text:
    Allen L. PENOYER, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D06-3914, 2D06-4246.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2006.
    Rehearing Denied Jan. 4, 2007.
   PER CURIAM.

Allen L. Penoyer appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and the denial on a different date of his pro se motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a).

In his sworn rule 3.850 motion, which was filed in 2005, Mr. Penoyer sought relief from a judgment and sentence of life imprisonment imposed in 1976. He alleged that Judge Crockett Farnell was the prosecutor at his trial. Nevertheless, the motion was assigned to Judge Farnell, who dismissed this rule 3.850 motion without any mention of this allegation. Thereafter, Judge Farnell denied on a different date Mr. Penoyer’s subsequently filed rule 3.800(a) motion.

Mr. Penoyer filed separate timely motions for rehearing of these orders, asserting in each one that Judge Farnell had a conflict of interest because he had previously prosecuted Mr. Penoyer and that Judge Farnell’s ruling on the motions violated due process. The motions for rehearing were then denied on different dates by Judge Farnell’s wife, Judge Dee Anna Farnell.

Florida Code of Judicial Conduct, Canon 3(E)(1) provides:

A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(b) the judge served as a lawyer ... in the matter in' controversy....

Mr. Penoyer’s motion is obviously filed beyond the normal two-year period for such motions, and this court has reviewed numerous postconviction appeals from Mr. Penoyer. Thus, his motion may face serious obstacles. Nevertheless, Judge Crockett Farnell should not have considered either of Mr. Penoyer’s motions if he was Mr. Penoyer’s prosecutor in 1976. See Maharaj v. State, 684 So.2d 726, 728 (Fla.1996).

We would comment that this situation is not comparable to an initial motion to disqualify a judge, which the judge cannot refute with factual information. See, e.g., Livingston v. State, 441 So.2d 1088, 1086 (Fla.1983) (stating that a judge confronted with an initial motion to disqualify “may only determine whether the motion is legally sufficient and is not allowed to pass on the truth of the allegations”). If the trial court records contain documents establishing that the case was handled by another prosecutor, the postconviction court should be permitted to attach those documents to refute the allegations.

Accordingly, we reverse the dismissal of Mr. Penoyer’s rule 3.850 motion and the denial of his rule 3.800(a) motion. On remand, unless the court attaches records conclusively refuting the allegations that Judge Crockett Farnell was the prosecutor, a circuit court judge other than Judge Crockett Farnell or Judge Dee Anna Far-nell should be assigned to consider the motion.

Reversed and remanded.

ALTENBERND, CASANUEVA, and STRINGER, JJ., Concur.

      . To raise a recusal issue, a parly is normally required to file a motion to disqualify a judge under Florida Rule of Judicial Administration 2.160. However, we conclude that in this unusual context, where the allegation has already been made under oath by the defendant in his postconviction motion, the issue can be raised by filing a motion for rehearing.

      . See Penoyer v. State, 848 So.2d 321 (Fla. 2d DCA 2003); Penoyer v. State, 696 So.2d 361 (Fla. 2d DCA 1997); Penoyer v. State, 613 So.2d 28 (Fla. 2d DCA 1992); Penoyer v. State, 494 So.2d 236 (Fla. 2d DCA 1986); Penoyer v. State, 485 So.2d 7 (Fla. 2d DCA 1986); see also Penoyer v. Crosby, 845 So.2d 198 (Fla. 2d DCA 2003); Penoyer v. Circuit Court, Sixth Judicial Circuit, 605 So.2d 80 (Fla. 2d DCA 1992); Penoyer v. Circuit Court for Sixth Judicial Circuit, Pinellas County, 491 So.2d 561 (Fla. 2d DCA 1986); Penoyer v. Circuit Court of Sixth Judicial Circuit, Pinellas County, 482 So.2d 354 (Fla. 2d DCA 1985).


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Kenneth W. MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3191.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2006.
   LaROSE, Judge.

Kenneth W. Mathis appeals the summary denial of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.

On June 26, 2004, Mr. Mathis was arrested for child abuse in case number 04-02766-CFAWS-4. The trial court released him on bond, but when Mr. Mathis failed to appear on April 11, 2005, he was rearrested on April 13, 2005. The State charged him, in case number 05-02794-CFAWS-4, with failure to appear.

Mr. Mathis claims entitlement to jail credit in the failure to appear case for time spent in county jail from April 28, 2005, to August 9, 2005. Mr. Mathis attached to his rule 3.800(a) motion a county complaint affidavit reflecting that he was arrested on April 28, 2005, for failure to appear. The county complaint affidavit, however, refers to case number 04-02766-CFAWS-4, the child abuse case.

The postconviction court concluded that Mr. Mathis was not incarcerated in case number 05-02794-CFAWS-4 until June 14, 2005. The postconviction court attached to its order another county complaint affidavit reflecting that Mr. Mathis was arrested on a Pasco County warrant in' case number 05-02794-CFAWS-4 on June 14, 2005. This affidavit, too, described the charge as a failure to appear.

Both Mr. Mathis and the postconviction court attached county complaint affidavits referring to the failure to appear charge; each, however, refers to a different case number and shows a different arrest date. Thus, an unresolved factual dispute remains concerning Mr. Mathis’ date of arrest for the failure to appear charge.

Although Mr. Mathis sought relief under rule 3.800(a), jail credit issues involving disputed issues of fact can only be resolved pursuant to rule 3.850. See Fla. R.Crim. P. 3.850; Clifton v. State, 905 So.2d 1042, 1044 (Fla. 2d DCA 2005). Mr. Mathis’ timely filed, sworn motion is facially sufficient under rule 3.850. Accordingly, we reverse and remand for reconsideration by the postconviction court. On remand, the postconviction court shall review the claim pursuant to rule 3.850.

Reversed and remanded.

ALTENBERND and CASANUEVA, JJ., concur.


author: DAVIS, Judge.

text:
    John J. JERUE, Appellant, v. T. Candace HOLLADAY, A.S.I.D., and T. Candace Holladay Interiors, Inc., d/b/a Nettle Creek, Appellees.
    No. 2D05-367.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2006.

      Debra J. Sutton and Sara-Jean Palmer of Sutton Law Firm, Bartow, for Appellant.
    Monterey Campbell, Mark N. Miller, and Kristie Hatcher-Bolin of GrayRobin-son, Lakeland, for Appellees.
   DAVIS, Judge.

John J. Jerue challenges the trial court’s denial of his motion for rehearing and for relief from the final judgment entered in favor of T. Candace Holladay, A.S.I.D., and T. Candace Holladay Interiors, Inc., d/b/a Nettle Creek (collectively “Holla-day”). Jerue contracted with Holladay to provide interior design services for an upscale residence that Jerue was constructing. After the residence was completely constructed and decorated, Jerue filed a complaint against Holladay in which he alleged, among other things, that Holladay had marked up the cost of certain decorator items purchased for the Jerue home and had overcharged Jerue in sixty-eight separate invoices. According to Jerue, these surcharges amounted to breach of contract. Accordingly, the complaint alleged counts for breach of contract, fraud, conversion, civil theft, and unfair and deceptive trade practices and sought an accounting against each of the parties.

Based on the terms of the contract, Hol-laday moved to stay the proceedings and to require that the issues be submitted to arbitration. The trial court granted Holla-day’s motion, and Jerue subsequently filed a separate civil action alleging fraud in the inducement and asking for rescission of the arbitration agreement. The trial court also referred this action to arbitration.

With regard to Jerue’s claims as to the sixty-eight invoices, the arbitrator determined that because those claims were beyond the scope of the arbitration agreement, he lacked jurisdiction to consider them. However, the arbitrator’s order stated that “all claims and counterclaims, not expressly decided herein[,] are hereby denied without prejudice to consideration of same in the proper forum.”

In response to the arbitrator’s order, Jerue filed a third separate complaint (2003-CA-4504), again raising the same issues contemplated by the original complaint. Holladay initially moved to dismiss this new action, alleging that the arbitrator referred the issues of the prior action back to the trial court and that the prior case was the proper forum to resolve the issues. Before obtaining a ruling on that motion, Holladay moved to dismiss the new action for failure to state a cause of action in that the arbitrator already had decided the issues rendered in the prior case. In the alternative, Holladay asked that the trial court either modify or vacate that portion of the arbitrator’s report that found he lacked jurisdiction to consider the issues related to the sixty-eight purchase invoices. Finally, the motion requested that the new case be consolidated with the pri- or case. The trial court granted the motion to consolidate.

After a hearing that counsel for Jerue failed to attend due to.a scheduling,error, the trial court precluded further review of the issues by granting Holladay’s motion to dismiss with prejudice the consolidated cases and entering a final judgment. The trial court concluded that the arbitrator was in error in determining that he did not have jurisdiction to consider the issues related to the purchase invoices and that since Jerue did not ask the trial court to modify or vacate that ruling within the time allowed by law, the arbitrator’s erroneous ruling was final and the trial court was divested of jurisdiction to consider the issues. Jerue’s counsel sought relief from the judgment pursuant to Florida Rule of Civil Procedure 1.540(b) on the basis that the trial court entered judgment against Jerue in Jerue’s counsel’s absence, which had been due to a scheduling mistake. He also moved for rehearing on the dismissal. The trial- court denied these motions, and Jerue appealed.

Rule 1.540(b)(1) provides that a court may grant relief from a final judgment upon a showing of excusable neglect and a demonstration that a meritorious defense could have been asserted. DiSarrio v. Mills, 711 So.2d 1355 (Fla. 2d DCA 1998). Motions for relief from judgment should be liberally granted once a proper showing is made. Fla. Aviation Acad., Dewkat Aviation, Inc. v. Charter Air Ctr., Inc., 449 So.2d 350 (Fla. 1st DCA 1984). However, it is in the trial court’s discretion as to whether to grant such relief. Kroner v. Singer Asset Fin. Co., 814 So.2d 454 (Fla. 4th DCA 2001). A trial court abuses that discretion by denying such relief when proper grounds are demonstrated. Walker v. Franklin, 669 So.2d 1088 (Fla. 4th DCA 1996). In reviewing the decision of the trial court, the appellate court must apply a “reasonableness” test. Tenny v. Allen, 858 So.2d 1192, 1195 (Fla. 5th DCA 2003).

We conclude that the trial court here abused its discretion in denying Jer-ue’s motion for relief from judgment. First, the trial judge was aware of counsel’s scheduling error prior to the time of the hearing. Upon entering the hearing, the trial judge advised Holladay’s counsel that Jerue’s office had notified the court that counsel would be unable to attend due to a scheduling error made by his secretary. However, the hearing proceeded without the presence of Jerue’s counsel. Secretarial error in scheduling a hearing has been found to be excusable neglect. See County Nat’l Bank of N. Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981). Further, there is nothing in the record before us that suggests that Holladay would have been prejudiced had the hearing been rescheduled.

Holladay argues that the trial court properly denied Jerue’s motion for relief from- judgment' because Jerue’s counsel could not demonstrate that he would have presented a meritorious defense to the motion to dismiss had he been present.

In reviewing this issue, we necessarily address the merits of the trial court’s order granting the dismissal and entering the final judgment. In doing so, we not only disagree with Holladay that Jerue failed to demonstrate the existence of a meritorious defense, we conclude that the trial court erred by granting the motion to dismiss with prejudice.

Jerue argues that his third complaint was filed pursuant to the arbitrator’s order. That is, once the arbitrator found that he did not have jurisdiction to determine the issues regarding the sixty-eight purchase invoices, Jerue filed the third complaint to place these issues in what the arbitrator’s order called the “proper forum.” Holladay responds that the issues were referred back to the trial court by the arbitrator’s order in the same case referred to the arbitrator (2003-CA-757) and that, thus, the new ease (2003-CA-4504) was properly dismissed. However, before the order of dismissal was granted, the trial court granted Holladay’s motion to consolidate the two cases. Thus, Holla-day’s argument is without merit.

Additionally, Holladay argues that Jerue waived any further consideration of the issues by failing to seek the modification of the portion of the arbitrator’s order determining that he had no jurisdiction to consider these issues. In fact, Holladay argues that Jerue’s failure to move to either affirm or modify/vacate the award within the time limit prescribed by law precludes any further consideration of the issues raised by Jerue.

Jerue argues, however, that such a modification was not necessary because he was in agreement with the arbitrator’s finding that arbitration was not the proper forum for considering the issues. Jerue further argues that if the trial court found, as suggested by Holladay’s motion, that the arbitrator was in error, the proper relief was to refer the issues back to the arbitrator rather than simply to dismiss the issues with prejudice, which effectively denied Jerue any consideration of the merits of these issues by either the trial court or the arbitrator. Finally, Jerue argues that his third complaint (2003-CA-4505) should be treated as a timely-filed motion to affirm the arbitration order. We agree.

Section 682.12, Florida Statutes (2003), states that the trial court should affirm the arbitration order upon the request of a party unless a request for modifying or vacating the order is timely filed. Jerue’s third complaint (2003-CA-4504), which was consolidated with the complaint actually referred to the arbitrator (2003-CA-757) pursuant to Holladay’s motion, should be deemed as Jerue’s request to affirm the arbitrator’s order. See Harris v. Haught, 435 So.2d 926, 927 n. 1 (Fla. 1st DCA 1983). Had the trial court affirmed the arbitrator’s order, the issues regarding the invoices would have been before the trial court. However, Holladay’s motion to dismiss alternatively asked the trial court to modify or vacate that portion of the arbitrator’s order finding he had no jurisdiction over the invoice issues. With that motion before it, the trial court should have either denied the request to vacate and proceeded with the consideration of Jerue’s third complaint or granted Holla-day’s request to vacate that portion of the arbitrator’s order and returned the issues for arbitration. To dismiss the complaint with prejudice was error.

Since Jerue demonstrated both excusable neglect and a meritorious defense, we conclude that the trial court abused its discretion in denying the motion for relief from judgment and the motion for rehearing of Holladay’s motion to dismiss or in the alternative to confirm in part and vacate or modify in part the arbitration award. We reverse and remand for a new hearing on Holladay’s motion.

Reversed.

NORTHCUTT and CASANUEVA, JJ., Concur.

      . Counsel’s office had mistakenly calendared the hearing for 1:00 p.m. instead of 9:00 a.m., and the attorney was attending another appointment at the time of the hearing.


author: NORTHCUTT, Judge.

text:
    Laurie M. HIGGINS, Appellant, v. Samuel F. HIGGINS, Appellee.
    No. 2D06-286.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 2006.

      Lisa P. Kirby of Lisa P. Kirby, P.A., Naples for Appellant.
    James J. Zonas, Naples, for Appellee.
   NORTHCUTT, Judge.

The marriage of Laurie and Samuel Higgins was dissolved in 1996. In this appeal, Ms. Higgins challenges two post-judgment orders entered on January 9, 2006. The first holds her in criminal contempt, while the second transfers custody of the parties’ son from her to Mr. Higgins. We reverse both orders.

The parties’ divorce judgment incorporated the Higginses’ marital settlement agreement, which provided that their son’s primary residence would be with his mother. The agreement also established reasonable visitation for the father. In November 2005, Mr. Higgins sent a letter to the circuit judge below, complaining that Ms. Higgins was interfering with his visitation. The letter did not reflect that it was also' sent to Ms. Higgins.

The judge responded with a letter to Mr. Higgins explaining that the parties should attempt to solve the visitation problem and, if they could not, Mr. Higgins should set a hearing on the issue. The judge advised that if a hearing was necessary, and if he found that Ms. Higgins had violated Mr. Higgins’s visitation rights, the judge might hold her in contempt of court. The judge sent a copy of this letter to Ms. Higgins. Ms. Higgins then wrote the judge to explain that she was moving with her son to North Florida. She attached a letter she had sent to Mr. Higgins discussing her plans to relocate.

Thereafter, Mr. Higgins again wrote to the judge, this time to voice his disapproval of his former wife’s proposed move. Then, on December 28, 2005, he mailed Ms. Higgins a notice of a hearing scheduled for fifteen minutes on the morning of January 9, 2006. Mr. Higgins did not file a motion or petition seeking affirmative relief. The notice stated simply that the hearing was to address “[v]is[i]tation and d[ecis]ion-making in the upbringing of son Samuel.”

Both parties appeared at the hearing pro se. The proceedings were unreported, but it is apparent that the hearing became heated. At some point, the court held Ms. Higgins in direct criminal contempt. This order, scribbled by hand during the hearing, is the first order challenged on appeal. The contempt order recites:

Respondent refused after repeated warnings to stop interrupting other side and court. She stated that she was not following court orders of 1998 and would move anyway. Denied father visitation because of her beliefs without court hearing or consulting father.
After repeated warnings mother was placed in direct contempt.
Testimony as to [her] denial of visitation to husband based on her beliefs[,] it[’]s not in son’s best interest. She [relocated] to Lake City FI. without consent of husband or court order.
He has been denied all effective visitation with son. Wife has no[w] [relocated] w/o agreement of husband or pre-noticing him. She moved to Lake City with son.

At the bottom of the order, the judge wrote: “Sentenced to jail for six months[,] but to be brought back to court after other hearings are completed.” Ms. Higgins was then taken into custody and removed from the courtroom.

Sometime later that day the judge had Ms. Higgins brought back before him. At that time, the judge ordered the parties to proceed directly to the office of the circuit mediation program to mediate their differences. Later in the day, the judge signed an odd document. It is entitled “Order” and at its foot is the handwritten notation “so ordered by Franklin Baker, Circuit Judge.” Yet the first paragraph of the order states “[pjursuant to the Notice of Mediation Conference in the Matter, on the 9th day of January 2006, the parties have agreed to the following....” Both Mr. and Ms. Higgins signed the order, as did someone identified as the “Mediator!,] Preparer of Order of Court.” This order transferred custody of the Higginses’ son to Mr. Higgins, and it is the second order challenged in this appeal. Ms. Higgins contends the document is an order, while Mr. Higgins argues it is merely an agreement between the parties that the court approved.

The Contempt Order

In reviewing the contempt order we are mindful that a court may summarily punish for direct criminal contempt if the contemptuous conduct is committed in the court’s presence. Fla. R.Crim. P. 3.830. However, the record must contain evidence that the court complied with the procedures mandated in rule 3.830. Therefore, the court must ensure that a record of the contempt proceeding “is made and preserved in such a manner that it can be transcribed as needed.” Fla. R.Crim. P. 3.721. The circuit court’s failure to do so in this case requires us to reverse the contempt order. See Chamberlain v. Chamberlain, 588 So.2d 20, 23 (Fla. 1st DCA 1991).

Beyond this, the contempt order itself reflects that two of its three bases were not punishable as direct criminal contempt. Ms. Higgins’s behavior during the hearing—committed, as it was, in the judge’s presence—might have supported a finding of direct criminal contempt. But her alleged interference with Mr. Higgins’s visitation and her unilateral relocation necessarily took place outside the judge’s presence. As such, they could be punished, if at all, only as indirect contempt. In that case, the judge would have been required to comply with the procedures set forth in Florida Rule of Criminal Procedure 3.840. Those procedures were not followed in this case, requiring reversal for that reason as well. Hagerman v. Hagerman, 751 So.2d 152, 153 (Fla. 2d DCA 2000).

Finally, the record affirmatively disproves the circuit judge’s finding that Ms. Higgins’s relocation was prohibited by the “orders of 1998.” The circuit court docket reflects that two orders were entered in the Higginses’ case that year. One was a support order in a child support enforcement action brought against Mr. Higgins by the Department of Revenue, and the other granted the Department’s motion to consolidate the dissolution case ■with the support action. Neither order imposed any obligation whatever on Ms. Higgins; certainly, the orders did not prohibit her relocation with the parties’ son. Prior to 1998, the only order entered in the Higginses’ case was the final judgment of dissolution of marriage. That judgment did not prohibit relocation. To the contrary, it adopted and approved the Hig-ginses’ marital settlement agreement, which provided that “[e]ach party may reside at the place he or she may select.”

For the foregoing reasons, we reverse the order of criminal contempt.

The Child Custody Modification

The child custody modification must be reversed, as well. Ms. Higgins contends the order was procedurally and substantively defective because it modified the custody provisions of the final judgment when there had been ho petition for that relief and it was outside the scope of the noticed purpose of the hearing. See Smith v. Smith, 927 So.2d 118,120 (Fla. 2d DCA 2006) (stating that a judgment based on an issue not framed by the pleadings or not noticed for hearing implicates due process concerns and cannot stand); Burckle v. Burckle, 915 So.2d 747, 749 (Fla. 2d DCA 2005); Pelliccia v. Arce, 867 So.2d 619, 620-21 (Fla. 2d DCA 2004). Substantively, the order contained no analysis of any substantial change in circumstances that would justify modification of custody. See Wade v. Hirschman, 903 So.2d 928, 932-33 (Fla.2005). Indeed, the order would be reversible for those reasons if it was intended to reflect the judge’s determination that the best interests of the parties’ child warranted a custody modification.

It is likely, however, that Mr. Higgins is correct in his assertion that the order simply incorporated and approved the terms of the mediation agreement signed by the parties. If so, the circuit judge abused his discretion by approving the agreement. It is well established that a court is not bound by an agreement of parents regarding child support, custody, or visitation. Feliciano v. Feliciano, 674 So.2d 937 (Fla. 4th DCA 1996); see also Yitzhari v. Yitzhari, 906 So.2d 1250, 1257 n. 4 (Fla. 3d DCA 2005). One important reason for this principle is that the court must guard against the possibility that a parent might bargain away valuable rights of a child for reasons unrelated to the child’s best interests. See Griffith v. Griffith, 860 So.2d 1069, 1071-1072 (Fla. 1st DCA 2003).

The record in this case amply demonstrates that the circuit judge did not guard against the strong possibility that Ms. Higgins agreed to surrender custody of her son for reasons other than the child’s best interests. To the contrary, the record shows that she did so under highly coercive circumstances that were devised by the judge himself. With no prior notice and no counsel, this woman was ordered directly to mediation by the very judge who had just summarily held her in criminal contempt and placed her in custody to serve a six month jail sentence. Moreover, one of the judge’s stated reasons for the contempt conviction was his announced determination that Ms. Higgins’s attempt to relocate with the child was barred by court order and therefore was unlawful. As previously noted, this was simply untrue. Thus, in addition to the foregoing, the judge sent this woman into mediation after seriously misadvising her about her rights.

In a child custody matter, we review the circuit court’s decision for an abuse of discretion. See Cleary v. Cleary, 872 So.2d 299, 301 (Fla. 2d DCA 2004); cf. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). While this is, a deferential standard, the Canakaris court cautioned that a trial court’s discretionary power is not unbridled. 382 So.2d at 1203. Whether the judge in this case approved a hastily drafted agreement, or whether he ordered a change of custody without taking evidence, no reasonable person with knowledge of the facts of this case would not question the propriety of his decision. See id. No reasonable judge, apprised of the highly coercive circumstances under which this child custody agreement was made, would have approved it. Accordingly, we reverse the custody order.

In a typical child custody case, upon reversal we remand for further proceedings. But the orders we reverse today did not arise from any proceeding in the proper sense. Rather, they had their geneses in the judge’s ill-advised informal correspondence with Mr. Higgins. Beyond questions of due process, the requirement that parties frame the issues in formal pleadings ánd motions brings structure to court proceedings that is more conducive to orderly, reasoned decision-making. If the judge’s response to Mr. Higgins’s letter had contained an instruction to file a proper motion or petition rather than inviting him to simply set his complaints for hearing, the donnybrook giving rise to these orders might have been avoided.

Reversed.

FULMER, C.J., and CASANUEVA, J., Concur.

      . This quotation represents our best effort to interpret the judge’s handwriting.

      . Florida Rule of Criminal Procedure 3.830 provides:
      A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts on which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against the defendant and inquire as to whether the defendant has any cause to show why he or she should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.

      . Ms. Higgins also claims that the judge agreed to suspend the jail term imposed for her contempt if she gave custody of her son to Mr. Higgins. We have no record evidence to support this contention. Contempt is not a valid reason to order a change of custody. Burckle, 915 So.2d at 749; Pelliccia, 867 So.2d at 620-21. Ms. Higgins’s assertion highlights why the court must ensure that a transcript of the sentencing proceeding in a criminal contempt action be included in the record.


author: STRINGER, Judge.

text:
    M.W.G., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-388.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2006.

      James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

M.W.G. appeals from the restitution order entered after he pleaded guilty to burglary of a structure. Because the trial court conducted the restitution hearing in M.W.G.’s absence without competent, substantial evidence to establish that M.W.G. had waived his right to be present or that he had voluntarily absented himself from the hearing, we reverse and remand for a new hearing.

The State charged M.W.G. with burglary of a structure and grand theft as a result of events which occurred on October 12, 2003. On November 29, 2005, M.W.G. pleaded guilty to the burglary charge, and the State dropped the grand theft charge. The parties agree that at the November 29 change of plea hearing, the trial court advised M.W.G. that a restitution hearing would be held on January 12, 2006.

On January 12 at the scheduled hearing time, the bailiff sounded the halls for M.W.G., but M.W.G. was not present. After the bailiff advised the court of this and before the prosecutor even spoke, the judge stated, “Can’t I find that that’s a voluntary absence and proceed forward? Okay, because I — I pulled some case law here on this issue.” The judge then discussed at length the case law she had pulled on the issue of criminal defendants waiving their right to be present for court proceedings.

When the judge was finished with her discussion, defense counsel argued that there could be a legitimate reason for MW.G.’s absence and that that reason could also be preventing him from notifying the court of the reason for his absence. Defense counsel also argued that the State had thé burden to prove that M.W.G. had voluntarily waived his right to be present. In response, the judge stated, “Well, can’t they show that by looking at the Court record?” Defense counsel replied that the State could not do so, noting that the court record could prove notice, but not that M.W.G. had voluntarily waived his appearance. The judge then stated:

And if you were to have contact with him, then I would reset the hearing, but at this point there’s nothing before me to show that he’s doing anything other than just choosing not to appear.

The judge then proceeded to go through the court file with the court clerk and note the times when M.W.G. had not been present for other hearings. Based solely on the record of those prior nonappearances, the trial court found that M.W.G. had voluntarily waived his right to be present at the restitution hearing and that “the State’s burden has been established by the record itself.”

Having determined that M.W.G. had waived his right to be present, the court permitted the State to call the victim to testify to the value of the items stolen during the burglary. At the conclusion of the hearing, the trial court entered a restitution order in the amount of $8085. The trial court made no findings in its order as to what amount M.W.G. might reasonably be expected to earn upon finding employment or whether M.W.G. could reasonably pay the amount of restitution ordered. M.W.G. now challenges the propriety of the restitution order in this appeal.

A defendant has the constitutional right to be present at all stages of the trial at which fundamental fairness might be thwarted by his absence. Coney v. State, 653 So.2d 1009,1013 (Fla.1995). This includes hearings at which the imposition of and the amount of restitution are to be determined. See, e.g., T.A.S. v. State, 892 So.2d 1233,1234 (Fla. 2d DCA 2005); Miller v. State, 833 So.2d 318, 319 (Fla. 2d DCA 2003); J.B. v. State, 646 So.2d 808 (Fla. 1st DCA 1994). However, a defendant can waive this right and exercise constructive presence through counsel. Coney, 653 So.2d at 1013. If the defendant does so, before the proceedings may commence, the court must determine that the defendant’s waiver of the right to be present is knowing, intelligent, and voluntary. Id.; see also Miller, 833 So.2d at 319; Papageorge v. State, 710 So.2d 53, 55 (Fla. 4th DCA 1998). The State has the burden of proving that the defendant knowingly and voluntarily waived the right to be present. T.A.S., 892 So.2d at 1234; J.B., 646 So.2d at 808. In the alternative, a defendant may voluntarily absent himself from the proceedings by intentionally fleeing the jurisdiction or by leaving court during the proceedings. Capuzzo v. State, 596 So.2d 438, 440 (Fla.1992); Santeufemio v. State, 745 So.2d 1002, 1003 (Fla. 2d DCA 1999).

In this case, there is nothing in the record to show that M.W.G. voluntarily absented himself from the proceedings by fleeing the jurisdiction or leaving court during the proceedings. Therefore, the question before the trial court was whether M.W.G. had knowingly, intelligently, and voluntarily waived his right to be present at the restitution hearing, and it was the State’s burden to present proof of this waiver. However, the State presented no evidence at the hearing. Instead, the trial court simply reviewed the court file, found that M.W.G. had failed to appear for arraignment and two pretrial status checks, and concluded that M.W.G.’s failure to appear at previous proceedings in the case established that he had waived his right to appear at the restitution hearing. This finding cannot stand for two reasons.

First, the record concerning MW.G.’s earlier absences does not establish the reason for them. While it is possible that M.W.G. simply decided not to show up for those proceedings, it is equally possible that M.W.G. voluntarily waived his presence at the status checks and appeared constructively through counsel. Such a waiver for certain pretrial proceedings does not constitute a blanket waiver for all subsequent court proceedings, including posttrial restitution hearings.

Second, even if M.W.G. simply did not show up for the pretrial status checks, M.W.G. did appear for the adjudicatory hearing. Thus, the record indicates that M.W.G. did not intend, either by his conduct or by any prior waivers for pretrial proceedings, to waive his right to attend all further proceedings in his case. The record of MW.G.’s prior absences from pretrial status checks is not, standing alone, competent, substantial evidence of a knowing and voluntary waiver of the right to be present at the restitution hearing, particularly in light of MW.G.’s presence at the adjudicatory hearing.

Under the circumstances presented here, the fact that M.W.G. failed to appear at certain pretrial proceedings does not establish a knowing and voluntary waiver of his right to be present at the posttrial restitution hearing. Accordingly, because there was no competent, substantial evidence in the record to establish that M.W.G. knowingly and voluntarily waived his right to be present at the restitution hearing, the trial court erred in conducting the restitution hearing in his absence, and we must remand for a new restitution hearing.

Because we are remanding for a new hearing, we address M.W.G.’s argument concerning the sufficiency of the findings in the restitution order because the issue may arise on remand. Section 985.231(l)(a)(l)(a), Florida Statutes (2003), states that when restitution is ordered to be paid by a juvenile, “the amount of restitution may not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make.” In addition, section 985.231(l)(a)(6) states that if the court orders the child to pay restitution, it must be “in a reasonable amount or manner to be determined by the court.”

This court and others have repeatedly held that these statutes do not require that the trial court find that the child has the present ability to pay restitution. See, e.g., R.S.M. v. State, 910 So.2d 361, 362 (Fla. 2d DCA 2005); R.D.S. v. State, 844 So.2d 720, 720-21 (Fla. 2d DCA 2003); A.J. v. State, 677 So.2d 935, 938 (Fla. 4th DCA 1996). Instead, the court must determine what the child may reasonably be expected to earn upon finding suitable employment and must base the restitution amount on those expected earnings. R.D.S., 844 So.2d at 721; A.J., 677 So.2d at 938; J.A.M. v. State, 601 So.2d 278 (Fla. 1st DCA 1992). When no evidence of what the child could reasonably be expected to earn is presented at the restitution hearing, the trial court cannot make a finding on this issue. See A.J., 677 So.2d at 938; see also N.C. v. State, 774 So.2d 867, 868 (Fla. 2d DCA 2000); In Interest of C.D.D., 684 So.2d 866, 867 (Fla. 2d DCA 1996). In the absence of such a finding, an appellate court must reverse the restitution order and remand for a hearing on the child’s ability to earn and ability to pay. A.J., 677 So.2d at 938.

In this case, the trial court heard no evidence on the issue of what amount M.W.G. could reasonably be expected to earn upon finding suitable employment. Thus, the trial court made no finding that M.W.G. could reasonably be expected to earn sufficient income to pay $8085 in restitution. The absence of this finding is a fatal flaw in the restitution order. Accordingly, if the trial court again imposes restitution on remand, it must make the findings required by section 985.231(l)(a)(l)(a) based on evidence presented at the restitution hearing.

Reversed and remanded for further proceedings.

WHATLEY and VILLANTI, JJ., Concur.


author: POLEN, J. KLEIN, J.,

text:
    Leslie P. STEELE, Appellant, v. Larry E. STEELE, Appellee.
    No. 4D05-4556.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Mary B. Thomas of Thomas & Thomas, Attorneys at Law P.A., Stuart, for appellant.
    R.J. Ferraro, III, of Ferraro & Ferraro, P.A., Stuart, for appellee.
   POLEN, J.

This appeal arises from an August 11, 2005 final judgment of dissolution of marriage; We affirm. In examining the thorough language of the trial court’s final judgment, we are convinced that there was no abuse of discretion.

Larry and Leslie Steele, hereinafter “former husband” and “former wife,” married November 3, 1996 and separated July 19, 2002. An action for dissolution of marriage was filed soon thereafter. Wife appeals, contending that the trial court erred in determining the value of former husband’s pre-marriage 401(k) contributions was a nonmarital asset and therefore not subject to equitable distribution.

“The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.” Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003) (citations omitted). § 61.075(3), Fla. Stat. (2002), requires that distribution of marital assets and liabilities be supported by “factual findings in the judgment or order based on competent substantial evidence.... ”

Of the $270,000 in assets with which former husband entered the marriage, approximately $220,000 represented his interest in an employer-sponsored 401(k) plan. During the marriage, former husband’s employer modified the plan to offer its employees the ability to monitor and control their investments. The new plan allowed employees to move assets among nineteen different investment vehicles, i.e., mutual funds. Former husband utilized this feature and, during the almost six-year marriage, made three such transfers, without withdrawing any funds.

At trial, former wife argued that the three transfers represented “marital effort” and therefore transformed husband’s entire 401(k), including contributions made and value accumulated before the marriage, into a marital asset. The trial court disagreed, finding that the transfers were “extremely de minimis ” in light of the relatively small amount that husband contributed to the plan during the marriage. When compared to the total contributions that husband made over more than thirty-six years of participating in the plan, the court found that the transfers did not-work to convert the portion of his pre-marriage contributions, eighty-nine percent of the plan’s value, in whole or in part into a marital asset.

Section 61.075(a) defines marital assets as including the “enhancement in value and appreciation of nonmarital assets resulting ... from the efforts of either party during marriage.” § 61.075(a), Fla. Stat. (2002). In contrast, nonmarital assets include assets acquired before the marriage and all income derived from nonmarital assets during the marriage, unless the parties treat such income as a marital asset. § 61.075(5)(b), Fla. Stat. (2002).

On appeal, former wife again argues that the trial court should have classified husband’s entire 401(k) as a marital asset. In so arguing, she claims that the trial court failed to recognize that husband actively managed his 401 (k) investments, including his pre-marriage 401(k) contributions, during the marriage. In support, former wife relies primarily on Chapman v. Chapman, 866 So.2d 118, 118 (Fla. 4th DCA 2004) (affirming trial court’s finding that annual return on husband’s retirement fund was marital property because his brokerage records indicated that he actively traded stocks and bonds). However, unlike Chapman, the husband in this case did not actively trade stocks or bonds. See id. He only made three transfers during the six-year marriage, and these transfers had only a minimal impact on the value of his 401(k). Husband’s forensic accountant testified that, had husband not made any transfers, the value of his 401(k) would have been $481,587, only $8,053 less than its actual value, $484,640, at the time of filing for dissolution. Cf. O’Neill v. O’Neill, 868 So.2d 3, 4 (Fla. 4th DCA 2004) (rejecting husband’s claim that enhancement in value of his retirement account was a nonmarital asset because husband presented no evidence to support his contention that the performance in his holdings “had nothing to do with [him] and was simply the result of market conditions”). Therefore, we agree with the trial court that the transfers were de minimis and did not convert former husband’s pre-mar-riage 401(k) contributions, in whole or in part, into a marital asset.

As to the other issues raised by former wife on appeal, i.e. alimony, valuation of the marital home and method of disbursement of the marital portion of former husband’s 401(k), we also affirm.

Affirmed.

MAY, J., concurs.

KLEIN, J.,

concurring specially with opinion.

I agree entirely with the majority opinion. I am writing separately to suggest that a marital increase on premarital securities, if managed by someone other than the spouse, should not become marital assets.

In this case, as in many cases, the husband’s employer had a number of mutual funds in the 401(k) plan from which the husband could make selections. The wife contended that the husband’s activity during the marriage, in changing from one fund to another, should make the return on the investments marital property. The trial court correctly concluded that the husband’s selection of mutual funds would not constitute an enhancement resulting “from the efforts” of the husband under section 61.075(5)(a). That decision was consistent with our opinion in Oxley v. Oxley, 695 So.2d 364 (Fla. 4th DCA 1997), in which the husband had non-marital trust investments, which were increased during the marriage by the other people he allowed to manage the trust.

Although it is not necessary for us to address the issue in this case, because the trial court found no marital effort contributing to the appreciation in value, I would, in the appropriate case, hold that, where the spouse is not actively trading individual stocks and bonds, as the husband was in Chapman v. Chapman, 866 So.2d 118 (Fla. 4th DCA 2004), any increase is as a matter of law non-marital.

We have already recognized that an increase in pre-marital assets, achieved by activity during the marriage, is distinct from an increase which is “purely the result of time and market conditions.” O’Neill v. O’Neill, 868 So.2d 3, 5 (Fla. 4th DCA 2004), Chapman v. Chapman, 866 So.2d 118 (Fla. 4th DCA 2004), Oxley v. Oxley, 695 So.2d 364 (Fla. 4th DCA 1997); Young v. Young, 606 So.2d 1267 (Fla. 1st DCA 1992). In Chapman we used, based on the testimony of one of the experts, the S & P 500 Index as a benchmark for a passive increase on stocks and a bond index for bonds. The husband in Chapman achieved returns substantially greater than the benchmarks by directly and actively trading stocks and bonds, and it was the return in excess of the benchmarks which was found to be marital property.

In the present case each spouse went to the expense of obtaining an expert to testify that the husband’s activity did or did not result in activity resulting in an increase in marital funds. This testimony was not only costly, but time consuming. For all we know, this case might have settled if this issue had been off the table. I would take it off the table.

      . Former husband contributed $49,118 to his 401(k) plan during the marriage. This amount represented approximately eleven percent of the plan's value as of filing for dissolution. The majority of the plan’s value as of filing consisted of the $220,000 in 401(k) assets with which former husband entered the marriage in addition to the appreciation of those assets during the marriage.

      . For whatever it is worth, most actively managed mutual funds, do worse, not better, than a passive benchmark such as the S & P 500 Index. Harold R. Evensky, Wealth Management, The Financial Advisor's Guide to Investing and Managing Client Assets 328 (1997); Scott Woolley, The Index Insurgents, http://www.forbes.com/ forbes/2006/1030/064, html. It follows that the spouse who selects mutual funds has less than a fifty percent chance of doing as well as a passive investment in an index fund over the long term. Where the actively managed funds do worse than the benchmark, the spouse who would claim part of the increase does not bear the loss, so why give the spouse one half of the increase?


author: SHAHOOD, J.

text:
    C.U., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-790.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, C.U., a child, was charged with and pled no contest to fleeing or eluding a law enforcement officer in violation of section 316.1935(1), Florida Statutes, a third degree felony. At the disposition hearing the court accepted the recommendation of the Department of Juvenile Justice and committed appellant to a level-six, moderate-risk facility, followed by post-commitment probation and conditional release lasting until appellant’s “twenty-first birthday or statutory maximum.” Appellant was seventeen years of age at the time of the hearing. Counsel for appellant objected to the court’s retention of jurisdiction until the age of twenty-one. The court overruled the objection.

Appellant argues the trial court erred by retaining jurisdiction until he reaches the age of twenty-one, since he was committed to a moderate-risk facility and did not otherwise qualify for such retention. We agree and reverse and remand for resen-tencing.

In Florida the trial court has exclusive original jurisdiction over a child who is alleged to have committed a delinquent act or violation of law until the child reaches the age of nineteen:

(4)(a) Notwithstanding ss. 743.07, 985.229, 985.23, and 985.231, and except as provided in ss. 985.31 and 985.313, when the jurisdiction of any child who is alleged to have committed a delinquent act or violation of law is obtained, the court shall retain jurisdiction, unless relinquished by its order, until the child reaches 19 years of age, with the same power over the child that the court had prior to the child becoming an adult.

§ 985.201(4)(a), Fla. Stat. An exception occurs when the court enters a disposition in which it commits the child to the Department of Juvenile Justice for a term that extends past the child’s nineteenth birthday. § 985.231(l)(a)3, Fla. Stat. For example, in S.L.K. v. State, 776 So.2d 1062 (Fla. 4th DCA 2001), the trial court ordered the child placed in a level-eight program no longer than the maximum sentence allowable by law or the child’s twenty-first birthday and retained jurisdiction over the child until the age of twenty-one. Id. at 1063. In reviewing the order, wé found it to be in violation of section 985.231(l)(a)3, Florida Statutes, because even if S.L.K. is discharged by the Department prior to his twenty-first birthday, the trial court’s disposition order extended jurisdiction until the age of twenty-one. Id. at 1065. Without providing that the court would relinquish jurisdiction at discharge or the age of twenty-one, the disposition order was unlawful. We explained:

[UJnder section 985.231, the circuit court has jurisdiction over an adjudicated delinquent and it may commit the juvenile to the Department until the child is discharged by the Department or until he or she reaches the age of twenty-one. Thus, section 985.231 permits the circuit court to retain jurisdiction in the event that the juvenile’s commitment extends until his or her' twenty first birthday. However, section 985.231(l)(a)3 does not permit the court to continue to retain jurisdiction if the juvenile is discharged from his or her commitment prior to age twenty-one. Under such circumstances, the court’s authority to retain jurisdiction is limited to the child’s nineteenth birthday • pursuant to section 985.201(4)(a), Florida Statutes (1999).

776 So.2d at 1065.

In this case, as in S.L.K., the court’s jurisdiction over C.U. extended to his twenty-first birthday without the possibility of discharge prior thereto. The written Disposition Order provided in pertinent part the following:

/ The child is adjudicated delinquent and
/ Committed to a licensed child-caring agency/the Department of Juvenile Justice for placement in a Moderate risk residential program, for an indeterminate period, but no longer than the child’s _ 19th/ / 21st birthday or the maximum term of imprisonment which is 5 yrs, the same time an adult may serve for each count listed above, whichever comes first.

Such an order expressly attempts to confer jurisdiction to the court until C.U., the child, attains the age of twenty-one, regardless of whether the child is discharged by the Department prior to such time.

Reversed and Remanded for Resentenc-ing.

STONE and HAZOURI, JJ., concur.


author: PER CURIAM.

text:
    Emmanuel MORELAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3551.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rehearing Denied Feb. 1, 2007.
    Emmanuel Moreland, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant Emmanuel Moreland’s motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. However, we affirm without prejudice on claim 8 only, insofar as appellant has alleged that his pleas were involuntary due to the failure of the trial court and defense counsel to advise him that he had the right to seek sentencing as a youthful offender under section 958.04(1), Fla. Stat. See generally Croskey v. State, 601 So.2d 1826 (Fla. 2d DCA 1992); Taylor v. State, 534 So.2d 1181 (Fla. 4th DCA 1988). Affirmance of the summary denial of this claim is without prejudice to appellant’s right to refile a timely and verified motion for post conviction relief which alleges whether appellant actually qualified for youthful offender sentencing under the statute, addressing all of the criteria of section 958.04(1), Florida Statutes.

POLEN, FARMER and KLEIN, JJ., concur.


author: WARNER, J.

text:
    Mario DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1901.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Mario Davis appeals the trial court’s order revoking his probation. Given the lower burden of proof in violation of probation hearings, the trial court did not abuse its discretion in finding that Davis willfully and substantially violated his probation. We therefore affirm.

At the conclusion of the violation of probation hearing, the trial court found that Davis violated his probation by: 1) failing to report to the probation office as of June 2005, 2) violating the law by dealing in stolen property, and 3) violating the law by providing false verification of ownership to a pawn broker. On appeal, Davis contends that the state failed to prove these violations by a greater weight of the evidence.

The standard of review of a trial court’s revocation of probation is whether the court abused its discretion. Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992). A violation which triggers a revocation of probation must be both willful and substantial, and the willful and substantial nature of the violation must be supported by the greater weight of the evidence. Id.

We conclude that there was sufficient circumstantial evidence of “guilty knowledge” to permit the trial court to find, by a greater weight of the evidence, that Davis dealt in stolen property and provided false verification of ownership to a pawn broker. However, we emphasize that our conclusion implies only that the state satisfied the lower standard of proof in probation violation hearings. See, e.g., State v. Jenkins, 762 So.2d 535, 536 (Fla. 4th DCA 2000) (“To meet its burden in a violation of probation proceeding, the state need only demonstrate by a preponderance of the evidence that the defendant committed the subject offense.”).

However, we agree with Davis that the state failed to prove that he violated his probation by failing to report to the probation office. While the probation officer made some passing statements regarding his inability to contact Davis, the probation officer’s testimony never actually established that Davis failed to file any required monthly reports. Thus, we remand this case to the trial court to strike the improper finding that Davis violated the condition of his probation requiring him to make monthly reports.

Because we affirm the trial court’s findings that Davis committed new violations of the law, which were more serious than the “failure to report” violation, there is no need for the trial court to reconsider the revocation of Davis’ probation. See, e.g., Baker v. State, 789 So.2d 410 (Fla. 4th DCA 2001). However, we direct the trial court to enter an amended order of revocation, deleting the reference to the violation for failure to report.

Affirmed and remanded.

GUNTHER and FARMER, JJ„ concur.


text:
    Troy EDRINGTON, Appellant, v. Joanne EDRINGTON, Appellee.
    No. 4D06-1171.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Siobhan Helene Shea, Palm Beach, for appellant.
    No brief filed on behalf of appellee.
   WARNER, J.

The father, Troy Edrington, appeals a final judgment providing for rotating custody of the parties’ children and determining that neither party would be designated as the primary residential parent. The father also appeals the trial court’s subsequent order denying his motion for rehearing based upon a claim of newly discovered evidence. We affirm.

The appellate court reviews a trial court’s child custody determination for an abuse of discretion. See, e.g., Hamilton v. Hamilton, 922 So.2d 263, 266 (Fla. 2d DCA 2006). Section 61.13(3), Florida Statutes, sets forth a “best interests” standard for determining shared parental responsibility and primary residence.

Given the broad discretion of the trial court in custody matters, we do not find any abuse of that discretion in a review of this record. The trial court made detailed factual findings on the record and considered various positive and negative things that both parents had done. Further, the trial court specifically found that this was a deeply bitter custody battle and that neither parent was able to promote the children’s relationship with the other parent. We see no abuse of discretion in the trial court’s application of section 61.13(3) to the facts before it at the time of the final hearing.

With respect to the claim that the trial court erred in failing to conduct a hearing on the father’s motion for rehearing based upon newly discovered evidence, we likewise conclude that the trial court did not abuse its discretion. That evidence consisted of an after-trial recantation by the parties’ child of allegations of abuse by another child, which figured prominently in the trial. Even at trial, however, the veracity of the allegations was questioned.

A motion for rehearing based on newly discovered evidence should be granted when: 1) it appears that the new evidence is such that it will probably change the result of the proceedings, 2) the evidence has been discovered since the trial, 3) the evidence could not have been discovered before the trial by the exercise of due diligence, 4) the evidence is material to the issue, 5) the evidence is not merely cumulative or impeaching. See Whitley v. Warren, 884 So.2d 431, 432 (Fla. 4th DCA 2004). This court reviews the denial of a motion for rehearing based on newly discovered evidence for an abuse of discretion. Id.

In denying the motion for rehearing, the trial court noted that it had discounted the allegations of abuse and that the newly discovered evidence would have no bearing on its decision. Thus, the trial court’s order showed that the evidence would not have changed the result of the proceedings. Therefore, we conclude that the trial court did not abuse its discretion in denying the motion.

Affirmed.

GUNTHER and FARMER, JJ., concur.


text:
    Anthony L. BREWER, Appellant, v. Gail Susan SOLOVSKY, Appellee.
    No. 4D05-2745.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Claire Cubbin, Fort Lauderdale, for appellant.

      Alan D. Sackrin of the Law Office of Alan D. Sackrin, Hallandale Beach, for appellee.
   BATEMAN, THOMAS H„ III, Associate Judge.

Appellant, Anthony L. Brewer, timely appeals a final judgment of modification of child custody and child support. This case has been before this court in two prior proceedings.

In Brewer v. Solovsky (Brewer II), 899 So.2d 497 (Fla. 4th DCA 2005), we reversed and remanded to the trial court its final order which was entered prematurely while this court considered an appeal of a non-final order. The non-final appeal was decided in Brewer v. Solovsky (Brewer I), 882 So.2d 1019 (Fla. 4th DCA 2004). In Brewer II, we advised that the trial court could reinstate its final order when the non-final appeal was concluded. On remand, the trial court re-entered its final order. It is from this order that Brewer raises four issues for our consideration. We find that Brewer has failed to demonstrate the trial court abused its discretion in two of the issues and affirm these issues without further discussion.

On the remaining two issues, appellant argues that the trial court abused its discretion by awarding appellee attorney’s fees without hearing the testimony of ap-pellee’s attorney as to reasonableness and violated due process by ordering the transfer of an Internal Revenue Service (IRS) dependent exemption to appellee without appellee having raised the matter in her pleadings and without testimony on the issue at trial. We agree with appellant on both counts and reverse.

An award of attorney’s fees requires competent and substantial evidence. Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981). Competent evidence includes invoices, records and other information detailing the services provided as well as the testimony from the attorney in support of the fee. Fairdoth v. Bliss, 917 So.2d 1005 (Fla. 4th DCA 2006); see also Daniel v. Moats, 718 So.2d 949 (Fla. 5th DCA 1998); Clark v. Squire, Sanders & Dempsey, 495 So.2d 264 (Fla. 3d DCA 1986). In this case, while there was- evidence presented to the trial court in the form of appellee’s attorney retainer agreement and invoices for the services provided, and appellee herself testified as to her attorney’s fees being both reasonable and necessary, ap-pellee’s attorney did not testify as to the reasonableness of the fees. Without the attorney’s testimony as to the reasonableness of the hours expended and the hourly rate, the evidence does not support the award. Fairdoth; Daniel; see Clark, 495 So.2d at 264 (error to award fees “without testimony from the attorney in support of his fee ... and without any other testimony to indicate the reasonableness of the time expended or the amount of the fee to be awarded.”). However, because there is some evidence in the record to support the trial court’s attorney’s fee decision, the order is reversed and remanded for further proceedings consistent with this opinion.

Both appellant and appellee acknowledge that the transfer of the IRS dependency exemption was not pleaded, was not listed in their pre-trial catalogue lists as an issue, and was not the subject of testimony at trial. Appellant argues that his due process rights were violated when the trial court in its final order transferred the exemption without notice. Without citation to authority, appellee argues that “such a determination is part and parcel of a child support proceeding.” While the trial court could well have come to the same conclusion if the matter had been pleaded and argued, it was error to “modify [the] child support provision sua sponte. Rather, proposed modifications must be properly pleaded and notice must be given so that the opposing party has an opportunity to respond.” Wendel v. Wendel, 852 So.2d 277, 286 (Fla. 2d DCA 2003); see also Dey v. Dey, 838 So.2d 626 (Fla. 1st DCA 2003) (“[Tjrial court cannot modify a child support provision sua sponte, unless such modification was properly pled and notice was given so that the opposing party has a fair opportunity to respond.”).

Based on the forgoing, the trial court’s order is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

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


text:
    R.P., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D06-3492.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Kenneth B. Williams, Coral Springs, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   WARNER, J.

R.P., the father, appeals the final order adjudicating his daughter, R.C., dependent. Because the order of adjudication was simply a verbatim recitation of the allegations of the Department of Children and Families’ petition, many of which were unsupported by any evidence at trial and conflicted with the trial court’s oral findings at the hearing, we vacate the order and remand for further proceedings.

At the conclusion of the adjudicatory hearing, the trial court found the child dependent as to the father on the grounds of abandonment, imminent threat of neglect, and imminent risk of harm or physical abuse by the father. However, the court also found that the Department failed to satisfy its burden of proving that the father physically abused the child. The trial court directed the Department’s lawyer to prepare the order of adjudication. The “findings of fact” set forth in the order of adjudication were taken verbatim from the allegations in the dependency petition. Unfortunately, many of those allegations were never proven at trial, and others were specifically rejected by the trial court in its oral ruling.

Section 39.507(6), Florida Statutes (2005), generally requires the trial court to set forth the facts upon which a finding of dependency is made. Likewise, Florida Rule of Juvenile Procedure 8.330(g) requires that in all cases in which dependency is established, the court must enter a written order stating the legal basis for a finding of dependency and specifying the facts upon which the finding of dependency is made.

In this case, the order of adjudication fails to meet that standard. Where, as here, the order of adjudication merely repeats the allegations of the dependency petition as findings of fact, which appear in many respects unrelated to the actual evidence presented, the court has not complied with the statute. While the Department may have offered sufficient evidence to sustain its burden of proof, we are unable to determine from the written order of adjudication what facts the trial court actually relied upon in support of the finding of dependency where there was conflicting evidence presented, particularly as to the issues of neglect and abandonment.

Therefore, we vacate the adjudication order and remand this case to the trial court to enter an order of adjudication in compliance with section 39.507(6) and based on the evidence presented at the adjudicatory hearing. See J.C.G. v. Dep’t of Children & Families, 780 So.2d 965 (Fla. 5th DCA 2001) (while there was sufficient evidence to support a finding of dependency, Florida law mandates that, where no findings of fact are provided to support the adjudication of dependency, the matter must be remanded' with instructions to the trial court to provide such findings).

Reversed and remanded.

POLEN and GROSS, JJ., concur.

      . We recognize that the trial court rendered a second order of adjudication, which did not include some of the findings of fact which were completely unsupported by the evidence. However, the subsequent order of adjudication was rendered after the notice of appeal had already been filed, and therefore the trial court would not have had jurisdiction to enter it where its purpose was to amend or clarify the prior order of adjudication. Since the order did not state what its purpose was, the record simply reflects that two different orders of adjudication were entered, the second being entered after the notice of appeal was filed.


text:
    Gervacio G. ARANCA, Appellant, v. MUNROE REGIONAL MEDICAL CENTER & United Self Insured Services, Appellees.
    No. 1D05-1773.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2006.
    Suzanne M. Himes, Ocala, for Appellant.
    Joseph W. Standley of Joseph W. Stand-ley, P.A., Ocala, for Appellee.
   PER CURIAM.

The employer/carrier appeal a workers’ compensation order which resolved certain issues, but which indicated that temporary partial disability benefits could not then be awarded as it was not shown that the claimant had completed or submitted DWC-19 forms (Employee Earnings Reports). The order cited Jack Feagin Electric, Inc. v. Hallmark, 894 So.2d 1083 (Fla. 1st DCA 2005), for the proposition that the benefits would not be due unless the forms are completed and returned. But the order specified that the temporary partial claim was not being denied with prejudice, and that if the benefits are not provided after the forms are submitted the claimant may pursue another claim and obtain another adjudication.

The appealed order did not resolve all outstanding issues in connection with the temporary partial disability claim, and instead left the benefits unresolved and subject to further dispute and another hearing. The order is thus interlocutory and not presently appealable. Crown Hotel v. Friedman, 420 So.2d 418 (Fla. 1st DCA 1982); see also General Electric Co. v. Hawkins, 413 So.2d 836 (Fla. 1st DCA 1982).

This appeal is therefore dismissed.

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


text:
    Leonard FARNETH, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-2550.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2006.

      Donna P. Levine of Law Office of Donna P. Levine, West Palm Beach, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Respondent.
   STRINGER, Judge.

In this second tier certiorari proceeding, Leonard Farneth contends that the circuit court, sitting in its appellate capacity, departed from the essential requirements of the law when it relied on its own factual findings to reverse the county court’s ruling which prohibited the State from using certain evidence as a discovery sanction. We agree and therefore grant Farneth’s petition.

In October 2003, Farneth was the subject of a traffic stop after he was seen driving at a high rate of speed and weaving in and out of his lane of travel. During the stop, the officer noted that Farneth had glassy bloodshot eyes, slurred speech, and an odor of alcohol about him. Farneth also performed poorly on field sobriety tests. Farneth was arrested and escorted to the county detention center, where he took a breath test using an Intoxilyzer 5000 machine. The results of this test allegedly showed that Farneth was in violation of section 316.193(l)(c), Florida Statutes (2003), and Farneth was charged with driving under the influence and speeding.

Farneth subsequently moved to suppress the breath test results on the grounds that the machine used during the test had not been maintained in compliance with the specifications in the manufacturer’s operating manual. Farneth also argued that the State had refused to furnish him with the manufacturer’s operating manuals in violation of various administrative code rules. The court denied Farneth’s motion to suppress but also ordered the State to provide Farneth with the requested manufacturer’s operating manuals.

Shortly thereafter, the State filed an “Acknowledgement of Additional Tangible Evidence,” which listed five different manuals relating to the Intoxilyzer 5000. The State then filed a motion for clarification of the court’s earlier order and requested guidance from the court as to how the manuals were to be produced to Farneth. In response to the State’s motion, the court entered an order stating, in pertinent part,

The State shall supply the Defendant with copies of the operation manuals, owner’s manuals and schematics, which were supplied by the manufacturer of the particular instrument used in this case; or the State shall certify that the materials supplied are identical to the original documents supplied with the breathalyzer instrument used in this case.

Thereafter, the State produced to Far-neth a 1984 Intoxilyzer 5000 Operator’s Manual, a 1989 Intoxilyzer 5000 Operator’s Manual, a 1991 Understanding the Intoxi-lyzer 5000 Manual, a 1992 Basic Maintenance & Repair Manual, a 1999 Intoxilyzer 5000 Service Manual, and miscellaneous schematics and diagrams.

On the morning of trial, Farneth made an oral motion in limine to prevent the State from mentioning the breath test results until the State could establish that it had complied with the court’s discovery order concerning the production of the In-toxilyzer manuals. Farneth argued that the discovery order required the State to produce the manuals applicable to the Intoxi-lyzer actually used by Farneth and that instead the State had produced manuals that were applicable to several different models. Farneth noted that he had not raised the issue earlier because he had assumed that the State’s maintenance officer, who had been identified by the State only the Friday before trial, would testify as to which of the five manuals produced by the State applied to the Intoxilyzer actually used by Farneth. However, Far-neth asserted that he had spoken with the maintenance officer for the first time that morning and the maintenance officer could not tell him which manuals applied to the Intoxilyzer at issue. Therefore, according to Farneth, the State had not complied with the discovery order because it had not produced the manuals for the Intoxilyzer actually used by Farneth and because it could not “certify that the materials supplied are identical to the original documents supplied with the breathalyzer instrument used in this case.”

In response, the State argued that it had supplied all of the manuals that it had. The court asked the State how Farneth was supposed to know which of the manuals that were produced to him were for the machine Farneth actually used. The State responded that it believed that if Farneth wanted to know more, “he might need to do some research at FDLE.” The State also argued that determining which manuals were applicable to the specific machine used by Farneth was irrelevant because “[t]he maintenance person doesn’t use any manual, they use FDLE rules.”

After extensive argument on the issue, the court held that the State had failed to comply with the plain language of the discovery order concerning production of the Intoxilyzer manuals. The State requested a continuance to obtain the information necessary to comply with the order, but the court denied the motion, noting that the State had had several months in which to comply. The court then entered an order prohibiting the State from using the breath test results as a sanction for its discovery violation.

The State appealed the county court’s ruling to the circuit court. The circuit court issued a lengthy opinion in which it held that, regardless of the merits of either part/s position as to the State’s compliance with the discovery order, the county court had erred by failing to hold a Richardson hearing and by failing to consider less drastic sanctions than exclusion of the evidence. However, rather than remanding the case to the county court for a proper Richardson hearing, the circuit court proceeded to make various factual findings based on the appellate record, and it reversed the county court’s order based on those findings. Farneth then sought certiorari review in this court.

In a second tier certiorari proceeding, this court does not conduct a plenary review of the entire case. Rather, this court is limited to reviewing “whether the circuit court afforded procedural due process and whether the circuit court applied the correct law.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995). In essence, second tier certiorari functions as a check to ensure that the initial appeal in the circuit court was fundamentally fair, both procedurally and legally. Here, the circuit court applied the correct law when it determined that the county court had failed to conduct a proper Richardson hearing to address the State’s alleged discovery violation. However, the circuit court denied Farneth procedural due process when it undertook to make its own factual findings and render its opinion based on those findings.

A fundamental principle of appellate procedure is that an appellate court is not empowered to make findings of fact.

It is the function of the trial court to evaluate and weigh the testimony and other evidence in order to arrive at findings of fact to which the rules of law are then applied. The appellate court has no opportunity to observe the witnesses and thereby to judge their credibility. For this and other good reasons certain rules of review have been formulated that define and limit the appellate function .... “[I]t is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.”

Oceanic Int’l Corp. v. Lantana Boatyard, 402 So.2d 507, 511 (Fla. 4th DCA 1981) (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976)). Moreover, in the context of a Richardson hearing:

[T]he trial judge must make full inquiry into the circumstances surrounding a violation of the Florida Rules of Criminal Procedure to determine whether the defendant was prejudiced thereby. An appellate court’s examination of the record is not a substitute for “a trial judge’s determined inquiry into all aspects of the state’s breach of the rules.”

Cooper v. State, 377 So.2d 1153, 1155 (Fla.1979) (quoting Cumbie v. State, 345 So.2d 1061, 1062 (Fla.1977)).

Because an appellate court is not entitled to make its own factual findings from the bare record, the proper remedy when the trial court has applied the incorrect law is for the appellate court to remand to the trial court for it to reconsider its ruling in light of the correct law, taking additional evidence if necessary. See State v. Brown, 782 So.2d 526, 528 (Fla. 1st DCA 2001) (remanding for further proceedings when the trial court failed to make the requisite findings after a Richardson hearing); State v. Snell, 391 So.2d 299, 302 (Fla. 5th DCA 1980) (remanding for further proceedings when the trial court had not afforded the State a sufficient opportunity during the Richardson hearing to show that the alleged discovery violation was not prejudicial to the defendant); see also Marshall v. State, 593 So.2d 1161, 1163 (Fla. 2d DCA 1992) (remanding to the trial court for an evidentiary hearing after the trial court applied the incorrect law when considering a Neil challenge); Abrams v. Paul, 453 So.2d 826 (Fla. 1st DCA 1984) (remanding to trial court for evidentiary hearing when the trial court applied the incorrect law when considering the defenses raised).

In this case, once the circuit court determined that the county court had failed to hold a proper Richardson hearing, the remedy was for the circuit court to remand the case to the county court for reconsideration of its ruling after it held a proper Richardson hearing. The circuit court failed to afford Farneth procedural due process, and thus departed from the essential requirements of the law, when it usurped the county court’s fact-finding role by making its own findings of fact and reversing the county court’s order based on those findings. Accordingly, we grant Farneth’s petition and remand with directions to the county court to reconsider its ruling on the State’s discovery violation in light of the correct law, taking additional evidence on the issue if needed.

Petition granted.

NORTHCUTT and LaROSE, JJ„ Concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . State v. Neil, 457 So.2d 481 (Fla.1984).


text:
    Cheryl LENARD, Appellant, v. A.L.P.H.A. “A BEGINNING” INC., Appellee.
    No. 2D06-2194.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 2006.

      Phyllis J. Towzey of Phyllis J. Towzey, P.A., St. Petersburg, for Appellant.
    Theresa A. Deeb pf Deeb & Brainard, P.A., St. Petersburg, for Appellee.
   STRINGER, Judge.

Cheryl Lenard challenges the final order of the Florida Commission on Human Relations which found that Lenard was not entitled to damages under the Florida Civil Rights Act, §§ 760.01-.il, Fla. Stat. (2005) (“FCRA”), because she was not discriminated against on the basis of a disability. We affirm because Lenard failed to prove that she had a statutorily covered disability under the FCRA.

Lenard was employed as a residential staff assistant by A.L.P.H.A. “A Beginning” Inc. (ALPHA), a residential facility for pregnant women and new mothers and their babies. As a residential staff assistant, Lenard was required to be available to assist the residents in caring for themselves and their babies in a healthy manner. She was also responsible for maintaining staff notes on the residents during her shift. In addition, on occasion, she was required to drive residents to and from medical appointments.

While Lenard was employed by ALPHA, she was injured in a nonwork-relat-ed horseback riding accident. Ultimately, she was diagnosed with two herniated discs, and she underwent surgery for this condition. The surgery did not completely resolve Lenard’s complaints, and she continued to suffer pain and side effects from the injury. According to Lenard, she had difficulty sitting, standing, and walking for extended periods of time and difficulty driving. She also could not bend to lift heavy items. Lenard testified that these problems were markedly increased on the days that she had physical therapy appointments.

When Lenard was first injured, she took an extended leave from ALPHA. Upon her return to work, Lenard provided ALPHA with a discharge note from her physician. This note did not identify any restrictions on Lenard’s activities. Despite this, Lenard testified that she requested that the notebooks containing the staff notes on each resident be moved to a higher shelf so she would not have to bend down to retrieve them. According to Lenard, this request was denied.

Shortly after returning to work, Lenard began using a certain chair in the staff area that she testified was most comfortable for her back. She also began using a special pillow against the back of the chair. Neither of these items was prescribed by Lenard’s healthcare providers, and there was no testimony that the particular chair Lenard was using had any therapeutic benefits. Several months after Lenard returned to work, ALPHA remodeled the staff area and replaced all the chairs. The chair Lenard had been using was discarded.

During this same time, Lenard began missing shifts at work due to her continued back pain. ALPHA had a written attendance policy that required an employee to call no less than eight hours before the start of a shift if the employee was going to be absent so that ALPHA could arrange for another employee to cover the shift. ALPHA’S administrative director testified that this was necessary because state regulations required ALPHA to have at least two staff members present at the facility at all times. Despite this written policy, Lenard often called less than four hours before the start of her shift to report that she would not be coming to work. After Lenard had called in late on six different occasions, ALPHA placed her on a corrective action plan. Under this plan, Lenard was required to call no less than six hours before the start of her shift if she was going to be unable to work. Despite this corrective action plan, Lenard called in late on nine different occasions in less than two months. Because of this violation of the corrective action plan, ALPHA terminated Lenard.

After being terminated, Lenard filed an “Employment Charge of Discrimination” with the Commission. In that charge, Lenard alleged that ALPHA had violated the FCRA by failing to provide her with reasonable accommodations for her disability and by terminating her based on her disability. Following an investigation, the Commission issued a determination of no cause.

Lenard subsequently filed a petition for relief with the Commission. In that petition, Lenard challenged the investigator’s conclusions that she did not have a disability as defined under the FCRA, that she was not discriminated against based on her disability, and that she was terminated for legitimate, nondiscriminatory reasons. Following an evidentiary hearing, the Administrative Law Judge (ALJ) concluded, like the investigator had, that Lenard did not have a disability as defined under the FCRA, that ALPHA had not discriminated against her based on a disability, and that ALPHA had terminated Lenard for legitimate, nondiscriminatory reasons. Following public deliberations, the Commission adopted the ALJ’s factual findings and denied Lenard relief. Lenard now challenges the Commission’s decision in this appeal.

Florida courts construe the FCRA in conformity with the federal Americans with Disabilities Act (“ADA”). McCaw Cellular Comme’ns of Fla., Inc. v. Kwiatek, 763 So.2d 1068, 1065 (Fla. 4th DCA 1999); Greene v. Seminole Elec. Coop., Inc., 701 So.2d 646, 647 (Fla. 5th DCA 1997). To state a prima facie case of disability discrimination under either the ADA or the FCRA, a petitioner must establish that (1) he or she has a statutorily covered disability; (2) he or she is a qualified individual; and (3) he or she was discriminated against because of his or her disability. Smith v. Avatar Props., Inc., 714 So.2d 1103, 1106 (Fla. 5th DCA 1998); see also Davidson v. Iona-McGregor Fire Prot. & Rescue Dist., 674 So.2d 858, 860 (Fla. 2d DCA 1996).

Here, the crux of the issues raised in this appeal is whether Lenard is “disabled” as that term is defined by the FCRA. If Lenard is “disabled,” ALPHA was required to offer her reasonable accommodations for her disability and was prohibited from terminating her because of her disability. If Lenard is not “disabled,” the protections of the FCRA are not triggered. After a thorough review of the record, we agree with the Commission that Lenard did not establish that she was “disabled” under the FCRA.

As a general rule, a physical or mental impairment is not automatically a “disability” under the ADA. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565-66, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999); Wimberly v. Sec. Tech. Group, Inc., 866 So.2d 146, 147 (Fla. 4th DCA 2004). Instead, to constitute a “disability” under the ADA, the impairment at issue must “substantially limit” a major life activity of the petitioner. Albertson’s, 527 U.S. at 565, 119 S.Ct. 2162; Wimberly, 866 So.2d at 147. The term “substantially limits” means “[u]nable to perform a major life activity that the avérage person in the general population can perform” or “[s]ig-nificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner and duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j)(1) (2005). In determining whether an impairment “substantially limits” a major life activity, courts should also consider the nature and severity of the impairment, the expected duration of the impairment, and the expected long-term impact of the impairment. 29 C.F.R. § 1630.2(j)(2).

“Major life activities” are defined as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i). With respect to the major life activity of working, the term “substantially limits” means “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” 29 C.F.R. § 1630.2(j)(3)(i).

In a case factually similar to Lenard’s, the Fifth Circuit found that an employee who could not sit or stand for long periods of time was not disabled within the meaning of the ADA. In Dupre v. Charter Behavioral Health Systems of Lafayette, Inc., 242 F.3d 610, 611-12 (5th Cir.2001), Dupre suffered from degenerative disc disease, which she contended interfered with the major life activities of sitting, standing, and working. Dupre contended that' her limitations, in sitting required her to get up every hour and walk around and that, her limitations in standing required her to sit down for a while after every hour of standing. Id. at 614. After Dupre was late or absent from work numerous times, allegedly due to medical appointments and problems with her back, she was terminated from her job. Id. at 612. When Dupre claimed that she had been fired due to her disability, her employer asserted that she had not been fired because of her medical condition but rather because of “excessive absenteeism.” Id. Ultimately, the trial court entered summary judgment in favor of Charter.

On appeal, Dupre contended that she was, in fact, disabled due to her inability to sit or stand for extended periods of time. The Fifth Circuit rejected this argument,' stating, “Dupre’s ability to sit or stand in one place for up to one hour at a time before having to walk around makes clear that the ‘condition, manner, or duration’ under which she was able to sit or stand was not significantly restricted as compared with the average person.” Id. at 614 (citing Colwell v. Suffolk County Police Dep’t, 158 F.3d 635 (2d Cir.1998) (holding that police officers who had difficulty standing for any period of time and who could not sit for prolonged periods did not have impairments that were sufficiently substantial when compared with the average person to render them “disabled”), and Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir.1999) (holding that an employee who required hourly breaks while sitting or standing was not “disabled” because his ability to stand and walk was not significantly less than that of the average person)).

Further, on the issue of whether Dupre was substantially limited in the major life activity of working, the court found that Dupre had proved only that she was precluded from jobs that required strenuous physical activity, prolonged sitting or standing, heavy lifting, or prolonged walking. . Id. at 614-15. The court then noted:

“If jobs utilizing an individual’s skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs.”

Id. at 614 (quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)). In rejecting Dupre’s argument that her major life activity of working was substantially limited, the court stated that “[tjhereexist ... many jobs involving only light labor that Dupre seemed perfectly capable of - performing.” Id. at 615. Accordingly, because Dupre had not proved that she was disqualified from either a substantial class of jobs or a broad range of jobs, the court found that she was not substantially limited in the major life activity of working and therefore was not “disabled” within the meaning of the ADA. Id. at 615.

Here, as in Dupre, Lenard presented evidence that she was unable to sit or stand for prolonged periods of time. However, like in Dupre, Lenard presented no evidence that her ability to sit and stand was significantly less than that of the average person. Accordingly, the ALJ’s finding that Lenard was not “substantially limited” in the major life activities of standing or sitting was supported by competent, substantial evidence.

In addition, like in Dupre, Lenard did not prove that she was “substantially limited” in the .major life activity of working. Lenard did prove, and the ALJ rightly found, that Lenard suffered a permanent physical impairment. As in Dupre, Lenard also proved that this impairment precluded her from taking jobs that required strenuous physical activity, prolonged sitting or standing, heavy lifting, or prolonged walking. However, Lenard presented no evidence that her impairment precludes her from performing “either a class of jobs or a broad range of jobs in various classes” as required by the FCRA. Rather, as was the case in Dupre, there appear to be many jobs involving only light labor that Lenard seems perfectly capable of performing. Lenard attempted to counter this argument by asserting that she had been unemployed since being fired by ALPHA; however, her only testimony was that she had been unable to find employment in the same field. To be substantially limited in the major life activity of working, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. Sutton, 527 U.S. at 492, 119 S.Ct. 2189. Thus, Lenard’s inability to find a position in the same field does not establish that she was “substantially limited” in the major life activity of working, particularly when she offered no evidence that her inability to find work was due to her impairment. Accordingly, the ALJ’s finding that Lenard’s impairment did not “substantially limit” her ability to perform the major life activity of working is supported by competent, substantial evidence.

When reviewing the findings and conclusions of a government agency, this court is not permitted to substitute its judgment for that of the agency if competent, substantial evidence supports the agency’s factual findings and the agency correctly applied the applicable statutory criteria. § 120.68(7), (8), Fla. Stat. (2005); City of Lake Wales v. Pub. Employees Relations Comm’n, 402 So.2d 1224, 1225 (Fla. 2d DCA 1981). Here, the ALJ’s finding, adopted by the Commission, that Lenard’s permanent physical’ impairment did not constitute a “disability” under the FCRA was supported by competent, substantial evidence. Accordingly, we affirm the Commission’s order.

Affirmed.

NORTHCUTT and LaROSE, JJ„ Concur.


text:
    FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK n/k/a Fidelity National Title Insurance Company, Petitioner, v. James M. CHERESKIN, on behalf of himself and all others similarly situated, Respondent. Janet Figueroa, Petitioner, v. James M. Chereskin, on behalf of himself and all others similarly situated, Respondent.
    Nos. 1D06-3361, 1D06-3370.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2006.
    Jerry R. Linscott, Robert W. Thielhelm, Jr., and Edgar E. Stanton, IV, of Baker & Hostetler, LLP, Orlando, for Petitioner in No. 1D06-3361.
    P. Scott Russell, IV, of P. Scott Russell, P.A., Jacksonville, Stanley M. Grossman, D. Brian Hufford, Robert J. Axelrod, and Robert B. Clark of Pomerantz, Haudek, Block, Grossman & Gross, LLP, New York, and Jeffrey M. Liggio of Liggio, Benrubi & Williams, P.A., West Palm Beach, for Respondent.
    Marc A. Wites of Wites & Kapetan, P.A., Lighthouse Point, and Nancy Anne Natasha Norelli, Miami, for Petitioner in No. 1D06-3370.
   PER CURIAM.

The petitions for writs of certiorari are granted. The Miami-Dade circuit court was the first to acquire jurisdiction of this matter. Under the priority principle, the Miami-Dade court has the exclusive right to hear all issues or questions arising in this case. Parker v. Estate of Bealer, 890 So.2d 508, 512 (Fla. 4th DCA 2005); Hirsch v. DiGaetano, M.D., 782 So.2d 1177, 1177-78 (Fla. 5th DCA 1999); Polaris Pub. Income Funds v. Einhorn, 625 So.2d 128, 129 (Fla. 3d DCA 1993). The portion of the trial court’s order denying Petitioners’ motions for stay is quashed, and we remand with instructions to grant the stay.

BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.