that pursuant to Florida Statutes 409.175, [DCF] may deny, suspend, or revoke a license for noncompliance with the requirements for licensure. Any party whose substantial interests are affected by the determination to revoke has a right to request an administrative proceeding pursuant to Section 120.57, Florida Statutes, and rules promulgated pursuant thereto.

(Emphasis added.) Thus DCF’s stated reason for denying the Foster Parents’ application for the renewal of their foster care license was “that C.S., while in [the Foster Parents’] care, suffered an injury that ‘required significant pulling force and [that] could not be considered accidental.’ ” M.H. v. Dep’t of Children & Family Servs., 29 F.A.L.R. 1658, 1661 (Dep’t of Children & Family Servs. 2007) (second alteration in original). .

The content of DCF’s notice of denial to the Foster Parents largely determined the course of the proceedings that followed. Although the notice invoked section 409.175, it did not reference any specific subsection of the statute as a basis for the denial of the renewal of the license. The notice does mention rule 65C-13.010. This rule cites section 409.175 as the specific authority granting DCF the power to promulgate the rule. Section 409.175(9)(b)(2) states that DCF may deny a license based on “[a] violation of ... licensing rules promulgated pursuant to [section 409.175].” For this reason, the references in the notice to noncompliance with licensure requirements and rule 65C-13.010 suggest that DCF may have intended to rely on subsection (9)(b)(2) as a ground for the denial.

During the administrative proceeding, the parties and the administrative law judge (ALJ) referred to section 409.175(9)(b)(l). Subsection (9)(b)(l) authorizes DCF to deny a license based on “[a]n intentional or negligent act materially affecting the health or safety of children in the home.” (Emphasis added.) DCF’s charge that C.S.’s “injury required significant pulling force and could not be considered accidental” alleged an intentional act rather than a negligent one. To be sure, DCF might have denied the renewal of the Foster Parents’ license for a negligent act as well. See § 409.175(9)(b)(l). But the notice of denial did not include such an allegation. In the recommended order, the ALJ addressed this issue as follows:

Lifting C.S. from her crib by one arm arguably may be a negligent act that materially affected the health of C.S. without “significant pulling force.” However, the notice of denial does not include such an allegation as a ground for non-renewal. Nor does the evidence submitted by [DCF] address the issue of whether lifting C.S. from her crib by one arm was a negligent act in the absence of “significant pulling force.”

M.H., 29 F.A.L.R. at 1667. Thus the notice’s exclusive focus on “significant pulling force” as causing a nonaccidental injury precluded DCF from urging negligence as an alternative ground for denying the renewal of the license at the administrative proceeding.

C. The Administrative Proceeding

The Foster Parents exercised their right to an administrative proceeding under section 120.57, Florida Statutes (2005), and challenged DCF’s finding “that the injury required significant pulling force and could not be considered accidental.” At the hearing, the Foster Parents presented the testimony of Dr. John Camblin, C.S.’s treating physician. Dr. Camblin, an orthopedist, testified that the child’s fracture was not a significant injury and was consistent with A.H.’s explanation. Moreover, Dr. Camblin stated that the injury did not require extraordinary force and was not related to abuse. Dr. Camblin explained that the type of fracture sustained by C.S. “can occur with relatively minimal force.” According to Dr. Camblin, such a fracture could even be caused by something as innocuous as the child rolling over in bed. The ALJ found Dr. Camblin’s testimony credible and persuasive.

DCF presented the testimony of Dr. William Brooks and Dr. Claude Guidi. Neither Dr. Brooks nor Dr. Guidi had examined C.S. Dr. Brooks, an emergency room pediatrician, and Dr. Guidi, a pediatric radiologist, testified that the child’s injury could only have been caused by excessive force consistent with abuse. However, Dr. Guidi also testified that he could not quantify the amount of force needed to cause such an injury; he explained that merely lifting a child weighing twenty-five pounds could cause the type of fracture that C.S. sustained. Dr. Guidi testified based on Dr. Brooks’ report. Dr. Guidi had no independent recollection of reviewing the child’s x-rays.

D.The ALJ’s Ruling

The ALJ found “that a preponderance of the evidence show[ed] the injury to C.S. did not require ‘significant pulling force’ and could be accidental.” M.H., 29 F.A.L.R. at 1664. The ALJ explained that the scope of the administrative hearing was limited to the allegations detailed in the notice of denial. Because DCF failed to demonstrate by a preponderance of the evidence that the alleged use of “significant pulling force” violated section 409.175 or rule 65C-13.010, the ALJ recommended that DCF renew the Foster Parents’ license.

E. The Final Order

DCF determined that the Foster Parents’ license should not be renewed. Instead, DCF entered a final order rejecting the ALJ’s recommended order and denying the Foster Parents’ application for the renewal of their license. M.H., 29 F.A.L.R. 1658. DCF based its decision on the premise that the evidentiary standard that it was required to meet before the ALJ was the “competent'substantial evidence” standard. DCF explained that the ALJ erred in applying the preponderance of the evidence standard because

[DCF] ... was required to present competent' substantial evidence to support the stated reason for the denial. [DCF] presented the testimony of Dr. Brooks, a pediatric physician who is also the director of the Child Protection Team. Dr. Brooks diagnosed the injury as an “inflicted” (i.e. non-accidental) injury. Dr. Guidi, a pediatric radiologist, agreed that the injury was suggestive of abuse. Although the ALJ found Dr. Camblin’s testimony more persuasive, the testimony of Drs. Brooks and Guidi is, nevertheless, competent substantial evidence supporting [DCF’s] stated reason for denying the license application. [DCF] met the applicable evidentiary standard.

Id. at 1661. DCF accepted the ALJ’s conclusions of law and pertinent findings of fact to the extent that they did not incorporate the preponderance of the evidence standard. Id. The Foster Parents appeal from the final order denying their application.

II. STANDARD OF REVIEW

Florida’s Administrative Procedure Act (the APA) sets out the standard of review an appellate court must employ when reviewing an agency decision. Section 120.68(10) requires that “[w]e must accept the ALJ’s findings regarding factual disputes, the weight of the evidence presented, and the credibility of the witnesses.” Wise v. Dep’t of Mgmt. Servs., 930 So.2d 867, 870 (Fla. 2d DCA 2006). However, section 120.68(7)(b) provides further that an appellate court may remand a case to the agency for further proceedings or set aside agency action if the agency’s action depends upon any finding of fact that is not supported by competent, substantial evidence established in the record of the administrative hearing. See Wise, 930 So.2d at 870-71. Furthermore, section 120.68(7)(d) allows a reviewing court to “set aside an agency decision when the agency has ‘erroneously interpreted a provision of law and a correct interpretation compels a particular action.’ ” Manuel v. Dep’t of Children & Family Servs., 880 So.2d 714, 716 (Fla. 2d DCA 2004). It follows that an appellate court reviews the agency’s conclusions of law'de novo. Wise, 930 So.2d at 871 (citing Steward v. Dep’t of Children & Families, 865 So.2d 528, 530 (Fla. 1st DCA 2003)).

III. THE STANDARD OF PROOF APPLICABLE UNDER SECTION 120.57

A. DCF’s Argument

DCF rejected the proposition that the preponderance of the evidence standard applied and held that “[t]he appropriate evidentiary standard requires [DCF] to establish that its determination to deny [the Foster Parents’] foster care license application was a reasonable decision supported by competent substantial evidence.” M.H., 29 F.A.L.R: at 1660. DCF grounded this conclusion on its interpretation of Department of Banking & Finance v. Osborne Stern & Co. (Osborne Stern & Co. II), 670 So.2d 932 (Fla.1996), and Mayes v. Department of Children & Family Services, 801 So.2d 980 (Fla. 1st DCA 2001). However, DCF’s reading of these cases is faulty. DCF’s erroneous interpretation stems from an apparent misunderstanding of the difference between standards of review, which are applied by a reviewing tribunal to test the correctness of a lower tribunal’s ruling, and standards of proof, which concern evidentiary burdens that apply in an evidentiary hearing or in a trial.

In an attempt to explain why an eviden-tiary standard referred to as “the competent substantial evidence” standard applied in the administrative hearing, DCF offered the following analysis:

[Osborne Stern & Co. II, 670 So.2d 932] held that “an agency has particularly broad discretion in determining fitness of applicants who seek to engage in an occupation the conduct of which is a privilege rather than a right.” Id. The court explained that an applicant applying for a license must bear the burden to prove that he or she is fit for licensure. Id. An agency denying an application for an occupational license must provide specific reasons for denying the license, but the court did not impose on agencies even a preponderance standard for supporting the stated reasons for denying an occupational license. The court required only that an agency produce competent substantial evidence. Id. The same .evidentiary standard has been applied to foster care license applications. Mayes v. Department of Children and Family Services, 801 So.2d 980 (Fla. 1st DCA 2001) (administrative decision denying a license must be supported by competent substantial evidence in the record).

M.H., 29 F.A.L.R. at 1659. However, neither Osborne Stem & Co. II nor Mayes stand for the proposition that the so-called “competent substantial evidence” standard is applicable as an evidentiary standard in a hearing conducted in accordance with section 120.57.

B. Analysis of Osborne Stern & Co. II

In Osborne Stern & Co. II, the Supreme Court of Florida considered a certified question concerning the applicable standard of proof for the denial of an application for registration to sell securities. The Department of Banking and Finance had denied the application for registration based on specific violations of the securities laws that it contended had been committed by the applicants. . Osborne Stern & Co. v. Dep’t of Banking & Fin. (Osborne Stern & Co. I), 647 So.2d 245, 248 (Fla. 1st DCA 1994), approved in part and quashed in part by 670 So.2d 932 (Fla.1996). In an administrative hearing, the hearing officer had ruled that the Department had the burden of proving the alleged violations by a preponderance of the evidence. Id.

On appeal from the final administrative order, the First District agreed that the agency had the burden of proving that the applicants had committed the alleged violations in order to deny registration on that ground. Id. Notably, the First District concluded that the burden of proof shifted between the parties in the registration proceeding, and its ruling on this point is instructive: :

The hearing officer correctly ruled that an' applicant for licensure or registration to engage in a particular profession or occupation bears the burden of showing entitlement thereto by a preponderance of the evidence. However, that does not mean that the applicant must disprove that violations occurred as alleged by the Department; the Department had the burden of proving the alleged violations actually occurred if the registration is to be denied on that ground.

Id. However, the First District reversed the final administrative order because the court concluded that the agency was required to satisfy the clear and convincing standard of proof on this issue rather than the preponderance of the evidence standard. Id. at 248-49. The First District also certified a question of great public importance concerning whether the Department’s evidentiary burden in a registration proceeding is governed by the clear and convincing standard. Id. at 249.

On review of the certified question in the Supreme Court of Florida, that court reaffirmed the rule that an administrative agency’s burden of proof in a license application proceeding is governed by the preponderance of the evidence standard. Osborne Stern & Co. II, 670 So.2d at 934-35. Accordingly, the supreme court quashed that portion of the First District’s decision that had extended the clear and convincing standard to license application proceedings. Id. at 935.

Here, we are not concerned with the application of the clear and convincing evi-dentiary standard. Instead, another feature of the supreme court’s decision in Osborne Stem & Co. II is important to our analysis of this case. Osborne Stem & Co. II stands for the proposition that in a license application proceeding, the agency has the burden of proving specific acts of misconduct by a preponderance of the evidence if it seeks to deny a license application on that ground. Id. at 935 (“Nothing about this case shows that the [preponderance of the evidence] standard invites an abuse of discretion by the Department in denying registration applications, or results in the denial of licenses which otherwise should or would be granted if the Department were put to a higher burden of proof.” (Emphasis added.)). It follows that the supreme court did not hold — as DCF contends — that an “agency is only required to produce competent substantial evidence” to support the denial of a license. Instead, the court merely restated the basic principle that the standard of appellate review applicable to findings of fact in an administrative decision denying a license is the competent, substantial evidence standard. Id. at 934 n. 2. See generally Philip J. Padovano, Florida Appellate Practice § 23.7 (2007-08 ed.) (discussing the standards of judicial review applicable to administrative orders).

C. Analysis of Mayes

The other case on which DCF relies heavily is the First District’s Mayes decision. In that case, Mr. and Mrs. Mayes had previously been licensed to operate a foster home in West Palm Beach. Mayes, 801 So.2d at 981. When they applied for a license for a new foster home in Marianna, DCF denied Mr. and Mrs. Mayes’ application because they had used a harness on a foster child and had briefly locked the foster child in his room. Id. In its final administrative order, DCF ruled that the use of such restraints on the child violated the applicable statutes and regulations. Id. at 981-82. Based on this ruling, DCF denied Mr. and Mrs. Mayes’ application. Id. On appeal, the First District noted that the ALJ had not made any specific findings concerning how the use of these restraints had violated the applicable statutes or rules. Id. at 982. In the absence of such findings, the First District reversed the final order denying the license and remanded the case for further findings and, if necessary, the taking of additional evidence. Id.

In its opinion, the Mayes court noted— without elaboration — “that ... the ALJ did not err in imposing the burden of proof on [Mr. and Mrs. Mayes].” Id. at 981. Here, DCF cites this statement in support of its argument that “the applicant for a license has the burden of proof and the agency is required only to produce competent substantial evidence.” This argument misreads Mayes. We note that the isolated statement in Mayes upon which DCF bases its argument does not explain the stage in the proceeding for which the ALJ imposed the burden of proof on Mr. and Mrs. Mayes. Without question, an applicant for a license has the initial burden of demonstrating his or her fitness to be licensed. Osborne Stern & Co. I, 647 So.2d at 248. But if the licensing agency proposes to deny the requested license based on specific acts of misconduct, then the agency assumes the burden of proving the specific acts of misconduct that it claims demonstrate the applicant’s lack of fitness to be licensed. Osborne Stern & Co. II, 670 So.2d at 934. Mayes does not — as DCF contends — stand for the proposition that the applicant for a license has the burden of disproving a charge of specific misconduct. Such an interpretation of Mayes is inconsistent with the First District’s own earlier decision in Osborne Stern & Co. I, 647 So.2d at 248, and the supreme court’s decision in the same case. Osborne Stern & Co. II, 670 So.2d at 934.

D.The Difference between Standards of Proof and Standards of Review

DCF’s interpretation of Osborne Stem & Co. II and Mayes misses the “distinction between the standard by which an administrative tribunal measures the proof presented to it, i[.]e., preponderance of the evidence, and the standard by which a reviewing court measures the correctness of an administrative order under review, i.e., competent substantial evidence.” Fla. Dep’t of Health & Rehabilitative Servs. v. Career Serv. Comm’n of Dep’t of Admin., 289 So.2d 412, 415 n. 2 (Fla. 4th DCA 1974); see Douglas N. Higgins, Inc. v. Fla. Keys Aqueduct Auth., 565 F.Supp. 126, 129-30 (S.D.Fla.1983) (recognizing the distinction between the preponderance of the evidence standard of proof applicable in an administrative hearing and the competent, substantial evidence standard of review). The standard of proof that a party must satisfy and the legal requirement that an ALJ’s findings of fact must be sustained if supported by competent, substantial evidence are different, but interrelated, concepts. Pic N’ Save Cent. Fla., Inc. v. Dep’t of Bus. Regulation, 601 So.2d 245, 249 (Fla. 1st DCA 1992). Whether the standard of proof applicable in a particular case is a preponderance of the evidence or clear and convincing evidence, the ALJ’s findings of fact must be supported by competent, substantial evidence. Id. In this case, the final order’s rejection of the ALJ’s recommended order based on the use of the “competent substantial evidence” standard as a burden of proof reflects a fundamental misapprehension of the entirely distinct functions of evidentiary standards of proof and appellate standards of review.

Generally speaking, the standard of proof applicable in administrative hearings is a preponderance of the evidence. See Fitzpatrick v. City of Miami Beach, 328 So.2d 578, 579 (Fla. 3d DCA 1976); Fla. Dep’t of Health & Rehabilitative Servs., 289 So.2d at 415. In fact, the APA requires that “findings of fact shall be based upon a preponderance of the evidence ... except as otherwise provided by statute.” § 120.57(l)(j) (emphasis added). DCF has not cited, either in the final order or in its appellate brief, any statute authorizing a different standard of proof in an administrative hearing on a challenge to the denial of the renewal of a foster care license. Accordingly, the ALJ applied the correct standard of proof to DCF’s misconduct claim, and DCF erred when it rejected the ALJ’s conclusion of law concerning the applicable evidentiary standard.

E. The Application of the Law to the Foster Parents’ Case

In this case, there was no issue about the Foster Parents’ qualifications for licensure. They had already been licensed, and DCF had placed three children in their home. At the administrative proceeding, the Foster Parents presented their completed application. The only issue before the ALJ was DCF’s stated reason for denying the application for the renewal of their foster care license, i.e., whether “C.S., while in [the Foster Parents’] care, suffered an injury that ‘required significant pulling force and [that] could not be considered accidental.’ ” M.H., 29 F.A.L.R. at 1661 (second alteration in original). This issue involved a charge of specific misconduct upon which DCF relied as its sole reason for the denial of the Foster Parents’ application for the renewal of their foster care license. Accordingly, DCF had the burden of proving this charge of specific misconduct by a preponderance of the evidence. Osborne Stern & Co. II, 670 So.2d at 934-35.

We understand that children in the foster care program are subject to the protection, care, guidance, and supervision of DCF. § 409.145(2). We also appreciate that DCF must exercise the utmost care in the selection of family foster homes in order to protect the health, safety, and well-being of the children placed in such homes. See § 409.175(l)(a). In addition, we are familiar with the statutory provision declaring that a foster care license is “a public trust and a privilege, and is not an entitlement.” § 409.175(2)(f). However, in this case, DCF offered a precisely formulated reason for its denial of the renewal of the Foster Parents’ license. At the administrative hearing, the ALJ properly restricted his consideration of the matter to the specific question that DCF itself had framed as the issue to be decided. Cf. Cottrill v. Dep’t of Ins., 685 So.2d 1371, 1372 (Fla. 1st DCA 1996) (“Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act.”). On this specific issue, the ALJ found— based on conflicting evidence — that DCF had failed to prove the stated reason for its denial of the renewal of the Foster Parents’ license by a preponderance of the evidence. This finding is the dispositive factor in this case.

IV. CONCLUSION

DCF has erroneously interpreted a provision of law, and a correct interpretation of that law compels granting the Foster Parents’ application. Accordingly, we reverse DCF’s final order, and we remand with instructions that DCF adopt the ALJ’s recommended order and grant the Foster Parents’ application to be re-licensed as a family foster home.

Reversed and remanded with instructions.

KELLY and VILLANTI, JJ., Concur.

      . For similar reasons, we decline to consider DCF’s argument for affirmance of the final order based on the purported negligence of A.H. in lifting C.S. by one arm.

      . We refer to the First District's opinion in Osborne Stern & Co. v. Department of Banking & Finance, 647 So.2d 245, 248 (Fla. 1st DCA 1994), approved in part and quashed in part by 670 So.2d 932 (Fla.1996), as- "Osborne Stern & Co. I."

      . Another issue before the court was the applicable standard of proof for imposing fines for alleged violations of the securities laws. Osborne Stern & Co. II, 670 So.2d at 933. This aspect of the court's decision is not material to our analysis in this case.

      . Curiously, in the administrative hearing before the ALJ, DCF admitted that it had the burden of proving its abuse allegations. M.H., 29 F.A.L.R. at 1668 n. 2.


source: Caselaw Access Project

author: ARTIGLIERE, RALPH, Associate Judge.

license: Public Domain

text:
    Paul A. ASCHERMAN, Appellant, v. Jina Lee ASCHERMAN, Appellee.
    No. 2D07-772.
    District Court of Appeal of Florida, Second District.
    March 28, 2008.

      Thomas A. Smith, Tampa, for Appellant.
    Scott C. Everett, Tampa, for Appellee.
   ARTIGLIERE, RALPH, Associate Judge.

The former husband appeals the trial court’s equitable distribution in its final judgment and amended final judgment of dissolution of marriage. We affirm in part, reverse in part, and remand for further proceedings.

We conclude that the trial court erred in determining the value of the former husband’s “Alliant” pension. The former husband was employed by U.S. Food Service. The former wife introduced into evidence a document from the former husband’s employer entitled “estimated pension benefit” showing that the former husband was entitled to a $74,303.67 lump sum pension payout on November 1, 2034. The employer’s retirement plans administrator, Ms. Alicia, testified by telephone that the former husband’s Alliant pension would provide him the lump sum payout of $74,303.67 “based upon him commencing his benefits upon age 65,” which the record shows would occur in the year 2034. She also conceded that the lump sum amount assumed that the former husband continued in his employment with the company until 2034.

The former husband introduced into evidence another document from his employer which provided a present value estimate of the Alliant pension of $18,238.54. When asked about this document Ms. Alicia stated she did not have it available and could not comment upon it. She did agree, however, that if the pension were to be valued as of the December 2005 filing date of the petition that the payout estimate “would be considerably less,” but also stated that no early payout was possible.

In calculating the equitable distribution, the trial court credited the former wife with one-half of the estimated $74,303.67 which would be paid in 2034. This was error. The trial court should have reduced the Alliant pension benefit to present value before determining the former wife’s equitable share as a lump sum. See Rogers v. Rogers, 622 So.2d 96, 98 (Fla. 2d DCA 1993) (“We hold that the trial court should have reduced the pension benefits to present value and awarded Mrs. Rogers a lump sum.”). The trial court apparently-disregarded the former husband’s evidence that the present value of the Alliant pension was $18,238.54, because “Ms. Alicia could not confirm this amount.” The record shows that Ms. Alicia did not dispute the amount but simply could not comment because she had not seen the document. Thus the former husband’s evidence of present value, which was accepted into evidence, was undisputed and should have been used by the trial court in determining the former wife’s equitable distribution.

The trial court awarded the former wife temporary exclusive use and possession of the marital home for the life of her grandparents, or until they moved out, based on its conclusion that there was an agreement between the parties and the grandparents that the home would not be partitioned but that the grandparents could reside there during their lives. This was not unlike the disposition approved in Blunnie v. Blunnie, 415 So.2d 156, 158 (Fla. 4th DCA 1982), where the wife was awarded temporary exclusive possession of the home “so that she can honor the parties’ agreement to her parents.”

The evidence here shows that the former wife’s elderly grandparents had provided approximately $54,000 to the parties to assist the parties in the purchase of the home. Further, the grandparents had expended an additional $41,000 for additions and improvements. The grandmother testified that she and her husband “took our money and invested there because we were supposed to live there the rest of our life.” She stated that they relied on that understanding when they sold their own home and moved into the Asehermans’ house. She stated, “[W]e would have never done anything like that if we didn’t think that was going to be our home for life.” Based on the reasoning in Blunnie, the trial court acted within its discretion in refusing to partition the property and in awarding the former wife temporary exclusive use and possession of the marital home.

While the trial court found that the former wife was not entitled to a special equity in the marital home based on the grandparents’ financial contribution, it awarded her “$32,000 to be paid from the gross proceeds from the sale” of the marital residence at the conclusion of the wife’s period of temporary exclusive use and possession. During the former wife’s exclusive use and possession, she was , to be responsible for paying the mortgage, taxes and insurance on the home, and would have the right to all income tax deductions related to the home.

Upon the eventual sale of the home, the wife would receive a credit against the gross sale proceeds of (1) the $32,000, (2) one-half of all principal, interest, property taxes, and insurance paid during her exclusive use and possession, (3) one-half of all amounts in excess of $500 she pays for “necessary and reasonable repairs, maintenance, and replacements.” This was error. The trial court failed to provide any justification for the “equitable” amount of $32,000 awarded to the former wife. Moreover, the wife should have been charged a fair rental for her exclusive possession, and if the former husband is required to pay one-half of all costs during the wife’s exclusive possession he certainly is entitled to commensurate income tax deductions.

Finally, the trial court stated that the former wife was entitled to an equalizing payment of $47,867.19, which was calculated from the other errors discussed above. Because this equalizing payment is itself the product of errors, we cannot approve it.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

STRINGER and LaROSE, JJ., Concur.


author: EVANDER, J.

text:
    Alvin Daniel CONRAD, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1420.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2008.

      James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney. General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Alvin Conrad timely appeals from his judgment and sentence for burglary of a structure with a battery therein while armed. We find that Conrad could only be properly convicted of burglary of a structure while armed, but otherwise affirm.

Conrad was charged by amended information with burglary of a structure with a battery therein while armed and three counts of misdemeanor battery. He was tried jointly with co-defendant Mark Fields. Numerous witnesses were called by the State. Taken in the light most favorable to the State, the evidence established that on the evening in question, Conrad and Fields were patrons in Jesse Black’s Saloon. Fields insulted a female patron and was told by a bouncer, Ben Desormo, to apologize. At this time, Conrad took an ill-advised swing at Desormo. Desormo is approximately six foot six inches tall and weighs close to 300 pounds. Desormo knocked Conrad to the floor with one or two punches. Fields and Conrad were then escorted to the door and told to leave. They left the bar but Fields went to his truck and retrieved a shotgun. Fields and Conrad re-entered the bar with Fields yelling “where’s the big guy?” Conrad was alleged to have struck three individuals while Fields was holding the shotgun. Fields then used the shotgun to smash the cash register — causing the shotgun to break. Several individuals then attacked and beat Fields and Conrad.

Conrad did not testify and presented no witnesses. Fields testified, that the incident started when Desormo knocked Conrad off his stool. Desormo then struck Fields, knocking him unconscious. When Fields regained consciousness, he saw Conrad on the floor being punched by four or five people. According to Fields, he then ran to his truck, retrieved his shotgun, and returned to the bar to save Conrad’s life. Fields claims he was then knocked unconscious again when someone hit him in the back of the head. The next thing Fields remembered was being told by a police officer that he was under arrest. Another witness gave testimony that was supportive of Fields’ version of the events.

The jury found Conrad guilty as charged of burglary with a battery therein while armed. Conrad was found not guilty of the three separate battery charges. Conrad subsequently filed a motion for arrest of judgment on the burglary count, contending that the jury’s verdicts were inconsistent.

An inconsistent verdict claim presents a pure question of law and is reviewed de novo. Brown v. State, 959 So.2d 218, 220 (Fla.2007). As a general rule, inconsistent verdicts are permitted in Florida because jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant. Id. Inconsistent verdicts may arise from a jury’s exercise of its “inherent authority to acquit” even if the facts support a conviction. State v. Connelly, 748 So.2d 248, 252 (Fla.1999).

The Florida Supreme Court has recognized only one exception to the general rule allowing inconsistent verdicts. This exception is referred to as a “true” inconsistent verdict. A true inconsistent verdict occurs when an acquittal on one count negates the necessary element for conviction on another count. Brown, 959 So.2d at 220; see also State v. Powell, 674 So.2d 731, 732-33 (Fla.1996).

To prove a burglary, the State needs to prove that a defendant entered a dwelling, structure, or conveyance with the intent to commit an offense therein. § 810.02, Fla. Stat. (2006).' The State is not required to prove that a defendant actually committed a separate crime. ■ See, e.g., Hill v. State, 839 So.2d 865 (Fla. 4th DCA 2003) (conviction for burglary with intent to commit theft is not legally inconsistent with acquittal on petit theft charge); Miranda v. State, 648 So.2d 174 (Fla. 3d DCA 1994) (to prove offense of burglary, it was necessary only to show that at time of entry into building, defendant had fully informed intent to commit offense of criminal mischief, and not that defendant had committed offense of criminal mischief). Thus, the jury could properly find that Conrad committed a burglary because he re-entered Jesse Black’s Saloon with the intent to commit a battery even though he did not subsequently commit a battery.

The jury’s finding that Conrad committed a burglary with a battery therein while armed raises a separate issue. Section 810.02(2) provides for enhanced penalties where, in the course of the commission of a burglary, the offender:

a. makes an assault or battery upon any person; or
b. is or becomes armed within the dwelling, structure or conveyance, with ... a dangerous weapon,....

Here, the jury was properly instructed on these enhancements:

The punishment provided by law for the crime of burglary is greater if the burglary was committed under certain aggravating circumstances. Therefore, if you find the defendant guilty of burglary, you must then consider whether the State has fully proved those circumstances.
If you find that in the course of committing the burglary the defendant committed a battery upon any person, you should find him guilty of burglary during which a battery has been committed ....
If you find that in the course of the burglary that Alvin Daniel Conrad or Mark Anthony Fields was armed with a firearm, you should find him guilty of burglary while armed with a firearm... ...
If you find the defendant committed the burglary without any aggravating circumstances, you should find him guilty only of burglary....

Unfortunately, the verdict form did not give the jury the opportunity to consider the two aggravating circumstances separately. As to the burglary count, the jury’s verdict read:

We the jury, find as follows -as to the defendant in this case: (check only one)
x A. The defendant is guilty of burglary of a structure while armed with battery as charged in Count One of the Information.
_B. The defendant is guilty of burglary, a lesser included offense.
_ C. The defendant is guilty of battery, a lesser included offense.
_D. The defendant is guilty of trespass, a lesser included offense.
_ E. The defendant is not guilty.

To the extent that the jury acquitted Conrad of the three battery counts but found him guilty of committing a battery during the commission of a burglary, there was a true inconsistent verdict. However, the jury’s finding that Conrad was guilty of burglary of a structure while armed was not inconsistent with an acquittal on the battery counts. Accordingly, on remand, the judgment is to be corrected to reflect that Conrad was convicted of burglary of a structure while armed, not burglary of a structure with a battery therein white armed. Resentencing is not required because prior to the sentencing hearing, the trial judge indicated that he considered the jury’s finding that a battery was committed during the burglary to be “surplus-age.”

Conrad next contends that the trial court committed fundamental error when it gave the jurors two contradictory instructions regarding self-defense. Specifically, the jurors were first told that Conrad had to prove self-defense beyond a reasonable doubt, but were then told that if there was a reasonable doubt about Conrad’s self-defense claim, he should be found not guilty.

We agree that the jury instructions were erroneous. See Murray v. State, 937 So.2d 277 (Fla. 4th DCA 2006). However, the error was harmless. Conrad’s self-defense claim was applicable only as to the battery counts — of which he was acquitted. There was no evidence (or contention) that Conrad re-entered Jesse Black’s Saloon to defend himself or another.

Finally, Conrad contends that the trial court erred in denying his motion for new trial based on newly discovered evidence. To obtain relief based on newly discovered evidence, the asserted facts must have been: 1) unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known them by the use of diligence; and 2) the newly-discovered evidence must be of such a nature that it would probably produce an acquittal on retrial. Melendez v. State, 718 So.2d 746, 747 (Fla.1998). We agree with the trial court that the alleged newly discovered evidence in this case was not “of a nature that would probably produce an acquittal on retrial.”

The trial court is directed to correct the judgment to reflect that Conrad was convicted of burglary of a structure while armed. Conrad’s judgment and sentence are otherwise affirmed.

AFFIRMED in part; REVERSED in part.

PALMER, C.J. and PLEUS, J., concur.

      . Conrad did not object to the use of this verdict form.


author: CANADY, Judge.

text:
    T.J.N., Appellant, v. STATE of Florida, Appellee.
    No. 2D07-673.
    District Court of Appeal of Florida, Second District.
    March 28, 2008.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appel-lee.
   CANADY, Judge.

T.J.N. appeals a trial court order requiring him to pay restitution in the amount of $1910 for damage he caused to a truck in connection with the commission of two batteries for which he was adjudicated. We conclude that T.J.N. is liable for the damage he caused to the truck but that the trial court improperly relied on hearsay testimony in establishing the amount of restitution. We therefore reverse the order as to the amount of restitution and remand for further proceedings.

I. Liability for Restitution

T.J.N. first argues that he is not liable for restitution because there was no causal connection between the battery offenses for which he was adjudicated and the damage to the truck. He contends that there was no evidence that he caused the damage while committing the batteries. In support of his position, T.J.N. relies on our decision in G.C. v. State, 944 So.2d 1099, 1099 (Fla. 2d DCA 2006), which reversed a restitution award because the “State failed to prove a nexus” between the juvenile’s offenses and the victim’s loss. For the reasons we will explain, we conclude that the reasoning of G.C. does not apply to the circumstances presented by the instant case.

The general statute governing restitution awards, section 775.089, Florida Statutes (2006), provides in part:

(l)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by thé defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution.

“The Florida Supreme Court has explained that restitution awards must be based on ‘both a “but for” causation requirement and a “significant relationship” requirement.’” G.C., 944 So.2d at 1100 (quoting Schuette v. State, 822 So.2d 1275, 1282 (Fla.2002)).

At the restitution hearing, the State presented testimony from the owner of the truck, Shane Lowe, that during the fight in which the offenses occurred, T.J.N. was fighting on and around the front and right sides of Lowe’s truck. Lowe testified that prior to the fight, his truck was not damaged and that the fighting caused damage to the right side of his truck. Specifically, Lowe observed T.J.N. push someone up against the truck, punch the truck with his fist, and hit the truck with a bat. Another witness testified that T.J.N. “was up and down [the truck] the whole time, hitting it and getting shoved into it and he was shoving that kid into it.” She saw T.J.N. swing a bat at someone and the bat “hit the ... back of the truck on the right side.” T.J.N. pleaded no contest to committing battery on two victims, Matt Lucia and Derek Arminger, and the State nolle prossed two counts of battery against Lowe and Jonathan Ricewick. Lowe testified that T.J.N. was fighting with Derek Arminger, the victim of one of the pleaded-to counts, on the front side of the truck, but Lowe was unable to identify the person T.J.N. was fighting with on the right side of the truck where all of the claimed damage occurred. Lowe and another witness testified that T.J.N. was not fighting with Matt Lucia on the right side of the truck. Therefore, the State did not prove that the right-side damage was caused by the batteries for which T.J.N. was adjudicated. See § 775.089(l)(a)(l) (providing for restitution for “[d]amage or loss caused directly or indirectly by the defendant’s offense”). The State did, however, prove that the damage was related to T.J.N.’s criminal episode. See § 775.089(l)(a)(2) (providing for restitution for “[djamage or loss related to the defendant’s criminal episode”).

In G.C., 944 So.2d at 1099, the juvenile was charged with trespass on property, burglary of a conveyance, and grand theft of an all-terrain vehicle (ATV) from the property. Pursuant to a negotiated plea agreement, the State nolle prossed the grand theft charge and the juvenile pleaded no contest to trespass on the property and trespass of a conveyance, a lesser-included of the burglary charge. “The State sought restitution for the loss of the [ATV], which was apparently never recovered.” Id.

This court held that “[b]y pleading no contest to trespass” of the ATV, G.C. only admitted to entering or remaining in it without permission, that “[h]e did not admit to grand theft[ ] and [that] in the plea deal the State abandoned that charge without securing G.C.’s agreement to pay restitution for the victim’s loss occasioned by the theft of the [ATV].” Id. at 1100. The court went on to conclude:

Therefore, to obtain a restitution award for the loss of the vehicle, the State had to show that the loss would not have occurred but for the trespass. Because, the State failed to prove the causation or nexus between G.C.’s trespass and the victim’s loss, we reverse the restitution order.

Id. (citations omitted).

In G.C., the State did not prove that the loss of the ATV was caused by the pleaded-to offense of trespass. The State also failed to prove that the loss of the ATV was related to G.C.’s criminal episode. This court in G.C. recognized that restitution can be awarded for damages related to the defendant’s criminal episode but ultimately concluded that the State had not proved the requisite nexus. G.C. is therefore distinguishable on this evidentia-ry basis from the instant case. See also Davis v. State, 741 So.2d 1213 (Fla. 2d DCA 1999) (holding that restitution was improper where theft of jewelry was not related to offense of attempted burglary and where there was no indication that State presented evidence that theft of the jewelry was part of the defendant’s criminal episode).

Since the State proved at the restitution hearing that the damage to the right side of the vehicle was caused by T.J.N. during the criminal episode involving the two batteries to which T.J.N. pleaded, we affirm the trial court’s ruling that T.J.N. was responsible for restitution for damage to the right side of the truck.

II. Hearsay Evidence

T.J.N. further claims that the trial court erred in basing the amount of restitution on hearsay testimony from Lowe’s insurance adjustor. T.J.N. is correct.

“When the amount of restitution is in dispute, ... the state has the burden of demonstrating by a preponderance of the evidence the amount of the victim’s loss.” Thomas v. State, 581 So.2d 992, 993 (Fla. 2d DCA 1991). Hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to the hearsay evidence. Id.

When testimony concerning the estimated cost of repairs to damaged property is “offered in evidence to prove the truth of the matter asserted,” it is “hearsay” unless “made by the declarant while testifying at the trial or hearing.” § 90.801(l)(c), Fla. Stat. (2006). The “de-clarant” of the estimate is the person who was responsible for making the estimate. Accordingly,

in dealing with estimates it is imperative that we distinguish between a witnesses] merely stating from hearsay what someone else has said the damages might be and an individual who is qualified to provide an expert opinion of the fair market value of the cost of repairs to the damaged property.

In re M.C.L., 110 S.W.3d 591, 595 (Tex.App.2003); see Williams v. State, 850 So.2d 627, 628 (Fla. 2d DCA 2003) (reversing restitution award which was based on hearsay evidence from the prosecutor regarding estimates for repair of a vehicle); Craft v. State, 769 So.2d 1096, 1097 (Fla. 2d DCA 2000) (reversing restitution award because it was based on hearsay testimony from the victim regarding estimate for repairs to her vehicle); see also Atkins v. State, 728 So.2d 288, 289 (Fla. 2d DCA 1999) (reversing restitution award because it was based on testimony from a witness who “testified directly from information gathered and provided by two subordinates”); Moore v. State, 694 So.2d 836, 837 (Fla. 2d DCA 1997) (reversing restitution order because testimony of the State’s witnesses “was based on information they received from an accountant who did not testify and on their examination of documents and records that were not produced at the restitution hearing”).

The State presented the testimony of the insurance adjustor regarding the estimated cost of repairs to the damage on the right side of the truck. During cross-examination, the insurance adjustor revealed that he was basing his testimony on an estimate he had received from an auto body shop. T.J.N. objected to the consideration of the hearsay testimony regarding the amount of damages. No competent evidence was presented concerning the amount of the damages. Accordingly, the trial court had no basis for determining the restitution amount and T.J.N. is entitled to a new hearing concerning the amount of restitution.

III. Conclusion

We affirm the trial court’s determination that T.J.N. is liable for restitution, but we reverse the trial court’s determination concerning the amount of restitution. The case is remanded for a new hearing concerning the amount of restitution.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and VILLANTI, JJ., concur.

      . The statute concerning powers of disposition in juvenile delinquency cases which was in effect at the time of T.J.N.'s offenses provides that a trial court may “order the child to make restitution ... for any damage or loss caused by the child's offense.” § 985.231(l)(a)(6), Fla. Stat. (2005); cf. § 985.437(2), Fla. Stat. (2006) (containing similar provisions and enacted in 2006 but not effective until January 1, 2007, after the date of the offenses in this case). The supreme court has treated the juvenile restitution provisions similarly to the general restitution statute, see Schuette v. State, 822 So.2d 1275, 1281 n. 5 (Fla.2002), and this court has applied the general restitution statute to juvenile cases, see G.C., 944 So.2d at 1100. T.J.N. does not argue that the juvenile statute— which appears to provide a narrower authorization for restitution awards — applies over the general statute. In fact, T.J.N. cites the general statute as applying to this case.

      . "Written opinions or estimates may qualify as a business record exception to the hearsay rule under section 90.803(b), Florida Statutes (2006), if production of estimates is a regularly conducted business activity.” Butler v. State, 970 So.2d 919, 920-21 (Fla. 1st DCA 2007).


author: SILBERMAN, Judge.

text:
    Angeline TOWERY, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2074.
    District Court of Appeal of Florida, Second District.
    March 28, 2008.
   SILBERMAN, Judge.

Angeline Towery challenges the order of the postconviction court denying her motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without prejudice to any right Towery may have to file a facially sufficient rule 3.850 motion alleging that her guilty pleas were involuntarily entered based upon a miscalculation in the sentencing guidelines score-sheet.

In her postconviction motion filed by counsel, Towery alleged that in exchange for a total overall sentence of 62.71 months’ imprisonment, she entered guilty pleas in two cases to the following offenses: trafficking in morphine, a first-degree felony; trafficking in amphetamine, a first-degree felony; possession of cannabis with intent to sell, a third-degree felony; two counts of possession of a controlled substance, a third-degree felony; driving while license suspended or revoked, a third-degree felony; two counts of misdemeanor possession of drug paraphernalia; and misdemeanor driving while license suspended or revoked. She claimed that “[a] reasonable interpretation of the plea colloquy indicates that the state’s offer of 62.71 months was premised upon the fact that the lowest permissible sentence was 62.71 months.” She asserted that her sentencing scoresheet, which was attached as an exhibit to her motion, was incorrectly calculated. She contended that had the scoresheet been correctly calculated, the lowest permissible sentence would have been 49.2 months’ imprisonment rather than 62.71 months’ imprisonment. Because of the alleged error, she claimed that her plea was not voluntary and that trial counsel was ineffective by failing to make sure the scoresheet was accurate. .

In its response the State argued that Towery’s plea was to a specific term of incarceration, not an unspecified amount of time based on the guidelines calculations. The State added that “[n]othing in the record supports her contention that the State’s offer of 62.71 months was premised on the incorrect score sheet.” The post-conviction court agreed with the State’s argument and denied Towery’s motion.

The transcript of the plea hearing reflects that the prosecutor agreed to forego imposition of the drug trafficking multiplier under Florida Rule of Criminal Procedure 3.704(d)(19) and offered Towery 62.71 months’ imprisonment with a three-year minimum mandatory. The prosecutor noted that Towery had an exposure of approximately seventy-five years’ imprisonment. The transcript also reflects the parties agreed that the quantity of morphine that was the subject of the trafficking count was 6.3 grams rather than the amount chárged in the information, greater than fourteen grams but less than twenty-eight grams.

The- trafficking in morphine count was scored as the primary offense on the scoresheet. It was scored as a level 8 offense under the offense severity ranking chart in the Criminal Punishment Code. See §§ 893.135(l)(c)(l)(b), 921.0022(3), Fla. Stat. (2004). The scoresheet, indicated that the minimum. sentence under the guidelines was 62.71 months’ imprisonment. Because the actual amount of the morphine was less than the amount originally charged, it appears that the offense should have been scored as a level 7 offense. See §§ 893.135(l)(c)(l)(a), 921.0022(3). The prosecutor did not amend the scoresheet to reflect the lower offense level, and Towery claimed that had the correction been made, the minimum sentence would have been 49.2 months’ imprisonment.

Although Towery’s claim that her plea was involuntary due to her trial counsel’s failure to object to an inaccurate score-sheet is a cognizable rule 3.850 claim, Tow-ery failed to allege that she would not have entered her plea had she been aware of the correct guidelines sentencing range. See Rankin v. State, 861 So.2d 1222, 1224 (Fla. 2d DCA 2003). Thus, her motion was facially insufficient. Id. However, the postconviction court did not dismiss the motion as facially insufficient with leave to amend within a reasonable period of time. See Spera v. State, 971 So.2d 754, 761 (Fla.2007). Instead, the court denied the motion, finding that any scoresheet error was harmless because Towery entered into a negotiated plea for a term of years.

In Harris v. State, 810 So.2d 1093, 1094 (Fla. 5th DCA 2002), the court recognized that “[sjcoresheet errors are harmless when the sentence is the result of a negotiated plea agreement.” Harris had entered his plea in exchange for a four-year sentence rather than a guidelines sentence. Id. Here, Towery pleaded to a specific term of 62.71 months’ imprisonment, which was the exact amount of the minimum sentence under the erroneous scoresheet. In her motion, she asserted that the State’s offer of 62.71 months was premised on the fact that the scoresheet incorrectly reflected 62.71 months as the lowest permissible sentence.

Based on these circumstances, we cannot agree that the record conclusively establishes that the alleged scoresheet error is harmless. Instead, we conclude that if Towery is able to amend her motion to allege that she would not have entered her plea had she known that the minimum guidelines sentence was 49.2 months’ imprisonment rather than 62.71 months’ imprisonment, her claim that her plea was involuntarily entered would be facially sufficient and cognizable. Therefore, we affirm the postconviction court’s order without prejudice to any right Towery may have to file a facially sufficient motion on this basis within sixty days from the date of the issuance of the mandate in this case. Any such motion shall not be considered successive by the postconviction court. We note that if Towery is ultimately successful in having her negotiated plea set aside, then absent a new plea agreement she will be exposed to any legal sentences that could be imposed upon conviction of the charges.

Affirmed.

STRINGER and CANADY, JJ., Concur.

      . As part of the overall sentencing scheme, Towery received a three-year mandatory minimum sentence on each of the drug trafficking counts.


text:
    Ceasar DOUGLAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1990.
    District Court of Appeal of Florida, Second District.
    March 28, 2008.
   SILBERMAN, Judge.

Ceasar Douglas appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for the postconviction court to dismiss Douglas’s motion without prejudice to any right Douglas might have to file a facially sufficient motion.

In 1992, Douglas pleaded nolo contende-re to one count of sexual battery and was sentenced to fifteen years’ imprisonment. In his postconviction motion, he alleges that his counsel informed him that his actual sentence would be shorter because he would earn gain time. Douglas alleges that' he was released from prison on conditional release in 1998 and again in 2005. Although he does not provide details in his motion, he filed a brief with this court indicating that in 1999 he was arrested for a new offense and was incarcerated to finish his original sentence. Then, after his conditional release in 2005, he again was arrested and sent back to prison.

In his postconviction motion, Douglas asserts that as a result of violating conditional release, his gain time was forfeited and he had to complete the full fifteen-year sentence. He states that he did not learn of the gain time forfeiture until October 17, 2006, and contends that this constitutes newly discovered evidence of his counsel’s ineffective representation. . He states that his attorney misrepresented the potential length of his imprisonment and also failed to advise him of the possible forfeiture of gain time for violation of conditional release. He concludes that counsel’s errors rendered his plea involuntary because he would have gone to trial if he had been correctly advised.

The postconviction court summarily denied Douglas’s motion, finding that it was untimely under rule 3.850. The court stated that Douglas should have filed the motion within two years of his 1992 judgment and sentence becoming final. As to Douglas’s argument concerning newly discovered evidence, the court observed that Douglas “provides no explanation for why, by the exercise of due diligence, he could not have learned” of the forfeiture of his gain time prior to October 17, 2006. The court noted that Douglas had previously been released on conditional release and then returned to prison and that “[t]here is no accounting for the more than six-year delay.”

In Galindez v. State, 909 So.2d 597, 598 (Fla. 2d DCA 2005), this court reiterated that

the triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the DOC informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 3.850(b)(1).

See also Beasley v. State, 958 So.2d 1086, 1087-88 (Fla. 2d DCA 2007) (following Galindez, 909 So.2d at 598); Hall v. State, 891 So.2d 1066, 1067 (Fla. 2d DCA 2004) (noting that the two-year period began to run once the Department of Corrections informed the defendant of the forfeited gain time); Spradley v. State, 868 So.2d 632, 633 (Fla. 2d DCA 2004) (same). Accordingly, Douglas’s motion may be timely.

We conclude, however, that Douglas’s motion is not facially sufficient. As noted by the postconviction court, Douglas had been previously released on conditional release and then returned to prison. Douglas provides no information explaining why he did not know or could not have known of the forfeiture of his gain time when in 1998 he had been conditionally released and later returned to prison to complete his sentence, apparently after violating the terms of his conditional release.

In Douglas’s sworn brief filed in this court, he alleges additional facts relating to his claim. We cannot consider that information because he did not include it in his postconviction motion or supporting memorandum. See Garnto v. State, 830 So.2d 901, 902 (Fla. 2d DCA 2002).

Because Douglas’s motion is facially insufficient, we reverse the order denying the motion and remand for the postconviction court to enter an order dismissing the motion without prejudice for Douglas to file a facially sufficient motion.

Reversed and remanded.

WHATLEY and DAVIS, JJ., Concur.


author: GRIFFIN, J.

text:
    Byron BURCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2832.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2008.
    Byron K. Burch, Sneads, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Appellant, Bryon Burch [“Burch”], seeks review of the trial court’s summary denial of his rule 3.850 motion for postconviction relief. For the reasons that follow, we conclude that the trial court erred in denying claims one and three without an evi-dentiary hearing. The trial court did not err in summarily denying ground two.

On November 5, 2004, the State filed an information charging Burch in count I with Robbery With a Deadly Weapon, and in count II with Aggravated Battery With a Deadly Weapon. At trial, Randall Ball [“the victim”] testified that during October 2004, he was homeless and living in the woods near a Family Dollar store. He worked for a day labor agency earning $45-$50 per day and cashed his checks after work at a nearby Citgo station.

After cashing his check one afternoon, he walked by the Family Dollar store on his way to the woods, where he encountered Burch. The victim had never seen Burch before. Burch asked him if he lived back there by himself, and the victim replied that he did. As the victim continued to walk into the woods, Burch jumped him from behind and they began fighting. Burch put a box cutter to the victim’s throat, but the victim was able to break it. During the struggle, the victim was cut and his blood got .onto Burch’s pants. Even though the blade was broken, Burch continued to hold the weapon against the victim’s throat as they fought. At some point, the victim took $20.00 out of his pocket and gave it to Burch. After taking the money, Burch told the victim not to follow him or he would get hurt. ' Burch then left the woods.

The victim walked to the police station and reported what happened to Officer Carter and told him that the person who attacked him had one eye that was totally white. Such an individual was known to Officer Carter. The victim subsequently identified Burch as his assailant.

Burch also testified and gave a very different version of events. He went to the. Oaks Motel and purchased crack cocaine, then he ran into Carl O’Neal who had a pipe, so they went to his tent and smoked the crack. While he was at the tent, other people came by, asking if he would sell them a piece, which he did. When he ran out, he went back to the Oaks Motel to buy more and returned to the tent. As he was getting ready to leave yet again to buy more, the victim came by and gave him $19.00 to get him some crack. Burch returned to the motel to buy more crack, but the person he was buying it from wasn’t there, so he called someone else who sold drugs and he ordered $100.00 worth. The seller later met Burch, and they cut the crack “cookie” into smaller pieces and smoked some marijuana. When he finally returned to the camp, he encountered the victim, who accused him of “ripping him off.” Burch denied the accusation, and as he reached into his pocket to get the victim’s crack, the victim punched him in the face and they started fighting. They wrestled and punched each other for about two minutes until others intervened. They then each went their own way. Burch admitted on examination that he had ten felony convictions, three of which involved dishonesty.

After deliberating, the jury found Burch guilty of the lesser included offenses of robbery and battery. On direct appeal, this Court affirmed. See Burch v. State, 932 So.2d 210 (Fla. 5th DCA 2006) (table).

In his first claim of ineffective assistance of counsel, Burch contended that defense counsel was ineffective for failing to impeach the victim regarding a prior conviction for “stealing beer from a store one time and steaks.” Burch alleged that this information was testified to by the victim during the victim’s deposition. • Burch asserted that such a conviction constituted a crime of dishonesty and should have been used to attack the credibility of the victim at trial. Burch contended that his trial was essentially a “credibility contest” between the victim and himself regarding the events that occurred on the date in question and that the only direct evidence of a robbery was the testimony of the victim. Furthermore, he contended that, because the case boiled down to a credibility contest, the fact that the State was able to introduce evidence of Burch’s numerous prior convictions, but defense counsel did not introduce the victim’s prior conviction, likely tipped the scales in the State’s favor.

The trial court rejected Burch’s claim, reasoning that defense counsel had conducted a competent cross-examination of the victim, which included several efforts to impeach the victim by contrasting the victim’s deposition testimony and trial testimony. However, because the relative credibility of the two men was central to the trial and because the lack of any criminal record on the part of the alleged victim was made a feature of the trial by the state, evidence of Burch’s prior criminality, and the victim’s lack of a criminal record, may have influenced the verdict. The merit or lack of merit of this claim of ineffective assistance requires an eviden-tiary hearing.

In his third claim for relief, Burch contended that defense counsel was ineffective for failing to call Carl Wayne O’Neal [“O’Neal”] as an exculpatory witness on Burch’s behalf. According to Burch’s motion, O’Neal would have testified:

[t]hat he was present during the incident in this case; that [the victim] wanted to chip in on smoking crack cocaine with [Burch], himself and several other individuals, all of whom [the victim] previously known [sic] and dealt with in smoking drugs. Additionally, O’Neal would have testified that [the victim] voluntarily gave money to [Burch] to buy cocaine. Finally, he would have stated that because [Burch] had taken a very long time to return with the drugs, [the victim] assumed that [Burch] ripped him off, which resulted in a fight.

In other words, O’Neal would have testified consistent with Burch’s trial defense and contrary to the victim’s trial testimony. The trial court summarily denied Burch’s third claim on the ground that defense counsel’s decision to exclude references to Burch going to buy crack cocaine could hardly be ineffective assistance.

... This reasoning fails for at least two reasons: first, Burch’s entire defense was premised on his testimony that he was- a crack user/seller who took money to purchase crack for the victim, which led to a fight after Burch had failed to return timely with the crack the victim had given him money to purchase. Second, we do not know whether defense counsel’s decision not to call O’Neal was a trial tactic. If so, this is a determination that usually should be made after an evidentiary hearing. See Pomposello v. State, 940 So.2d 500, 500 (Fla. 5th DCA 2006).

Accordingly, we affirm in part, reverse in part and remand for an evidentiary hearing on grounds One and Three.

AFFIRMED in part; REVERSED in part; AND REMANDED.

PLEUS and SAWAYA, JJ., concur.

      . For example, the State said during closing argument:
      And finally, was it proved that the witness had been convicted of a crime. [The victim] has not been convicted of any crimes. Byron Burch has been convicted of ten felonies, three of which involved dishonesty. Who should you believe? You need to look at that.


author: PER CURIAM.

text:
    Luis SANTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-471.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2008.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Following a jury trial, Appellant was convicted of burglary of a structure with an assault or battery, attempted sexual battery and false imprisonment. We find no merit in his challenge to the attempted sexual battery conviction. Accordingly, that conviction is affirmed. We do find merit, however, in one of Appellant’s arguments pertaining to the burglary conviction. We conclude that the court committed fundamental error when it.instructed the jury on a theory not charged in the information. Accordingly, we reverse the conviction on the burglary count and remand for a new trial.

The State charged Appellant with burglary under the theory that Appellant had remained in a structure with the intent to commit a forcible felony therein pursuant to section 810.02(l)(b)2.c., Florida Statutes (2006). The material portions of the information provided’:

Luis A. Sántin ... did, in violation of Florida Statutes 810.02(l)(b)2.c. and 810.02(2)(a), enter or remain, without license or invitation, in a portion of a structure, located in the vicinity of 39 W. Pine Street, to wit: the ladies’ restroom, in the County and State aforesaid ... with the intent to commit or attempt to commit a forcible felony as defined in Florida Statutes 776.08, and in the course of committing said offense, Luis A. Santin did make an assault or battery upon [the victim].

(Emphasis added).

The court’s instruction permitted the State to argue that the jury could find Appellant guilty if he “had a fully-formed conscious intent to commit an offense in that structure.” This theory of criminal responsibility is based on section 810.02(l)(b)l., Florida Statutes (2006), a theory not charged in the information. Based on the instruction, the prosecutor did indeed argue a theory not charged. The prosecutor argued:

So applying the law to these facts, we have a burglary of a structure with an assault or battery therein. Structure. You have different compartments like we talked about. The ladies’ room is not open to the male public. The locked stall door is not open to anybody but the person using that stall. He entered into that stall with the intent to at least commit a battery against her, and that’s how it’s charged, the burglary. Entering or remaining in that portion of the structure with the intent to commit a battery. Now, of course, much more was intended, but the bottom line was, he intended to unlawfully touch her in some manner.
Now, the burglary verdict and the burglary instructions are a little confusing, but, again, when you break it down to the elements of the burglary charge, did he enter that bathroom or that locked stall with the intent to commit a battery against her? Yes. When you break down burglary, it’s that simple.

By giving an instruction on an alternative theory not charged, the court committed fundamental error. Garzon v. State, 939 So.2d 278, 287 (Fla. 4th DCA 2006); Hodges v. State, 878 So.2d 401 (Fla. 4th DCA 2004); Taylor v. State, 760 So.2d 298 (Fla. 4th DCA 2000); Fuentes v. State, 730 So.2d 366 (Fla. 4th DCA 1999).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ORFINGER, MONACO and TORPY, JJ., concur.

      . The trial court dismissed the false imprisonment conviction on.double jeopardy grounds.


text:
    Jason Randall SEBELIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3769.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2008.
    Jason R. Sebelin, Sneads, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the summary denial of his motion for jail credit. The crux of his claim is that he spent time in the Escambia County jail for which no credit was given at the time he was sentenced on the Volusia County charges. The resolution of this issue turns on whether the warrant on the Volusia charges was “executed” while Appellant was in the Escam-bia County jail. See Gethers v. State, 838 So.2d 504, 505 (Fla.2003). Unfortunately, we cannot discern from the record whether Appellant’s claim has merit because the trial court did not explain its ruling or provide portions of the record to conclusively refute the claim. On remand, the trial court shall either grant the motion or provide the rationale for its denial, with the attachment of record support, as appropriate, demonstrating that the request is without merit.

REVERSED AND REMANDED.

GRIFFIN, TORPY and LAWSON, JJ., concur. ' >


text:
    Bernard WILLIAMS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D07-4367.
    District Court of Appeal of Florida, First District.
    March 31, 2008.

      Bernard Williams, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Sarah J. Rumph, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks review of a circuit court order which denied a petition for writ of mandamus challenging the revocation of his conditional release supervision. Our scope of review is limited to determining whether the circuit court afforded procedural due process and whether it observed the essential requirements of law. See Sheley v. Fla. Parole Comm’n, 720 So.2d 216 (Fla.1998). A ruling constitutes a departure from “the essential requirements of law” when it amounts to “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983). When considering such a petition for writ of certiorari, this court has only two options — it may either deny the petition or grant it, and quash the order to which the petition is directed. It may not enter judgment on the merits, or direct the lower tribunal to enter any particular order. See Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838, 843-44 (Fla.2001) (citing cases). Assessing the circuit court’s order according to these rules, we conclude that the order constitutes a departure from the essential requirements of law, and that we are, therefore, obliged to quash it.

In a prior proceeding addressing the circuit court’s initial order denying relief, we concluded that because (i) the evidence of a willful violation on the part of petitioner was tenuous at best, (ii) the parole examiner recommended reinstatement, and (iii) neither the parole examiner’s report nor the Parole Commission’s order contained a finding that petitioner’s violation of his conditional release supervision constituted a willful violation of a substantial condition of the conditional release order, the circuit court could not have reviewed the matter in accordance with the essential requirements of law. See Williams v. Fla. Parole Comm’n, 954 So.2d 1271 (Fla. 1st DCA 2007). Accordingly, the final order was quashed and the matter was remanded to the circuit court, which, in turn, remanded the matter to the Parole Commission to determine whether petitioner’s violation was willful and substantial.

Because the original parole examiner was no longer employed by the Parole Commission at the time of remand, a Parole Commission Regional Administrator reviewed the tape-recording of the final revocation hearing and concluded that the violation was willful and substantial. The Parole Commission then issued an order adopting that finding. Thereafter, the circuit court entered the order for which review is now sought, concluding that in light of the willfulness finding of the administrator and the Parole Commission’s adoption thereof, petitioner was not entitled to relief from the revocation order.

Petitioner now argues that his due process rights were violated when the willfulness finding was not made by the original parole examiner or by a new parole examiner after another hearing. We agree. As noted by this court in its initial opinion, the record at that point was devoid of any finding that petitioner’s violation was willful and substantial. Such a finding was not made until the matter was remanded to the Commission and the administrator listened to the tape-recording of the hearing. Generally, a successor fact-finder may not rule on matters based on the credibility of witnesses that he has not heard. Acker v. State, 823 So.2d 875, 876 (Fla. 2d DCA 2002) (holding that a successor judge who did not hear the witnesses or rule on their credibility could not sign a written order revoking probation); see also Fratello v. State, 950 So.2d 440, 441 (Fla. 4th DCA) (reversing order denying a rule 3.850 motion when successor judge did not preside at the evidentiary hearing and ruled based on a cold record), rev. den., 966 So.2d 968 (Fla.2007). Here, the administrator’s finding of willfulness was based on the assessment of the credibility of witnesses he did not observe. This violated a clearly established principle of law resulting in a miscarriage of justice.

Accordingly, the circuit court’s order denying mandamus relief on remand is QUASHED, and the matter is REMANDED for further proceedings consistent herewith.

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


text:
    Robert G. JAMESON, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2136.
    District Court of Appeal of Florida, Second District.
    April 2, 2008.
   SILBERMAN, Judge.

Robert G. Jameson appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In that motion, Jameson alleged that his prison releasee reoffender (PRR) mandatory minimum sentence is illegal on his conviction for battery on a law enforcement officer (BOLEO). The postconviction court found that the crime was a “forcible felony” that qualified for PRR sentencing. See §§ 775.082(9)(a), 776.08, Fla. Stat. (2004). However, the postcon-viction court was without the benefit of this court’s opinion in Walker v. State, 965 So.2d 1281 (Fla. 2d DCA 2007), which held that BOLEO is not an offense eligible for PRR sentencing. See also State v. Hearns, 961 So.2d 211, 217 (Fla.2007) (holding that BOLEO is not eligible for violent career criminal (VCC) sentencing and that “whether BOLEO is a qualifying offense must be answered consistently under both the VCC statute and the PRR statute”).

The State has properly conceded that the PRR designation should be stricken from Jameson’s sentence on this offense pursuant to these authorities. Accordingly, we reverse the denial of this claim and remand for the trial court to strike the PRR designation from Jameson’s conviction for BOLEO.

Reversed and remanded.

WHATLEY and LaROSE, JJ., Concur.


author: DAVIDSON, LISA, Associate Judge.

text:
    Stavros MOFORIS, Appellant, v. Renee M. MOFORIS, Appellee.
    No. 4D06-4556.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2008.
    Nancy A. Hass of Nancy A. Hass, P.A., Hallandale Beach, for appellant.
    Howard T. Sutter of Boyd & Sutter, P.A., Jacksonville, for appellee.
   DAVIDSON, LISA, Associate Judge.

The trial court vacated its order approving the modification of the parties’ visitation. The former husband appeals this ruling.

In 2004, the parties obtained a final judgment dissolving their marriage. The final judgment of dissolution of marriage approved and incorporated a settlement agreement and addendum that the parties had entered. Article XX of the addendum to the parties’ settlement agreement provided: “The parties agree that no modification or waiver of any of the terms of this Settlement Agreement shall be valid unless in writing and executed with the same formalities as this Settlement Agreement or Court order in accordance with the terms of this Agreement.”

In their settlement agreement, the parties agreed to share parental responsibility for the two minor children, with the wife having primary residential custody. The agreement gave the former husband liberal and frequent contact with the children. It provided a time sharing schedule that included extended overnight weekend visitation, extended holiday visitation, and three uninterrupted weeks during the summer.

The former husband sent a certified letter to the former wife in March 2005 purporting to confirm changes that the former husband believed the parties had made to his visitation schedule. The letter stated that the former husband would have additional visitation with the children every Sunday overnight and every Thursday overnight after the former husband’s regular weekend visitation with the children. In August 2005, the parties signed an agreement acknowledging these changes in visitation. The former husband then retained counsel who filed a motion for entry of an order adopting and ratifying the modification agreement signed by the parties. The former husband’s counsel sent a letter to the former wife informing her of the former husband’s intention to obtain such a court order. A copy of the notice of hearing was included with the letter. The hearing on the former husband’s motion was held on the court’s motion calendar on September 29, 2005. The former wife did not attend the hearing. The trial court entered an order adopting and ratifying the modification agreement.

Thereafter in April 2006, the former husband filed a petition to modify the final judgment to name himself as the primary residential parent and to determine the parties’ respective child support obligations based on the changes in visitation implemented as a result of the September 29, 2005 order that adopted and ratified the modification agreement. The former wife retained counsel and filed an answer to the former husband’s petition to modify the final judgment and marital settlement agreement. The former wife also filed a counter-petition for modification requesting an upward modification to the former husband’s monthly child support obligation.

In September 2006, the former wife filed a motion pursuant to rule 1.540(b), Florida Rules of Civil Procedure, seeking to set aside the trial court’s final order rendered September 29, 2005, that adopted and ratified the modification agreement. The trial court held a non-evidentiary hearing. The trial court found that the modification agreement was not valid as a matter of law, concluding it was not notarized, and therefore was contrary to Article XX of the addendum to the parties’ settlement agreement. The court set aside the modification agreement and awarded attorney’s fees to the former wife pursuant to the prevailing party fee clause in the original agreement.

The trial judge indicated that she made a mistake on September 29, 2005, by entering the final order adopting and ratifying the parties’ agreement. The trial court explained that she would not have entered the modification order if she had seen the settlement agreement at the time she entered the order because the modification agreement did not have the requisite formality required by the addendum to the settlement agreement.

If the court mistakenly entered the modification order, this is a judicial mistake. This is not the type of mistake that may form the basis for relief under subsection (b) of Florida Rule of Civil Procedure 1.540. Subsection (a) of rule 1.540 allows the trial court to correct errors “arising from oversight or omission ... at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders.” The clerical mistakes referred to by subsection (a) are only “errors or mistakes arising from accidental slip or omission, and not errors or mistakes in the substance of what is decided by the judgment or order.” Byers v. Callahan, 848 So.2d 1180, 1184 (Fla. 2d DCA 2003) (quoting Keller v. Belcher, 256 So.2d 561, 563 (Fla. 3d DCA 1971)).

In Bolton v. Bolton, 787 So.2d 237, 238-39 (Fla. 2d DCA 2001), the Second District Court of Appeal wrote that “[a] trial court may correct a clerical error ‘at any time on its own initiative’ pursuant to Florida Rule of Civil Procedure 1.540(a), but judicial errors, which include errors that affect the substance of a judgment, must be corrected within ten days after entry of the judgment pursuant to Florida Rule of Civil Procedure 1.530, or by appellate review.” See also Curbelo v. Ullman, 571 So.2d 443, 445 (Fla.1990); Paladin Props. v. Family Inv. Enters., 952 So.2d 560, 562 (Fla. 2d DCA 2007); Allstate Ins. Co. v. Ramjit, 788 So.2d 402, 403 (Fla. 3d DCA 2001); Aoun v. Aoun, 428 So.2d 707, 708 (Fla. 3d DCA 1983); Barrios v. Draper & Indus. Fire & Cas. Co., 423 So.2d 1002, 1003 (Fla. 3d DCA 1982); Fiber Crete Homes, Inc. v. Div. of Admin., Dep’t of Transp., 315 So.2d 492, 493 (Fla. 4th DCA 1975). In Shelby Mutual Insurance Co. v. Pearson, 236 So.2d 1 (Fla.1970), the Supreme Court of Florida rejected the argument that the trial court has jurisdiction to correct its own judgments at any time, explaining:

One of the goals of our system of jurisprudence is that litigation be finally terminated as quickly as due process and necessary reflection allows. To this end, we have provided in Florida Rule of Civil Procedure 1.530 that motions and petitions for correction of error by the trial court be made within ten days after rendition of the judgment or order. Unless a proper motion or petition is filed within the allotted time, the judgment or order of the trial court becomes absolute. Except as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or vacate an order or judgment: If a motion to alter or vacate is timely filed, or if the trial court acts timely on its own initiative pursuant to Rule 1.530, the trial court’s jurisdiction continues until the motion or petition is disposed of, or the rehearing or new trial is conducted, assuming one is ordered.

Id. at 3 (footnotes omitted).

Pursuant to rule 1.530(g), Florida Rules of Civil Procedure, the trial court had ten (10) days from the entry of its Final Order Adopting and Ratifying Parties’ Agreement on September 29, 2005, by which to correct this final order if the trial court entered it by mistake. The lower court’s order vacating the Order Adopting and Ratifying Agreement between the Parties Modifying Visitation is reversed.

This matter is remanded for further proceedings consistent with the opinion.

Reversed and Remanded.

FARMER and TAYLOR, JJ., concur.

      . The record is unclear as to why the trial court did not see the settlement agreement.

      . Rule 1.540(b) provides relief from the final judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.