author: BENTON, J.

text:
    Michael BARNISHIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-0608.
    District Court of Appeal of Florida, First District.
    April 5, 2006.

      Nancy A. Daniels, Public Defender; Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Michael Barnishin appeals revocation of his probation in two cases and the failure to give credit for jail time on the second of two consecutive sentences then imposed. We affirm the revocation of probation, but vacate the second sentence, and remand with directions that proper jail credit be awarded.

At issue are probationary split sentences. See Franklin v. State, 545 So.2d 851, 853 (Fla.1989) (holding that “[u]pon a violation of probation during a probationary split sentence, a trial court may resen-tence the defendant” “with credit for time served”). Mr. Barnishin was entitled to credit for all time served on each sentence, upon resentencing after probation was revoked. See Van Thompson v. State, 771 So.2d 593, 594 (Fla. 1st DCA 2000).

Convicted on no contest pleas of two felonies, possession of a firearm by a convicted felon and dealing in stolen property, Mr. Barnishin was initially placed on two years’ community control in each case. In time, community control was revoked in each case, reinstated, then revoked again.

After the second revocation of community control, he was placed on felony drug offender probation in both cases for eighteen months, on condition that he undergo residential treatment for drug addiction, and remain in jail pending placement in a treatment program. In addition, he was sentenced to time served: He received concurrent sentences of seventy-four days’ imprisonment, offset by seventy-four days’ jail credit on each sentence.

He began, then decided to abandon, the drug treatment program. At the ensuing probation revocation hearing, his own testimony established that he deliberately violated condition (3) of his probation by changing his residence without the consent of his probation officer; and condition (12) by “failing to successfully complete or remain in drug/alcohol residential treatment program.” (The trial court found that the state failed to prove a third allegation.)

After revoking probation in both cases, the trial court resentenced him: In No. 2003CF003872A (possession of a firearm by a convicted felon), he was sentenced to three years’ imprisonment with 135 days’ credit for time served. In No. 2003CF003982A (dealing in stolen property), he was sentenced to a consecutive term of five years’ imprisonment with only two days’ credit for time served. (In neither case did he receive, nor does he seek here, credit for the seventy-five days he spent in the residential drug treatment program. See Pennington v. State, 398 So.2d 815, 816 (Fla.1981). See also State v. Cregan, 908 So.2d 387, 389 (Fla.2005); Tal-Mason v. State, 515 So.2d 738, 739 (Fla.1987).).

Defense counsel filed a motion to correct sentencing error, under Rule 3.800(b)(2), arguing, in effect, that “in imposing the sentence on count 2 [here a single count in a separate case], the trial court erred in not awarding him credit ..., as the court had done in respect to the sentence on count 1 [here a single count in a separate case]” because, “since he originally received concurrent ... sentences to be followed by probation, the time spent in [custody] related to both charges, thus entitling him to credit ... on both charges.” Jones v. State, 633 So.2d 482, 483 (Fla. 1st DCA 1994). The trial court denied the motion.

Section 921.161(1), Florida Statutes (2004), directs that any person sentenced must receive credit for all time spent in jail prior to the imposition of sentence. See Crompton v. State, 728 So.2d 1188, 1189 (Fla. 1st DCA 1999) (“The failure to award jail credit for time served before sentencing constitutes an illegal sentence.”). But the precise legal consequences of spending time in jail before initial sentencing can remain unclear until acquittal or sentencing. If a defendant is acquitted of all charges, of course, his prosecution will result in no sentence against which time spent in jail must be credited under section 921.161(1). If convicted of a single offense, the defendant is entitled to credit for time he spent in jail before any incarcerative sentence was pronounced.

If convicted of multiple offenses, the defendant must be given credit only on the first of consecutive sentences. When consecutive sentences are imposed, “the defendant ‘is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.’ ” Daniels v. State, 491 So.2d 543, 545 (Fla.1986) (emphasis omitted) (quoting Martin v. State, 452 So.2d 938, 938-39 (Fla. 2d DCA 1984)). See also Bell v. State, 573 So.2d 10, 11 (Fla. 5th DCA 1990). On the other hand, when a defendant is entitled to pre-sentence jail-time credit against concurrent sentences, jail time must be credited against each concurrent sentence. See Daniels, 491 So.2d at 545. When sentences are imposed concurrently, the defendant receives credit on each sentence for time spent in jail before sentencing.

Mr. Barnishin spent time in jail following his arrest for the probation violations that led to the resentencing. This final increment is analogous to time spent in jail before sentencing initially occurs. Time spent in jail before sentencing initially occurs differs from time served as part of (or already credited against) a sentence. See Jones, 633 So.2d at 483 (“Contrary to the state’s contention, credit for time served in prison on a sentence is treated differently from time served in jail awaiting sentencing.”). Not until acquittal or initial sentencing does antecedent time in jail lose its protean character. Here, the time spent awaiting the probation revocation hearing and consequent resentencing partook of the same indeterminate character. Until — for the first time upon revocation of his probation — the trial court imposed consecutive sentences, the precise contours of the credit for the time he spent in jail between arrest and resentencing were not clear.

Once consecutive sentences were pronounced, the nature of the credit for the time he spent in jail between arrest and resentencing was fixed. As to this final increment only, the trial court did not err in refusing to give Mr. Barnishin credit at resentencing against the second consecutive sentence, the sentence imposed in No. 2003CF003982A. See Jones, 633 So.2d at 484 (“The trial court did not err in denying credit against the sentence on count 2 for 238 days’ jail time served while Jones awaited sentencing for .revocation of probation because the sentence imposed on that count was made consecutive to the sentence imposed on count 1.”); see also Daniels, 491 So.2d at 545; Bell, 573 So.2d at 11; Knight v. State, 517 So.2d 87, 88 (Fla. 1st DCA 1987) (“Appellant is not entitled to credit on each of his consecutive sentences.... ”).

But Mr. Barnishin should have received credit for seventy-four days on each sentence, because he was sentenced to and had served seventy-four days on both sentences. He should also have received credit on each sentence for the time he served in jail, as a condition of probation in both cases, from August 19, 2004, until August 31, 2004, awaiting a place in a drug treatment program. See Truette v. State, 914 So.2d 1074, 1074 (Fla. 1st DCA 2005) (“Because Appellant served time in jail as a special condition of his probation, he is entitled to credit for that time.... ”).

Accordingly, we affirm the revocation of probation in both cases and the sentence in No. 2003CF003872A, but, as was done in Jones, 633 So.2d at 484, we vacate the sentence in No. 2003CF003982A and remand “for modification of the sentence in accordance with this opinion.”

BARFIELD and WEBSTER, JJ„ concur.


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Erin Patrick FINAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4862.
    District Court of Appeal of Florida, Second District.
    April 5, 2006.
   WHATLEY, Judge.

Erin Patrick Finan appeals an order that grants a portion of his motion for jail credit and denies the remainder of his motion which was filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Finan claims that he is entitled to an additional 120 days’ jail credit for time spent in county jail between August 25, 1997, and December 22, 1997, in circuit court cases 97-02181, 97-06595, 97-06613, 97-13652, and 97-14787. We affirm, without comment, the postconviction court’s order as it relates to circuit court cases 97-06595, 97-06613, and 97-13652, but we reverse as to circuit court cases 97-02181 and 97-14787.

In addressing circuit court case 97-02181, the postconviction court stated that the records showed Finan was in county jail for seventy-nine days between February 8, 1997, and April 27, 1997, for fifty-seven days between April 29, 1997, and June 24,1997, and that he was entitled to 136 days’ jail credit. Because Finan received only 134 days’ jail credit, the postconviction court awarded Finan two additional days’ jail credit in circuit court case 97-02181. However, the State concedes that Finan is entitled to jail credit for eighty-five days between February 2, 1997, and April 27,1997, for fifty-four days between May 2, 1997, and June 24, 1997, and for one day on December 22, 1997, in circuit court case 97-02181. Therefore, based on the ambiguity between the State’s response and the jail credit awarded, we reverse with directions for the post-conviction court to reconsider whether Fi-nan is entitled to the additional jail credit conceded by the State for six days between February 2, 1997, and February 7, 1997, and for one day on December 22, 1997, in circuit court case 97-02181. If the post-conviction court again denies relief, it shall attach to its order those portions of the record which conclusively resolve the claim.

In addressing circuit court case 97-14787, the postconviction court stated that the records showed Finan was in county jail for 120 days between August 25, 1997, and December 22, 1997, and that he was entitled to and received 120 days’ jail credit. However, the documents attached to the postconviction court’s order do not support its findings. The record shows that Finan only received one day of jail credit in circuit court case 97-14787. Additionally, the State concedes that Finan is entitled to 120 days’ jail credit in circuit court case 97-14787. .Accordingly, we reverse and remand for the postconviction court to award Finan an additional 119 days’ jail credit in circuit court case 97-14787.

Reversed and remanded.

STRINGER and CANADY, JJ., Concur.

      . We note that jail credit issues involving disputed issues of fact are not appropriate for resolution on a motion filed pursuant to rule 3.800(a) and are matters that can only be resolved pursuant to rule 3.850. See Clifton v. State, 905 So.2d 1042, 1044 (Fla. 2d DCA 2005); see also Blake v. State, 807 So.2d 772 (Fla. 2d DCA 2002); Daniels v. State, 825 So.2d 499 (Fla. 2d DCA 2002). However, based on the limited record that is before this court, we cannot determine whether Finan's claim can be conclusively resolved based on the record documents.


author: SILBERMAN, Judge.

text:
    Kevin HINCKLEY, Appellant, v. DEPARTMENT OF REVENUE, on behalf of K.A.C.H., a minor child, Appellee.
    No. 2D05-5046.
    District Court of Appeal of Florida, Second District.
    April 5, 2006.

      Charles M. Samaha, St. Petersburg, for Appellant.
    William H. Branch, Tallahassee, for Ap-pellee.
   SILBERMAN, Judge.

The Department of Revenue filed a complaint against Kevin Hinckley to determine the paternity of a child born on January 15, 1997, and to establish child support pursuant to chapters 409 and 742, Florida Statutes (2004). In response, Mr. Hinck-ley filed several motions, including a motion to dismiss for failure to join as an indispensable party the person who Mr. Hinckley alleged is the “legal father” of the child. On January 19, 2005, following a hearing, a hearing officer made written findings and recommendations as to several of Mr. Hinckley’s motions. On February 3, 2005, the circuit court entered an order approving the hearing officer’s findings and recommendations.

On February 11, 2005, Mr. Hinckley filed a motion to vacate or modify the circuit court’s order. The court declined to rule on the motion, stating that it was “without jurisdiction to hear” the motion because it was not filed within ten days from the date the hearing officer made her findings and recommendations. Mr. Hinckley then filed this appeal. Although the Department has filed a confession of error and Mr. Hinckley raises meritorious arguments, we are compelled to dismiss for lack of jurisdiction.

Mr. Hinckley argues, and the Department concedes, that the hearing officer should not have heard his motions because this case is a contested paternity matter and that Florida Family Law Rule of Procedure 12.491(e) prohibits a hearing officer from hearing contested paternity cases. See Benardo v. Dep’t of Revenue, 819 So.2d 161, 164-64 (Fla. 4th DCA 2002). He also argues, and the Department again concedes, that the circuit court erred in concluding that it lacked jurisdiction to consider his motion to vacate or modify on the basis that the motion was untimely.

Rule 12.491(f) provides in pertinent part as follows:

Upon receipt of a recommended order, the court shall review the recommended order and shall enter an order promptly unless good cause appears to amend the order, conduct further proceedings, or refer the matter back to the hearing officer to conduct further proceedings. Any party affected by the order may move to vacate the order by filing a motion to vacate within 10 days from the date of entry.

(Emphasis added.) It appears the circuit court believed that the emphasized language referred to the time period that a party has to move to vacate the hearing officer’s recommended order rather than the court order entered after review of the recommended order. However, this court has previously interpreted the emphasized language as referring to a motion to vacate the circuit court’s order, not the hearing officer’s recommended order. See State, Dep’t of Revenue v. Loveday, 659 So.2d 1239, 1240-41 (Fla. 2d DCA 1995); P.N.V. v. Washington, 654 So.2d 1274, 1275 (Fla. 2d DCA 1995).

The circuit court stated that it was without jurisdiction to hear the motion to vacate or to modify, and Mr. Hinckley asserted in his notice of appeal that he was appealing a final order concerning jurisdiction. However, the order before us is one in which the circuit court simply declined to consider a motion that it believed was untimely filed. The order did not determine jurisdiction over a person or any other issue that would be reviewable by interlocutory appeal under Florida Rule of Appellate Procedure 9.130. See Cotton States Mut. Ins. v. D’Alto, 879 So.2d 67, 69 (Fla. 1st DCA 2004) (“Jurisdiction to hear an appeal from a nonfinal order is limited to the kinds of orders referred to in rule 9.130 of the Florida Rules of Appellate Procedure.”); Pinder v. Pinder, 817 So.2d 1104, 1105 (Fla. 2d DCA 2002).

The circuit court’s order also did not resolve all matters between the parties or dismiss the case for lack of subject matter jurisdiction. Indeed, the Department’s complaint as to paternity and child support remains pending. Because the ofi-der is not a final order, it is not reviewable under Florida Rule of Appellate Procedure 9.030(b)(1)(A). See SCI, Inc. v. ANECO Co., 410 So.2d 531, 532 (Fla. 2d DCA 1982) (“The test to be used by appellate courts in determining finality of an order, judgment or decree is whether there has been an end to the judicial labor below and nothing further remains to be done to terminate the dispute between the parties directly affected.”); Stone v. Venetian Isles Homeowners Ass’n, Inc., 431 So.2d 623, 624 (Fla. 2d DCA 1983).

It also appears that any error in the circuit court’s order can be corrected by postjudgment appeal. Thus, review is not available under our certiorari jurisdiction. See Morton & Oxley, Ltd. v. Charles S. Eby, M.D., P.A., 916 So.2d 820, 821-22 (Fla. 2d DCA 2005); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648-49 (Fla. 2d DCA 1995). As noted in Traveler v. Steiner Transocean Ltd., 895 So.2d 1191, 1192 (Fla. 3d DCA 2005), a postjudgment appeal “is an adequate remedy for an ordinary reversible error for which no appeal is provided under Rule 9.130.” Of course, in light of the confession of error by the Department, the circuit court may wish to revisit the issues raised by Mr. Hinckley’s motion to vacate or modify. See Hunter v. Dennies Contracting Co., 693 So.2d 615, 616 (Fla. 2d DCA 1997) (“At all times prior to entry of the final order terminating an action, the trial court has inherent authority to reconsider any of its nonfinal rulings, and, if it deems it appropriate, to alter or retract them.”); Bettez v. City of Miami, 510 So.2d 1242, 1243 (Fla. 3d DCA 1987).

For the foregoing reasons, this appeal is dismissed.

NORTHCUTT and SALCINES, JJ., Concur.


author: MONACO, J.

text:
    Richard Arthur BERTKE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D05-4187.
    District Court of Appeal of Florida, Fifth District.
    April 7, 2006.

      Richard A. Bertke, Lowell, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   MONACO, J.

Richard Arthur Bertke petitions this court for a writ of habeas corpus, asserting that his appellate counsel was ineffective. Because the petitioner’s appellate counsel failed to argue that the trial court erred in giving the forcible felony exception to the self-defense standard jury instruction in a ease where there was no independent forcible felony charged, we grant the petition.

Mr. Bertke was tried and convicted of aggravated battery with a firearm, and sentenced to state prison for a minimum mandatory period of twenty-five years. See § 775.087(2)(a)3., Fla. Stat. (2001). His conviction and sentence were affirmed per curiam. See Bertke v. State, 861 So.2d 49 (Fla. 5th DCA 2003). Mr. Bertke later filed his petition for writ of habeas corpus arguing that his appellate counsel was ineffective for, among other reasons, failing to argue that the trial court committed fundamental error when it gave the standard jury instruction on self-defense, which included the forcible felony instruction. Habeas corpus is the proper method to raise a claim of ineffective assistance of appellate counsel. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000); Ragan v. Dugger, 544 So.2d 1052, 1054 (Fla. 1st DCA 1989).

The forcible felony exception instructs that the “use of force likely to cause death or great bodily harm is not justifiable if you find that [the defendant] was attempting to commit, committing, or escaping after the commission of, a forcible felony.” The exception is based on section 776.041(1), Florida Statutes (2001), and is only applicable where the person claiming self-defense is engaged in another independent forcible felony at the time. See Cleveland v. State, 887 So.2d 362 (Fla. 5th DCA 2004); Velazquez v. State, 884 So.2d 377 (Fla. 2d DCA), review denied, 890 So.2d 1115 (Fla.2004); Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002).

As we discussed in Cleveland, the instruction on the forcible felony exception is given when the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense, as well as a separate forcible felony. If a separate forcible felony is not involved, the giving of the instruction essentially negates the defense of self-defense.

Here, Mr. Bertke was charged only with a single forcible felony, aggravated battery. Thus, the trial court erred in giving the instruction on the exception. We and other of our sister courts have held that this error is fundamental, and can be considered in the absence of an objection below. See Cleveland; Velazquez; Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003). We should relate in deference to the trial judge that there was no objection to the giving of the erroneous instruction.

We note parenthetically that the Fourth District Court of Appeal had decided Giles before the initial brief was filed in Mr. Bertke’s plenary appeal. As the law at the time of the appeal applies when determining whether appellate counsel was ineffective, the petitioner’s appellate counsel was tasked with being aware of this opinion. See Domberg v. State, 661 So.2d 285 (Fla.1995). Under the circumstances, therefore, and for the reasons articulated in Granberry v. State, 919 So.2d 699 (Fla. 5th DCA 2006), the petition is well-founded.

We have considered the other grounds for relief urged.by Mr. Bertke, but find them to be without merit. Because there is a reasonable probability that the outcome of Mr. Bertke’s appeal would have been different had his appellate counsel raised this issue, however, we grant the petition. See State v. Riechmann, 777 So.2d 342, 364 (Fla.2000). A copy of this opinion shall be filed with the trial court and treated as the notice of appeal.

PETITION GRANTED.

THOMPSON and PALMER, JJ„ concur.


author: BROWNING, J.

text:
    Donald Quinn BRYE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-0624.
    District Court of Appeal of Florida, First District.
    April 7, 2006.

      Nancy A. Daniels, Public Defender; Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

After the trial court denied Donald Quinn Brye’s (Appellant) legally disposi-tive motion to suppress evidence seized during an allegedly unlawful detention and involuntary search, Appellant entered a plea of no contest to the charged offense, possession of a controlled substance (cocaine), while reserving the right to appeal the denial of the motion to suppress. The trial court adjudicated Appellant guilty and sentenced him to 20 months’ incarceration. Concluding that the trial court should have granted the motion to suppress because the drug contraband that served as the basis for Appellant’s arrest, charges, and conviction was seized during an illegal detention and pursuant to an involuntary search, we reverse the conviction and sentence and remand to the trial court with directions to enter a discharge order. See Fernandez v. State, 917 So.2d 1022, 1024 (Fla. 1st DCA 2006).

Florida courts have shown “great deference” to the lower tribunal’s ruling on a motion to suppress. See Connor v. State, 803 So.2d 598, 605 (Fla.2001). “A trial court’s ruling on a motion to suppress comes to us clothed with a presumption of correctness and, as the reviewing court, we must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Murray v. State, 692 So.2d 157, 159 (Fla.1997); Connor, 803 So.2d at 605. By state constitutional mandate in the conformity clause, we are to resolve Fourth-Amendment search and seizure issues in accordance with applicable United States Supreme Court precedents. See Art. I, § 12, Fla. Const.; Holland v. State, 696 So.2d 757, 759 (Fla.1997); State v. Robinson, 740 So.2d 9, 13 n. 3 (Fla. 1st DCA 1999). The trial court’s ruling on a motion to suppress is a mixed question of law and fact. See State v. Christman, 838 So.2d 1189, 1191 (Fla. 2d DCA 2003). The United States Supreme Court has stated that mixed questions of law and fact that ultimately determine constitutional rights are to be reviewed by the appellate courts applying a two-step approach. Deference is to be shown to the trial court on questions of historical fact, but de novo review of the application of a constitutional standard to the facts in a particular case is proper. See United States v. Bajakajian, 524 U.S. 321, 336 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); Ornelas v. United States, 517 U.S. 690, 696-98, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor, 803 So.2d at 605-06.

The testimony offered by the State at the suppression hearing reflected that on August 20, 2004, while on uniformed bike patrol, Deputy Hunnicutt left the other riders. As the deputy cut through a wooded “pig trail” near the railroad tracks in a location known by the police as “a high drug area” where “crack” cocaine is smoked, he saw two males (including Appellant) exiting the woods around 7:45 p.m. or dusk. In what he considered to be “a citizen contact,” Deputy Hunnicutt approached the men and asked them both for positive identification. Because both men were extremely nervous, the deputy wondered what was going on. Appellant produced a driver’s license or some other form of identification. The deputy noted that the address on the I.D. was nowhere near that particular location. When the deputy asked him what he was doing there, where he was coming from, or why he was coming out of the patch of woods, Appellant responded that he was visiting a friend or something like that. The deputy’s deposition indicated that Appellant had said he was coming from his new residence. Deputy Hunnicutt testified that both of the men were “very evasive.” The deputy was concerned mainly about why Appellant was in that area, and the deputy did not deem Appellant’s given' reason for being there very plausible. Deputy Hunnicutt testified that Appellant’s answers would have explained his business being in that area if Appellant could have provided an address, but he supplied neither a street address nor a telephone number. During his investigation, the deputy placed Appellant’s I.D. on the clip of his policeman’s belt, in accordance with his customary practice in dealing with everyone who presents an I.D. His habit is to retain the I.D. until all is said and done, after which he returns the I.D. to its owner. While still holding on to Appellant’s I.D. card, Deputy Hunnicutt called in Appellant’s I.D. and found no active, outstanding warrants.

The United States Supreme Court and the Supreme Court of Florida have distinguished essentially three levels of police-citizen encounters. In ascending order of police contact, the levels are a consensual encounter, an investigatory stop, and an arrest supported by probable cause that a crime has been, or is being, committed. See, e.g., United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Popple v. State, 626 So.2d 185, 186 (Fla.1993); Robinson, 740 So.2d at 12. The court in Popple described Level One as follows:

The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

Popple, 626 So.2d at 186. Level Two is the so-called Terry stop:

The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a . person has committed, is committing, or is about to commit a crime. § 901.151, Fla. Stat. (1991). In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).

Popple, 626 So.2d at 186. “[A] person is seized if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart.” Id. at 188. Before Terry, “any restraint on the person amounting to a seizure for the purposes of the Fourth Amendment was invalid unless justified by probable cause,” but Terry “created a limited exception to this general rule” so that certain seizures were justified under the Fourth Amendment where the requisite articulable suspicion existed. Florida. v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). A reasonable suspicion of criminal activity will justify “a temporary seizure for the purpose of questioning limited to the purpose of the stop.” Id.; United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). “A ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.” State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978). Although this well-founded suspicion does not have to be fact-based enough to constitute probable cause to arrest, it “must be enough to draw the officer’s attention to something more specific than a wide, unparticularized range of potential suspects.” Brandin v. State, 669 So.2d 280, 282 (Fla. 1st DCA 1996) (quoting Cobb v. State, 642 So.2d 656, 658 (Fla. 1st DCA 1994)).

It is well-established that “an officer does not need to have a founded suspicion to approach an individual to ask questions.” Id. at 187. As the United States Supreme Court has explained:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.

Royer, 460 U.S. at 497, 103 S.Ct. 1319. Therefore, Deputy Hunnicutt’s initial contact with Appellant and the other man was nothing more than a police-citizen encounter involving “only minimal police contact.” Popple, 626 So.2d at 186.

During the initial questioning of Appellant, the deputy asked for identification. “A police officer’s request to a defendant for his identification does not constitute detention or seizure.” State v. Gonzalez, 919 So.2d 702, 703 (Fla. 5th DCA 2006); Clemons v. State, 747 So.2d 454, 455 (Fla. 4th DCA 1999). During the investigation of Appellant, Deputy Hunni-cutt clipped the I.D. to his police belt. After running an I.D. check and finding no outstanding warrants in Appellant’s name, the deputy still held on to Appellant’s identification card, without which Appellant effectively was not able to leave the premises. Under the applicable objective standard, a reasonable person would not have felt that he or she was free to leave under these circumstances. In other words, Appellant was “effectively seized for the purposes of the Fourth Amendment.” Royer, 460 U.S. at 501-02, 103 S.Ct. 1319. Certainly, once the I.D. check showed no outstanding warrants, Deputy Hunnicutt lacked any reasonable suspicion to believe that Appellant had committed, was committing, or was about to commit a crime. Given these circumstances, the deputy should have relinquished Appellant’s I.D. card and allowed him to leave.

Instead, still retaining Appellant’s identification clipped to his belt, Deputy Hunnicutt asked for Appellant’s permission to be searched. Although the deputy could not remember his specific question, he testified that, typically, he asks a suspect: “Do you have anything illegal on your person, anything that may get you into trouble?” Sometimes the deputy inquires: “Have you got a problem with me checking?” On other occasions, he asks: “Do you mind if I search your person?” According to the deputy, Appellant gave permission to search without ever objecting and without ever indicating that he did not want to speak to the deputy or that he wished to leave. Deputy Hunnicutt testified that he always performs a pat-down first. During the ensuing pat-down search, he felt “a tubular, circular type thing” in Appellant’s right front pocket. When he was asked what the object was, Appellant replied “I don’t know.” That response “raised a flag” for the deputy, who retrieved the item, which had “Accu-cheek” written across it. Appellant indicated that it was his aspirin. When the deputy opened the container, he observed what (through his training and experience) appeared to be “crack” cocaine, and Appellant was arrested.

Citing State v. Ferrell, 705 So.2d 1051 (Fla. 1st DCA 1998), and Jones v. State, 658 So.2d 178 (Fla. 1st DCA 1995), the trial court denied the motion to suppress on the ground that an officer patrolling in a high-crime area can ask a citizen to produce identification without the incident’s constituting a detention or seizure. Although the trial court’s general proposition is true, the appropriate inquiry should not have ended there.

“[W]hat began as a consensual encounter evolved into an investigatory stop.” Morrow v. State, 848 So.2d 1290, 1293 (Fla. 2d DCA 2003). A key feature of a Level One police-citizen encounter “is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries, and the person may not be detained without a well-founded and articulable suspicion of criminal activity.” Popple, 626 So.2d at 187-88. “[T]he totality of the circumstances controls in cases involving the Fourth Amendment.” State v. Baez, 894 So.2d 115, 117 (Fla.2004). The circumstances presented to Deputy Hunnicutt did not give rise to a reasonable suspicion that Appellant had committed, was committing, or was about to commit a crime. Because the deputy continued to retain Appellant’s I.D. card after the warrant check came back clean, and then asked for permission to conduct a personal search, the detention was unlawful. See § 901.151(2), Fla. Stat. (2004); Royer, 460 U.S. at 501-03 & n. 8, 103 S.Ct. 1319 (stating that although detectives’ requesting and examining prospective airline passenger’s ticket and driver’s license were permissible, passenger was effectively “seized” for Fourth-Amendment purposes when detectives identified themselves as narcotics agents, told passenger he was suspected of transporting narcotics, and asked passenger to accompany them to adjacent airport storage room while retaining his ticket, driver’s license, and luggage throughout the encounter); Popple, 626 So.2d at 186; Barna v. State, 636 So.2d 571 (Fla. 4th DCA 1994).

The trial court erred in basing its denial of the motion to suppress on the materially distinguishable facts in our decisions in Ferrell, 705 So.2d at 1051, and Jones, 658 So.2d at 178. In Ferrell, an officer on foot patrol near a hotel in an area known for high crime and drug activities saw Mr. Ferrell, whom the officer recognized from previous contacts and knew to be a cocaine user, standing on the hotel porch. When the officer asked if he had any weapons or drugs or stolen items, Ferrell answered in the negative, invited the officer to go ahead and search him, and spread his arms and legs without being asked to do so. The officer discovered “crack” cocaine in Ferrell’s shirt pocket. See 705 So.2d at 1052. The State challenged the trial court’s order granting Ferrell’s motion to suppress. Noting that, without more, an officer’s “question simply asking about criminal conduct” will not elevate a consensual police-citizen encounter to an unlawful detention, and that the record did not indicate that force or intimidation was used against Ferrell, we reversed and remanded for further proceedings. See id.

In Jones, 658 So.2d at 178, a deputy sheriff driving an unmarked, but obvious, police car encountered Mr. Jones on a bicycle. The deputy, who knew Jones from having arrested him previously for sale of cocaine, asked if they could talk, and Jones assented. When asked whether he had any weapons, Jones said he did not. When the deputy asked if he could search him, Jones responded: ‘Yeah. I ain’t got nothin’ [sic].” At the suppression hearing, the deputy testified that on stopping Jones, he had no probable cause to believe Jones was committing a crime. He had wanted to search Jones, but if Jones had not consented to the search, then the deputy would have let him leave. The deputy testified that Jones had been free to leave, although the deputy had not told him so. According to the deputy, a pat-down of Jones’ clothing commenced, which Jones interrupted by placing his left hand into his left pants pocket while saying that all he had was money. When taking his hand out of his left pocket, Jones removed money and a rock of “crack” cocaine, which Jones tossed forward to the ground. The deputy testified he did not tell Jones to empty his pockets. See id. at 179. The trial court found that the search during the police-citizen encounter was consensual. The motion to suppress was denied, and Jones was convicted of possession of cocaine. We affirmed the trial court’s ruling. See id. at 180.

The instant facts are analogous to the circumstances in Barna, 636 So.2d at 571. Two police officers observed Mr. Barna and another man standing and smoking and conversing in the back corner of a public parking area behind a bar at 11:30 p.m. See id. at 572. As the officers approached, one of them informed the men that the officers were going to investigate the situation a little further in the course of checking on drug activity, car theft, and automobile burglaries in the immediate vicinity. Both men produced identification on request, and the police held on to the I.D.s while one officer ran a teletype check. Meanwhile, the other officer asked why Barna was nervous, sweating, and shaking, and whether Barna had any drugs or weapons. He lifted his hands above his head and said: “Go ahead and search me if you want.” The resulting search revealed a cut straw, a small baggie of cocaine, and the remains of a marijuana cigarette in Barna’s pockets. See id. The trial court denied Barna’s motion to suppress the drug evidence found in Barna’s possession. The incident began as a police-citizen consensual encounter but evolved into a seizure of Barna for Fourth-Amendment purposes. The State did not argue that it was a lawful investí-gatory stop, and the Fourth District Court concluded it was not one. Because the investigatory stop was unlawful, the officer’s subsequent search of Barna was unlawful too, absent the requisite standard of proof that Barna consented, and that his consent “was not a product of the unlawful police activity.” Id. The district court reversed the order denying the motion to suppress and reversed Barna’s judgment and sentence. See id.; Perko v. State, 874 So.2d 666 (Fla. 4th DCA 2004) (reversing judgment and sentence because defendant’s consent to search of his person was obtained after he was “seized,” and search was unlawful where defendant consented to officer’s request to conduct search after officer obtained, but did not yet return, defendant’s driver’s license while another officer ran a warrant check).

Appellant’s case is materially distinguishable from State v. Chang, 668 So.2d 207 (Fla. 1st DCA 1996), in which Officer Schwab observed Mr. Chang and two other males around 7:35 on a November evening, standing in front of a vacant house that was known as a very active site of drug trafficking. See id. at 208. As he drove toward the men, the officer saw another of the men throw a manila envelope to the ground. After discovering that the envelope contained marijuana, Officer Bisplinghof, who was patrolling with Officer Schwab, arrested the individual who had discarded it. Officer Schwab asked Chang and the other man what they were doing and whether they had identification. Chang presented his driver’s license, and his name and the other man’s name were “run” in the computer to determine if either man was wanted. The names came up clean. A check to determine whether a car parked in front of the vacant house had been reported stolen revealed that it was registered to Chang. Officer Schwab then returned Chang’s driver’s license to him. Officer Bisplinghof testified that when the other officer informed him that the parked car was registered to Chang, Officer Bisplinghof asked Chang for permission to search it, which Chang gave. The car search revealed a 9mm semiautomatic handgun under the driver’s seat, and Chang was arrested and charged with possession of a firearm by a convicted felon. See id. Chang moved to suppress the handgun on the ground that it had been obtained during an illegal stop. The trial court agreed and granted the motion on the grounds that Chang was illegally detained when the officer checked his driver’s license and vehicle registration, and that the State failed to meet its burden to prove that Chang’s consent was voluntary. See id. at 208-09. Our court disagreed, finding no constitutional violation in Officer Schwab’s approaching Chang, requesting identification, receiving his driver’s license, and running a warrant check during what we characterized as a consensual police-citizen encounter. We reversed the suppression order and remanded Chang’s case for trial. See id. at 209. The key distinction between Chang and the instant case is that Deputy Hunnicutt retained Appellant’s I.D. card, effectively “seizing” him, even after the warrant check came back clean. Under those circumstances, Appellant’s purported consent to the request for a personal search was not shown to be voluntary.

When the State relies on a defendant’s consent to justify the lawfulness of a search, the State has the burden to prove that consent was freely and voluntarily given. See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Appellant’s purported consent to be searched was presumptively tainted and rendered involuntary by the illegal detention, absent “clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action.” Norman v. State, 379 So.2d 643, 647 (Fla.1980); State v. Campbell, 911 So.2d 192, 193 (Fla. 4th DCA 2005) (affirming order granting motion to suppress firearm, where defendant/motorist’s consent to search vehicle was involuntary because it was given while police officers retained possession of driver’s license after warrant check came back clean and defendant told officers there were no drugs or weapons in car), juris, accepted, Case No. SC05-1844 (Fla. Oct. 7, 2005); Bautista v. State, 902 So.2d 312, 314 (Fla. 2d DCA 2005); Taylor v. State, 658 So.2d 173, 173 (Fla. 5th DCA 1995). But for the involuntary personal search of Appellant, the deputy would not have discovered the drug contraband. The trial court misapplied the law to the facts in denying the dispositive motion to suppress the drug evidence. Accordingly, we REVERSE Appellant’s conviction and sentence and REMAND with instructions to the trial court to enter a discharge order in accordance with Fernandez, 917 So.2d at 1024.

ALLEN and PADOVANO, JJ., concur.


author: PER CURIAM.

text:
    Joshua ARTHUR, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3964.
    District Court of Appeal of Florida, First District.
    April 7, 2006.

      Appellant, pro se.
    Charlie Crist, Attorney General, Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Joshua Arthur, challenges the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, appellant contends his sentences are illegal where he was sentenced in case numbers 96-257 and 99-177 under unconstitutional 1995 guidelines and where he committed his crimes during the relevant window period.

Appellant’s claim is premised on Heggs v. State, 759 So.2d 620 (Fla.2000), in which the supreme court declared Chapter 95-184, Laws of Florida, unconstitutional and authorized resentencing for those defendants sentenced under the revision to the guidelines contained in Chapter 95-184 where the defendant’s current sentence exceeds the maximum sentence authorized under the prior, valid guidelines version.

In order to have standing to raise a Heggs claim, appellant’s offenses must have occurred between October 1, 1995, and May 24,1997. See Trapp v. State, 760 So.2d 924 (Fla.2000). Upon review of the record, it appears appellant does have standing to challenge his sentencing score-sheet utilized in lower tribunal case number 96-257. However, appellant’s claims in regard to his sentence in case number 99-177 are without merit as he lacks standing to challenge the scoresheet computation where these offenses did not occur in the Heggs window and where the sentence imposed is not otherwise illegal. See Rosier v. State, 864 So.2d 1285, 1286 (Fla. 1st DCA 2004) (holding Criminal Punishment Code scoresheet errors are harmless where a sentence is not illegal if a sentence could be imposed under a correctly calculated scoresheet).

In the instant case, the record evidences the trial court’s use of a single scoresheet to score both cases 96-257 and 99-177. The use of a single scoresheet to score separate offenses is erroneous where the crimes took place under differing versions of the sentencing guidelines. See Profitt v. State, 789 So.2d 1194 (Fla. 4th DCA 2001); Fla. R.Crim. P. 3.703(d)(3). However, in order to make a facially sufficient Heggs claim challenging the trial court’s utilization of a single scoresheet to score separate offenses where the crimes took place under differing versions of the sentencing guidelines, an appellant must show that the sentence imposed under the unconstitutional 1995 sentencing guidelines constituted a departure sentence under the 1994 sentencing guidelines. Profitt, 789 So.2d at 1196.

In his motion, appellant asserts that under a 1994 scoresheet, scoring case number 96-257 alone, he would score out to between 26.45 and 43.75 months’ imprisonment. Thus, appellant asserts his current sentence of five years’ imprisonment in case number 96-257 amounts to a departure sentence under the 1994 sentencing guidelines. Although the trial court disagreed with appellant’s computation and asserts that appellant’s sentence fell within the guidelines of a 1994 scoresheet, the court failed to attach a corrected score-sheet or to state whether its reliance was placed on a combined or distinct score-sheet as required by rule 3.703(d)(3). See Tubman v. State, 815 So.2d 784 (Fla. 1st DCA 2002) (reversing where the trial court summarily denied the appellant’s Heggs claim based on its assertion that the appellant’s sentence did not constitute an upward departure from a corrected 1994 guidelines scoresheet but where the court failed to attach a corrected 1994 guidelines scoresheet supporting its determination).

Accordingly, we reverse and remand to the trial court with directions to either attach record excerpts conclusively refuting appellant’s entitlement to resentencing or to resentence appellant in lower tribunal case number 96-257.

REVERSED and REMANDED.

ALLEN, LEWIS and HAWKES, JJ., concur.


text:
    Maurice GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0750.
    District Court of Appeal of Florida, First District.
    April 7, 2006.
    Richard A. Parker, Public Defender, and Kevin S. Caldwell, Assistant Public Defender, Gainesville, for appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed, this appeal is hereby dismissed for lack of jurisdiction. See Broxson v. State, 782 So.2d 528 (Fla. 1st DCA 2001).

ERVIN, PADOVANO and HAWKES, JJ., concur.


text:
    Marica G. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3382.
    District Court of Appeal of Florida, First District.
    April 7, 2006.

      Ryan Thomas Truskoski, Orlando, for Appellant.
    Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Marica White, challenges the summary denial of grounds one through four of her motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We find summary denial of grounds one and two of the motion was improper. The remaining grounds were properly denied.

Following a second jury trial, Appellant was convicted of first-degree murder, robbery with a deadly weapon, and kidnaping with a weapon. In her first ground for relief, Appellant alleged trial counsel was ineffective for failing to assert her speedy trial rights. Because Appellant stated a facially sufficient claim, the trial court must hold an evidentiary hearing or attach portions of the record refuting the claim. See Burke v. State, 855 So.2d 207 (Fla. 1st DCA 2003).

In her second ground for relief Appellant alleged trial counsel was ineffective for failing to request an independent act jury instruction. The trial court did not attach portions of the record indicating Appellant would not be entitled to an independent act instruction. Thus, the record does not conclusively refute Appellant’s claim that her attorney should have requested an independent act instruction. See Fierstos v. State, 658 So.2d 1117 (Fla. 2d DCA 1995).

Accordingly, we reverse and remand the denial of grounds one and two of Appellant’s motion for the trial court to either hold an evidentiary hearing or attach-portions of the record conclusively refuting those claims. The denial of the remaining grounds of Appellant’s motion is affirmed.

AFFIRMED in part and REVERSED and REMANDED. .

ALLEN, LEWIS, and HAWKES, JJ., concur.


author: KAHN, C.J.

text:
    Christopher Nelson NICHOLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1758.
    District Court of Appeal of Florida, First District.
    April 11, 2006.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, C.J.

In this criminal case, we consider whether the undisputed facts presented by appellant’s motion to dismiss will support a conviction for “robbery by sudden snatching” as that offense is defined by section 812.131(1), Florida Statutes (2004). Because the appellant here did not take the property at issue from the victim’s person, we reverse this conviction.

The facts are set out in the motion filed by appellant pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). At the time and place in question, appellant “grabbed a purse from a shopping cart being pushed by Heidi Day, and ran.” Nothing indicates that the purse was either being held by the victim or was otherwise on her person. The victim became immediately aware of appellant’s actions as he took the purse from the shopping cart. No force against her, nor touching of her, occurred.

In 1999, the Legislature created the statutory offense of robbery by sudden snatching. The definition of that offense will ensnare any person guilty of “the taking of money or other property from the victim’s person, with intent to permanently or temporarily deprive the victim or the owner of the money or other property, when, in the course of the taking, the victim was or became aware of the taking.” § 812.131(1), Fla. Stat. (1999); see Ch. 99-175, § 1, at 969, Laws of Fla. The Legislature apparently established this offense in response to the Florida Supreme Court’s decision in Robinson v. State, 692 So.2d 883 (Fla.1997). By enacting the statute, the Legislature sought to make clear that, henceforth, the sudden snatching of property by no more force than is necessary to remove the property from a person who does not resist would amount to a species of robbery in Florida. See State v. Floyd, 872 So.2d 445, 446 (Fla. 2d DCA 2004); Brown v. State, 848 So.2d 361, 364 (Fla. 4th DCA 2003); Owens v. State, 787 So.2d 143, 143-44 n. 1 (Fla. 2d DCA 2001). See also Fla. H.R. Comm, on Jud., HB 425 (1999) Staff Analysis (Final June 23, 1999).

We cannot distinguish the present situation in any meaningful way from that in State v. Floyd. In Floyd, the defendant made off with a purse located on the driver’s seat of the victim’s car between the outside of the victim’s right leg and the center console of the car. 872 So.2d at 446. In addition, the victim tried to grab the back of Floyd’s pants as he made his getaway and, as a result, was dragged over onto the passenger’s side of the car. Id. The Second District reversed the conviction relying upon Brown v. State, 848 So.2d 361 (Fla. 4th DCA 2003). Both the Second and Fourth Districts noted that the sudden-snatching statute “pointedly” contains no reference to the victim’s “custody.” See Floyd, 872 So.2d at 446; Brown, 848 So.2d at 363-64. Accordingly, the Floyd court and the Brown court determined that “ ‘the clear import of the statute’s words is to require that the property be abruptly and unexpectedly plucked from the embrace of the person.’ ” Floyd, 872 So.2d at 446 (quoting Brown, 848 So.2d at 364).

The State argues that we should not follow Brown because, in the present case, the victim actually had control of the shopping cart. This argument, however, does not take into account the facts in Floyd, where the purse was directly on the victim’s car seat, between the victim’s leg and the center console. The statutory requirement of taking from the victim’s person needs no further construction. Of course, if appellant committed the offense as alleged, he would be guilty of theft. Nevertheless, he may not be convicted of robbery. The trial court should have granted the motion to dismiss.

REVERSED and REMANDED.

WOLF and BENTON, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Stephen KARLAN, Appellant, v. The FLORIDA INTERNATIONAL UNIVERSITY BOARD OF TRUSTEES, Appellee.
    No. 3D04-3073.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.

      Stephen Karlan, in proper person.
    Hinshaw <& Culbertson and Karen A. Brimmer, Miami, for appellee.
    Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ. .
   ROTHENBERG, Judge.

Stephen Karlan (“Karlan”) appeals his dismissal from Florida International University’s (“University”) master social work program upon receiving a failing grade in a field practicum course. We affirm.

Karlan was evaluated at the end of the course by his field instructor, Sandra Curtis. After receiving his failing grade and dismissal from the program, Karlan was granted two administrative appeals which resulted in affirmance of both the grade and his dismissal.

“On the question of determining whether a student has failed to meet the academic requirements of a school, there is a wide discretion permitted by school authorities, and courts will not interfere, unless the school authorities are shown to have acted in bad faith or exercised their discretion arbitrarily.” Militana v. Univ. of Miami, 236 So.2d 162, 164 (Fla. 3d DCA 1970).

Karlan argues that the University acted in bad faith, thus constituting a denial of due process. This argument is based upon Karlan’s claim that the dean of the School of Social Work and one of the members on the Student Review and Termination Committee were biased against him. There is, however, no record support for this claim, as all of the evidence Karlan relies upon is contained in Karlan’s supplemental record, which has been stricken by this court.

Our review of the record reflects that in evaluating Karlan’s performance, his field instructor indicated that Karlan “need[ed] improvement” in ten out of thirty-eight areas evaluated, and that the “comment” section of the evaluation noted that Karlan had difficulties with his staff and his clients at the agency where he did his field practicum; that he appeared not to recognize the need to improve his professional performance; and that his clients were dissatisfied with his performance and demeanor and did not wish to participate in additional therapy sessions with him. Thus, the record demonstrates that the University did not exercise its discretion arbitrarily by issuing Karlan a failing grade and dismissing him from its masters program.

Affirmed.


text:
    Luis G. MARTINEZ, Appellant, v. Silvia M. RODRIGUEZ, Appellee.
    Nos. 3D04-1560, 3D04-662.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.
    Manuel Vazquez, Coral Gables, and Nicole E. Mestre, for appellant.
    Bette E. Quiat; Jay M. Levy, Miami, for appellee.

      Before SUAREZ, CORTIÑAS; and ROTHENBERG, JJ.
   CORRECTED OPINION

ROTHENBERG, Judge.

Upon the court’s own motion, we withdraw our previously issued opinion, filed on March 15, 2006, and substitute the following opinion.

In this consolidated appeal, Luis G. Martinez (Father) appeals an order denying his motions (1) to vacate a final judgment on attorney’s fees and costs and (2) to vacate an order adopting the hearing officer’s recommendation recalculating child support. We affirm.

In 1999, a Final Judgment of Paternity was issued, setting forth child support obligations which were agreed upon by the Father and Silvia M. Rodriguez, the mother (Mother). In 2002, the Mother filed a petition for modification of child support and a motion for contempt, enforcement, and other relief, and the trial court referred the matter to a hearing officer. Based on the testimony and documents she reviewed, the hearing officer prepared a report recommending that the total minimum child support needed for the child was $1,453.00 per month and that the Father should be responsible for 81% of that amount, equaling $1,160.48. She found that the cost of attending private school was $600.00 per month, that this expense was a component of child support, and that the Father was also responsible for 81% of this expense, equaling $468.00, making the Father’s total child support obligation $1,646.48 a month. She found that the Father’s corporation made health insurance available to the Father and daughter at no cost to the Father, and that the Mother had incurred $18,450.00 in attorney’s fees and $5,157.18 in costs.

The trial court ratified and approved the hearing officer’s report in an order dated October 8, 2003, and on October 20, 2003, the Father filed his first motion to vacate. In the Father’s first motion to vacate, he argued that (1) the hearing officer erred by failing to credit the father for the support he was providing to his other child and his wife; (2) the hearing officer erred by failing to credit the Father for the medical insurance paid by him for the child; (3) the hearing officer lacked jurisdiction to award attorney’s fees; and (4) the amount attributed by the hearing officer for the cost of private school is unsupported by the evidence. On December 2, 2003, the trial court entered an order on the Father’s motion to vacate, which sustained the father’s objection to the hearing officer’s failure to credit the Father for the support that he provided to his other child, and remanded to the hearing officer to recalculate child support by deducting $457.00 per month from the Father’s gross income. The trial court denied the Father’s other objections.

Having denied the Father’s objection that the hearing officer lacked jurisdiction to award attorney’s fees, the trial court entered a “Final Judgment on Attorney’s Fees and Costs” on February 13, 2004.

On March 12, 2004, the Father filed a second motion to vacate, arguing as he did in his first motion to vacate, that the hearing officer lacked jurisdiction to hear the matter of attorney’s fees and costs absent his consent. On March 18, 2004, the trial court denied this motion, and this is the first order under appeal.

In accordance with the trial court’s remand, the hearing officer conducted a hearing and recalculated the Father’s support obligation, taking into consideration the support he was providing for another child, and on February 27, 2004, the hearing officer entered a report recommending that the Father pay $1,555.69 per month in child support. On March 2, 2004, the trial court ratified and approved the hearing officer’s report and entered an order regarding the Father’s support obligations.

Thereafter the Father filed another motion to vacate, which we will identify as his third motion to vacate. This motion is not contained in the record, but it is referred to by the trial court in its June 2, 2004 order denying the motion. The trial judge refers to this motion as a “Motion to Vacate ‘Order Upon Recommended Order of Hearing Officer Recalculating Father’s Child Support Obligation.’ ” The June 2, 2004 order denying this motion is the second order under appeal. The sole issue raised in this order is the constitutionality of Rule 12.491 of the Florida Family Law Rules of Procedure, which does not provide for a mechanism for a party to object to a referral to a hearing officer regarding child support matters.

In the brief filed by the Father in these two consolidated appeals, he raises four grounds. Only one of the issues argued in the brief, however, relates to the orders under appeal and therefore is the only issue properly before us. The four arguments raised in the Father’s brief are as follows:

I. THE TRIAL COURT ERRED IN FINDING THAT THE FATHER WAS RESPONSIBLE FOR 100% OF THE CHILD’S HEALTH INSURANCE COSTS WHERE FLORIDA STATUTES AND LAW DICTATE THAT THE COST MUST BE APPORTIONED BETWEEN THE PARENTS.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHERE IT MADE THE FATHER PAY FOR ADDITIONAL COSTS ASSOCIATED WITH ATTENDING PRIVATE SCHOOL AND DID NOT MAKE A WRITTEN FINDING CONSISTENT WITH FLA. STAT. § 61.30.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GIVE A WRITTEN EXPLANATION AS TO WHY THE FATHER’S CHILD SUPPORT OBLIGATION VARIED BY MORE THAN 5% FROM THE GUIDELINE AMOUNT.
IV. THE HEARING OFFICER DID NOT HAVE THE JURISDICTION TO AWARD ATTORNEY’S FEES WHERE THE FATHER DID NOT CONSENT TO HER DOING SO.

The first order under appeal is a final judgment on attorney’s fees and costs. We therefore conclude that the Father’s fourth argument, wherein he asserts that the hearing officer did not have jurisdiction to award fees and costs, is properly before us. The second order under appeal is the trial court’s June 2, 2004 order denying the Father’s second motion to vacate, entitled “Motion to Vacate ‘Order Upon Recommended Order of Hearing Officer Recalculating Father’s Child Support Obligation.’ ” In this order, the trial judge specifically notes that the Father was not challenging the findings of the hearing officer. What he was challenging was the constitutionality of Rule 12.491. As the order under review only involves the Father’s constitutional challenge to Rule 12.491, we conclude that arguments one through three of the Father’s brief, which do not relate to either of the orders under appeal, are not properly before this court. See Saye v. Pieschacon, 750 So.2d 759, 761 (Fla. 1st DCA 2000)(finding that an appellant was precluded from raising an issue on appeal regarding the denial of a motion for new trial because the notice of appeal, invoking the appellate court’s jurisdiction over the appeal, indicated only that appellant was appealing from the trial court’s order awarding attorney’s fees and costs, not the trial court’s order denying the motion for new trial); see also Cobb v. St. Joseph’s Hosp., Inc., 550 So.2d 1, 2 (Fla. 2d DCA 1989)(denying an untimely motion to amend a notice of appeal to add a reference to a summary judgment entered in favor of a second defendant when the original notice only referred to a separate summary judgment entered in favor of the other defendant, because the original notice of appeal was not sufficient to put the second defendant on notice that the summary judgment, against it was being appealed, explaining that “[t]he general test for sufficiency of a notice of appeal is whether the notice of appeal gives sufficient information to determine, with a reasonable degree of certainty, the order being appealed”). As the Father’s brief contains no argument regarding the constitutionality of Rule 12.491, we conclude that that issue has either been abandoned or waived. The sole issue properly before us is, therefore, whether the hearing officer had jurisdiction to award attorney’s fees and costs in this case.

The Father argues that the hearing officer erred in considering the issue of attorney’s fees and costs and the trial court erred in adopting the hearing officer’s recommendation in that regard, because he did not consent to the hearing officer’s consideration of the issue. While there is support for the Father’s position, see Ferencz v. Ferencz, 897 So.2d 558 (Fla. 2d DCA 2005); Oliveri v. Oliveri, 541 So.2d 174 (Fla. 4th DCA 1989), we need not decide that issue, as we conclude that the Father waived any objection to the hearing officer’s consideration of the matter by failing to object when it was addressed. Consent to a hearing officer deciding a specific matter need not be express, and the failure to timely object constitutes a waiver of the right to object to a referral which the hearing officer has already completed. Cox v. Cox, 490 So.2d 1051, 1052 (Fla. 4th DCA 1986). When the Mother’s counsel testified as to her fees at the hearing before the hearing officer, the Father did not object to the hearing officer’s jurisdiction to hear this issue. The father’s failure to object at the hearing constitutes a waiver, to which he may not now complain.

Accordingly, the orders on appeal in this case are affirmed.

Affirmed.


author: FLETCHER, Judge.

text:
    Thomas J. HARRINGTON, Appellant, v. Raquel MENDIETA a/k/a Raquel Mendietta Harrington, Appellee.
    No. 3D05-923.
    District Court of Appeal of Florida, Third District.
    April 12, 2006.

      Melvyn B. Frumkes and Christopher A. Tiso; Estelle Gruber Fin-long, Miami, for appellant.
    Marks & West; Greene Smith McMillan and Cynthia Greene, Miami, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   FLETCHER, Judge.

In this dissolution of marriage action, the former husband, Thomas J. Harrington, appeals from a final judgment which denied his claim for equitable distribution of certain artwork inherited by Raquel Mendieta, the former wife, during the marriage. We affirm.

The former wife’s sister, Ana Mendieta, an artist who died tragically in 1985, left behind artwork valued at approximately $175,000. The artwork was initially inherited by their mother, but when she passed away in 1989, it became the property of the former wife and her brother. At the time of these proceedings, the subject artwork had increased in value to over $4,000,000. The husband claims that the increase resulted from the wife’s marital efforts, thereby making the enhanced value marital property subject to equitable distribution. After listening to the testimony of both parties and several art experts, however, the trial court determined the appreciated value of the artwork was due to other factors. In considering factual issues resolved by the trial court, an appellate court must construe the evidence in a light most favorable to the prevailing party. Shudlick v. Shudlick, 618 So.2d 740 (Fla. 4th DCA 1993). Here, there was more than sufficient competent evidence to support the trial court’s conclusion that the enhanced value of the artwork was not marital property.

Accordingly, we affirm the judgment below.

      . We also affirm the trial court’s denial of the former husband’s request for attorney's fees, suit monies and costs.


author: GRIFFIN, J.

text:
    A.M.P., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1286.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2006.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

A.M.P., a juvenile, appeals an adjudication of delinquency based, in part, on her conviction of the offense of disruption of an educational institution. She appeals a $500 fine orally imposed at sentencing, but not made part of the written judgment and sentence, and she challenges an award of attorney’s fees and the imposition of restitution included in the written judgment and sentence, but not orally pronounced at sentencing.

On February 25, 2004, A.M.P. got into a fight with another student in a bathroom at Winter Park High School. An assistant principal at the school broke up the fight, and A.M.P. intentionally bumped the principal with her shoulder. Based on this incident, A.M.P. was charged with battery on a school employee, disorderly conduct, and disruption of an educational institution.

At the adjudicatory hearing, the assistant principal involved in the incident testified that on the day in question, she was engaged in hall supervision. of class changes. She learned of a fight between two girls in the girls’ restroom directly across the hall from her station. The assistant principal walked into the bathroom, where she found both girls with their hands locked in each other’s hair. She asked them several times to separate, which they finally did. A.M.P.-was angry because she did not want to b.e at school and had problems with some of the other students, and as she walked toward the assistant principal she lightly but purposefully bumped into her with her shoulder and/or arm. The assistant principal could not recall the exact time that this incident occurred, other than to say it happened in the morning. She said it “might have been right before school had actually started,” but she really did not know. When asked how much of her day was used to deal with the situation, the assistant principal responded:

Probably a couple of hours in getting students’ statements, contacting parents. But it wasn’t a disruption to the regular school day in that students were in class and going to their classes as they should have been. As far as my time, it was a couple of hours. But it wasn’t a classroom disruption to the rest of the school.

At the close of the evidence, ■A.M.P. moved for a judgment of acquittal on the charge of disruption of an educational institution. The State argued that the evidence was sufficient to prove a prima facie case because school personnel had had to use their time to deal with the situation. Counsel stated:-

' [t]he fact that they had to break up this fight and they had to engage in their time and basically divert all their attention to the defendant’s conduct is certainly a disruption in the educational institution, because if you didn’t fight, they would be going about their ordinary course of business to be administering the school.

The court denied the motion for a judgment of acquittal.

At disposition, the court withheld an adjudication of guilt and placed A.M.P. on six months of parental probation. Over objection, the court also imposed a $500 fine, but did not state the statutory authority for the imposition of the fine. The court explained that:

the fact that she went to trial cost the taxpayers in this community a greater amount. And I like to have — fines have some relationship to the impact on the community.

The court ordered her to pay this fine at the rate of $50 per month.

A written order was entered the following day. Consistent with its oral pronouncement, the court imposed an “ADDITIONAL COURT FINE OF $500.” Also, although not discussed at the disposition hearing, the order required A.M.P. to “[rjepay Orange County for attorney’s fees in the amount of $287.50.” Finally, among other charges, the order required payment of restitution, but did not specify an amount. With respect to each count, the order stated:

Restitution is hereby reserved CHILD TO PAY AT A RATE OF $50 PER MONTH UNTIL PAID IN FULL. JURISDICTION FOR RESTITUTION IS EXTENDED UNTIL PAID IN FULL.

After the notice of appeal was filed, A.M.P. moved the trial court under Florida Rule of Juvenile Procedure 8.135(b)(2) to remove the charge for attorney’s fees and for restitution from the order of disposition, on the basis that neither charge had been orally pronounced in court. The trial court summarily denied the motion.

This case involves the interpretation of section 877.13, Florida Statutes, which provides:

(1) It is unlawful for any person:
(a) knowingly to disrupt or interfere with the lawful administration or functions of any educational institution, school board, or activity on school board property in this state.

Id. A number of courts, including this court, have recognized that this “statute seeks to prohibit acts which are ‘specifically and intentionally designed to stop or temporarily impede the progress of any normal school function or activity occurring on the school’s property.’ ” T.J. v. State, 867 So.2d 1238 (Fla. 5th DCA 2004), quoting M.C. v. State, 695 So.2d 477, 483 (Fla. 3d DCA 1997). A broad interpretation of the statute would turn virtually every infraction of school rules into a criminal act to the extent that the infraction occurred on school grounds, during school hours, and required the attention of school officials.

The statute’s requirement that one must “knowingly” disrupt the functioning of an educational institution suggests that the prohibited conduct requires some sort of purposeful interference with school activities. See, e.g., S.W.W. v. State, 833 So.2d 877 (Fla. 3d DCA 2003) (reversing a conviction under statute because record did not support a finding that the juvenile acted “with the intention that his behavior impede the successful functioning” of the school or that he acted “with reckless disregard of the effect of his behavior”; court did not describe behavior on which charges were based); T.H. v. State, 797 So.2d 1291 (Fla. 4th DCA 2001) (juvenile could not be convicted of knowingly disrupting functioning of educational institution, where motive for fight was jealousy over girl). A conviction also appears to require ongoing school activities of some kind. T.H., supra (juvenile could not be convicted of knowingly disrupting functioning of educational institution, where fight occurred before school hours and no school activity or function was taking place at location of fight). This interpretation would be consistent with the notion that criminal statutes are to be strictly construed in favor of an accused. § 775.021, Fla. Stat. (2003). Here, there was no evidence offered of any intent to disrupt and no evidence that the function of the institution was disrupted. We vacate the conviction on this offense.

At the disposition hearing, the judge imposed a $500 fine on A.M.P. without specifying the basis on which the fíne was being imposed. Defense counsel objected, stating, “We’d object to the fine at this point. We’d argue to the Court that she’s indigent, sir.” The court overruled her objection, and imposed the fine in its written disposition order. The written order also failed to state the statutory basis for the award.

On appeal, A.M.P. correctly urges that the trial court has no power to impose a fine on a juvenile in a delinquency proceeding because imposition of a fine is not included within the powers of disposition given to the trial court in a delinquency proceeding. § 985.231, Fla. Stat. (2003); J.S. v. State, 920 So.2d 752 (Fla. 5th DCA 2006). Furthermore, an adjudication of delinquency does not qualify as a “conviction” for the purposes of section 775.083, which allows the imposition of varying fines for the. conviction of varying degrees of criminal offenses. See J.S., supra; State v. N.P., 913 So.2d 1 (Fla. 2d DCA 2005) (finding of delinquency was not “conviction,” for purpose of statute requiring imposition of fine for criminal mischief conviction). Nonetheless, as is argued by the State, the issue is not cognizable on appeal because of the failure to preserve the error. It could have been considered on direct appeal if it had been first presented to the trial court, pursuant to Florida Rule of Appellate Procedure 9.140(e), but it was not. Accordingly, we affirm.

A.M.P. also objects to the final order insofar as it directs her to pay restitution at the rate of $50 per month until paid in full. This is one of the powers of disposition afforded to the court. See § 985.231, Florida Statutes (2003) (court may order child to make restitution in money or in kind). Here, however, the State never identified any damages requiring restitution and no evidence on this issue was presented at the hearing. In fact, the issue was never discussed. The imposition of restitution must be stricken. See S.I. v. State, 784 So.2d 1208 (Fla. 2d DCA 2001); Reyes v. State, 655 So.2d 111, 116 (Fla. 2d DCA 1995) (en banc).

Finally, A.M.P. complains about that portion of the final judgment which required her to “[rjepay Orange County for attorney’s fees in the amount of $287.50.” The State concedes that the award should be stricken because the State failed to give A.M.P. notice of its intent to impose fees and an opportunity to object to the amount. D.B. v. State, 761 So.2d 1130 (Fla. 4th DCA 1998); J.B. v. State, 733 So.2d 1134 (Fla. 4th DCA 1999). However, this is done without prejudice to the State to seek reimposition upon proper notice. D.B, supra; J.B., supra.

AFFIRMED in part, REVERSED in part and REMANDED.

THOMPSON and MONACO, JJ„ concur.


text:
    A.F.L., JR., Father of B.P., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D05-2372.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2006.

      Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
    Barry W. Hepner, Orlando, Guardian Ad Litem.
   PER CURIAM.

Appellant, A.F.L., Jr. [“A.F.L.”], appeals an order denying his Acknowledgement of Paternity, Action to Establish Parental Rights, and Objection to Adoption Proceeding. We affirm.

This case began as a juvenile dependency action against E.P. [“mother”] and S.P. [“legal father”] concerning two children. However, only the parental rights to B.P. [“the child”] are at issue in this appeal. At the time of the child’s birth, the mother and legal father were married. The birth certificate for the child lists her mother and legal father as the child’s parents. Mother testified that, “[t]he summer that I got pregnant with [the child], [legal father] and I had been separated for eight months. And he had just come back in August. And [A.F.L.] and I had been seeing each other for the summer that my husband was gone. So right up until the day that I decided to let my husband back, [A.F.L.] and I were together.”

In August 2004, the Department of Children and Families [“DCF”] petitioned to terminate the parental rights of mother and legal father in anticipation of adoption by maternal grandmother. In the same month, A.F.L. learned he might be the child’s biological father. Mother and legal father consented to termination, with their rights terminating on November 8, 2004. A.F.L. did .not attempt to intervene in these proceedings until December 8, 2004, when he appeared at a judicial review hearing and claimed to be the child’s father. Mother conceded that legal father was not the child’s biological father and a paternity test was ordered. Prior to April 1, 2005, DCF requested a search of the Putative Father Registry and filed its certificate on April 12, 2005, that no one was registered. On April 4, 2005, DCF reported that the paternity test results showed that A.F.L. was the biological father. On April 18, 2005, the Putative Father Registry acknowledged receipt of A.F.L.’s claim of paternity.

On May 6, 2005, A.F.L. filed his motion in the action below, seeking to establish his parental rights and objecting to the pending adoption. The trial court denied A.F.L.’s claims on June 20, 2005. The lower court ruled, inter alia, that A.F.L. failed to register before DCF completed its search of the Putative Father Registry and that his tardy registration was ineffective to preserve his claim. We affirm.

The Putative Father Registry became effective on May 30, 2003. See Amendments to Florida Supreme Court Approved Family Law Forms, 870 So.2d 791, 792 (Fla.2004). The purpose behind the registry is set out under section 63.053. That section provides:

(1) In enacting the provisions contained in this chapter, the Legislature prescribes the conditions for determining whether an unmarried biological father’s actions are sufficiently prompt and substantial so as to require protection of a constitutional right. If an unmarried biological father fails to take the actions that are available to him to establish a relationship with his child, his parental interest may be lost entirely, or greatly diminished, by his failure to timely comply with the available legal steps to substantiate a parental interest.
(2) The Legislature finds that the interests of the state, the mother, the child, and the adoptive parents described in this chapter outweigh the interest of an unmarried biological father who does not take action in a timely manner to establish and demonstrate a relationship with his child in accordance with the requirements of this chapter. An unmarried biological father has the primary responsibility to protect his rights and is presumed to know that his child may be adopted without his consent unless he complies with the provisions of this chapter and demonstrates a prompt and full commitment to his parental responsibilities.

(emphasis added).

So far, the only Florida appellate case to mention the Putative Father Registry is J.S. v. S.A., 912 So.2d 650 (Fla. 4th DCA 2005). There, the appeal arose from termination of the parental rights of birth parents pending adoption of their minor child by the appellees. Mother, a 16-year-old, became pregnant and had a son. The mother claimed the biological father could be one of three men, including J.S. J.S. expressed an interest and wanted to know if the child was his.

A few months after her son was born, V.B. decided to give her son up for adoption and signed a waiver relinquishing her parental rights. Six months passed before J.S. finally acknowledged his paternity by registering with the Florida Putative Father Registry. Another two months passed before he filed an action to establish paternity and obtain custody. By. this time, the boy was almost a year old and had been in the prospective adoptive couple’s home for over eight months.

The trial judge found that J.S.’s “fight for his son ‘comes too late,’ ” explaining that J.S. failed to demonstrate “a prompt and full commitment to his parental responsibilities” by allowing nine months to elapse between the time the child was born and the time he asserted his claim of paternity. 912 So.2d at 660. In reaching its decision, the Fourth District looked to the legislative intent of Chapter 63:

Allowing a father to ‘sit on his right’ or remain on the fence indefinitely would undermine the state’s ‘compelling interest in providing stable and permanent homes for adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and in holding parents accountable for meeting the needs of the children.’ See § 63.022(l)(a).

912 So.2d at 661-62. The Fourth District concluded that there was clear and convincing .evidence that the father failed to exercise reasonable diligence and firmness in establishing his paternity and that his actions fell short of showing a settled purpose to assume parental responsibilities for the child. The case before us presents an even more severe case of delay, equivocation and lack of acceptance of the responsibilities of parenthood.

The trial court also relied on Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). In Lehr, the court noted that where an unwed father demonstrates full commitment to responsibilities of parenthood by coming forward to participate in rearing his child, his interest in personal contact with his child acquires substantial protection under the due process clause, but the mere existence of a biological link does not merit equivalent protection. 463 U.S. at 261, 103 S.Ct. 2985.

Here, the evidence shows that A.F.L. never established a relationship with the child or financially supported her, even after he learned he was her biological father. A.F.L. learned in August 2004 that he might be the child’s father, but he failed to act until nine months later, long after termination of mother and legal father’s rights. The trial court did not err in concluding that A.F.L. did not timely demonstrate a settled commitment to the responsibilities of parenthood. A.F.L. also complains that the trial court failed to make a “best interests of the child” inquiry, but the record does not support him for reasons it would serve no purpose to detail here.

A.F.L. also suggests that, because DCF failed to search the registry before terminating parental rights, DCF is “estopped from going back in time in an effort to cure this defect.” A.F.L.’s argument lacks merit. The focus of the statute is preservation of the father’s rights, not DCF’s. Either the father timely registered, in which case his rights are preserved, or he did not, in which case his rights are not preserved. If DCF had searched the registry, A.F.L.’s name would not have appeared.

A.F.L.’s additional argument that DCF had actual notice of his paternity also fails based on Lehr. In Lehr, the failure to give a putative father notice of pending adoption proceedings did not deny him due process even though the state had actual notice of his existence where the putative father failed to register. A.F.L. should have known the possibility existed that he was a father at the time mother was pregnant, and mother conceded that A.F.L. was most likely the father in August 2004. When DCF later learned of A.F.L.’s existence, it conducted a search of the Putative Father Registry, but A.F.L. still had not registered. A.F.L. failed to do what was necessary to preserve any claim as a parent of the child.

AFFIRMED.

GRIFFIN, THOMPSON and MONACO, JJ., concur.

      . The maternal grandmother has had custody of the child since May 2002, when he was one year old. She also has had custody of the child's brother since 2003. She previously raised B.P.'s first child, who is now an adult. The maternal grandmother plans to adopt the child.

      . A.F.L. also claims he is entitled to relief because of mother's "fraud” in failing to reveal her suspicion about the child's paternity. DCF correctly asserts that this argument has not been preserved for appeal and, in any event, lacks legal or factual merit.


text:
    T.G. and W.G., Parents of T.W., T.G., T.G., T.G., T.G., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D05-5067.
    District Court of Appeal of Florida, First District.
    April 18, 2006.

      Patricia L. Parker of Parker & Du-fresne, P.A., Jacksonville, for Appellants.
    David F. Elder, Assistant General Counsel, Department of Children and Families, Jacksonville, for Appellee.
   KAHN, C.J.

Appellants challenge the circuit court’s adjudications of dependency of their five children. “A court’s final ruling of dependency 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.” In re M.F., 770 So.2d 1189, 1192 (Fla.2000). As we find the orders adjudicating the children dependent are not supported by competent substantial evidence, we reverse.

The government’s removal of a child from the parents should be a method of last resort. See § 39.001(l)(a)-(b), Fla. Stat. (2005); M.F., 770 So.2d at 1192 (“The severing of the parent-child bond — even temporarily — is a refuge of last resort for the child.”). The trial judge made numerous factual findings in his orders. When viewed in the totality of the circumstances, however, these findings fall well short of what the courts of this state consider sufficient to support a dependency adjudication. We consider each factor in turn.

The circuit judge initially relied upon a single instance of corporal discipline meted out by the mother to one of the five children. The language of the Florida Juvenile Justice Act makes clear that corporal discipline, by itself, does not constitute abuse:

Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.

§ 39.01(2), Fla. Stat. (2005); see M.F., 770 So.2d at 1192 (explaining purposes of Florida Juvenile Justice Act); A.A. v. Dep’t of Children & Families, 908 So.2d 585, 587 (Fla. 5th DCA 2005) (“Long ago, the Florida courts recognized the common law principle, which remains with us to the present day, that parents may administer corporal discipline to their children; provided, however, that the discipline is reasonable.”). To constitute abuse, corporal discipline must be “inappropriate or excessively harsh” and likely to result in physical, mental, or emotional injury. § 39.01(30)(a)4., Fla. Stat. (2005). Although corporal discipline may be considered excessive when it results in “[significant bruises or welts,” see section 39.01(30)(a)4.k., the courts of this state have consistently found that bruises are not necessarily indicative of excessive corporal discipline. Compare S.L. v. Dep’t of Children & Families, 787 So.2d 973, 974 (Fla. 5th DCA 2001) (“Most corporal punishment, even that which is not excessive, produces temporary marks of some kind.”) and J.C. v. Dep’t of Children & Families, 773 So.2d 1220 (Fla. 4th DCA 2000) (finding father’s routine spanking of his oldest child with a belt, which on one occasion caused a bruise on the child’s buttocks, did not qualify as excessive corporal discipline because the bruises were insignificant, did not constitute temporary disfigurement, and did not put the child at risk of imminent abuse or cause the child to suffer significant mental impairment), and In re W.P., 534 So.2d 905 (Fla. 2d DCA 1988) (finding evidence that father slapped his child on the face and left a mark insufficient to support a finding of dependency because the mark did not require medical attention), with O.S. v. Dep’t of Children & Families, 821 So.2d 1145, 1148 (Fla. 4th DCA 2002) (finding mother’s paddling of daughter excessive as it left bruises over majority of daughter’s buttocks, legs, and neck, some of the bruises persisted for more than six weeks, and evidence of daughter’s self-mutilation showed mental injury resulted from abuse).

Here, although evidence indicated the child had a bruise, the Department produced no evidence that the bruise required medical attention. Nor is there evidence that the bruise was significant. The circuit court does not explain how this instance of corporal discipline was “excessively harsh” nor does it suggest the child’s physical, mental, or emotional health was significantly impaired. Furthermore, if this one instance did rise to the level of abuse, one act of abuse on a child is not sufficient evidence showing that appellants’ other children were at substantial risk of imminent abuse. See M.F., 770 So.2d at 1193-94; V.S. v. Dep’t of Children & Families, 820 So.2d 1077 (Fla. 1st DCA 2002). Considering this allegation of abuse in a light most favorable to the Department, we do not find sufficient evidence. We decline to indulge a presumption that the discipline that caused the bruise, if it did indeed cause the bruise, exceeded proper corporal discipline and entered the realm of abuse.

The circuit court next cited the father’s past drug use. Harm to a child’s health can occur when any person “[ejxposes a child to a controlled substance or alcohol.” § 39.01(30)(g), Fla. Stat. (2005). A parent’s use of controlled substances is harmful to a child if it is “chronic and severe” and the child is “demonstrably adversely affected” by the use. § 39.01(30)(g)2., Fla. Stat. (2005); see P.C. v. Dep’t of Children & Family Servs., 898 So.2d 195, 198 (Fla. 2d DCA 2005) (finding evidence of cocaine use did not rise to the level required by section 39.01(30)(g)2., to justify a finding of dependency); B.C. v. Dep’t of Children & Families, 846 So.2d 1273, 1275 (Fla. 4th DCA 2003) (concluding father’s alcohol and drug addictions did not support dependency adjudication where evidence failed to show child suffered adverse consequences); see also J.B.M. v. Dep’t of Children & Families, 870 So.2d 946, 951 (Fla. 1st DCA 2004) (requiring evidence that a parent’s addiction to alcohol or drugs actually affects the parent’s ability to care for the child in order to sustain a finding of dependency); C.C. v. Dep’t of Children & Family Servs., 812 So.2d 520, 523 (Fla. 1st DCA 2002) (finding substance abuse alone does not establish prospective neglect).

Here, the Department and the trial judge made much of the father’s prior, limited drug use. The father failed one drug test in 2004. No evidence indicates the father was addicted to either cocaine or marijuana. Moreover, no evidence shows that any of the children were harmed as a result of the father’s past drug use. In fact, the father admitted smoking a marijuana cigarette — which led to his failed drug test — at a party outside of the family home. Accordingly, the lone positive drug test of the father does not constitute competent substantial evidence to support a finding of dependency.

Next, the circuit court, in support of its dependency adjudications, considered the family’s prior Voluntary Protective Services Agreement (‘VPS”) with the Department. In 2004, the family rushed one its children to the hospital after the child consumed part of a drink containing alcohol. The Department investigated the alcohol exposure. Apparently, the father left a juice and alcohol drink unattended for a moment and the child drank from it. The Department does not allege, nor is there any reason to believe, the father gave the young child the alcohol purposely. See § 39.01(30)(a)2., Fla. Stat. (2005) (requiring the giving of alcohol to a child be purposeful in order for such conduct to be considered harmful to the child). The evidence simply suggests the father was having a drink, left the drink for a moment, and the drink was consumed by the child without the father’s knowledge. Although this episode may reflect upon the father’s carelessness at that particular moment, it does not impute any harmful intent on the father. The Department discharged the VPS in March 2005.

The circuit court listed other factors that led to its adjudications of dependency. Most of these factors come directly from the Department’s petitions. No evidence, however, appears to establish any substance behind these additional allegations.

The State of Florida does not demand perfection from its families. Instead, the State demands that children be protected from abuse and from the substantial risk of imminent abuse. See § 39.001, Fla. Stat. (2005) (listing purposes of chapter 39). The totality of the circumstances presented in the current proceeding fails to provide competent substantial evidence to support the adjudications of dependency. The evidence fails to establish that the one instance of corporal discipline constituted abuse. Likewise, the evidence does not support a finding that the father is addicted to controlled substances or that his previous use affected the children. The prior VPS resulted from an accident and was discharged by the Department. When viewed from the totality of the eir-eumstances, the circuit court’s findings are insufficient to support the dependency adjudications and subsequent removal of the five children from their parents. Accordingly, we REVERSE the adjudications of dependency.

LEWIS and POLSTON, JJ., concur.


text:
    Wesley Lance PEEPLES, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3297.
    District Court of Appeal of Florida, Fifth District.
    April 18, 2006.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Daniel W. CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3315.
    District Court of Appeal of Florida, Fifth District.
    April 18, 2006.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., SAWAYA and LAWSON, JJ., concur.


text:
    Carole Jean ROBISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2926.
    District Court of Appeal of Florida, Fifth District.
    April 18, 2006.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).

THOMPSON, MONACO and LAWSON, JJ., concur.


text:
    Gregory COTHRON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-492.
    District Court of Appeal of Florida, Fifth District.
    April 18, 2006.
    Gregory A. Cothron, Clermont, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Neal v. State, 915 So.2d 746 (Fla. 5th DCA 2005).

SHARP, W., ORFINGER and LAWSON, JJ., concur.


text:
    Robert Lee WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3899.
    District Court of Appeal of Florida, Fifth District.
    April 18, 2006.
    Robert L. White, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Blanchard v. State, 909 So.2d 352 (Fla. 5th DCA), review denied, 918 So.2d 291 (Fla.2005).

MONACO, TORPY and LAWSON, JJ., concur.