author: WELLS, J.

text:
    Jonathan Daniel GARCIA, Appellant, v. Stephanie G. MORROW, Appellee.
    No. 3D05-2763.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.

      Arthur J. Morburger; Peter A. Cohen, Miami, for appellant.
    Joseph P. George, Jr., for appellee.
    Before WELLS, SHEPHERD, ROTHENBERG, JJ.
   WELLS, J.

Jonathan Daniel Garcia, grandson of decedent Nereida Garcia, appeals from an order appointing his mother Stephanie Morrow, Wa Stephanie Garcia, personal representative of his grandmother’s estate. He also appeals from an order striking the disclaimer of his father, Nestor Garcia. We reverse both orders.

In 1998, Nestor was sentenced to five years in prison on federal charges and ordered to pay restitution in the amount of $1,658,729.57. Following his mother’s death and while still in prison, Nestor acquiesced to a state court order mandating transfer of his mother’s condominium unit and accounts at certain financial institutions to Stephanie to satisfy past due child support payments.

Jonathan is one of the decedent’s four grandchildren. The other three, David, who like Jonathan has reached majority, Samara and Alexandra, both of whom are minors, are Jonathan’s siblings. Jonathan’s parents, Stephanie Morrow and Nestor Garcia (the decedent’s only child) are divorced.

Stephanie has now petitioned to administer Nereida’s estate and seeks appointment as personal representative. Jonathan also seeks to be appointed as personal representative and has filed a disclaimer of interest executed by his father as well as the consent of his brother, the only other descendant to have attained majority, in support of his petition.

Pointing to Nestor’s transfer of his interest in Nereida’s assets in the earlier court order, Stephanie claims that Jonathan has tried to work a fraud on the court by securing and filing Nestor’s disclaimer of interest in those same assets. The trial court apparently agreed, appointing Stephanie, without an evidentiary hearing, as personal representative. For the following reasons we reverse this determination and remand for an evidentiary hearing.

Section 733.301 of the Florida Statutes (2006) provides in part:

(1) In granting letters of administration, the following order of preference shall be observed:
(b) In intestate estates:
1. The surviving spouse.
2. The person selected by a majority in interest of the heirs.
3. The heir nearest in degree. If more than one applies, the court may select the one best qualified.
(3) In either a testate or an intestate estate, if no application is made by any of the persons described in subsection
(1), the court shall appoint a capable person;

Under this provision, Jonathan is the preferred representative. See also § 733.301(1)0)), Fla. Stat. (2006) (providing that after a surviving spouse, the person selected by a majority in interest of the heirs or the heir nearest in degree has priority to serve as personal representative); § 733.303(l)(a), Fla. Stat. (2006) (providing that a “person is not qualified to act as a personal representative if the person ... [h]as been convicted of a felony”).

A party having preference, and not otherwise disqualified by the statute, does not, however, have an absolute right to appointment. See Estate of Snyder, 333 So.2d 519, 520 (Fla. 2d DCA 1976). Rather, “[t]he appointment of a personal representative for an intestate estate is a discretionary act of the probate courts.” DeVaughn v. DeVaughn, 840 So.2d 1128, 1132 (Fla. 5th DCA 2003). But where a preferred individual is not being appointed, the record must show that the preferred person is not fit to be appointed as the representative:

[W]e know that the probate court has the inherent authority to consider a person’s character, ability, and experience to serve as personal representative. See Padgett v. Estate of Gilbert, 676 So.2d 440, 443 (Fla. 1st DCA 1996). However, if the statutorily preferred person is not appointed, the record must show that the person is not fit to be appointed. If the record supports the conclusion that the statutorily preferred person “lacks the necessary qualities and characteristics,” the court has discretion to refuse to make the appointment. Id. For example, a person may be unsuitable to serve as personal representative because of an interest adverse to the estate or hostility to those interested in the estate. Estate of Snyder, 333 So.2d at 520. That there are ill feelings, disputes, and strained relationships among the heirs does not necessarily prohibit one of them from being the best qualified. In re Estate of Harper, 271 So.2d 40, 42 (Fla. 1st DCA 1973). Cf. In re Estate of Schleider, 770 So.2d 1252, 1254 (Fla. 4th DCA 2000) (holding that “if a dispute which will result in unnecessary litigation and impede the administration of the estate is combined with other factors ... the totality of the circumstances may rise to a level that allows the trial court to exercise its discretion in refusing to appoint the personal representative named in the will.”).

Id., 840 So.2d at 1133 (emphasis added).

Here, the record demonstrates only that in seeking to be appointed as personal representative of the estate, Jonathan submitted his father’s disclaimer. This alone is insufficient to support rejection of Jonathan’s appointment.

This is not to say that Jonathan must be appointed as personal representative. As explained in Schleider v. Estate of Schleider, 770 So.2d 1252 (Fla. 4th DCA 2000), where the record confirms that the preferred person is not qualified or fit to administer an estate, that person does not have to be appointed:

Section 733.301, Florida Statutes (1999) (formerly § 732.44, Fla. Stat. (1973)), does not bestow an absolute right upon those who are given preference to be appointed personal representative under this statute. See Estate of Snyder, 333 So.2d at 520. In Estate of Snyder the second district held that an individual may be considered unsuitable to administer the estate, if there is an adverse interest of some kind, hostility to those immediately interested in the estate, or an interest adverse to the estate itself. See id. “To hold that only insanity, conviction of an infamous crime, and minority bar the appointment of appellants as administrators would give the statute an absurd construction.” Id. The second district further stated:
Where the record supports the conclusion that a person occupying the position of statutory preference does not have the qualities and characteristics necessary to properly perform the duties of an administrator, it would be an anomaly to hold that a probate court, which has historically applied equitable principles in making its judgments, does not have the discretion to refuse to appoint him simply because he did not fall within the enumerated list of statutory disqualifications. Estate of Snyder, 333 So.2d at 521.

Id., 770 So.2d at 1254.

Because the record does not demonstrate that Jonathan is not fit to serve as personal representative, we reverse the orders striking Nestor’s disclaimer and appointing Stephanie as personal representative and remand for an evidentiary hearing to determine whether Jonathan as the statutorily preferred person “lacks the necessary qualities and characteristics” to assume the position as personal representative. DeVaughn, 840 So.2d at 1133 (quoting Padgett, 676 So.2d at 443).

Reversed and remanded.

      . Section 739.402, Florida Statutes (2006) provides in part:
      (2) A disclaimer of an interest in property is barred if any of the following events occur before the disclaimer becomes effective:

      (b) The disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so.


source: Caselaw Access Project

author: GRIFFIN, J.

license: Public Domain

text:
    DEPARTMENT OF CORRECTIONS, Appellant, v. Christopher DAUGHTRY, Appellee.
    No. 5D05-3876.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2007.

      Gary L. Grant, of Assistant General Counsel, Tallahassee, for Appellant.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
   GRIFFIN, J.

The Florida Department of Corrections [“DOC”] appeals an order of the Seventh Judicial Circuit Court enjoining the DOC from engaging in the “practice of automatically violating the probation of every sex offender who fails to give an address acceptable pursuant to § 948.30(l)(b) Fla. Stat. (2005), at the time of a scheduled release from incarceration,” and requiring the implementation of a policy designed to resolve the issue. Sympathetic though we may be to the frustration of the trial court at the actions of DOC and to the notions of essential fairness expressed in its order, we are bound, on procedural grounds, to reverse.

The facts giving rise to the order at issue are these: on August 8, 2000, Christopher Daughtry was sentenced in the Seventh Judicial Circuit in Volusia County to a split sentence of seven years’ incarceration to be followed by five years of sex offender probation. Daughtry completed service of the seven-year term of incarceration and was to commence his five-year period of sex offender probation. Daugh-try was arrested immediately upon his release from prison and transferred to the Volusia County jail on the ground that he had violated a special condition of his probation. The condition he allegedly violated prohibited Daughtry from “living within 1000 feet of a school, day care center, park, playground, or other place where children regularly congregate.” The DOC’s asserted basis for taking this action was its statutory obligation to report a compliant residence address for each sex offender releasee. DOC finds this duty in section 944.606(3)(a)(l), Florida Statutes (2005), which provides in pertinent part that: “The Department must provide: ... the offender’s intended address, if known.... ”

On September 1, 2005, a bond hearing was scheduled for Daughtry. At that time, the trial court realized that Daugh-try’s “violation” was the inability to supply a compliant address prior to leaving prison and questioned the DOC’s basis for conducting a warrantless arrest of Daughtry immediately upon the expiration of his prison term.

Eventually, the trial court issued an Order Modifying Probation. This order contained within it the appealed injunction. The order is admirable in many respects and bears reproducing in its entirety, so it is attached as an appendix to this opinion.

The DOC correctly asserts multiple reasons why the injunctive provisions of the challenged order must be reversed. First, the DOC was not a party to the proceedings and, evidently, no notice was given to DOC that such an order was within the contemplation of the court. Nor had Daughtry filed any motion or sought in-junctive relief. Although the DOC’s decision to re-arrest probationers like Daugh-try before they can exit the prison based on DOC’s statutory duty to have an acceptable address for the released prisoner is as baffling to this court as to the trial court, the provisions of the order directed to the DOC were not authorized and are hereby vacated.

ORDER VACATED in part.

ORFINGER and LAWSON, JJ., concur.

APPENDIX

IN THE CIRCUIT COURT, SEVENTH

JUDICIAL CIRCUIT, IN AND FOR

VOLUSIA COUNTY, FLORIDA

CASE NUMBER 99-34205.

STATE OF FLORIDA vs. CHRISTOPHER ALEX DAUGHTRY, Defendant.

Order Modifying Probation

The above cause came to be heard on the Motion To Set Bond by the defendant and the motion of the court, and the court having invited legal and factual argument and comment by the Office of the State Attorney, Seventh Judicial Circuit [hereinafter State], the Department of Corrections, State of Florida [hereinafter DOC], and counsel for the defendant in the course of several hearings conducted over a period of several weeks, and being duly advised in the premises, it is held as follows:

Facts: On June 23, 2000, a guilty verdict was rendered by a jury on the charge of lewd or lascivious assault upon a child, a second degree felony with a maximum prison sentence of fifteen (15) years. On August 8, 2000, the defendant was sentenced to serve seven (7) years of imprisonment to be followed by five (5) years of sex offender probation. The defendant reached the end of his term of imprisonment on August 6, 2005. Before he was

physically released from the state prison the DOC performed a warrantless arrest for a purported violation of probation. The stated basis for the arrest was the defendant’s failure to provide an address where he would reside when released to probation.

Paragraph 15(b) of the sex offender probation order entered by this court reads as follows:

The victim being under eighteen (18) years of age, you are prohibited [sic] living within 1,000 feet of a school, day care center, park, playground or other place where children regularly congregate.

Additionally, § 948.30(l)(b), Fla. Stat. (2005), imposes a condition upon sex offender probationers without the necessity of pronouncement in the course of the sentencing hearing:

If the victim was under the age of 18, a prohibition on living within 1,000 feet of a school, day care center, park, playground, or other place where children regularly congregate, as prescribed by the court. The 1,000-foot distance shall be measured in a straight line from the offender’s place of residence to the nearest boundary line of the school, day care center, park, playground, or other place where children congregate. The distance may not be measured by a pedestrian route or automobile route.

One other statutory requirement was made known to the court by the DOC. Section 944.606(3)(a)(l), Fla. Stat. (2005), provides that the Florida Department of Law Enforcement [FDLE] shall be furnished information on sex offenders when they are released from prison. The DOC:

[M]ust provide information regarding any sexual offender who is being released after serving a period of incarceration for any offense, as follows:
1. The department must provide: the sexual offender’s name, any change in the offender’s name by reason of marriage or other legal process, and any alias, if known; the correctional facility from which the sexual offender is released; the sexual offender’s social security number, race, sex, date of birth, height, weight, and hair and eye color; date and county of sentence and each crime for which the offender was sentenced; a copy of the offender’s fingerprints and a digitized photograph taken within 60 days before release; the date of release of the sexual offender; and the offender’s intended residence address, if known....

Emphasis added.

The court first became aware of this case when a hearing was conducted on the defendant’s Motion to Set Bond on September 2, 2005. It was explained at the bond hearing that the defendant had given the DOC unsatisfactory addresses that did not meet the distance requirements under either the sex offender probation order or the statute cited above at the time of his anticipated discharge from DOC imprisonment. Under its construction of the law the DOC contends that it has an inescapable statutory obligation to report a satisfactory residence address to the FDLE. It was prevented from meeting its obligation to the FDLE by virtue of the defendant’s inability to provide a suitable address. This defendant was arrested immediately by the DOC upon concluding his prison sentence, held in the Marion County Jail, transferred to the Volusia County Jail, and held there without bond following a first appearance.

When the defendant was seen on September 2, 2005, the court did not receive the benefit of a full explanation of his circumstances because the DOC had not been provided notice of the hearing. The court scheduled a continuation of the hearing for September 8, 2005, and required the attendance of all interested parties in an effort to obtain a better explanation. At that time the DOC and the State explained that the probation order and the statutes cited above, when considered in pari materia, obligated the DOC to perform a warrantless arrest before the defendant could be released to the streets. In response to further inquiry by the court the DOC explained that it recognized that the court, if it were not content with the situation, would be free to conduct a probation hearing, find the defendant not guilty of the allegations, and order his release. However, the DOC would not permit the actual release to take place. Instead, the DOC expressed its intent to simply arrest the defendant, again, before he could leave the jail building for yet another violation of probation brought on by his continuing inability to provide a suitable residence address. Further, all agreed, it is within the jurisdiction of the court to set a bond or dismiss the affidavit of violation, but the DOC assured the court it would simply effect another arrest before the defendant could be freed from the jail. Thus, it is virtually guaranteed by the DOC that the defendant will not leave imprisonment regardless of the original sentence by the court or further order of the court.

Temporarily baffled, the court extracted an agreement from the defendant to voluntarily stay in the jail to avoid the “Groundhog Day”-like scenario predicted by the DOC. It was ordered that weekly status conferences would be conducted in an effort to break the impasse. It was hoped that the defendant would be able to locate an acceptable address and that the DOC would assist by dedicating some of its resources to the task. Status conferences were conducted on September 16, September 21, and September 28, 2005, to no avail. The defendant has provided no address suitable under the law. The DOC has adopted and announced its policy and it is clear at this juncture that it has no intention of bending.

This defendant served a term of seven years in a prison. He has not been employed and he has no funds available for his use. While he has family on the outside, the family also has limited resources and has been unable to come to his rescue. They have submitted several addresses for consideration by the DOC, but none have met the requirements of the probation order and the statute. The defendant has skills as a cook and restaurant worker and has worked in that capacity while imprisoned. His ability to earn money is the only asset or resource available to him. At this time he has no idea how he will obtain an address which will pass statutory muster. He believes it is impossible to accomplish this somewhat daunting task of finding a home with no money, no job, and no family or friends able to save the day. The court could not agree more.

To add salt to the wound, the defendant has been placed in “lockdown” at the local jail “for his own protection.” Officials there believe he is at risk in the general jail population as a result of an article that appeared in a local newspaper identifying him as a sex offender. In “lockdown” an inmate may not use the telephone. In its effort to “protect” the defendant, the Volu-sia County Department of Corrections has managed to place the last nail in the coffin built by the DOC.

Law: There is no appellate authority within the State of Florida which bears directly on the question asserted by the court on its own motion in the instant case; that is, whether the imposition of residency distance requirements by statute and/or a probation order infringe on constitutionally protected rights, either facially or in their application. There has been, however, considerable examination of a closely related topic — the constitutionality of sex offender registration laws — which is instructive. In State v. Moore, 410 F.3d 1337 (11th Cir.2005), the registration requirements of the Florida Sex Offender Act were upheld after consideration of both due process and equal protection challenges. It was specifically held that the rights asserted to have been infringed by registration statutes are not fundamental rights, and the appropriate analysis is thereby the rational basis test. There is no question that the public has a right, and the legislature has a corresponding duty, to insure that the children within our boundaries are safe. The registration laws, as well as the laws compelling a measurable distance between children and sex offenders, obviously bear a rational relationship to a legitimate state interest and any due process argument thereby fails. Equal protection analysis shares the fate. Sex offenders are not members of a class requiring strict scrutiny and, because there is no heightened scrutiny, a statute is within constitutional bounds when “there is any reasonably conceivable state of facts that could provide a rational basis for it.” 410 F.3d at 1346. Again, there is no question that the state acts reasonably and responsibly when it protects its children from known risks. The law requiring sex offenders to reside a reasonable distance from children withstands facial constitutional scrutiny for the same reasons that the sex offender registration laws have withstood scrutiny. They are facially valid statutes reasonably designed to bring a level of comfort to the citizens of our state. Clearly the legislature is to be commended for its effort and this court certainly does not take issue with the imposition of residential restrictions per se.

Many years ago it was decided by the policy makers in this state that we would employ imprisonment, probation, and a discretionary combination of the two as appropriate sentences in our courts. In fact this court imposed such a split sentence when the defendant was ordered to serve seven years of imprisonment to be followed by five years of sex offender probation. The DOC has now unilaterally elected to reverse that sentencing tradition for sex offenders. This defendant is absolutely and totally prevented from leaving the jail, even though he has served his time in prison as ordered by this court. His right to serve his probationary sentence as imposed by this court in accordance with the laws adopted by the legislature is being prevented — neither by the statute nor by this court. Rather, the DOC has opted to invent a policy which completely thwarts the intent of both the court and the legislature. When the DOC construes the two statutes so that all defendants must give the DOC an acceptable address (so that the DOC can give it to the FDLE) before the defendants can leave the incarcerative setting, it creates an impossible situation for this defendant.

The ridiculous nature of this requirement is compounded when the DOC files an affidavit violating the defendant’s probation. The DOC, by the filing of this affidavit, creates a criminal act where none was intended by those entrusted with the chore of actually defining criminal acts. The very suggestion that the DOC is somehow empowered to stand in the way of judicial and legislative authority by construing a pair of statutes in such a way that it “legislates” criminal conduct is bewildering. The DOC would convert our county jail into the mythical Hotel California, where the defendant is “free to check out any time [he wants], but [he] can never leave.”

No branch of the government, especially the executive, has the entitlement to set into place a standard which is impossible to perform, and then elevate the failure to perform to that standard a criminal act. Yet, that is exactly what the DOC has done here. Creation of such an impossible standard is unconscionable. The DOC has an obligation to each and every person in this state, including sex offenders, to apply the laws of this state in conjunction with each another properly, rationally, and reasonably. In this instance there is absolutely nothing about its application of the law that is proper, rational, or reasonable, particularly as it pertains to the defendant.

It is also remarkable that the DOC has interjected itself into the world of policy making to the extent that it not only usurps the legislative and judicial branches, but also avoids its own responsibility. It is, after all, the responsibility of the DOC to enforce legislatively defined and judicially ordered policy by supervising probationers. It is neither the DOC’s responsibility to rewrite the law by creative construction, nor to overrule (decisions of judicial bodies by its acts. It is respectfully suggested that the community would be better served if the DOC would apply its policy-making skills to the task of creating a meaningful internal policy for the proper, rational, and reasonable supervision of sex offenders ordered to its supervision.

Ruling: Based upon the foregoing, this court is compelled to rule that, while the statutes in question are facially valid, their application by the DOC is unconstitutional in this case. Since the DOC has steadfastly used its authority to prevent the release of prisoners and has assured the court that it will continue to do so in the foreseeable future, the DOC is hereby ordered to:

1. Immediately cease and desist its practice of automatically violating the probation of every sex offender who fails to give an address acceptable pursuant to § 948.30(l)(b), Fla. Stat. (2005), at the time of a scheduled release from incarceration.

2. Immediately create and implement a policy by means of which the DOC shall review the circumstances of each sex offender at or before the scheduled time of release from incarceration to determine whether the defendant has made a good faith effort to locate an acceptable residence address. In those instances in which a defendant has not made such a good faith effort, or if the DOC in the reasonable exercise of its common sense and discretion is unable to make such a determination, the DOC shall arrange to have the matter brought before the court forthwith for a determination. If the DOC determines that a good faith effort has been made by the defendant and he remains unable to locate a residence acceptable under the statutes and the probation order, the defendant shall be permitted to leave the incarcerative setting without further interference of the DOC, subject to the sex offender probation plan which follows:

a) All provisions of any existing probation order shall remain in full force and effect to the extent they do not conflict with this order and they are hereby incorporated by reference. In the event of conflict, this order shall prevail.
b) All statutes shall be applied without fail, except to the extent that their particular application by the DOC has been discussed in this order. Any conflicts of statute identified by the State or the DOC in the future which are not addressed in this order shall be brought before the court forthwith prior to any action or inaction detrimental to the community or this probation plan.
c) The defendant shall be monitored by means of uninterrupted GPS monitoring until such time as he has satisfied the residency requirements discussed herein. A probation officer shall have daily personal contact with the defendant to insure compliance with all probationary requirements. The DOC shall be free to institute additional reasonable supervision or monitoring as it deems appropriate to insure the safety of the public. It is the intent of this order to impose minimal standards and the DOC is not limited in the event it wishes to exercise its discretion to impose further reasonable conditions.
d) The defendant shall become employed immediately upon his release to the extent that he is physically capable. He may be employed in any legal capacity, recognizing that it is difficult for a sentenced sex offender to find employment in traditional venues. He may be employed as a day laborer, an independent contractor, or in any other capacity which will provide income within the law. That income will be applied to satisfying the residency requirements herein to the extent reasonably possible.
e) The DOC shall provide financial counseling, assistance, and advice to insure the probationer is applying his funds appropriately so as to enhance his ability to locate suitable housing as soon as practicable.
f) The DOC shall assist in obtaining suitable housing by any means within its ability, including the utilization of First Step funds and any other funds or assistance which are available to the DOC for assisting its probationers in complying with the law.
g) The DOC shall permit the defendant to temporarily reside in any place that meets the distance requirements of the statute and the probationary order, so long as the address describes the residence in a manner that would permit a person of average intelligence to locate the place of residence within a reasonable time. Metes and bounds descriptions shall be permitted. For example, an acceptable address under this order may be: Beneath the palmetto bush 45’ from the Northern edge of U.S. 92 along the Easterly side of the power easement under the power wires 2.1 miles West of the intersection of U.S. 92 and Red John Road. Another might be: On the bank of the St. Johns River beneath the West side of the William Chappel Memorial Bridge which crosses the river at Astor. This court expressly recognizes the difficulty for a sex offender in this community to provide a “Post Office” address acceptable to the DOC under its current policy.
h) The DOC shall evaluate daily the progress of the defendant in acquiring and maintaining employment and locating suitable housing to insure that the defendant continues to comply with the letter and spirit of this order.
i) Written reports shall be provided to the court on the first day of each month until the defendant is in complete compliance with the housing requirements under the statute and the probation order.

3. The court reserves jurisdiction to make any modifications or amendments to this order necessary to insure that the safety needs of the public are met and that the defendant is given a fundamentally fair chance to comply with the law.

4. The court reserves jurisdiction to issue an order to show cause why the offender shall not be held in contempt of court upon the filing of an appropriate affidavit in the event that the probationer or the DOC fails to comply with the terms and conditions of this order.

The court is not entirely without empathy for the DOC. It cannot be easy to become the public target of others every time a probationer commits a horrible crime. Very often the opportunity exists for these crimes to be committed because of a miscalculation by others in the government. Of course, it is unfair for the DOC to become the scapegoat for every thing that goes wrong. If we are committed to a governmental policy that includes probation as a sentencing option, there will invariably be instances when criminals serving probationary sentences do what criminals can reasonably be expected to do — commit crimes. We should not be surprised when this occurs. We certainly should not gather to throw the DOC under the bus. Instead, we should learn from our experience and diligently apply ourselves to the task of improving our skills. It is lamentable that criminals commit crimes. But it is silly to assume that the DOC should be accountable for the criminal conduct of every criminal in its charge. The DOC has been driven in its policy determinations in recent years by outside response to the commission of several horrific crimes by probationers. The court fears that the nervous environment has led to the adoption of this ridiculous policy by the DOC. Perhaps the DOC has designed this policy in an effort to avoid being held accountable for the criminal conduct of its charges. If so, it is sad. If true, it would leave the impression that the DOC is trying to circle its wagons for self-protection in such a way that it throws the judicial branch under the same bus that it seeks to dodge. The judicial branch is ethically prohibited from engaging in political decision-making and absolutely prohibited from making public explanations of its decisions. How terribly unfair it would be for the DOC to lay its responsibilities at the feet of those who are helpless to explain themselves in the public forum. It is fervently hoped that the DOC had higher goals when it adopted this particular policy-

Lest there be any misunderstanding whatsoever, this court is not abandoning a long-standing commitment to children and their needs in this community in favor of convicted sex offenders. Every child deserves a safe community and each of them specifically deserves to be free of the criminals who would prey upon them. To this court there is not a crime more deserving of punishment than a crime committed upon the helpless among us. Those who steal our children’s innocence and drag them through the despicable horrors seen daily in our courts are most deserving of the vile feelings they generate in all of us. The court does not wish, by means of this order, to become a flag waver or a banner bearer for sex offenders.

There are times, however, when constitutional notions of fundamental fairness must come to bear, even for sex offenders. When a man, even a sex offender, has served his time and thereby paid his debt to society, it is fundamentally unfair to artfully devise rules that make it impossible for him to function or to even be released from incarceration. The law should always be applied to permit those who have been adequately punished under the law to live with reasonable restrictions so long as they do so in a manner that threatens no one, especially our children. This order is an attempt to accomplish no more. It should be interpreted by no one as an indication that any sex offender probationer, or anyone else for that matter, who violates this order or the law will not be subject to the full weight of the law.

Done and ORDERED.

/s/ Joseph G. Will Joseph G. Will Circuit Judge

Copies to: Department of Corrections State Attorney, Seventh Judicial Circuit

Scott Swain, Esquire, for the defense

      . DOC's Deputy General Counsel did attend one of the several hearings conducted prior to entry of the appealed order, at the request of the trial judge.

      . See State Dep’t of Highway Safety & Motor Vehicles v. Tidey, 946 So.2d 1223 (Fla. 4th DCA 2007), and cases cited therein.

      . Daughtry offers several avenues for rejection of DOC's appeal, from lack of jurisdiction to exercise of inherent authority, but none have merit.

      . There may be circumstances under which a fundamental right is infringed by the imposition of the distance requirements considered herein, but it is not within the province of this court to assert such claims or unnecessarily expand on the rulings of appellate courts when there are other available means of resolving the issue. The Supreme Court of Iowa in State v. Seering, 701 N.W.2d 655 (Iowa 2005), examined the precise question at issue here. The findings of that court were limited by procedural and pleading infirmities. A thorough examination of the remaining unresolved topics with a slight factual twist may result in different conclusions. If either a fundamental right to travel or a fundamental right to exercise familial relationships, or even a simple recognition that the fundamental right of liberty had been thoroughly examined by the Iowa court, the outcome could have been completely different. That analysis applied to this case could reasonably result in a determination that this defendant’s fundamental rights are being crushed by the implementation of statutory scheme in Florida. To remedy this particular injury to this particular defendant, though, it is not necessary to indulge that severe a finding.


author: THOMAS, J.

text:
    Robert H. BARR, D.M.D., Appellant, v. DEPARTMENT OF HEALTH, BOARD OF DENTISTRY, Appellee.
    No. 1D05-6086.
    District Court of Appeal of Florida, First District.
    April 11, 2007.
    Fred M. Johnson and Steven E. Oole of Fuller, Johnson, Farrell, Mitchell & Má-tale, LLC, Tallahassee, for Appellant.
    Wings S. Benton, Assistant General Counsel, Department of Health, Tallahassee, for Appellee.
   THOMAS, J.

We have for review a final order entered by the Board of Dentistry (Board) finding that Appellant violated the standard of care provision contained in section 466.028(l)(x), Florida Statutes (2005). Because Appellant’s violation consisted only of improper recordkeeping, we reverse.

The Board prosecuted Appellant for violating section 466.028(l)(x), which permits disciplinary action for “failing to meet the minimum standards of performance in diagnosis and treatment ” (emphasis added). The Board alleged that Appellant violated the appropriate standard of care in both his treatment of a patient’s root canal and in his documentation of the care he provided. At the final hearing, the Administrative Law Judge (ALJ) determined that Appellant met or exceeded the standard of care for his actual treatment of the patient’s root canal, but that he violated section 466.028(l)(x) by failing to maintain adequate records associated with the treatment provided. Appellant argues that this ruling was in error, as any deficiency in recordkeeping does not affect a doctor’s diagnosis and treatment, and can only be prosecuted under section 466.028(l)(m), Florida Statutes (2005). Section 466.028(l)(m) generally provides that the Board may discipline a dentist if he or she fails to keep written dental records justifying the course of treatment.

We note that an agency’s construction of a statute it is charged with administering is “entitled to great weight and will not be overturned unless clearly erroneous.” Dep’t of Natural Res. v. Wingfield Dev. Co., 581 So.2d 193, 197 (Fla. 1st DCA 1991) (internal citation omitted). However, the principles of statutory construction require reconciliation among seemingly disparate provisions of law in order to give effect to all parts of the law. Woodgate Dev. Corp. v. Hamilton Inv. Trust, 351 So.2d 14, 16 (Fla.1977).

The Board argues that particularly egregious recordkeeping violations could rise to the level of a “standard of care” violation. Because this interpretation renders subsection (m) useless, it is clearly erroneous. We believe there is a significant difference between improperly diagnosing a patient, which constitutes a subsection (x) violation, and properly diagnosing a patient, yet failing to properly document the actions taken on the patient’s chart, which constitutes a subsection (m) violation. We hold that the ALJ erred in finding Appellant guilty of violating section 466.028(l)(x), Florida Statutes (2005). Accordingly, we reverse the final order.

REVERSED.

BARFIELD and VAN NORTWICK, JJ., concur.


author: WEBSTER, J.

text:
    Robert Allen ARMATAGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0893.
    District Court of Appeal of Florida, First District.
    April 11, 2007.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

In this direct criminal appeal, appellant challenges an order denying his motion to suppress evidence seized during the search of a truck he was driving. Because we conclude that the trial court erred as a matter of law when it concluded that the arresting officer had reasonable suspicion of criminal activity to justify his stop and detention of appellant and his passenger, we reverse.

The state correctly conceded in the trial court that the arresting officer detained appellant and his female passenger when he pulled up behind their truck and activated the red and blue lights on his patrol car. See, e.g., Brooks v. State, 745 So.2d 1113 (Fla. 1st DCA 1999) (activating flashing blue lights constitutes a show of authority amounting to an investigatory stop). In fact, the officer candidly testified that appellant and his passenger were not free to leave at that point. The state argues that the stop was valid because the officer had reasonable suspicion of criminal activity when he made it. A law enforcement officer “may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity.” United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). However, to have a reasonable (or founded) suspicion, “the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity” based upon “the totality of circumstances.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). In this ease, the problem with the state’s argument is that the arresting officer conceded that, when he made the stop, he did not have any reason to believe that appellant or his passenger had committed, or was about to commit, any crime. Moreover, our review of the record satisfies us that the arresting officer did not have any “particularized and objective basis” for suspecting that either appellant or his passenger was engaged in any criminal activity at the time of the stop.

Because, at the time of the stop, the arresting officer lacked reasonable suspicion that either appellant or his passenger was engaged in criminal activity, the trial court should have granted appellant’s motion to suppress. See Graham v. State, 714 So.2d 1142 (Fla. 1st DCA 1998). Its failure to do so constituted reversible error. Moreover, because it is clear that the trial court’s ruling on appellant’s motion to suppress was dispositive, see, e.g., Brown v. State, 376 So.2d 382, 384 (Fla.1979); State v. Ashby, 245 So.2d 225 (Fla.1971); Fernandez v. State, 917 So.2d 1022, 1024 (Fla. 1st DCA 2006), we reverse appellant’s conviction and remand with directions that the trial court enter an order discharging appellant.

REVERSED and REMANDED, with directions.

ALLEN and ROBERTS, JJ., concur.


author: PER CURIAM.

text:
    Jimmie Dwight GREEN, Appellant, v. FLORIDA PAROLE COMMISSION, and James R. McDonough, Secretary, Florida Department of Corrections, Appellees.
    No. 1D06-5243.
    District Court of Appeal of Florida, First District.
    April 11, 2007.
    Jimmie Dwight Green, pro se, Appellant.
    Bill McCollum, Attorney General; Bradley R. Bischoff, and Sara K. Dyehouse, Assistant General Counsels, Florida Parole Commission, Tallahassee, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 18, 2006, the Court has- determined that the lower tribunal’s Order Requiring the Florida Department of Corrections to Produce Plaintiffs Complete Official File, is a nonappealable nonfinal order. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Paul BRANCH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1102.
    District Court of Appeal of Florida, First District.
    April 11, 2007.
    Paul Branch, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The issues raised in the instant habeas corpus petition are before this court in petitioner’s appeal from an order denying his Florida Rule of Criminal Procedure 3.800 motion in case number 1D06-5528. The appeal provides petitioner with an adequate legal remedy. The habeas corpus petition is accordingly denied as procedurally barred. Petitioner’s motion to consolidate or for leave to amend the petition is denied.

BROWNING, C.J., KAHN, and LEWIS, JJ., Concur.


text:
    Sylvester O’Neil LEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1167.
    District Court of Appeal of Florida, First District.
    April 11, 2007.
    Sylvester O’Neil Lee, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition to invoke all writs jurisdiction is denied as procedurally barred.

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


text:
    Tyronza Altara WOODARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1178.
    District Court of Appeal of Florida, First District.
    April 11, 2007.
    Tyronza Altara Woodard, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied as facially insufficient.

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


text:
    Dennis FORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3773.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Rehearing Denied May 18, 2007.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of uttering a false instrument and grand theft for having deposited a forged check from a pension fund, of which he was not a beneficiary, and obtaining cash in return. We affirm appellant’s convictions, rejecting his contention that the trial court erred in admitting the duplicate forged check. We conclude that the check was admissible under section 90.953, Florida Statutes, and that none of the exceptions within the statute applied. See Lowery v. State, 402 So.2d 1287 (Fla. 5th DCA 1981). He also argues that the court erred in allowing an investigator for the pension fund to testify that he had searched the pension fund records and did not find appellant’s name in the list of beneficiaries, claiming that such evidence is hearsay. As the supreme court noted in Garcia v. State, 644 So.2d 59, 62 (Fla.1994), it is doubtful that such testimony is hearsay at all. In this case, even if it were inadmissible hearsay, its admission was harmless.

Finally, he claims that his sentence was vindictive and imposed for rejecting an earlier plea offer. However, having reviewed the criteria set forth in Wilson v. State, 845 So.2d 142, 156 (Fla.2003), to evaluate whether a sentence is vindictive, we conclude that the criteria have not been met in this case. The trial judge did not initiate or participate in the negotiations; the judge never implied that his sentence would hinge on his choice to go to trial; and there were other reasons for the disparity between the plea offer and the ultimate sentence, not the least of which was appellant’s prior criminal history.

Affirmed.

WARNER, GROSS and TAYLOR, JJ., concur.


author: RAMIREZ, J.

text:
    Frank V. REILLY, Petitioner, v. DESIGN BUILD INTERAMERICAN, INC., Respondent.
    No. 3D06-3115.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Rehearing Denied May 18, 2007.

      Reilly Roche, LLP, and Myrnabelle Roche, Fort Lauderdale, for petitioner.
    Valdini & Palmer, and David J. Valdini, Fort Lauderdale; Bogert & Rembold, and Scott D. Rembold, Coral Gables, for respondent.
    Before RAMIREZ, WELLS and LAGOA, JJ. RAMIREZ, J.
   RAMIREZ, J.

This is a petition for a writ of certiorari in which Frank V. Reilly contests an “Order on Reilly Roche, LLP’s Motion for Sanctions against David J. Val-dini, Esquire.” Instead of assessing sanctions against Valdini, the trial court imposed sanctions in the amount of $500 against Reilly. We deny the petition, finding that the order is not an appealable final order because it does not contain any words of finality, such as “for which let execution issue.”

“The applicable standard of review [by certiorari of a contempt order] is whether the challenged order (1) constitutes a departure from the essential requirements of the law; (2) causes material injury throughout the remainder of the proceedings below; and (3) causes injury that is irreparable, as it effectively leaves no adequate remedy at law.” Boby Express Co. v. Guerin, 930 So.2d 842, 843 (Fla. 3d DCA 2006) (citing Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995); Combs v. State, 436 So.2d 93 (Fla.1983)). Reilly has not adequately explained why he has no adequate remedy on appeal once the sanction order is reduced to a final judgment. Although we are sympathetic to the argument that a motion to impose sanctions against Valdini could not result in sanctions against Reilly without a motion or notice to him, we must deny certiorari without prejudice.

Certiorari denied.


text:
    Terry E. CUNNINGHAM, etc., Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3000.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Rehearing Denied May 17, 2007.
    Terry E. Cunningham, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

The defendant, Terry E. Cunningham, appeals the denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised several claims of ineffective assistance of trial counsel. Based upon our review of the trial court’s thorough order and the record attachments which support the trial court’s findings, we affirm.

Affirmed.


author: MAY, J.

text:
    Shelly JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1048.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals an order revoking her probation and adjudicating and sentencing her on a violation of probation. She argues the trial court lacked jurisdiction to conduct the violation of probation hearing as her probation had expired prior to the filing of the affidavit of violation. We agree and reverse.

The defendant entered a no contest plea to uttering a forged instrument and grand theft. On August 5, 2003, the trial court withheld adjudication and placed her on eighteen months of probation. The next month, the defendant tested positive for opiates and cannabis. Her probation officer filed a violation of probation. The defendant admitted the violation. On October 21, 2003, the trial court reinstated her probation, modified it to drug offender probation, and extended the term for eighteen months from the date of the order.

In February 2004, the probation officer filed a second violation of probation when the defendant unlawfully operated a motor vehicle while her license was suspended, cancelled, or revoked. Once again, the defendant admitted the allegations. In April 21, 2004, the trial court reinstated drug offender probation and ordered the defendant to complete forty hours of community service. According to the orders, the trial court did not extend the term of probation.

On October 5, 2005, nearly two years after the trial court entered the order for eighteen months drug offender probation, the trial court issued a warrant for the defendant’s arrest for her failure to report to the probation officer in September 2005. The trial court conducted a hearing on February 17, 2006. The defendant admitted the violation. The trial court adjudicated the defendant guilty, revoked her probation, and sentenced her to concurrent terms of a year and a day with credit for time served.

The defendant argues on appeal that the trial court lacked jurisdiction to conduct the violation hearing in February 2006 because her term of probation had expired. The State responds that the defendant failed to provide an adequate record to support her position because the defendant admitted during the hearing that her probation was extended a second time in April 2004. The record supports the defendant’s position, however.

The defendant’s challenge to the trial court’s jurisdiction raises a jurisdictional question that is fundamental and capable of being raised for the first time on appeal. Otero v. State, 793 So.2d 1115, 1116 (Fla. 4th DCA 2001) (citing Hebb v. State, 714 So.2d 639, 639-40 (Fla. 4th DCA 1998)).

“Upon the termination of the period of probation, the probationer shall be released from probation and is not liable to sentence for the offense for which probation was allowed.” § 948.04(2), Fla. Stat. (2005); State v. Hall, 641 So.2d 403, 404 (Fla.1994). A violation of probation must be set in motion prior to the termination of the period of probation. Carroll v. Cochran, 140 So.2d 300, 301 (Fla.1962).

In the instant case, the trial court placed the defendant on probation in August 2003, for a term of eighteen months, expiring in February 2005. However, the trial court extended her probation by eighteen months on October 21, 2003, correspondingly extending the termination date to April 2005. The second time the trial court reinstated the defendant’s probation, it did not extend the term.

The officer filed the current violation in September 2005, five months after the defendant’s probationary term expired. The fact that the defendant continued to report to her probation officer after her probation expired is irrelevant. Quite simply, the trial court lacked jurisdiction to hear the violation of probation.

We therefore reverse and remand with instructions to the trial court to vacate the adjudication of guilt and sentence on the September 2005 violation of probation.

Reversed and Remanded.

STEVENSON, C.J., and KLEIN, JJ., concur.


text:
    Constantanee L. TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0068.
    District Court of Appeal of Florida, First District.
    April 13, 2007.
    Constantanee L. Turner, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Percival C. FERRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1280.
    District Court of Appeal of Florida, First District.
    April 13, 2007.
    Percival C. Ferris, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: SAWAYA, J.

text:
    T.P., Mother of N.P., D.P., and A.P., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-1562.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.

      Peter J. Sziklai, Ocala, for Appellant.
    Ralph J. McMurphy of Department of Children and Families, Wildwood, for Ap-pellee.
   SAWAYA, J.

T.P., the mother of minor children N.P., D.P., and A.P., appeals the final order of disposition following an adjudication of dependency. She also challenges the original order of adjudication of dependency. Of the issues T.P. raises, only two merit discussion: (1) whether the evidence adduced at the adjudicatory hearing is sufficient to support a finding that T.P. abused, neglected, or abandoned the children; and (2) whether the order of adjudication fails to set forth a factual basis to support the finding of dependency.

T.P. has a lengthy history with the Department of Children and Families (DCF). It is not necessary to chronicle that history here in order to resolve the issues we address. Therefore, we will proceed to discuss the evidence presented in the present case regarding the alleged incidents of abuse, which T.P. justifies by contending that she was imposing routine discipline on her children.

The three children testified and recounted how and when they were disciplined by T.P. The youngest child, A.P., who was twelve years old at the time, testified that T.P. had disciplined him by hitting the back of his hand approximately thirty-five times with a hair brush. T.P. was driving at the time of the incident, and A.P. was riding in the back seat of the car. T.P. continued trying to strike A.P. while she was driving even after A.P. refused to continue holding out his hand for her to hit. At one point, T.P. stopped the car so that she could continue inflicting punishment. The incident left bruises on A.P.’s knuckles. A.P. went on to describe another episode when his mother punished his oldest brother, N.P., who was sixteen, in a similar manner by striking the boy on the back of his hand several times with a spatula, leaving bruises.

A.P. remembered a time when he and his brothers opened the car doors to jump out while their mother was driving; T.P. refused to stop the vehicle and continued driving with the car doors open. On other occasions, T.P. would stop the car to lecture the boys or to make them perform exercises on the side of the highway as a form of punishment. N.P. testified that this type of punishment was hardest on A.P., who would try to complete all of the exercises, usually jumping jacks, that T.P. ordered him to perform. During one particular episode, T.P. ordered A.P. to do three hundred jumping jacks in a row on the side of the highway.

D.P., who was fifteen at the time, testified that his mother would spank him with a wooden stick. This was confirmed by N.P., who explained that T.P. would spank him and his brothers with a large wooden piece of a chair. N.P. further recounted that T.P. sometimes called him names and frequently told him he was going to hell for being bad. N.P. was greatly disturbed by these actions and by T.P.’s other behavior, which, he stated, caused him to be depressed and suicidal.

The trial court considered this testimony along with all of the other evidence presented at the adjudicatory hearing and entered an order of adjudication, which adjudicated the children dependent as to T.P. and specified that the children were to remain in the custody of their father, under the supervision of DCF. The trial court subsequently entered the order of disposition, and T.P. appealed.

The focus of the first issue is the sufficiency of the evidence presented at the adjudicatory hearing to support a finding that T.P. abused, neglected, or abandoned the children. We note at the outset that a trial court’s determination that a child is dependent is a mixed question of law and fact. In re M.F., 770 So.2d 1189, 1192 (Fla.2000) (citing Banks v. State, 732 So.2d 1065, 1067 (Fla.1999)); M.N. v. Dep't of Children & Families, 826 So.2d 445 (Fla. 5th DCA 2002). An adjudication of dependency should be affirmed on appeal “if the trial court applied the correct law and the record shows that the decision is supported by competent substantial evidence.” M.N., 826 So.2d at 447.

T.P. submits her defense through the prism of parental rights, claiming that it is her right to discipline her children as she sees fit. At common law, a single principle has governed the use of corporal punishment by parents as a method of disciplining their children: parents may impose reasonable but not excessive corporal punishment. See A.A. v. Dep’t of Children & Families, 908 So.2d 585 (Fla. 5th DCA 2005). As we explained in A.A., the common law principle of reasonable corporal punishment has been incorporated into Chapter 39 of the Florida Statutes. Specifically, section 39.01(2), Florida Statutes (2005), provides, “Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.” Hence, the line of demarcation between reasonable and unreasonable corporal punishment is whether the parent caused harm to the child. We must therefore determine whether the children were harmed by the alleged corporal discipline administered by T.P. A.A, 908 So.2d at 587.

“Harm” sufficient to constitute abuse can occur when a person inflicts physical, mental, or emotional injury upon a child, and includes excessively harsh or inappropriate disciplinary action that is likely to cause physical, mental, or emotional injury. § 39.01(30)(a), Fla. Stat. (2005). For example, corporal discipline may be considered excessive or abusive when it results in significant bruises or welts. § 39.01(30)(a)4., Fla. Stat. (2005).

In the present case, we believe that there is substantial competent evidence presented by DCF that T.P. harmed her children. The testimony of the children at the adjudicatory hearing, discussed earlier, showed a pattern of conduct by T.P. in using excessive and inappropriate methods of punishment to discipline her children. Many of these methods are reasonably characterized as being harmful, or likely to cause harm, to the children. Although T.P. may have actually thought that her peculiar methods were proper and that she had a right to punish the children in any manner of her choosing, had she been able to look past her rather unenlightened view of parental prerogatives, she would have realized the harm she inflicted on her children.

In her second issue, T.P. claims the order of adjudication was deficient for failing to contain a factual basis for the adjudication of dependency. T.P. further argues the trial court failed to state a sufficient factual basis for its finding of dependency at the adjudicatory hearing. Parenthetically, we note that an adjudication of dependency under Chapter 39, Florida Statutes, “may be challenged on appeal either from the order of adjudication or from the subsequent final disposition order.” M.E.G. v. Dep’t of Children & Families, 754 So.2d 879, 880 (Fla. 5th DCA 2000) (citing A.G. v. Dep’t of Children & Family Servs., 731 So.2d 1260 (Fla.1999)); see also G.L.S. v. Dep’t of Children & Families, 724 So.2d 1181, 1185-86 (Fla.1998) (holding that the initial adjudication order should be treated as a partial final judgment). Thus, T.P. is permitted to challenge the initial order of adjudication in this appeal from the final order of disposition.

In the order of adjudication, the trial court is required to set out the facts on which its finding of dependency is based. § 39.507(6), Fla. Stat. (2005); Fla. R. Juv. P. 8.330(g). This court has consistently held that failure to comply with this directive will result in the order being vacated and the case remanded for entry of a proper order or for a new hearing. See, T.M. v. Dep’t of Children & Families, 813 So.2d 200 (Fla. 5th DCA 2002); J.C.G. v. Dep’t of Children & Families, 780 So.2d 965 (Fla. 5th DCA 2001) (holding that although there was sufficient evidence to support a finding of dependency, failure to include sufficient facts in the order to support the adjudication of dependency required that the matter be remanded with instructions to the trial court to provide such findings); L.B. v. Dep’t of Children & Families, 766 So.2d 1259 (Fla. 5th DCA 2000).

Here, the trial court made the requisite factual findings both at the adjudicatory hearing and in the written order of adjudication. At the hearing, the court found that DCF had met its burden of proof and established dependency. The court followed this conclusion with detailed factual findings that spanned more than seven pages of the hearing transcript. The court went through each allegation contained in the dependency petition and explained how the evidence and testimony presented ’at the hearing proved the allegations in the petition. The written order of adjudication also contained specific findings of fact to support the adjudication of dependency. T.P. contends, citing to R.P. v. Department of Children & Families, 945 So.2d 612 (Fla. 4th DCA 2006), that these factual findings are insufficient because the written order merely recites the allegations contained in the dependency petition. While some of the findings in the order of adjudication are similar to the allegations in the dependency petition, they do not merely restate the allegations, verbatim, as findings of fact. We also observe that the findings of fact in this case were drawn directly from the evidence presented at the hearing. Thus, unlike R.P., where the court noted that many of the findings were unrelated to the evidence presented, the findings here were directly related to the evidence introduced at the hearing.

We conclude that T.P. is not entitled to relief from the order of adjudication based on her assertion that the trial court failed to state a factual basis to support its finding of dependency. We also conclude that the trial court’s finding of dependency is supported by competent substantial evidence. We therefore affirm the order under review. However, we note an inconsistency that the trial court needs to clarify. Although the order of disposition specifies that T.P. is to have unsupervised visitation, the order adopts and incorporates the case plan, which indicates that T.P. is to have supervised visits. Therefore, we remand this case to the trial court to clarify whether T.P. is to have supervised or unsupervised visitation. .

AFFIRMED and REMANDED.

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

      . The other issues are whether the order of adjudication and the order of disposition are deficient as a matter of law, and whether the trial court erred by not returning this case to the domestic relations court. We note that the former is nothing more than an iteration of the issue of whether DCF presented sufficient evidence to support the adjudication of dependency. We affirm as to these issues without further comment.


text:
    Eric MENEGAT and Luis Ruiz, Appellants, v. CITY OF APOPKA, Florida, Appellee.
    No. 5D05-4296.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.

      Kathryn S. Piseitelli, of Egan, Lev & Siwica, P.A., Orlando, for Appellants.
    Douglas T. Noah, of Dean Ringers, Morgan & Lawton, P.A., Orlando, for Appellee.
    Jerry G. Traynham, of Patterson <& Traynham, P.A., Tallahassee, Amicus Curiae for Florida Public Employees Council 79, et al.
   GRIFFIN, J.

Appellants, Eric Menegat and Luis Ruiz [“appellants”], appeal an order of the lower court awarding a partial final judgment in favor of the City of Apopka [“Apopka”] on their claims that section 447.509(l)(a), Florida Statutes (2003) is facially unconstitutional. We affirm.

Appellants were employed as firefighters for Apopka. They were also trying to organize the city’s firefighters for purposes of collective bargaining. On May 7, 2003, appellants were directed by their immediate supervisor to stop at another city fire station and retrieve a map. While there, Eric Menegat approached a lieutenant, Jeffrey Tyre, and asked him to return his “authorization card,” signed or unsigned. As the result of this brief exchange, appellants were suspended pending an investigation to determine whether they had “solicited” Jeffrey Tyre in violation of section 447.509(l)(a), Florida Statutes (2003).

Section 447.509 provides:

(1) Employee organizations, their members, agents, or representatives, or any persons acting on their behalf are hereby prohibited from:
(a) Soliciting public employees during working hours of any employee who is involved in the solicitation.

Appellants were subsequently fired for violation of the statute.

Appellants thereafter filed suit against Apopka, seeking declaratory and injunctive relief, principally contending that section 447.509 is facially unconstitutional. Several discrete grounds are raised: vagueness, overbreadth, infringement on the right of free speech, equal protection and privacy, the right to collectively bargain articulated in Article I, Section 6 of the Florida Constitution, the right to freedom of a¡ssociation, the right to petition for redress of grievances and the right of access to public records and meetings. The trial court entered a cogent, well reasoned order addressing all issues and rejecting all seven claims of facial unconstitutionality. We agree with the trial court’s disposition of each claim and with the trial court’s conclusion that section 447.509 is not unconstitutional.

AFFIRMED.

ORFINGER and LAWSON, JJ., concur.

      . Section 447.207(2), Florida Statutes, requires an employee organization seeking to represent employees in collective bargaining to file a petition with the Public Employees Relations Commission, accompanied by “dated statements signed by at least 30 percent of the employees in the proposed unit, indicating that such employees desire to be represented for purposes of collective bargaining by the petitioning employee organization.’’ Typically, the signed statements are collected by employee organizations on cardstock forms and are commonly referred to as “authorization cards.”


text:
    Robert MILLAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1303.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2007.
    James S. Purdy, Public Defender, and Rebecca M. Becker and Nancy Ryan, Assistant Public Defenders, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, a sexual offender who is also a sexual predator, challenges his conviction for failure to comply with statutory registration requirements. Because the State charged Appellant with violating a statute that does not apply to him, the conviction must be reversed.

The State filed an information charging Appellant with failure of a sexual offender to report a change in residence pursuant to subsections 943.0485(4) and 943.0435(9), Florida Statutes (2004). It is undisputed, however, that, although Appellant is a sexual offender, he is also a sexual predator. Because section 943.0435, by its express terms, “does not apply to a sexual offender who is also a sexual predator,” Appellant cannot be convicted of the crime with which he was charged, and the trial court erred when it denied Appellant’s motion for judgment of acquittal. § 943.0435(5), Fla. Stat. (2004).

REVERSED.

TORPY, LAWSON and EVANDER, JJ., concur.


text:
    Drew C. HARTLEY, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-1063.
    District Court of Appeal of Florida, First District.
    April 16, 2007.
    Drew C. Hartley, pro se, Petitioner.
    Bill McCollum, Attorney General, Mark J. Hiers and Joy A. Stubbs, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of mandamus seeks to compel a ruling on a petition for extraordinary relief; however, the circuit court case file fails to show a record of the petition filed below. Because there is no pleading pending below, the petition for writ of mandamus is denied.

Petitioner has tendered to this court a copy of the petition for extraordinary relief which includes a date stamp on the face of the pleading showing that it was given to prison officials for mailing on August 7, 2005. Accordingly, within 30 days, petitioner shall file with the Washington County Circuit Court a copy of the petition for extraordinary relief which includes the date stamp on the face of the pleading. See Bronson v. State, 751 So.2d 619 (Fla. 4th DCA 1999). The circuit court shall immediately determine whether the petition is properly filed in Washington County and, if not, the circuit court shall transfer the petition to the correct jurisdiction. Fla. R.App. P. 9.040(b)(2). If the petition is determined to be properly filed in Washington County, the circuit court shall thereafter rule forthwith.

PETITION DENIED.

KAHN, POLSTON, and THOMAS, JJ., concur.


text:
    George James SULLIVAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1096.
    District Court of Appeal of Florida, First District.
    April 16, 2007.
    George James Sullivan, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks belated appeal of a civil order. Although Florida Rule of Appellate Procedure. 9.141(c) authorizes this court to grant belated appeal in criminal cases, there is no corresponding appellate rule to obtain belated appeal in a civil case. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999) (holding that where the proceedings below are civil in nature, the appellate court lacks the authority to grant a belated appeal).

PETITION DENIED.

KAHN, POLSTON, and THOMAS, JJ., concur.


text:
    Ronald Lee CLARK, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0070.
    District Court of Appeal of Florida, First District.
    April 16, 2007.
    Ronald Lee Clark, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, and Betty Cheramie, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of mandamus seeks to compel a ruling on a motion for postconviction relief. The clerk of the circuit court has certified that a thorough search of the circuit court case file and docket shows no record of the motion. Because there is no motion pending below, the petition for writ of mandamus is denied.

Petitioner has tendered to this court a copy of the motion for postconviction relief which includes a date stamp on the face of the motion showing that it was given to prison officials for mailing on June 30, 2005. Accordingly, within 30 days petitioner shall file with the circuit court a copy of the motion for postconviction relief which includes the date stamp from the correctional institution. See Bronson v. State, 751 So.2d 619 (Fla. 4th DCA 1999). The circuit court shall thereafter rule forthwith.

PETITION DENIED.

KAHN, POLSTON, and THOMAS, JJ., Concur.


text:
    Adam TROCHE, Appellant, v. BJ’s WHOLESALE CLUB, INC., and Gallagher Bassett, Appellees.
    No. 1D07-0425.
    District Court of Appeal of Florida, First District.
    April 16, 2007.

      Patrick J. Deese of Law Offices of Patrick J. Deese, P.A., Melbourne, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

Because the notice of appeal was not filed within 30 days of the date the Judge of Compensation Claims mailed the final order to the parties as required by Florida Rule of Appellate Procedure 9.180(b)(3), this court is without jurisdiction to consider this appeal. It is well-settled that to be timely, a notice of appeal must be filed in the appropriate court within the appropriate time period. See Coca Cola Foods v. Cordero, 589 So.2d 961 (Fla. 1st DCA 1991). If the notice is not timely filed, the appellate court lacks jurisdiction and must dismiss the appeal. First Nat’l Bank v. Fla. Unemployment Appeals Comm’n, 461 So.2d 208 (Fla. 1st DCA 1984). Rule 9.180(b)(3) provides that jurisdiction shall be invoked by filing a notice of appeal within 30 days of the date the order to be reviewed is mailed by the lower tribunal to the parties, which date shall be the date of rendition. Appellant provides no authority for the assertion that the notice of appeal was timely because it was filed within 30 days of the date counsel received the order on appeal. Such a suggestion would be unworkable because the courts would have no way of confirming when a party received an order and could not accurately calculate the time for filing a notice of appeal. The fact that appellant did not receive the final order until the day after it was rendered does not extend the time to file the notice of appeal. See Jones v. Jones, 845 So.2d 1012 (Fla. 5th DCA 2Ó03) (holding that the fact that a party did not receive immediate notice of rendition of a final judgment does not extend the time to file the notice of appeal).

APPEAL DISMISSED.

KAHN, POLSTON, and THOMAS, JJ., concur.


author: FARMER, J.

text:
    STATE of Florida, Appellant, v. Jayime SOTO, Appellee.
    No. 4D06-1338.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   FARMER, J.

The trial court has suppressed a very small part of what amounts to a confession given in an extensive interview preceded by Miranda-warnings. The court found that a question by defendant near the end was in fact a request for counsel. We affirm. ;

Defendant had been arrested, taken to the policé station and placed in an interview room. After he was addressed and given Miranda warnings in Spanish, one officer started an interview at 5:10. The officer began her questions in Spanish but he responded to some questions in English and some in Spanish. That officer instructed him that “for court purposes” he should “speak English for the remainder of the interview.”

After several minutes of questioning by the first officer, another officer took over. Later in the second officer’s questioning, the atmosphere became heated and the officer said that “we’re going to let you calm down.” A few minutes later, defendant-said: “I don’t want a problem. I know I’m in problem now. I can need a lawyer for this situation.” The officer did not respond to that and continued questioning.

Over the course of the interview preceding the part suppressed, defendant ultimately stated that twice he had sexual relations with the minor under 16 who had become pregnant. Near the end of-their questions, the officer told defendant that he “would be out of here in just a minute” and would then be transported to the County jail. At that point defendant asked: “I can’t make a phone call or nothing, no?” The officer answered: “Down there after they get you booked.” Between the two officers’ questioning, the interrogation lasted more than an hour.

The trial judge watched and listened to a DVD video recording of the entire interview. Defendant said there were language problems and that in fact his request was to call a lawyer. At several points the judge, interrupted the playing of the recording to clear up translations with an interpreter present. When the recording and other testimony were finished, the court heard extensive argument.' In the end the court observed: “he said: ‘can I make a phone calí?’ I can’t think of any other reasons to make a phone call if you’re being interrogated by the police, except to get legal advice.” Further explaining his decision to make a partial suppression of the interview, the court said:

“I’m denying the motion to suppress up until the point where the defendant asks for a phone call. I’m granting the motion to suppress from that point on. I believe, that’s at 6:07 of the clock when you look at the interrogation.”

On appeal the state argues that the trial court got it wrong. It contends that defendant’s inquiry about a lawyer did not constitute a clear and unambiguous request for a lawyer. And it is true that defendant’s eruption was not phrased in the conventional media fashion of “I want a lawyer.” The real issue is — given the language difficulties and overall context— was there a clear meaning to defendant’s inquiry? The trial judge resolved this plainly factual conundrum by finding it to be a request for a lawyer and that in context it had no other meaning. As there is evidence in the recording supporting the findings of fact, the court’s factual resolution is not subject to being changed by us on appeal.

Defendant’s words came out in the form of a question (“I can’t make a phone call or nothing, no?”) but its real meaning was to inquire of the second officer if it was true that he could not call to have a lawyer in the interview. The officer could not have missed this meaning. The officer’s response — “Down there after they get you booked.” — could not have been in good faith or a common sense understanding of what he had just been asked. It was an obvious piece of gamesmanship, an evasive answer.

It is true as the state argues that in Florida the rule is that the right to counsel under article I, section 9, means that:

“police in Florida need not ask clarifying questions if a defendant who has received proper Miranda warnings makes only an equivocal or ambiguous request to terminate an interrogation after having validly waived ... Miranda rights.” [e.s.]

State v. Owen, 696 So.2d 715, 719 (Fla.), cert. denied, 522 U.S. 1002, 118 S.Ct. 574, 139 L.Ed.2d 413 (1997). Owen adopted part of the rationale in Davis v. United States, 512 U.S. 452, 460-61, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (if a suspect initially waives his or her rights, the suspect thereafter must clearly invoke those rights during the ensuing interview).

On the other hand, in Traylor v. State, 596 So.2d 957 (Fla.1992), the court held as to waivers of the right to counsel:

“Under [article I, section 9, Florida Constitution], if the suspect indicates in any manner that he or she does not want to be interrogated, interrogation must not begin, or, if it has already begun, must immediately stop. If the suspect indicates in any manner that he or she wants the help of a lawyer, interrogation must not begin until a lawyer has been appointed and is present, or, if it has already begun, must immediately stop until a lawyer is present. Once a suspect has requested the help of a lawyer, no state agent can reinitiate interrogation on any offense throughout the period of custody unless the lawyer is present .... ” [e.s.]

596 So.2d at 966. “A statement obtained in violation of this proscription cannot be used by the State.” Almeida v. State, 737 So.2d 520, 525 (Fla.1999). Moreover, as further explained in State v. Glatzmayer, 789 So.2d 297 (Fla.2001), the question on appeal is whether the officer made a “good-faith effort to give a simple, straightforward answer.” 737 So.2d at 525 (citing Almeida 737 So.2d at 525).

In these circumstances the trial court’s suppression is not contrary to the holdings in Owen and Davis, Traylor and Almeida, and Glatzmayer. The record demonstrates manifest language difficulties starting with the initial waiver of Miranda rights and for parts of the interrogation itself. The first officer’s instruction to defendant to answer only in English was not a reasonable accommodation of the defendant’s language difficulties. But even more important, when defendant asked his question in manifestly mangled English about a lawyer for the interview, the officer responded evasively. He did not give the only simple, straightforward answer possible under the circumstances: “of course you can have a lawyer now if you want one.” See Glatzmayer, 789 So.2d at 305 (“Unlike the situation in Almeida, the officers did not engage in ‘gamesmanship’; they did not try ‘to give an evasive answer, or to skip over the question, or to override or ‘steamroll’ the suspect.’ ”); see also Al-meida, 737 So.2d at 525. Under the trial court’s resolution of the facts, we hold that the state has not clearly shown error in suppressing the part that occurred after defendant made what should have been understood as an invocation of his right to counsel. See Glatzmayer, 789 So.2d at 301 (“Appellate courts cannot use their review powers in such cases as a mechanism for reevaluating conflicting testimony and exerting covert control over the factual findings. As with all trial court rulings, a suppression ruling comes to the reviewing court clad in a presumption of correctness as to all fact-based issues, and the proper standard of review depends on the nature of the ruling in each ease.”).

We also note that the state has not even attempted to show how it might have been prejudiced by the suppression of the mere speck of defendant’s statements occurring after his inquiry. See § 924.33, Fla. Stat. (2006) (“No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellantOn the lengthy part of the recording preceding the part suppressed, there are several statements that could reasonably be understood as clear admissions by defendant to engaging in illicit sexual intercourse with the child even after her father told him that she was not 18 but only 15. It would not seem to us that the state has been inconvenienced in any way in presenting a prima facie case. The brief part excised at the end would not seem even to delay its prosecution of the lewd sexual battery charges in the slightest. If there were error in suppressing the tiny part remaining after the request for counsel, it would have to be the most harmless of errors imaginable. See Goodwin v. State, 751 So.2d 537 (Fla.1999), and State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Affirmed.

GUNTHER and WARNER, JJ., concur.

      . The officer is a native born Colombian and speaks fluent Spanish. Defendant is of Cuban heritage and is unable to read English but claims to be able to understand some spoken English. When the trial judge asked the officer what she meant by saying “for court purposes” the officer responded: "Becáuse it’s my experience that it's troublesome. Sometimes when it's in Spanish everything’s got to get transcribed and I’ve run into that problem before.”

      , The state also furnished the trial judge with a written transcript purporting to be a translation of the entire interview. It became apparent to the judge at the hearing that the transcript/translation omitted part of defendant’s responses in Spanish.


text:
    Willie Junior GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2223.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.
    Carey Haughwout, Public Defender, and Marcy K. Alen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of attempted second degree murder and battery. He argues that the trial court erred in allowing the state to cross-examine him on a statement he made to a detective because it was beyond the scope of direct examination. We find no abuse of discretion. Appellant also argues that the victim, a former crack user, should not have been allowed to testify that he had stopped using crack and was enrolled in a recovery program. Athough we agree this evidence was not admissible, it was harmless.

Affirmed.

STEVENSON, C.J., KLEIN and SHAHOOD, JJ., concur.


text:
    Daniel GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1502.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.

      Daniel Gonzalez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See State v. Williams, 854 So.2d 215 (Fla. 1st DCA 2003); Jauregui v. State, 652 So.2d 898 (Fla. 3d DCA 1995).


text:
    Ray DIPASQUALE, Appellant, v. MAROONE FORD, LLC., Appellee.
    No. 4D06-1997.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP., West Palm Beach, for appellant.
    Richard A. Ivers of the Law Office of Richard A. Ivers, Coral Springs, for appel-lee Maroone Ford, LLC.
    Gordon Lea of the Law Office of Bohdan Neswiacheny, Fort Lauderdale, for appel-lee Mark Bond.
   PER CURIAM.

Affirmed. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985) (“In order to be preserved for further review by a higher court ... the specific legal argument ... to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”); Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) (“in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”).

GUNTHER, STONE and FARMER, JJ., concur.


text:
    Pedro Juan VELAZQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2831.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.
    Pedro Juan Velazquez, in proper person.
    Bill McCollum, Attorney General and William J. Selinger, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Khareem KERR, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3103.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

When a person has possession of property known to have been recently stolen the law recognizes two rebuttable presumptions arising from such possession: (1) a common law presumption that the possessor stole the property, see State v. Young, 217 So.2d 567, 571 (Fla.1968) (“In the case of possession of recently stolen goods ... the inference that the possessor is the guilty taker is so strong that the rules of evidence permit the jury to return a verdict of guilty on this one circumstance alone if the defendant allows it to go to the jury either unexplained or with an explanation that is so palpably unreasonable and incredible that the jury rejects it entirely”); and (2) a statutory presumption that the possessor knew the property had been stolen, see § 812.022(2), Fla. Stat. (2005) (“proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen”). When the charge on trial is burglary of a conveyance, as here, there are two special statutory presumptions that may apply, one creating a presumption of breaking or entering with intent to commit an offense, and another creating a presumption of knowledge that the vehicle had been stolen.

In this case, the Owner of a 1983 BMW automobile was working on his car on his front lawn. When he finally got the engine started, he left it running while he ran inside to fetch water for the cooling system. Returning with the water, he discovered that the car was missing. He reported it stolen. Two days later a neighbor called him to tell him that he had found the car in a back alley. When Owner went to retrieve his car he noticed that parts were missing, that the car would no longer run.

Early in the morning after the theft, a police officer received a complaint that a person was removing parts from an automobile. When the officer arrived at the scene, he saw defendant under the hood of a car, attempting to remove parts from it. He asked defendant who he was and what he was doing. Defendant lied about his identification and told him that this was the only time he had to work on his car. There were several new mechanics tools and latex gloves in and around the car. When the officer checked the license tag with dispatch, the information received was the car was registered to Owner.

Defendant, who was only 17, testified that he was working on the car at that late hour because he had just purchased it — it was his first car — and was excited about working on it. He testified that he bought the car for $500 from someone he had just met playing basketball. Even though it seemed suspicious, he was excited to get his first car and did not think he had any reason to question the sale. He admitted that did not receive any paperwork for the ear. He said that the car was inoperable but he was not concerned because his uncle was a mechanic and could help him fix it up. He denied removing parts from the car, explaining that he was just trying out some recently purchased tools to make sure that they would work. The car was in the location where it was ultimately found by the police, just around the corner from defendant’s house and across the street behind a building from Owner’s home.

Ordinarily, the presumptions vanish when contradictory evidence is presented by the defense and would become — by themselves — insufficient to sustain a conviction. See e.g. Bertone v. State, 870 So.2d 923 (Fla. 4th DCA 2004), review denied, 889 So.2d 72 (Fla.2004) (conviction for dealing in stolen property reversed when evidence that defendant pawned and later retrieved two stolen saws from the pawn shop was insufficient; statutory inference alone could not establish guilt when defendant gave unrefuted, patently reasonable explanation for his possession); see also Dellechiaie v. State, 734 So.2d 423, 425 (Fla. 2d DCA 1998) (presumption that defendant knew property was stolen was dispelled by defendant’s explanation of how he came to possess car, which was not facially unreasonable or in any way refuted; evidence legally insufficient to sustain conviction); M.M. v. State, 547 So.2d 139 (Fla. 1st DCA 1989) (conviction reversed where state relied solely on presumption that possession of recently stolen property gave rise to an inference of guilt of theft; no other incriminating evidence was presented and defendants explanation was reasonable, unrefuted, and exculpatory); R.A.L. v. State, 402 So.2d 1337, 1337 (Fla. 3d DCA 1981) (juvenile’s unrefuted, exculpatory and not unreasonable explanation of his possession that he bought stolen moped at flea market rendered State’s case insufficient to establish guilt as a matter of law). In other words, once the defense has offered evidence of an explanation that is facially reasonable, the burden of proof remains on the state to prove guilt beyond a reasonable doubt with evidence inconsistent with defendant’s facially reasonable explanation.

When a defendant’s explanation is not indisputably reasonable and requires an assessment of credibility and other factors, the presumption may not vanish entirely. Haugabrook v. State, 827 So.2d 1065, 1069 (Fla. 2d DCA 2002) (defendant’s explanation for possession of stolen property was not patently reasonable, thereby requiring jury resolution); Smith v. State, 742 So.2d 352, 354-55 (Fla. 5th DCA 1999) (inference that possessor knew that property was stolen operates when possession is unexplained or explanation given is unsatisfactory); Wilson v. State, 884 So.2d 74, 76 (Fla. 2d DCA 2004) (significant discrepancy at trial between defendant’s testimony and a detective’s testimony undermined defendant’s credibility so that his explanation for possession of stolen property was arguably reasonable and not patently reasonable).

In- this case, we hold that the state met its burden and thus affirm the conviction for burglary of conveyance. The factors adduced by defendant — his statement that he bought the car from someone he just met playing basketball and that he received no receipt, bill of sale or evidence of title — are not facially plausible. Also he lied to the officer about his identity. His explanation is not entirely reasonable, being only partially plausible but equally implausible. It is up to the jury to assess such an explanation. If the jury concludes that the explanation does not raise a reasonable doubt, then the presumption is prima facie proof of the charge of burglary of a conveyance. Because the jury did not accept defendant’s explanation as reasonable, the inference is enough to sustain the conviction.

Affirmed.

GUNTHER and WARNER, JJ., concur.

      .§ 810.07(1), Fla. Stat. (2006) (“In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof is prima facie evidence of entering with intent to commit an offense.”); see also T.S.R. v. State, 596 So.2d 766 (Fla. 5th DCA 1992) ("unexplained possession of recently stolen property is not only sufficient to support theft conviction, but when burglary necessarily occurs as adjunct, inference of guilt from unexplained possession of recently stolen goods also supports conviction for burglary”).

      . § 812.022(6), Fla. Stat. (2006) ("Proof that a person was in possession of a stolen motor vehicle and that the ignition mechanism of the motor vehicle had been bypassed or the steering wheel locking mechanism had been broken or bypassed, unless satisfactorily explained, gives rise to an inference that the person in possession of the stolen motor vehicle knew or should have known that the motor vehicle had been stolen.”).

      . The odometer reading was over 100,000 miles.

      . The owner later testified that several of the tools found actually belonged to him.


text:
    Garion TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4020.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.
    Alexander R. Brumfield, III of Alexander R. Brumfield, III, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was -convicted of robbery with a firearm and argues, in this direct appeal, that his trial counsel was ineffective for not objecting to an officer and the victim giving opinion testimony. The two witnesses, however, did not give the type of opinion testimony which might be inadmissible. They were merely testifying as to how certain they were in their identification of appellant as the person who had committed the crime. The testimony was accordingly admissible.

Affirmed.

STEVENSON, C.J., KLEIN and SHAHÓOD, JJ.,„coneur.