text:
    Terrell M. NURSE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3644.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2005.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Amanda Lee Colon, Assistant Attorney General, Tampa, for Ap-pellee.
   BY ORDER OF THE COURT:

Appellant’s motion for rehearing filed June 23, 2005, is granted in part. The opinion dated June 10, 2005, is withdrawn to the extent only that footnote two on page three has been altered, and the attached opinion is substituted therefor. No further motions for rehearing will be entertained.

ALTENBERND, Judge.

Terrell Nurse appeals a judgment for grand theft of a will and a sentence of five years’ imprisonment, raising various issues. Because the trial court admitted improper hearsay evidence regarding the location of critical fingerprint evidence, we reverse for a new trial.

On January 9, 2003, a home in Mr. Nurse’s neighborhood was burglarized. Among the items missing from the home was a strongbox containing two wills. Within hours of the burglary, the strongbox containing the wills, now apparently broken or unlocked, was found in an open trash can in a back alley near Mr. Nurse’s residence.

Police officers lifted latent fingerprints from the strong box and from objects at the scene of the burglary. At trial, however, the State did not present evidence as to who lifted what fingerprints from what location. Rather, the State called a latent print examiner who opined that a fingerprint taken of Mr. Nurse matched a fingerprint lifted from the crime scene. When the prosecutor asked the examiner if he knew where the latent print came from, the examiner responded, “I know what the information the forensic specialist indicates on the back of the lift.” Over objection, the examiner was permitted to testify that the information he received indicated the print was taken from the top exterior of the strong box.

It appears that the police had collected evidence other than the latent print connecting Mr. Nurse to the theft and potential burglary. Prior to trial, Mr. Nurse filed a motion in limine to exclude much of this evidence. The trial court granted this motion. Thus, at trial, the fingerprint allegedly taken from the top of the strongbox containing the two wills was the only remaining critical evidence connecting Mr. Nurse to the crime.

Mr. Nurse initially argues that the single fingerprint found on the exterior of the strong box containing the wills was insufficient circumstantial evidence to convict him of the theft of the wills, and therefore the trial court should have granted his motion for judgment of acquittal. We conclude that the State presented sufficient evidence to rebut any reasonable hypothesis of innocence, and thus the case was properly presented to the jury. The short time between the burglary and the discovery of the box, the somewhat isolated location of the strongbox both prior to its theft and when it was found, the obvious importance of such an item, and its proximity to the scene of the burglary and Mr. Nurse’s residence provided sufficient evidence from which the jury could have excluded every reasonable hypothesis except that of Mr. Nurse’s guilt. See K.S. v. State, 814 So.2d 1190 (Fla. 5th DCA 2002); Sorey v. State, 419 So.2d 810 (Fla. 3d DCA 1982). Therefore, the trial court properly denied Mr. Nurse’s motion for judgment of acquittal.

The latent fingerprint, however, given its location on the strongbox containing the wills, was critical to the State’s ability to prove grand theft in this case because it was the primary evidence connecting Mr. Nurse to the theft of the wills. The only testimony the State offered regarding the location of the latent print was the inadmissible hearsay testimony that the print examiner “knew” the location of the print based upon notations made by a forensic specialist. See § 90.801(1)(c), Fla. Stat. (2003) (defining hearsay as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). The trial court erred in overruling the objection to Mr. Nurse’s testimony and thus not requiring the State to present the direct testimony of the forensic specialist who obtained the latent print. Given the critical nature of this testimony to connect Mr. Nurse to the crime, the error in admitting this evidence cannot be deemed harmless. On this basis, we reverse Mr. Nurse’s conviction for grand theft of a will and remand for a new trial.

Because we reverse based on the improper admission of critical hearsay evidence, we need not address the remaining issues Mr. Nurse has raised regarding his trial. Nevertheless, we comment briefly on a closing argument made by the prosecutor. After some initial comments on the evidence during his closing argument, the prosecutor stated:

At the beginning of this trial in jury selection and when the judge read to you the law he explained to you that the defendant carries the presumption of innocence and that the State has the burden of proving this case beyond a reasonable doubt. [Mr. Nurse] no longer has that presumption.

When Nurse’s objection to this comment was overruled, the prosecutor repeated, “He no longer has that presumption” and continued reviewing the evidence the prosecutor believed proved the case.

A defendant is presumed innocent until his or her guilt is proved to the exclusion of a reasonable doubt. See Davis v. State, 90 So.2d 629, 631 (Fla.1956). It was up to the jury to determine whether this burden had been met. Although the prosecutor could argue that the evidence was sufficient to meet the State’s burden, it was improper for the prosecutor to specifically state that Mr. Nurse no longer had the presumption simply because evidence had been presented. Although we do not reverse Mr. Nurse’s case on this basis, we caution prosecutors against the use of this argument.

Reversed and remanded for new trial.

FULMER, C.J., and WHATLEY, J„ Concur.

      . The precise evidence excluded as a result of the motion in limine and the rationale for excluding the items is not fully clear in our record and is not an issue raised on appeal. Thus, our opinion should not be interpreted as either agreeing or disagreeing with the trial court’s ruling in this regard. In a new trial, this issue may be revisited.

      . The issues of whether the theft of a testamentary instrument as defined in section 812.014(2)(c)(4), Florida Statutes (2003), is a specific intent crime or whether the evidence in this case supported a finding of specific intent are not issues presented in this appeal.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Glen E. SNELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2042.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 2005.
   VILLANTI, Judge.

Glen E. Snell appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the facially sufficient motion was not conclusively refuted by the record attachments, we reverse.

Snell’s claim that his trial counsel provided ineffective assistance of counsel by failing to file a motion to suppress is facially sufficient. See Spencer v. State, 889 So.2d 868, 870 (Fla. 2d DCA 2004); Flowers v. State, 793 So.2d 36, 36 (Fla. 2d DCA 2001). Citing State v. Jones, 461 So.2d 97 (Fla.1984), and State v. Curley, 691 So.2d 618 (Fla. 5th DCA 1997), the postconviction court summarily denied the motion on the ground that government actors did not take the items that Snell claims were wrongfully seized. However, those cases, dealing with whether Miranda rights must be given by private security officers, are inapplicable to the factual situation presented by Snell.

Snell asserts that the security officers involved in his case used excessive force in coercing him to empty his pockets, in violation of section 812.015(3)(a), Florida Statutes (2004). Section 812.015(3)(a) provides, in pertinent part:

A law enforcement officer, a merchant, ... who has probable cause to believe that a retail theft ... has been committed by a person and ... that the property can be recovered by taking the offender into custody may, for the purpose of attempting to effect such recovery or for prosecution, take the offender into custody and detain the offender in a reasonable manner for a reasonable length of time.

(Emphasis added.). Snell contests not the retailer’s authority to detain him but, rather, that the detention did not comply with the statutory requirements of probable cause and was not performed in a reasonable manner. Because Snell’s claim is grounded upon a statutory right that applies to private security officers acting on behalf of their merchant employer, the lack of government actors cannot serve as a basis for the summary denial. Thus, the wrong that Snell claims occurred in his case could have been raised in a motion to suppress.

Despite Snell raising a facially sufficient claim, the postconviction court failed to attach portions of the record to conclusively refute Snell’s claim. Accordingly, we reverse the summary denial and remand for the postconviction court either to conduct an evidentiary hearing or to attach those portions of the record that conclusively refute Snell’s claim.

Reversed and remanded.

STRINGER and LaROSE, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: GROSS, J.

text:
    Sheridan FORD, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES DISTRICT 15, ST. LUCIE, Appellee.
    No. 4D05-611.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2005.

      William N. Swift of William N. Swift, P.A., Palm City, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Senior Assistant Attorney General, Fort Lauderdale, for appellee.
   GROSS, J.

This case concerns the appealability of a hearing officer’s non-final order denying appellant Sheridan Ford’s motion to transfer matters set before a hearing officer in the Office of Appeal Hearings, Department of Children and Families, to the Division of Administrative Hearings. Upon closer examination of this case, we dismiss the appeal for lack of appellate jurisdiction.

Deidre Sabo, on behalf of her daughter Sheridan Ford, applied for Medicaid residential rehabilitation benefits administered by the Department of Children and Families. By a letter dated October 7, 2004, Ford received notification from the Department of Children and Families that her residential support services were being terminated because “no medical necessity for [the] service or level of service has been demonstrated as required by Rule 69(3-1.010(166), FAC.”

Ford timely appealed the Department’s action. Her request for a “fair hearing” was received.by the Office of Appeal Hearings, a division of the Department of Children and Families. On December 8, 2004, the Office of Appeal Hearings notified the parties of its intention to hear the matter.

On December 15, 2004 Ford filed a “Motion to Transfer the Case to the Division of Administrative Hearings.” The motion alleged that Ford could not obtain a fair and impartial hearing before a hearing officer for three reasons.

First, Ford contended that the relationship between hearing officers and the Department of Children and Families gave rise to a conflict of interest, detrimental to a fair hearing. Ford argued that the conflict of interest arose because: 1) the hearing officers are employed by the Inspector General of the Department of Children and Families Services, who is required to report to the Secretary of the Department of Children and Families; 2) the hearing officers work in the same building with the Department of Children and Families; and 3) the hearing officers have numerous contacts with other employees of the Department of Children and Families.

Second, Ford asserted that there was an “appearance of impropriety concerning the ability of the hearing officers to objectively weigh the testimony of DCF employees.” Ford submitted that in 2002/2003 thirteen hearing officers completed 6,472 cases, meaning that hearing officers had many of the same Department employees appearing before them, so that the hearing officers and employees developed personal relationships that vitiated the hearing officers’ objectivity.

Third, Ford argued that non-attorney hearing officers are not qualified to rule on traditional legal issues.

The hearing officer denied the motion to transfer and Ford took this appeal.

Florida Rule of Appellate Procedure 9.130, which permits interlocutory review of non-final orders in civil cases, does not apply to administrative orders. See Fla. Leisure Acquisition Corp. v. Fla. Comm’n on Human Relations, 639 So.2d 1028, 1029 (Fla. 5th DCA 1994). Furthermore, appellate review of preliminary, procedural, or intermediate administrative orders is limited. Section 120.68(1), Florida Statutes (2004), provides:

[a] party who is adversely affected by final agency action is entitled to judicial review. A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

“Final agency action” within the meaning of the statute is “that which brings the administrative adjudicative process to a close.” Hill v. Div. of Ret., 687 So.2d 1376, 1377 (Fla. 1st DCA 1997). “‘The test to determine whether an order is final or interlocutory in nature is whether the case is disposed of by the order....’ ” Id. (quoting Prime Orlando Props., Inc. v. Dep’t of Bus. Regulation, 502 So.2d 456, 459 (Fla. 1st DCA 1986)). Because the order on appeal does not dispose of the case, but rather, allows for further proceedings before the hearing officer, it is not a “final agency action” entitling Ford to judicial review.

Concerning the alternative basis for jurisdiction under section 120.68(1), Ford has not persuaded us that she would be deprived of an adequate remedy if appellate review of her disqualification issues was delayed until after a final order determining all issues. “The necessity of trying a case to conclusion before obtaining redress on appeal from an erroneous interlocutory ruling of [the hearing officer] does not make the remedy inadequate.” Fla. Leisure Acquisition, 639 So.2d at 1029. “A party burdened by an erroneous ruling in an administrative proceeding is no worse off than any civil litigant who has to await the final judgment before deciding whether to appeal an adverse interlocutory ruling.” Id.

The appeal is dismissed.

GUNTHER and HAZOURI, JJ., concur.

      . A motions panel of this court, which is different than this merits panel, issued a preliminary order accepting jurisdiction.


author: PER CURIAM.

text:
    STRANAHAN HOUSE, INC., a Florida not-for-profit corporation, and Friends of the Park at Stranahan House, Inc., a Florida not-for-profit corporation, Petitioners, v. CITY OF FORT LAUDERDALE, a Florida municipal corporation, and Coolidge-South Markets Equities, L.P., a Foreign Limited Partnership, Respondents.
    No. 4D05-1515.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2005.
    W. Tucker Gibbs of W. Tucker Gibbs, P.A., Coconut Grove, Kendall Coffey, and Mark Journey of Coffey & Wright, L.L.P, Miami, for petitioners.
    Robert H. Schwartz and Alain E. Boi-leau of Adorno & Yoss, LLP, Fort Lauder-dale, for respondent City of Fort Lauder-dale.
    Amy Brigham Boulris of Brigham Moore, LLP, Miami, Jack J. Aiello, and Robert Hackleman of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for respondent Coolidge-South Markets Equities, L.P.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David J. Glantz, Assistant Attorney General, Fort Lauderdale, for respondent Robert Lance Andrews.
   PER CURIAM.

We deny the petition for writ of prohibition seeking removal of the trial judge. Taken in context, the trial court’s comments at the hearing on the motion to transfer were merely the judge thinking out loud about the relationship between an earlier case, involving a settlement in an eminent domain proceeding, and this case, which is a petition for certiorari seeking to quash the City of Fort Lauderdale’s approval of the settlement in the first case. The trial judge’s presiding over the certio-rari petition here is similar to a judge who hears a rule 1.540(b) motion seeking to undo a settlement and final judgment based on fraud. The trial court’s approval of the settlement in the first case does not disqualify it from presiding over the certio-rari petition.

WARNER, KLEIN and GROSS, JJ., concur.


author: STRINGER, Judge.

text:
    Michael MORGAN, Appellant, v. Marilyn MORGAN, Appellee.
    No. 2D05-2819.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2006.
    Elisa S. Worthington of Garvin & Tripp, P.A.; and Stephen D. Thompson of Thompson & Schreiber, P.A., Fort Myers, for Appellant.
    Nicole L. Goetz and Victoria M. Ho of Asbell, Ho & Klaus, P.A., Naples, for Ap-pellee.
   STRINGER, Judge.

We affirm the trial court’s order, entered on remand from the parties’ earlier appeal, which imposes a lien on a portion of Michael Morgan’s assets in favor of Marilyn Morgan as replacement security for Michael Morgan’s alimony obligation. However, we remand to the trial court to strike the finding that the security obligation can be construed as lump sum alimony because that finding is outside the scope of our earlier remand and unnecessary to the order.

Affirmed in part; reversed in part; and remanded with directions.

SALCINES and LaROSE, JJ., Concur.


author: LaROSE, Judge.

text:
    Matilda M. DUBOIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-648.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2006.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

Matilda Dubois appeals the trial court’s order modifying her probation to a 364-day suspended jail sentence. We reverse.

On September 3, 2004, a truck rear-ended Ms. Dubois’ car and sped away. Ms. Dubois called the police. When an officer arrived at the scene, she gave him a false name. Subsequently, the Department of Corrections filed an affidavit alleging that Ms. Dubois violated condition 5 of her previously ordered probation by giving a false name to the officer. Condition 5 required Ms. Dubois to live and remain at liberty without violating the law. Ms. Du-bois violated no law justifying a modification of her probation.

To constitute a crime, the giving of the false name must occur during an arrest or lawful detention. § 901.36, Fla. Stat. (2004). As our record reflects, Ms. Dubois was neither under arrest nor being detained by the officer.

The State concedes that it failed to prove a violation of condition 5. See J.P. v. State, 855 So.2d 1262, 1265 (Fla. 4th DCA 2003); Belsky v. State, 831 So.2d 803, 804-5 (Fla. 4th DCA 2002). Nevertheless, the State contends that the trial court’s order can be affirmed based on a citation for driving with a suspended license issued to Ms. Dubois. This contention is merit-less. A trial court may not revoke probation based on conduct not alleged in the affidavit of violation. Johnson v. State, 811 So.2d 749, 750 (Fla. 2d DCA 2002) (reversing revocation order without prejudice to State to refile appropriate affidavit).

Reversed.

SALCINES and STRINGER, JJ„ Concur.


text:
    Jeremiah JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1416.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2006.
   VILLANTI, Judge.

Jeremiah Jones seeks review of the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Jones argues that his written sentences do not comport with the oral pronouncement in cases 01-4419-CF and 02-1867-CF. See Coleman v. State, 898 So.2d 997, 998 (Fla. 2d DCA 2005). He asserts that the trial court orally pronounced that his sentences were to run concurrently, but the sentencing documents reflect consecutively.

The postconviction court summarily denied this claim without attaching portions of the records or flies to support the denial. Accordingly, we reverse and remand for reconsideration of Jones’ motion in accordance with our decisions in Lott v. State, 865 So.2d 637 (Fla. 2d DCA 2004), and Dowe v. State, 794 So.2d 624 (Fla. 2d DCA 2001). If the postconviction court again summarily denies the motion, it must set forth its rationale and attach any relevant portions of the record which support its denial.

Reversed and remanded.

WALLACE and LaROSE, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Kevin L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2378.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 2006.
   CASANUEVA, Judge.

Kevin L. Johnson appeals the order denying his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order as it relates to circuit court case number 03-CF-012696, affirm that portion of the order denying the award of jail credit in circuit court case number 03-CF-014214, and remand for further proceedings.

On July 27, 2003, Johnson was arrested in 03-CF-012696. On December 4, 2003, he was sentenced to the Department of Corrections in a separate ease (case number 01-CF-015078). On February 23, 2004, he was arrested for possession of cocaine in 03-CF-014214 and transported from the Department of Corrections to Hillsborough County Jail for sentencing in 03-CF-012696 and 03-CF-014214. At sentencing on February 24, 2004, the trial court awarded him 153 days’ jail credit in 03-CF-012696 and three days’ jail credit in 03-CF-014214.

In his motion, Johnson claims he is entitled to additional jail credit in both 03-CF-012696 and 03-CF-014214 for the time he served in jail or prison from his arrest on July 27, 2003, until his sentencing in both cases on February 24, 2004. In Keene v. State, 816 So.2d 819 (Fla. 2d DCA 2002), this court held that a defendant who is serving a prison sentence is entitled to jail credit from the date the detainer on a new charge or a violation of probation is lodged against him while he is in prison. Keene relied on Bryant v. State, 787 So.2d 68 (Fla. 2d DCA 2001). Bryant was abrogated by Gethers v. State, 838 So.2d 504 (Fla.2003), and a defendant is now entitled to credit only from the date he is arrested on the new charge and not from the date of the detainer. This does not affect our decision in Keene that a defendant may be entitled to jail credit while he is serving a prison sentence on another charge.

In this case, Johnson was arrested in 03-CF-012696 prior to being sent to prison in 01-CF-015078. Thus, Johnson is entitled to credit in 03-CF-012696 for the time he served in prison in 01-CF-015078 prior to his sentencing in 03-CF-012696. Therefore, we reverse the trial court’s order and remand with directions to award Johnson jail credit for the time he served in prison prior to sentencing in 03-CF-012696.

However, because the sheriffs jail log indicates that Johnson was arrested in 03-CF-014214 on February 23, 2004, he is not entitled to any additional credit in that case. Johnson’s claim that the sheriff’s jail log is inaccurate may be raised pursuant to a timely, facially sufficient motion filed under Florida Rule of Criminal Procedure 3.850. See Jasmin v. State, 799 So.2d 312, 312 n. 1 (Fla. 2d DCA 2001).

Affirmed in part, reversed in part, and remanded.

SALCINES and VILLANTI, JJ., Concur.


text:
    B.A.O., Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3755.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 2006.

      James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Beehard, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

B.A.O. appeals an order withholding adjudication but finding he had committed the delinquent act of loitering and prowling under section 856.021, Florida Statutes (2003). Because the State did not present evidence establishing all the elements necessary for conviction, we reverse.

At 2:45 a.m. on August 30, 2003, a security guard at an apartment complex in Hillsborough County spotted B.A.O. and another male walking towards the entrance of the complex. Later in the morning the security guard noticed the two inside the complex carrying a bicycle. The security guard noticed that a chain around the rear spokes of the rear wheel prevented the wheel from turning. At this point, the security guard stopped B.A.O. and his companion to question the two about the bicycle. The security officer then became suspicious and called the sheriffs office.

A deputy from the Hillsborough County Sheriffs Office responded to the call. When the deputy arrived, she questioned the two young men about the bicycle and their reasons for being at the apartment complex. B.A.O. and the other juvenile stated they did not live in the apartments or know anyone in the area. According to B.A.O., the two youths were “out walking” when they found the bicycle “in a ditch.” The deputy did not believe B.A.O. and concluded he was stealing the bike. The deputy then discovered that B.A.O. was carrying a pocket knife and the other youth had a pellet gun with him.

Based on this evidence, the trial court found B.A.O. not guilty of carrying a concealed weapon. On the charge of loitering and prowling, the trial court found B.A.O. guilty but withheld adjudication.

In order to obtain a conviction for loitering and prowling the State must prove two elements. In J.S.B. v. State, 729 So.2d 456 (Fla. 2d DCA 1999), this court reiterated the State must establish that the accused was: (1) loitering and prowling in a manner not usual for law abiding citizens (2) under circumstances warranting justifiable and reasonable alarm for the safety of persons or property in the vicinity. 729 So.2d at 457. The former requires the State to show more than a vaguely suspicious presence, while the latter requires the State to prove conduct that is alarming in nature, indicating an imminent threat to public safety. Id.

The facts presented by the State failed to prove the second prong of the test for loitering and prowling. Specifically, there is no evidence that B.A.O.’s actions indicated an imminent threat to property or people in the area. Mere suspicion of criminal activity will not support a conviction for loitering and prowling. R.M. v. State, 754 So.2d 849, 850 (Fla. 2d DCA 2000). The State did not provide evidence as to the owner of the bike or that B.A.O. stole the bike. Therefore, the record does not contain facts sufficient to prove an imminent threat to the safety of persons or property. Id. at 854. See also T.W. v. State, 675 So.2d 1018, 1019 (Fla. 2d DCA 1996). Because the record does not contain evidence that satisfies this second element, the State did not meet the burden necessary for a finding that B.A.O. had committed loitering and prowling.

Accordingly, we reverse with directions to vacate the withheld adjudication and discharge B.A.O.

SALCINES and CANADY, JJ., Concur.


text:
    Robert HASELIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-87.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 2006.
    Rehearing Denied June 14, 2006.

      Jeffrey Sullivan of Stidham & Stidham, P.A., Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Robert Haselier appeals his conviction and sentence for trafficking in methamphetamine, possession of drug paraphernalia, and possession of cocaine. He pleaded no contest, reserving his right to appeal the denial of his motion to suppress evidence seized after an allegedly illegal search. Because Mr. Haselier consented to the search, we affirm.

After a valid traffic stop of his vehicle, Mr. Haselier consented to a search of his vehicle and person. The officer saw bulges in Mr. Haselier’s pants pockets and asked him to empty his pockets. Mr. Haselier produced a small Velamint container and, without comment, promptly attempted to place it back into his pocket. Based on prior experience, the officer suspected that the container held drugs. He asked Mr. Haselier to see the container. Mr. Haselier, with a sigh, handed the container to the officer. It contained methamphetamine. The officer later found methamphetamine, cocaine, and a plastic scale in Mr. Haselier’s car.

In his motion to suppress, Mr. Haselier claimed that he withdrew his consent to search by pushing the Velamint container back in his pocket and hesitating to remove it again at the officer’s request. Mr. Haselier did not testify at the suppression hearing. The trial court denied the motion to suppress, concluding that Mr. Haselier never withdrew his consent, and, alternatively, that probable cause supported the officer’s search.

Despite his protestations to the contrary, Mr. Haselier did not withdraw his consent to the search. He could have stated unequivocally that he wanted the search to stop; he did not do so. See Lowery v. State, 894 So.2d 1032, 1037 (Fla. 2d DCA 2005) (Silberman, J., dissenting). Rather, he voluntarily surrendered the Velamint container to the officer.

Further, Mr. Haselier’s nonverbal conduct does not demonstrate a withdrawal of consent. A more objective manifestation of that intent is needed. In Lowery, the defendant actively, and physically, interfered with an officer’s attempts to search his pockets. Despite the interference, the officer found crack cocaine. We held that the search was not consensual. The defendant’s obvious nonverbal gestures and disregard for officer commands reflected his intent to stop or limit the search. Id. at 1034.

Similarly, in Smith v. State, 753 So.2d 713, 715 (Fla. 2d DCA 2000), we held that the search of the defendant’s mouth for crack cocaine was not consensual. Although the defendant consented initially to open his mouth, he withdrew that consent by obvious and unequivocal efforts to conceal the contraband. Id. (defendant cupped his tongue and did not respond to officer’s instructions to lift it); see also Jimenez v. State, 643 So.2d 70, 71 (Fla. 2d DCA 1994) (defendant initially consented to patdown search, but then grabbed deputy’s hand in apparent attempt to stop search of cigarette packs found in pocket).

In contrast, Mr. Haselier voluntarily removed the container from his pocket, returned it to the pocket, and gave it to the officer upon request. His sigh was just a sigh. His compliance with the officer’s request for the Velamint container was not done with the clarity of withdrawal involved in Lowery and Smith. Mr. Haselier consented to the search. He did not physically interfere with the officer’s search; he did not attempt to leave; he said nothing to indicate a withdrawal of consent. He willingly complied with the officer’s request. Accordingly, the trial court properly denied the motion to suppress.

Affirmed.

ALTENBERND and CASANUEVA, JJ., Concur.

      . "Appellate review of a motion to suppress involves questions of both law and fact. This court must make a de novo review of the trial court's application of the law to the facts.” Rosenquist v. State, 769 So.2d 1051, 1052 (Fla. 2d DCA 2000).

      . Our review of the record supports no conclusion that probable cause existed to search Mr. Haselier. However, given our holding that Mr. Haselier consented to the search, we need not elaborate further on the trial court’s alternative conclusion.


author: SALCINES, Judge.

text:
    Darius JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3325.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 2006.
   SALCINES, Judge.

Affirmed without prejudice to any right Darius Johnson may have to raise his prison credit claim in the appropriate forum. See Armstrong v. State, 846 So.2d 1227 (Fla. 2d DCA 2003).

NORTHCUTT, and DAVIS, JJ., Concur.


author:
PER CURIAM.
      CASANUEVA, Judge,

text:
    James Larry PERCHITTI, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-331.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2006.
    Pine Scott Price, Punta Gorda, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed.

SALCINES, and VILLANTI, JJ., Concur.

CASANUEVA, J., Concurs specially.

CASANUEVA, Judge,

Concurring.

Because I conclude that this case is controlled by State v. Baez, 894 So.2d 115 (Fla.2004), I concur.


text:
    Larry B. BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1005.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2006.
    James Marion Moorman, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Larry Butler appeals the trial court’s revocation of his probation based on three new offenses — possession of cocaine, felony battery, and tampering with a witness. We affirm the revocation of probation based on felony battery and tampering with a witness; however, we reverse the revocation order as to the finding of a violation based on possession of cocaine because the State presented no evidence to support it.

At the evidentiary hearing in the trial court, a police officer testified that he arrested Butler after responding to a domestic battery call. After the arrest, a back-up officer searched Butler and located a glass crack pipe in the pocket of the pants Butler was wearing but denied owning. The officer who testified at the hearing could not recall what the laboratory test results on the crack pipe were. No evidence was introduced to show the presence of drug residue on the pipe, nor were any drugs found on Butler at the time of his arrest. We are therefore compelled to reverse and remand for the trial court to strike its finding of a new offense based on cocaine possession.

However, we find no error in the trial court’s finding that Butler violated his probation based on the new offenses of battery and tampering with a witness. Because these remaining violations of probation are substantial, we affirm the revocation of probation based on the remaining violations. See Mitchell v. State, 871 So.2d 1040, 1042 (Fla. 2d DCA 2004) (recognizing that when an appellate court reverses a violation of community control, it need not remand for reconsideration of the revocation when the remaining violations are substantial).

Affirmed in part, reversed in part, and remanded.

FULMER, C.J., and ALTENBERND, J., Concur.


author: ALTENBERND, Judge.

text:
    In the Interest of M.D., K.D., and J.D., Children. E.D., Mother, Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D05-1049.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2006.
    Linda A. Lorrier of Linda A. Lorrier, P.A., Bradenton, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin K. Jensen, Assistant Attorney General, Department of Children and Family Services, Bradenton, for Appellee.
   ALTENBERND, Judge.

E.D., a mother whose parental rights have not been terminated, appeals a final order from the trial court that requires her children to remain in long-term custody and terminates the Department of Children and Families’ supervision. We affirm without prejudice to E.D.’s right to seek custody by a proper motion filed pursuant to section 39.622(4), Florida Statutes (2005).

In 2001, the Department sheltered E.D.’s three children because she suffered from a substance abuse problem, and the children had been subjected to physical abuse and deplorable living conditions. After the three children were declared dependent in 2002 in Putnam County, the court placed them with their biological father, who did not reside with E.D. E.D. was offered a case plan with the goal of strengthening the children’s placement with their father. It does not appear that E.D. was ever offered a case plan that anticipated that she would regain custody of her children.

In April 2003, the trial court determined that E.D. had repeatedly failed to comply with her case plan. As a result, the trial court in Putnam County held a judicial review hearing and entered an order, pursuant to section 39.622, Florida Statutes (2003), placing the children in the long-term custody of their father and terminating the Department’s supervision. E.D. did not appeal this decision. As required by section 39.622(9), Florida Statutes (2003), the trial court retained jurisdiction over the case, even though the court was not required or expected to take any further action during the long-term custody. This statutory retention of jurisdiction allows the trial court to quickly handle any unanticipated risk to the children during the long-term custody.

In October 2003, the biological father died unexpectedly. The children’s paternal aunt and uncle, who live in Manatee County, advised the Department of the father’s death and informed the Department that the children were in their custody. As a result, the case was reactivated. Following some confusion about the proper forum in which to conduct further hearings, the court in Putnam County held a hearing in October 2004 and noted that E.D. had no case plan goal and that her compliance could not be determined. It also noted that it had discussed and agreed with the court in Manatee County to transfer the case to Manatee County. The Putnam County court anticipated that a hearing would be held after the transfer to establish a goal for E.D.’s ease plan.

On February 8, 2005, the court in Manatee County conducted a judicial review hearing. At the hearing, E.D. requested an evidentiary hearing to prove that she was in compliance with her case plan from 2002. The trial court denied E.D.’s request. The record, of course, contained the unappealed order establishing long-term custody in 2003, which determined that E.D. was in breach of her case plan at that time. The trial court terminated the Department’s supervision over the case and confirmed the long-term placement of the children with their aunt and uncle.

Section 39.622 allows a trial court to place a child in long-term custody and to terminate department supervision when certain conditions are established. There is no dispute in this case that the court in Putnam County properly entered such a long-term custody order in 2003. The trial court may modify such a custody order if it finds that the placement is no longer in the best interests of the child. See § 39.622(9). Further, a noncustodial parent may seek to regain custody by petitioning for the return of the child pursuant to section 39.622(4) and establishing that a material change in circumstances has occurred and that the return of the child to the noncustodial parent would be in the child’s best interests.

Section 39.622 does not specify what procedures should be followed in the event of the death of the long-term relative custodian when the long-term custody is based on the failure of a noncustodial parent to substantially comply with a case plan. Here, the death of the children’s father necessitated a new placement for the children. The court in Manatee County took the necessary steps to ascertain that the paternal aunt and uncle would be appropriate long-term custodians before it entered the order approving their status. E.D. does not challenge their fitness.

E.D. appears to have assumed that the reactivation of this case under the jurisdiction reserved pursuant to section 39.622 required the court to offer her a case plan as if it were a newly filed dependency proceeding. Although the father in this case died within a few months of the order appointing him as long-term custodian, he could have died years after the entry of the order. We conclude that section 39.622 does not require a trial court to reopen a dependency case and provide the noncustodial parent with a new case plan merely because the long-term custodian dies. Instead, the children remain the subject of a long-term custody proceeding. If the noncustodial parent has rehabilitated herself during the long-term custody, it may be in the children’s best interests to place them with the noncustodial parent, but the court is not compelled to take steps to rehabilitate the noncustodial parent through another round of case plans.

There is little question that the death of the father was a material change in circumstances. Thus, pursuant to section 39.622(4), E.D. had the right to seek custody of her children when the father died by petitioning for the return of the children and establishing that the return of the children would be in their best interests. By the time the father died, E.D. lived in Kentucky. She participated in a home study that indicated her home was physically adequate for the children. She did not, however, file a motion under section 39.622(4) to establish custody. At most, she sought another opportunity through an outdated case plan to establish her fitness as a parent.

We are concerned that both E.D. and the trial court may not have fully appreciated the proper procedural steps that E.D. needed to take to obtain custody of her children when the father died. As a parent, she has due process rights that should not be overlooked. On remand, if and when she believes that she can satisfy the requirements of section 39.622(4), she may file a motion seeking custody of the children, and the order on appeal will not act as any bar to that proceeding.

We therefore affirm the trial court’s order subject to E.D.’s right to petition for return of the children under section 39.622(4). See E.S. v. Dep’t of Children & Families, 856 So.2d 1093 (Fla. 1st DCA 2003).

Affirmed.

FULMER, C.J., and KELLY, J., Concur.


text:
    Jarod C. WALTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3383.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2006.
   PER CURIAM.

Affirmed. Our affirmance is without prejudice to any right Walton may have to file a timely, facially sufficient motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Such a motion will not be deemed successive.

STRINGER, VILLANTI, and LaROSE, JJ., Concur.


text:
    FEDERATED NATIONAL INSURANCE COMPANY, Petitioner, v. Frank COPELAND and Marilyn Copeland, Respondents.
    No. 2D05-3132.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2006.
    Janice A. Kelly of Boehm, Brown, Fischer, Harwood, Kelly & Scheihing, P.A., Orlando, for Petitioner.
    Theodore A. Corless of Corless and Associates, PLC, Tampa, for Respondents.
   VILLANTI, Judge.

Federated National Insurance Company petitions for a writ of certiorari, asking this court to quash the trial court’s order denying its motion to dismiss count II of Frank and Marilyn Copeland’s claim against Federated for violation of section 627.707, Florida Statutes (2004). Federated has failed to show that it will suffer material injury that cannot be adequately remedied on appeal. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099-1100 (Fla.1987) (stating that motions to dismiss and motions to strike claims should not be reviewed by certiorari); Progressive Consumers Ins. Co. v. Day, 869 So.2d 621, 622 (Fla. 1st DCA 2004) (denying certiorari review of a trial court’s denial of petitioner’s motion to dismiss a bad faith claim).

We, therefore, dismiss the petition without prejudice to Federated to seek a writ of certiorari in this court if the trial court compels discovery of privileged or protected documents. See McGarrah v. Bayfront Med. Ctr., Inc., 889 So.2d 923, 925 (Fla. 2d DCA 2004) (“Orders granting discovery ... are amenable to certiorari review because appeal after a final judgment in a case where discovery was improperly granted seldom provides adequate redress.”).

Petition for writ of certiorari is dismissed without prejudice.

ALTENBERND and CASANUEVA, JJ., Concur.

      . Section 627.707 sets forth specific minimum standards for investigating sinkhole claims.


text:
    Stephen W. ERICSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3450.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2006.
   PER CURIAM.

Stephen W. Ericson appeals the post-conviction court’s order denying his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). To resolve Mr. Ericson’s jail credit claim requires factual determinations that are not apparent from the face of the record. Therefore, this claim may not be raised by a rule 3.800(a) motion. See Clifton v. State, 905 So.2d 1042 (Fla. 2d DCA 2005). Accordingly, we affirm the order without prejudice to any right Mr. Ericson might have to file a timely and facially sufficient sworn motion seeking jail credit under Florida Rule of Criminal Procedure 3.850. Any such motion will not be deemed successive.

Affirmed.

ALTENBERND, KELLY, and WALLACE, JJ., Concur.


author: KELLY, Judge.

text:
    A.G., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, and Guardian Ad Litem Program, Appellees.
    No. 2D05-2809.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 2006.

      Jessica C. Tien of Tien Law Group, Tampa, for Appellant.
    Bernie J. McCabe, State Attorney, and Kerya Koeut and Barbara Ann Dell McPherson, Assistant State Attorneys, Clearwater, for Appellee Department of Children and Family Services.
    Thomas Wade Young, Orlando, for Ap-pellee Guardian Ad Litem Program.
   KELLY, Judge.

A.G. appeals from the order terminating her parental rights to her eight-year-old son, E.G. We dismiss the appeal because we have concluded that the issues she raises are moot.

A.G. first contends that the order terminating her parental rights must be reversed because the trial court failed to address section 39.811(6), Florida Statutes (2003), which specifies when the court has the power to terminate the rights of one parent without terminating the other parent’s rights. When A.G.’s rights were terminated, the Department was still in the process of terminating the parental rights of two men who A.G. had named as prospective fathers. Thus, she contends that this was a single parent termination and that the trial court should have considered section 39.811(6).

A.G. also argues that the trial court failed to consider one of the prospective fathers’ legal rights under section 521 of the Servicemembers Civil Relief Act, 50 App. U.S.C. § 501-96. Among other things, that section protects members of the military from default judgments in civil actions in which the service member does not make an appearance. Essentially, the mother argues that the trial court should have considered the prospective father’s rights under that section because terminating the mother’s rights would bar him from ever collecting child support from the mother; thus, his interests would be affected by the proceedings.

During oral argument the Department represented to this court that the rights of the two prospective fathers had been terminated while this appeal was pending. After oral argument, the Department filed in this court certified copies of the orders terminating the rights of the two prospective fathers. Those orders were rendered in July and November of 2005, and neither order has been appealed. We conclude that the termination of the prospective fathers’ rights mooted the issues the mother has raised in this appeal.

“ ‘An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect. A case is “moot” when it presents no actual controversy or when the issues have ceased to exist.’ ” Merkle v. Guardianship of Jacoby, 912 So.2d 595, 600 (Fla. 2d DCA 2005) (quoting Godwin v. State, 593 So.2d 211, 212 (Fla.1992)). “It is the function of a judicial tribunal to decide actual controversies by a judgment which can be carried into effect, and not to give opinions on moot questions, or to declare principles or rules of law which cannot affect the matter in issue.” Montgomery v. Dep’t of Health & Rehabilitative Servs., 468 So.2d 1014, 1016-17 (Fla. 1st DCA 1985). “A case becomes moot, for purposes of appeal, where, by a change of circumstances prior to the appellate decision, an intervening event makes it impossible for the court to grant a party any effectual relief.” Id.

The issues raised by the mother have “ceased to exist” and, therefore, reversal and remand to the trial court would have no practical effect. The intervening termination of the prospective fathers’ rights obviates any alleged need for the trial court to make findings under section 39.811(6) or to consider whether the rights of the military prospective father under the Servicemembers Civil Relief Act have any bearing on whether to terminate the mother’s rights. “An appeal should be dismissed where no practical result could be attained by reviewing the questions therein contained. Under such circumstances the appeal may be dismissed of the court’s own motion.” DeHoff v. Imeson, 153 Fla. 553, 15 So.2d 258, 259 (1943) (citation omitted). Accordingly, we dismiss the appeal.

Dismissed.

VILLANTI and WALLACE, JJ., Concur.

      . This may be the reason the parties agreed to go forward with termination without having the trial court address whether one of the circumstances enumerated in section 39.811(6) existed. The failure to address whether one of these circumstances exists has been the sole basis for reversal in several termination cases and would have been in this case had the prospective fathers’ rights not been terminated. We emphasize to trial courts, and to all parties participating in termination proceedings, the importance of heeding this statutory provision in cases where only one parent’s rights are terminated. Even in cases in which the rights of both parents are terminated, trial courts may find it appropriate to address whether any of these circumstances are present as a precaution against the possibility that one parent’s termination is reversed on appeal. See, e.g., J.T. v. Dep’t of Children & Family Servs. (In re L.C.), 908 So.2d 568 (Fla. 2d DCA 2005); N.M. v. Dep’t of Children & Family Servs. (In re V.M.), 893 So.2d 595 (Fla. 2d DCA 2005).

      . Cf. McSween v. State Live Stock Sanitary Bd., 97 Fla. 750, 122 So. 239 (1929) (noting that it could properly consider certified copies of orders filed at the oral argument of the case and finding that the events detailed in the orders rendered the issues in controversy moot).


text:
    FLORIDA HIGH SCHOOL ACTIVITIES ASSOCIATION, Appellant, v. Shelby MANDER, by and through A.R. MANDER, Appellee.
    No. 2D05-4062.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2006.
    Rehearing Denied March 8, 2006.
    Leonard E. Ireland, Jr., Gainesville, for Appellant.
    Daniel L. Dwyer of Greenfelder, Man-der, Murphy, Dwyer & Morris, Dade City, for Appellee.
   CASANUEVA, Judge.

The Florida High School Activities Association (FHSAA) has appealed from an order temporarily enjoining it from prohibiting a private-school student from playing volleyball on a public middle-school team. Because the temporary restraining order was entered without reasonable notice to the FHSAA and without requiring the plaintiff to post a bond, it is legally insufficient and must be reversed.

This action began when Shelby Mander, a student at East Pasco Adventist Academy, filed an action by and through A.R. Mander seeking to enjoin the FHSAA from barring her from participating in volleyball or any other activity offered by Centennial Middle School, a public-school member of the FHSAA. She filed a verified motion for temporary injunction on August 9, 2005, the date on which volleyball practice commenced at Centennial. The court immediately issued a temporary restraining order against the FHSAA.

Florida Rule of Civil Procedure 1.610(a)(1) requires that a temporary injunction can be granted without written or oral notice to the adverse party only if it appears that “immediate and irreparable injury ... will result to the movant before the adverse party can be heard in opposition” and “the movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.”

Here, FHSAA was not given reasonable notice or an opportunity to respond to the matters raised in the motion for temporary injunction. Miss Mander’s attorney filed the following certification with the motion:

Pursuant to Rule 1.610(a)(1)(B), Fla. R. Civ. P., the undersigned certifies that telephone conversations have taken place with representatives of the FHSAA concerning this suit. The complaint, summons and this motion have been faxed and mailed to the representatives of the respective Defendants on the date the complaint and this motion were filed.

The motion was filed in Pasco County without sufficient notice to give the FHSAA, an out-of-town government agency with an out-of-town lawyer, a practical opportunity to present its opposition. Furthermore, the certification filed by Miss Mander’s attorney recites no adequate reasons why notice to the opposing party should not be required. Although the movant avers that volleyball practice began at 3 p.m. on the date the motion was filed, the certificate does not explain why it was necessary or reasonable for Miss Mander’s attorney to delay until the eleventh hour rather than filing the motion with sufficient time for the FHSAA to prepare its own evidence and arguments. Miss Mander’s failure to file this action promptly so as to avoid a conflict with volleyball practice is not the FHSAA’s emergency.

This case bears many similarities to Florida High School Activities Ass’n v. Benitez, 748 So.2d 358, 359 (Fla. 5th DCA 1999), which also found the notice for temporary injunction to be legally insufficient:

The late notice to FHSAA by facsimile does not constitute adequate notice under the facts of this case. Notice for temporary injunction purposes means a meaningful opportunity to prepare in order to present evidence and secure a record of the proceedings. See Harrison v. Palm Harbor MRI, Inc., 703 So.2d 1117, 1119 (Fla. 2d DCA 1997). There appears to have been no effort to provide FHSAA with a meaningful opportunity to be heard prior to entry of the temporary injunction.

In addition to issuing an order with insufficient notice to the opposing party, the court also erred when it failed to set a bond as required under Florida Rule of Civil Procedure 1.610(b). An injunction is defective if it does not require the movant to post a bond. “The trial court cannot waive this requirement nor can it comply by setting a nominal amount.” Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997) (citing Wasserman v. Gulf Health, Inc., 512 So.2d 234, 235 (Fla. 2d DCA 1987)). Should the trial court enter a legally sufficient order on remand, all parties must be given an opportunity to present evidence as to the appropriate amount of a bond.

Reversed and remanded for further proceedings.

ALTENBERND and WHATLEY, JJ„ Concur.


author: WARNER, J.

text:
    Alina M. MATOS, Appellant, v. Jose D. MATOS, Appellee.
    No. 4D04-4104.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2006.

      Ronald E. D’Anna and Jennifer J. Kramer of McClosky, D’Anna & Dieterle, LLP, Boca Raton, for appellant.
    Debra L. Horton of Hunt & Gross, P.A., Boca Raton, for appellee.
   On Motion for Clarifícation

WARNER, J.

We grant the motion for clarification, withdraw our previously issued opinion and substitute the following in its place in order to correct a scrivener’s error.

The wife appeals a final judgment of dissolution which awarded her no relief, because the court found that she had entered into an oral settlement agreement two years prior to the institution of dissolution proceedings. Because the husband did not prove the wife’s assent to all the significant terms of the agreement, we reverse.

The parties first lived together in 1994. At that time they agreed that the 'wife would pay all of their bills, while the husband attended school. In 1997 the parties married and purchased a home. By 2000 problems arose in the marriage. According to the wife, the husband needed to feel he was in control of the parties’ finances. He insisted that he needed the house in his name alone because her credit was bad. In addition, the wife testified without opposition that there was domestic violence in the home.

When the marital problems arose, the husband secured forms to file for a divorce. The parties went to a lawyer/mediator to work out a “settlement.” After working out issues in a meeting, the wife signed a quitclaim deed transferring her interest in the house to the husband. In exchange, the husband was to refinance the house and give her $50,000 as well as the title to the family vehicle. The wife was to remove his name from the promissory note on the vehicle. Instead, the husband paid off the car loan and gave the wife approximately $30,000. These transactions occurred in the summer of 2001.

The parties resumed marital life and went to counseling. The wife paid for portions of the home bills. At some point the abuse recommenced, and the wife was required to obtain a domestic violence injunction. In May 2003 the husband filed for divorce. In his petition he requested an equitable distribution of the parties’ assets. The wife answered agreeing to his request for an equitable distribution of marital assets. The proceedings languished until the husband secured a lawyer. He then moved to amend his pleadings to assert that the parties had entered into an oral marital settlement agreement. The wife filed an answer denying many of the alleged terms of the agreement.

Instead of setting the case for a final hearing, the husband moved to enforce the “marital settlement agreement.” At the hearing, the husband appeared with his attorney and the wife appeared without counsel. The court asked whether the wife wanted to go ahead with the dissolution of the marriage, and she did not object. Therefore the proceedings turned into a final trial.

Despite the presence of the husband’s attorney, the court did most of the questioning of the parties. The parties disagreed on what occurred during their negotiations in 2001. The husband contended that the wife agreed to the terms of the settlement which consisted of the following: 1) the wife would quitclaim her interest in the home to the husband, and the husband would refinance the mortgage to pay the wife $50,000 as her equitable share of the home as well as his retirement and savings accounts; 2) the wife was to pay for her share of the refinancing costs incurred by the husband; 3) the wife would obtain the removal of the husband’s name on the family vehicle, or if the wife could not remove it, the loan would be paid off from the wife’s $50,000 equity in the house; 4) upon completion of the refinancing, the wife agreed to move from the property after one year from the refinancing in June 2001, provided that during the interim she would pay half of the household costs.

The wife, on the other hand, testified that she agreed to quitclaim the home to the husband to stop the violence. While she agreed that she was to pay the car loan, she did not agree that it was to be paid from the $50,000, and she vehemently did not agree that the $50,000 payment extinguished all of her rights to future equity in the home or the savings accounts. Instead, her understanding of their agreement was that if in the future they sold the home, her $50,000 payment would be deducted from her half, but she would get the remainder of her share of the equity. By the time of the final hearing, she estimated the additional equity in the home at $100,000. Further, the savings accounts were not part of the agreement. She also did not agree that he was to pay the car off. She had other alternative means of dealing with the car payments, and she felt that she needed the $50,000 in case their reconciliation failed. While the husband claimed that she owed him some payments for her share of the household expenses, she denied owing any, claiming that she had exhausted the remaining $30,000 in paying household expenses and one-half of the mortgage. She denied having any agreement that she should move out of the home.

After the court interrogated the parties regarding the 2001 agreement for a short period of time, it determined that there was an agreement in accordance with the husband’s terms, except the court disagreed with requiring the wife to share 100% of the refinancing costs. The court was also disinclined to find that the wife owed the husband any further sums for home expenses. After indicating how it intended to rule, the court asked the husband’s lawyer if she wanted to talk with her client. After a few minutes, the lawyer announced that her client would agree with the ruling. The wife maintained that it was not consistent with her understanding of their agreement. She then asked about the other uncovered issues, including the husband’s IRA accounts, which she claimed would be divided upon divorce. She also claimed alimony because she could not work.

At that point the husband’s lawyer noted that the mediator could offer testimony on the subject of the mediated agreement. The court called the mediator to the stand and interrogated her. The mediator testified that the parties came to her after they reached an informal agreement which she was to reduce to writing. Although nothing was in fact written down, the mediator thought that the parties came to an agreement. She claimed that by the time the parties came to her, they had agreed on everything, and the agreement included no alimony and “no IRA.” However, later the mediator testified that the savings accounts were “not part of what was brought to me simply because I was told you reached agreement on everything else.” Moreover, she stated that she was not a constant participant in the negotiations.

Because the wife complained about other accounts which were not included, the court gave the wife a short period to come up with any further evidence on undisclosed assets. At a second hearing, the wife was represented by an attorney. He demanded mandatory financial disclosure, which had never been made, but the court denied the request. The court heard additional testimony regarding an undisclosed account in the name of the husband’s sister from which the husband began drawing $25,000 shortly after the settlement in 2001. Despite this evidence, the trial court refused to change its ruling, and the court entered final judgment. The wife appeals.

The husband seeks to enforce an oral settlement agreement with his wife on the basis of performance. The wife, on the other hand, disputes the agreement’s exec-utory terms, in particular that it covered the increased equity in the home after its execution, other savings accounts, and the subject of alimony. Because the husband failed to show the assent of the wife as to the executory provisions of the agreement he now alleges, we reverse.

In Walz v. Walz, 652 So.2d 929, 931 (Fla. 1st DCA 1995), the first district provided guidance regarding the enforceability of oral settlement agreements in dissolution cases:

A party seeking a judgment on the basis of compromise and settlement has the burden of establishing assent by the opposing party.... The moving party must establish a meeting of the minds or mutual or reciprocal assent to a certain and definite proposition.... While uncertainty as to an agreement as to nonessential or small items will not preclude a finding of an enforceable settlement, the agreement must be sufficiently specific and mutually agreeable as to every essential element. Preliminary negotiations or tentative and incomplete agreements will not establish a sufficient meeting of the minds to create an enforceable settlement agreement....

(quoting Williams v. Ingram, 605 So.2d 890, 893 (Fla. 1st DCA 1992)).

In Walz, approximately three weeks before the final hearing in a dissolution of marriage case, the parties met at a nightclub and restaurant in order to negotiate a settlement. Id. at 930. They signed a written list dividing the household furnishings, but they did not sign the settlement agreement form the husband had taken notes on during their discussions. Id. The wife asserted that the parties had settled all issues at the meeting, but the husband disputed this in his testimony. Id. at 930-31. The husband testified that the parties had imbibed several beers at this meeting and that he began to respond to the wife’s requests with “okay, okay,” in order not to cause any embarrassment or create a scene. Id. at 930. The trial court found that a binding oral agreement had been reached, but the first district reversed. Id. at 931. The court held that the wife did not meet her burden of establishing assent by the opposing party. Id. The court explained its reasoning as follows:

We note particularly the somewhat coercive surroundings of the parties’ meeting at the Runaway restaurant, leading appellant to say “okay, okay,” to many items; and that they both left the meeting with a written, signed agreement on household and personal items, but no written agreement on the other items.

Id.

Similarly, in this case the wife vehemently contested the terms of the agreement. Her undisputed testimony revealed coercion in that the husband was physically abusive to her. She agreed to quitclaim her interest in the home in order to give him control and stop the abuse. At the same time, she was adamant that this was to permit the parties to reconcile, which they did. The mediator testified that she did not participate in the formation of the agreement and that her role was merely to reduce it to writing. And while the mediator testified to her understanding of the terms of the agreement, she never reduced it to writing which was the reason the parties had contacted the mediator in the first place. Under these circumstances, the parties’ failure to reduce the agreement to writing strongly indicates that the parties had not agreed to everything.

Another reason why the executory provisions of this agreement should not be enforced is because of the parties’ reconciliation after its negotiation. The husband did not dispute the wife’s testimony that they recommenced living as husband and wife until the husband engaged in more domestic violence in 2004. While the parties’ reconciliation would not prevent enforcement of the executed portions of the agreement, it would prevent enforcement of those executory portions. See Cox v. Cox, 659 So.2d 1051 (Fla.1995). The parties’ agreement did not cover all of the marital assets. If the parties continued to live as husband and wife, then, absent an express agreement, the equity in the home was a marital asset, despite the quitclaim of the title to the husband. There was no express agreement made regarding the increase in equity in the marital home after the parties reconciled. Moreover, in this case the wife continued to pay half of the expenses, including mortgage payments, on the home.

The wife also contends that even if she did agree to the settlement agreement, it should be unenforceable because: 1) it was entered into through coercion; 2) the husband failed to disclose all of his assets; and 3) it is unreasonable. In Casto v. Casto, 508 So.2d 330, 333 (Fla.1987), the supreme court set forth the test for determining whether a postnuptial agreement could be deemed unenforceable. First, a spouse may set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching. Id. Second, the challenging spouse may have the agreement set aside by establishing that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. Id.

As to the first test, the undisputed testimony of the wife shows that the husband was physically abusive during the marriage, and the wife agreed to quitclaim the home to him to stop the violence and allow him more control. Further, there was evidence that the husband had other assets at his disposal that were not revealed to the wife during the settlement, including an account in the name of his sister from which he withdrew $25,000. There was at least the same degree of coercion in this agreement as the first district found in Walz. Thus, because the coercive circumstances surrounding this settlement agreement were coupled with evidence of concealment of assets, the husband failed to establish mutual assent to all significant portions of the agreement.

“Settlement” agreements entered into between the parties, acting without counsel and without full and fair disclosure of the parties’ assets, should be viewed with skepticism. This is all the more true when the parties enter into an oral settlement agreement years before the divorce, and later reconcile after agreeing to its terms. The purported oral settlement in this case would have deprived the wife of any equitable division of the equity in the home and any additions to the IRA which accrued after the settlement agreement was executed, as well as her interest in undisclosed accounts or savings.

We reverse the final judgment and remand for a new trial on the issue of division of the marital assets and alimony based upon our conclusions that the oral settlement agreement is unenforceable as to its executory portions.

Reversed for a new trial on the equitable distribution of assets and alimony.

GUNTHER and HAZOURI, JJ., concur.


text:
    Morris K. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1459.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 2006.
    Rehearing Denied March 1, 2006.
   ALTENBERND, Judge.

Morris K. Anderson appeals the denial of his motion for relief from judgment, filed pursuant to Florida Rule of Civil Procedure 1.540, which challenges his designation as a sexual predator. Although this court recently receded from its prior case law on this issue in King v. State, 911 So.2d 229 (Fla. 2d DCA 2005) (holding that challenges to a sexual predator designation should now be raised through a motion for postconviction relief), the trial court fully addressed Anderson’s claims on the merits, whether considered as a rule 1.540 motion or as a motion for postconviction relief. Accordingly, we affirm the denial of Anderson’s claim.

Affirmed.

CANADY, and LaROSE, JJ., Concur.


text:
    NICHOLSON-KENNY CAPITAL MANAGEMENT, INC., Appellant, v. Richard STEINBERG, Norman Fine, Steinberg Global Asset Management, Ltd., Corp. and Cathleen Osier Buchanan, Appellees.
    No. 4D03-4687.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2006.

      Jonathan C. Scott of Scott & Scott, LLP, Smithtown, NY, for appellant.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, Scott Konopka and Stephen C. Page of Page, Mrachek, Fitzgerald & Rose, P.A., Stuart, for appellees Richard Stein-berg, Norman Fine and Steinberg Global Asset Management, Ltd., Corp.
    Peter A. Sachs of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee Cathleen Osier Buchanan.
   On Motion for Rehearing

WARNER, J.

We deny the motion for rehearing, except to the extent that we correct a non-material factual error, we withdraw our previously issued opinion and substitute the following in its place.

The trial court entered a final judgment on an arbitration award because the court found that appellant did not file a request for trial de novo within twenty days, pursuant to Florida Rule of Civil Procedure 1.820(h). We reverse, concluding that ap-pellees were precluded from raising the failure to file a paper styled “Motion for Trial” under these circumstances where the case was set for trial prior to the arbitration proceeding, appellant filed a notice for a pretrial conference after the arbitration, and appellees actually participated in trial preparations and docket call after the arbitration ruling.

Appellant, Nicholson-Kenny Capital Management, Inc., sued the appellees, hereinafter referred to collectively as Steinberg, for misappropriation of trade secrets. After discovery and motion practice, Steinberg moved to set the case for trial. The court entered an order setting calendar call for the trial of the action on August 29, 2003. The order prescribed the pretrial procedure, including the holding of pretrial conferences between the parties and the filing of the pretrial statement.

In the order setting trial, the court also ordered the parties to non-binding arbitration pursuant to rule 1.820.

The parties went to arbitration, and the arbitrator rendered its order in favor of Nicholson for $1.5 million in damages against other defendants but ruled in favor of Steinberg and found it not liable. A corrected ruling was served on the parties on August 9, 2003. On August 13, after the arbitration decision was rendered, Nicholson’s attorney served a “Notice of Conference of Parties & Attorneys” on Steinberg. The notice provided:

[A] Conference has been scheduled, pursuant to Paragraph 6 of Order Setting Trial, for all parties and/or their attorneys, to meet to DISCUSS SETTLEMENT, SIMPLIFY THE ISSUES AND STIPULATE IN WRITING TO AS MANY FACTS AND ISSUES AS POSSIBLE, PREPARE A PRETRIAL STIPULATION IN ACCORDANCE WITH THE PRETRIAL REQUIREMENTS, AND TO LIST ALL OBJECTIONS TO TRIAL EXHIBITS....

(emphasis in original). Steinberg’s attorneys’ office was designated as the conference site. The meeting must have taken place because after the scheduled date, Nicholson’s attorney filed a notice that several of the unrepresented defendants did not appear.

Discovery proceeded in accordance with the terms of the order setting trial, and Steinberg took a deposition in the case the day before docket call. During the deposition, Steinberg’s counsel discussed the pretrial statement with Nicholson’s attorney.

At the already scheduled calendar call on August 29, 2003, Nicholson requested a trial date. Steinberg’s attorney appeared and voiced no objection. The court then set the trial for October 20,

In accordance with the Order on Pretrial Procedures, both Nicholson’s and Steinberg’s attorneys appeared at a uniform motion calendar hearing the following week regarding the filing of the joint pretrial stipulation. Both lawyers told the judge that they expected to complete it soon. Both lawyers signed the revised joint pretrial statement later that day.

Ten days later, Steinberg filed a motion for final judgment alleging that because Nicholson failed to file a motion for trial de novo, the court was required to enter final judgment on the arbitrator’s decision. After argument, the court agreed, entering final judgment and denying a motion for rehearing.

With respect to a trial after a party rejects an arbitrator’s award in non-binding arbitration, rule 1.820(h) states:

(h) Time for Filing Motion for Trial. Any party may file a motion for trial. If a motion for trial is not made within 20 days of service on the parties of the decision, the decision shall be referred to the presiding judge, who shall enter such orders and judgments as may be required to carry out the terms of the decisions as provided by section 44.103(5), Florida Statutes.

In Klein v. J.L. Howard, Inc., 600 So.2d 511, 512 (Fla. 4th DCA 1992), we held that “upon the failure to move for a trial de novo within 20 days of the service of an arbitration award ... the trial court is required to enforce the award and lacks discretion to do otherwise.” (Emphasis supplied). Later, we again explained that failure to request a trial de novo within the time provided in the rules creates a “right to enforce an arbitration award that has become final and binding as a result of a failure to request a trial.” Johnson v. Levine, 736 So.2d 1235, 1238 (Fla. 4th DCA 1999).

Neither Klein nor Johnson involved a case, as here, in which a notice for trial had already been served, and the trial had been set on a docket. The filing of a pleading styled “motion for trial” under such circumstances does not seem required, nor does the rule require that the pleading be styled “motion for trial.” Instead, we think the rule requires some notice to the opposing party that its adversary is rejecting an arbitration award and renewing its demand for trial, which in this case was already set.

In Johnson we noted that we could not interpret “Exceptions to Arbitration Order” as requesting a trial de novo, because no mention of a trial was made anywhere in the document. We noted,

Frankly we can find nothing anywhere in any of these documents that could plausibly support an argument that in substance these defendants were really requesting a trial de novo. The words “trial de novo” appear nowhere in their papers. In fact there is nothing in any of them even hinting at or suggesting they wanted a trial or further trial proceedings. They merely attack the arbitrator’s findings and conclusions. In our view, the trial judge was quite correct in finding that these “exceptions” simply failed to request a trial de novo.

736 So.2d at 1239. To the contrary, in this case, based upon the provisions of the order setting trial, Nicholson’s attorney filed a notice setting the attorney pretrial conference only four days after receiving the arbitrator’s decision. In the notice, Nicholson clearly indicated a desire to proceed to trial in the case. Both attorneys attended the calendar call for the trial period, and Nicholson requested a trial date in open court, in accordance with the order setting trial. Its attorney met with Steinberg’s attorneys to hammer out a joint pre-trial statement. There is no question in this case that Nicholson requested a trial within twenty days of the arbitrator’s decision, and there is more than a “hint” of that fact in the filings with the court.

Even though the notice indicating a continued demand to proceed to trial was not specifically styled a “motion for trial de novo,” we would conclude that Steinberg, through its conduct, is precluded from raising the issue of non-compliance with rule 1.820. It did not object when its attorneys were noticed to attend the pretrial conference; it worked with Nicholson’s attorney to develop the pretrial statement; and it did not object to setting the trial at the docket call. All of these events occurred within the time in which Nicholson could have filed a “motion for trial de novo” had it known that Steinberg was insisting that it file a document so styled. Steinberg continued preparing for a trial and never revealed its argument that the notice of setting the pretrial conference in accordance with the order setting trial was insufficient to put it on notice that Nicholson intended to proceed with a trial.

The purpose of the motion for trial in court-ordered non-binding arbitration is to hasten the litigation along, make the parties evaluate the award, and either accept it or complete the litigation through trial. We analogize this to the interpretation this court made of section 39.506(3), Florida Statutes (2001), in A.J. v. Department of Children and Families, 845 So.2d 973 (Fla. 4th DCA 2003). That section provides for a default of a parent who fails to appear at a scheduled adjudicatory hearing for dependency. We noted:

The purpose of a default provision such as that in section 39.506(3) is to ensure that the object of the dependency petition “is not defeated by the parent’s neglect of the proceeding.” [Citations omitted]. Section 39.506(3) “enables the trial court” to bring a dependency case “to conclusion even if the parent has chosen not to participate.” Id. The purpose of the statute is not to inject “gotcha” practices into the dependency process.

Id. at 976.

In the same manner, the motion for trial under rule 1.820 puts the other side on notice that it should be prepared for trial. It is a procedural device to hasten the end of litigation. It too should not be interpreted to introduce “gotcha” tactics into litigation.

This case is also analogous to Gardner v. Broward County, 631 So.2d 319 (Fla. 4th DCA 1994). There, a personal injury plaintiff filed a statutory notice of claim against the county but failed to include her husband’s loss of consortium claim. During the litigation, the plaintiffs served a request for admission which asked the county to admit that plaintiff wife had satisfied all of the notice requirements of section 768.28(6), Florida Statutes. Although time still remained under the statute in which to correct the error of not naming the husband, the county objected to the request as relating to facts in dispute and calling for a legal conclusion. It was not until the county moved for a directed verdict at trial that it specifically pointed out the defect in the notice. The trial court granted the motion, and the husband appealed.

We held that the county was precluded from raising the issue because it had failed to deny with particularity the occurrence of a condition precedent as required by Florida Rule of Civil Procedure 1.120(c). We found that this failure amounted to a waiver of the assertion of the right after the statutory period for compliance had run. We also noted:

In Cabot v. Clearwater Construction Co., 89 So.2d 662, 664 (Fla.1956), Justice Thornal, speaking for the court after adoption of the Rules of Civil Procedure, said: No longer are we concerned with the “tricks and technicalities of the trade”. The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize.
And as Judge Schwartz said in Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979), the “ ‘gotcha!’ school of litigation” will not be tolerated.

631 So.2d at 321; see also Charter Review Comm’n of Orange County v. Scott, 627 So.2d 520 (Fla. 5th DCA 1993), quashed on other grounds, 647 So.2d 835 (Fla.1994) (holding that party waived compliance with Florida Rule of Civil Procedure 1.440, regarding setting of trials, because it failed to raise the issue to the trial court and voluntarily proceeded with the hearing without compliance).

Similarly, in this case the appellees’ attorneys’ words, actions, and conduct led Nicholson’s attorney to believe that they assented to its request for a trial de novo, as reflected in its filed notice to set the pretrial conference in accordance with the order setting trial. We have continually decried the use of “gotcha” litigation tactics. See, e.g., Gardner, Rappaport v. Hollywood Beach Resort Condo. Ass’n, Inc., 905 So.2d 1024 (Fla. 4th DCA 2005); Jenkins v. UBN Global Trading Corp., 886 So.2d 1057 (Fla. 4th DCA 2004); A.J.; Berkman v. Foley, 709 So.2d 628 (Fla. 4th DCA 1998). We again reiterate our disdain for such litigation conduct.

Reversed and remanded for a trial on the merits.

GUNTHER and POLEN, JJ., concur.


author: MAY, J.

text:
    Richard STROUSE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2977.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2006.
    Richard L. Rosenbaum of Law Offices of Richard L. Rosenbaum, Fort Lauderdale, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

MAY, J.

We deny the defendant’s motion for rehearing, but grant the request for a written opinion, withdraw our previously issued opinion, and substitute the following.

In this era of technology, we encounter novel legal issues to be resolved. The defendant appeals his conviction and sentence for possession of child pornography found on the hard drive of his laptop computer. He raises several issues, most of which are related either to the sufficiency of the evidence or law enforcement’s handling of the case. We affirm, but write to address the sufficiency of the evidence.

The defendant lived with his girlfriend and her daughter at the time the facts giving rise to this crime occurred. The defendant had a laptop computer provided by his employer, and had an America Online [AOL] Internet account. The defendant and his girlfriend often used the computer together. The password was auto-saved, allowing for access by either the defendant or his girlfriend, who had the defendant’s permission to use the laptop.

On August 21, 2001, the defendant and his girlfriend used the computer together. When they were done for the evening, the girlfriend logged off of AOL and turned off the computer. After the defendant left the next morning, the girlfriend turned on the computer, accessed AOL, and prepared to send an e-mail with an attached photo.

While composing her e-mail, she noticed two new icons on the screen, located either in the AOL screen or in a photo program within the computer. The first icon revealed child pornography. After contacting a friend, the girlfriend viewed the second icon that also revealed child pornography. This second photograph is the subject of the defendant’s conviction.

At this point, the girlfriend contacted another individual, who advised her how to save and e-mail the images. She then checked the “favorite places” section of the laptop and found eighty-eight pornography websites.

The girlfriend took the computer to the Indian River County Sheriffs Office (IRO-SO), and spoke with a detective. She told him about what she had found and the steps she had taken since her discovery.

To assist in collecting evidence, the girlfriend consented to wear a body wire to record and transmit a conversation with the defendant. That evening, she recorded a conversation in which the defendant told her he had viewed child pornography on the computer in the past, and admitted to having saved some photographs, but denied having done anything recently. Subsequently, the IRCSO conducted its investigation, admittedly failing to comply with its own internal procedures for making a mirror image of the hard drive immediately to preserve the evidence.

The Information charged the defendant with seven counts of possession of child pornography, pursuant to section 827.071(5), Florida Statutes (2001). The defendant moved to suppress evidence and dismiss the Information. The trial court denied the motion to suppress. It then, except for Count 3, dismissed all other counts because the images were either archaic temporary Internet files or composite images from website banners.

At trial, the girlfriend described the images she saw prior to turning the laptop computer over to the IROSO. The defendant maintained he had never seen the Count 3 image before, did not know that it was on his computer, and denied having downloaded it. He admitted, however, to having seen child pornography on the Internet while viewing adult material.

The court found the defendant guilty of one count of possession of child pornography and sentenced him to five years probation as a sexual offender. The court denied the defendant’s motion for new trial.

The defendant argued to the trial court, and now to this court, that the State failed to produce sufficient evidence to make a prima facie case. He argues the evidence failed to prove he knowingly possessed child pornography in the form of a saved computer file, rather than a temporary Internet file. And, therefore, the trial court reversibly erred by not dismissing the case or ordering a judgment of acquittal. The State responds that it proved its case because the girlfriend’s identification of a print-out of the file image as the same image she saw on defendant’s computer is enough.

Review of a trial court’s order on a defendant’s motion for judgment of acquittal is de novo. Johnston v. State, 863 So.2d 271, 283 (Fla.2003) cert. denied, 541 U.S. 946, 124 S.Ct. 1676, 158 L.Ed.2d 372 (2004). There is sufficient evidence to support a conviction when “a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt” when viewed in the light most favorable to the State. Id.

In the instance “[wjhere the evidence is in conflict, it is within the province of the trier of fact to assess the credibility of witnesses, and upon evaluating the testimony, rely upon the testimony found by it to be worthy of belief and reject such testimony found by it to be untrue.” I.R. v. State, 385 So.2d 686, 687 (Fla. 3d DCA 1980) (citations omitted). “The testimony of a single witness, even if uncorroborated and contradicted by other State witnesses, is sufficient to sustain a conviction.” Id. (citations omitted) (two State’s witnesses testified defendant committed the crime while two said he did not).

Defendant was charged under section 827.071(5) of the Florida Statutes:

It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child. The possession of such photograph, motion picture, exhibition, show, representation, or presentation is a separate offense. Whoever violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 827.071(5), Fla. Stat. (2001) (emphasis added).

In State v. Cohen, this court held that “a pornographic computer image of an actual child constitutes a photograph, representation or other presentation” under section 827.071(5) of the Florida Statutes (1995). 696 So.2d 435, 436 (Fla. 4th DCA 1997) (Pariente, J.). In that case, not only did Cohen possess the images, but he disseminated them. At the time the computer was seized by law enforcement, it was connected to the internet and uploading the images to a bulletin board. Id. at 436-37. These facts made it unnecessary for this court to address the distinction between affirmatively saved files and temporary files.

Federal courts have analyzed the issue of temporary Internet files in the context of the federal child pornography statute. In United States v. Perez, the court held the mere viewing of a child pornographic image does not constitute knowing possession of the image under 18 U.S.C. § 2252A(a)(5)(B). 247 F.Supp.2d 459, 484 n. 12 (S.D.N.Y.2003) (citing United States v. Zimmerman, 277 F.3d 426, 435 (3d Cir.2002)). However, the court acknowledged that “knowing possession” should be based upon the manner in which the defendant manages the files. Id., (citing United States v. Tucker, 305 F.3d 1193, 1205 (10th Cir.2002) (upholding a conviction based on automatically stored files because the defendant habitually deleted the temporary files manually, demonstrating that he exercised control over them), cert. denied, 537 U.S. 1223, 123 S.Ct. 1335, 154 L.Ed.2d 1082 (2003)).

Here, the State proved the defendant had the opportunity to download the photo, and through the body wire evidence, proved that he had previously been interested in child pornography. The defendant’s girlfriend testified that she saw the two new icons on the screen in either the AOL screen or in a photo program, establishing that the Count 3 image was not merely an automatically stored temporary Internet file. She identified a printed version of the file image at trial. The court properly dismissed six of the seven counts because the evidence. was insufficient. However, the court properly denied the defendant’s motion for judgment of acquittal as to count 3.

Affirmed.

KLEIN, J., and HOROWITZ, ALFRED, Associate Judge, concur.

      . The girlfriend’s testimony varied from deposition to trial. However, at trial, she testified “I ... went up to the little icon or whatever to pull down pictures and there were two J-peg pictures sitting there.”

      . This file corresponded to Count 1, which the court dismissed because it was an archaic temporary Internet file.

      . To date, the passive viewing on the Internet of child pornography does not violate the law because viewing does not constitute possession.


text:
    Erick RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4985.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2006.
    John R. Blue, Joseph H. Lang, Jr., and Christine R. Davis of Carlton Fields, P.A., Tampa, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   On Remand from the Supreme Court of Florida

PER CURIAM.

In State v. Richardson, 915 So.2d 86 (Fla.2005), the supreme court quashed this court’s decision in Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), and remanded the ease for consideration of any remaining issues. We must now affirm the summary denial of all of appellant’s postconviction claims. This court reviewed all of appellant’s claims in the original proceeding and only inadvertently failed to state in our prior opinion that the claims not discussed in the opinion were reviewed and affirmed.

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


text:
    Trista Elan ROBINSON-WILSON, Appellant, v. Preston J.R. WILSON, IV, Appellee.
    No. 4D05-312.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2006.
    Michelle A. Delaney of Delaneyhill, P.A., Miami, for appellant.
    Robert W. Sidweber and Denise L. Ven-timiglia of Robert W. Sidweber, P.A., Fort Lauderdale, for appellee.
   ON MOTION FOR REHEARING

GROSS, J.

We grant the motion for rehearing, withdraw our previous opinion, and substitute the following.

The circuit court found that the former wife was in contempt for repeatedly, intentionally, and maliciously interfering with the Former Husband’s visitation with his daughter. Observing that the Former Wife did “not get the message” that she should “foster a healthy relationship between the daughter and the father,” the court found that Former Wife did whatever she could to “stifle” and “complicate” the father-daughter relationship, and turned what “should be a sprint into a hurdle race by making” the Former Husband “jump over hoops and sign papers.” The court determined that “the Former Husband was denied visitation with his daughter, based on conduct of the Former Wife,” who “went out of her way to interfere and deny timesharing” between the Former Husband and his daughter. The court ordered the Former Wife to pay $11,307.50 in attorney’s fees and $960.35 toward the Former Husband’s costs.

The trial court’s findings are amply supported by the record. There is a great disparity between the incomes of the parties. Nonetheless, in this post-dissolution contempt proceeding, the award of attorney’s fees and costs is proper for two reasons: under section 61.13(4)(e)l Florida Statutes (2004), and as part of the inherent authority of the court under the inequitable conduct doctrine. See T/F Sys., Inc. v. Malt, 814 So.2d 511 (Fla. 4th DCA 2002); Bitterman v. Bitterman, 714 So.2d 356, 365 (Fla.1998); Baker v. Green, 732 So.2d 6, 7 (Fla. 4th DCA 1999).

Section 61.13(4)(c)l provides that “[w]hen a custodial parent refuses to honor a noncustodial parent’s ... visitation rights without proper cause,” the trial court “[m]ay order the custodial parent to pay reasonable court costs and attorney’s fees incurred by the noncustodial parent ... to enforce their visitation rights ...” This statutory power to award attorney’s fees is outside of section 61.16(1), Florida Statutes (2004), which requires a consideration of “the financial resources of both parties” as part of the decision to award fees and costs. The power to award fees is triggered by the wrongful conduct of the custodial parent, without consideration of the noncustodial parent’s financial resources. The Former Wife’s conduct in this case fell squarely within section 61.13(4)(c)l, so that the award of attorney’s fees was proper.

The Former Wife’s misconduct also justified an award of fees under the inequitable conduct doctrine. The trial judge’s on-the-record findings satisfied the requirement that there be “an express finding of bad faith conduct” that is “supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.” Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002). As the trial court observed, “the evidence repeatedly demonstrated that the Former Husband was denied visitation with his daughter, based on conduct of the Former Wife, in creating circumstances and excuses to prevent visitation between [the daughter] and her father.”

Affirmed.

GUNTHER and HAZOURI, JJ., concur.