author: SHAHOOD, C.J.

text:
    Harry SHASHO, Appellant, v. EURO MOTOR SPORT, INC., a Florida corporation, and Gene Morales, individually, Appellees.
    No. 4D07-3243.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2008.

      Mark A. Hruska of Schwartz & Horwitz, PLC, Boca Raton, for appellant.
    Justin C. Fineberg of Lash & Goldberg LLP, Miami, and Mark D. Cohen of Mark D. Cohen, P.A., Hollywood, for appellees.
   SHAHOOD, C.J.

Appellant, Harry Shasho, appeals from the final judgment in favor of Gene Morales and Euro Motor Sport, Inc., in their defamation action against him. We reverse and remand because appellant never affirmatively consented to a non-jury trial after appellees demanded one in their original complaint.

Appellant is part owner of an auto shop involved in the resale of classic automobiles. Gene Morales is owner and president of Euro Motor Sport, Inc., a corporation in the business of selling new and used luxury motor vehicles. Morales and Euro Motor Sport entered into a contract with appellant for the sale of a used Lamborghini. A dispute later arose between the parties to the contract regarding the condition and repair of the automobile. Appellant allegedly set up a website that defamed Morales and Euro Motor Sport.

Morales and Euro Motor Sport filed a complaint against appellant. The complaint alleged four separate causes of action: libel per se, tortious interference with advantageous business relationships, tradename and trademark infringement, and a request for temporary injunctive relief to enjoin appellant from any further defamatory publication. Each count contained a “WHEREFORE” clause at the end requesting relief. The “WHEREFORE” clauses at the end of each of counts I — III demanded judgment against appellant for damages and injunctive relief, and did not request jury trial within the count. The ‘WHEREFORE” clause at the end of Count IV, unlike the other ‘WHEREFORE” clauses, was set apart from the preceding text by several blank lines. It demanded “trial by jury on all issues so triable,” and demanded that appellant be enjoined from further defamatory publication. The civil cover sheet filed with the complaint indicated that the plaintiffs demanded jury trial. Plaintiffs later filed an amended complaint that dropped the jury demand from the “WHEREFORE” clause at the end of Count IV.

Appellant failed to file a responsive pleading. Appellees moved for default and the clerk later entered default against appellant. The trial court ordered the case referred to a general magistrate for a thirty-minute non-jury trial on the issues of unliquidated damages and injunctive relief. There was no court reporter present at the hearing, and the record does not contain a transcript. Appellant was not present at the hearing. Following the hearing, the general magistrate issued her report finding in favor of appellees. The magistrate found that the appellees were entitled to $60,000 per month in damages, for a total of $1,200,000.

Appellant argues in this appeal that he never waived his right to jury trial after plaintiffs requested it in their original complaint, and therefore the trial court’s order referring the matter for non-jury trial on damages violated his constitutional right to jury trial and rule 1.430(d), Florida Rules of Civil Procedure.

Rule 1.430(d), Florida Rules of Civil Procedure, states:

(d) Waiver. A party who fails to serve a demand as required by this rule waives trial by jury. If waived, a jury trial may not be granted without the consent of the parties.... A demand for trial by jury may not be withdrawn without the consent of the parties.

In Baron Auctioneer, Inc. v. Ball, 674 So.2d 212, 213 (Fla. 4th DCA 1996), the plaintiffs complaint for breach of contract included a demand for jury trial of all issues. Despite the demand, a non-jury trial later took place that neither the defendants nor their counsel attended. 674 So.2d at 213. The court entered final judgment in favor of the plaintiffs. Id. On appeal, the defendants argued the trial court had erred in holding a non-jury trial since neither party had waived their demand for jury trial. Id. This court agreed:

In consideration of the right to jury trial guaranteed by Florida’s constitution, Florida courts have interpreted Rule 1.430(d) to require an affirmative act in order to waive a jury trial once it has been requested, regardless of who makes the demand. The fact that a party participates in a non-jury trial without raising an objection constitutes waiver of the right to jury trial, ... but failure to answer or otherwise plead does not constitute waiver absent some affirmative act. Even when a party fails to show up for trial or a default is entered against him, said party is entitled to a jury trial on damages absent a valid waiver.

Id. at 214 (internal citations omitted).

In the present case, appellees made the jury trial demand in their original complaint. “Regardless of who makes the demand, once made it cannot be withdrawn without the consent of all parties.” Barge v. Simeton, 460 So.2d 939, 940 (Fla. 4th DCA 1984). “When a jury trial has been requested by the plaintiff, the defendant is still entitled to a jury trial on the issue of damages even though a default has been entered against the defendant for failure to answer or otherwise plead.” Curbelo v. Ullman, 571 So.2d 443, 444 (Fla.1990).

Appellant never consented to withdrawal of the jury trial demand. The failure to participate in the proceedings cannot be construed as an affirmative waiver of the right to jury trial. “To constitute a waiver of the existing demand for jury trial the Supreme Court of Florida has held there must be affirmative action on the part of a party.” Barge, 460 So.2d at 940; see also Curbelo, 571 So.2d at 444.

Appellees argue that each count of the original complaint had its own “WHEREFORE” clause requesting the relief sought as to that count, and the scope of the jury trial demand at issue only pertained to Count IV since it came at the end of that count. Appellees continue on from that premise to argue that the demand was a legal nullity since Count IV was an equitable count for which no jury trial is available anyway. See 381651 Alberta, Ltd. v. 279298 Alberta, Ltd., 675 So.2d 1385 (Fla. 4th DCA 1996). Appel-lees attempt to distinguish Baron Auctioneer and Barge accordingly on the basis that those cases involved jury trial demands that applied to all counts of a complaint.

Rule 1.430(c), Florida Rules of Civil Procedure, states:

(c) Specification of Issues. In the demand a party may specify the issues that the party wishes so tried; otherwise, the party is deemed to demand trial by jury for all issues so triable. If a party has demanded trial by jury for only some of the issues, any other party may serve a demand for trial by jury of any other or all of the issues triable by jury 10 days after service of the demand or such lesser time as the court may order.

We disagree with appellees’ contention that the demand for jury trial applied only to Count IV. Although the clause demanding jury trial was placed at the end of Count IV, this was also the end of the complaint. The larger space between the text preceding the ‘WHEREFORE” clause and the actual clause itself indicates its separation from the body of Count IV and application to all counts. The fact that the demand for jury trial came at the end of a count for which jury trial is unavailable supports our conclusion that the demand for jury trial applied to “all issues so triable” in the entire complaint. We note that “[t]he better practice is to demand a jury trial in each count or at the end of the complaint with the notation that the demand applies to all counts.” C & C Wholesale, Inc. v. Fusco Mgmt. Corp., 564 So.2d 1259, 1261 (Fla. 2d DCA 1990). Finally, appellees clearly indicated they sought jury trial in the civil cover sheet filed with the original complaint.

In the reverse situation to this case, Florida courts of appeal have accepted the argument that a jury demand located in one count should apply to all counts of a complaint where the demand was not specifically limited, see Jerome v. William A. Reid Constr. Ltd., 307 So.2d 248, 249 (Fla. 4th DCA 1975), or where the counts at issue were based on the same factual scenario as the one for which jury trial was clearly demanded. C & C Wholesale, Inc. v. Fusco Mgmt. Corp., 564 So.2d 1259, 1261 (Fla. 2d DCA 1990).

We therefore reverse the final judgment and remand for jury trial on the issue of damages.

Reversed and Remanded.

POLEN and MAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The BANK OF NEW YORK, acting solely in its capacity as trustee for Equicredit Corporation Trust 2001-2, Appellant, v. Paulette WILLIAMS, et al., Appellees.
    No. 1D07-2626.
    District Court of Appeal of Florida, First District.
    April 10, 2008.
    Mitchell B. Rothman of Echevarria, Co-dilis & Stawiarski, Tampa; and John H. Dannecker, Eric C. Reed, David J. Markese, and Temple Fett Kearns of Shutts & Bowen, Orlando, for Appellant.
    James A. Kowalski, Jr., Jacksonville, for Appellees.
   PER CURIAM.

The Bank of New York, acting solely in its capacity as trustee for Equieredit Corporation Trust 2001-2, appeals an order awarding Paulette Williams, appellee, attorney’s fees and costs following the dismissal with prejudice of the Bank’s residential mortgage foreclosure complaint against Williams and others. The Bank argues that Williams was not entitled to an award of attorney’s fees because she was not a prevailing party under section 57.105(7), Florida Statutes (2006); and that, even if Williams was entitled to attorney’s fees, the trial court erred in using a multiplier in setting the fee award. We affirm.

The Bank’s complaint and amended complaint were dismissed without prejudice on the ground that, because the Bank failed to show that it owned the mortgage and associated promissory note, the Bank lacked standing to institute the foreclosure action. When the Bank declined to file a second amended complaint, the trial court dismissed the amended complaint with prejudice. The Bank did not appeal this order, but instituted a new foreclosure action against Williams. The Bank argues that because the same factual and legal issues raised in the dismissed action are also the subject of the new litigation, Williams cannot be the prevailing party under section ST.IOSÍT). We have expressly rejected the Bank’s argument in the context of a plaintiffs voluntary dismissal without prejudice. State ex rel. Marsh v. Doran, 958 So.2d 1082 (Fla. 1st DCA 2007). There we explained:

We hold that a defendant is entitled to recover attorney’s fees under section 68.086(3), which awards fees to the prevailing party, after the plaintiff takes a voluntary dismissal without prejudice. The refiling of the same suit after the voluntary dismissal does not alter the appellees’ right to recover prevailing party attorney’s fees incurred in defense of the first suit. Canfield v. Cantele, 837 So.2d 371 (Fla.2002); Alhambra Homeowners Ass’n, Inc. v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006).

Id. Here, since the complaint was dismissed with prejudice, it is clear that Williams was the prevailing party. Rule 1.420(b), Florida Rule of Civil Procedure, provides that, in the case of an involuntary dismissal:

Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

Further, we find no abuse of discretion in the trial court’s use of a multiplier of 2.5 in establishing the attorney’s fees. In its order setting the attorney’s fees, the trial court fully analyzed the factors under rule 4-1.5, Florida Rules of Professional Conduct, Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), and Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990); and made detailed findings of fact which are supported by competent substantial evidence in the unrebutted testimony of both Williams’ counsel and her expert witness.

AFFIRMED.

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

      . Section 57.105(7), Florida Statutes (2006) provides in pertinent part:
      (7) If a contract contains a provision allowing attorney's fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney's fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect' to the contract.


text:
    Robin BAKER, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D07-1699.
    District Court of Appeal of Florida, First District.
    April 10, 2008.
    Robin Baker, pro se, Appellant.
    Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

As conceded by appellee, the trial court incorrectly dismissed appellant’s petition for writ of mandamus because it was untimely. See Canete v. Fla. Dep’t of Corr., 967 So.2d 412 (Fla. 1st DCA 2007). We, therefore, reverse the order of the trial court and remand for further proceedings to address the petition.

ALLEN, WOLF, and POLSTON, JJ„ concur.


text:
    George W. STRICKLAND, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-5786.
    District Court of Appeal of Florida, First District.
    April 10, 2008.
    George W. Strickland, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks review of an order denying his petition for writ of mandamus challenging disciplinary action. We deny the petition for writ of certiorari on the merits. However, pursuant to our decision in Jackson v. McDonough, 81 Fla. L. Weekly D2299, — So.2d -, 2006 WL 2527244 (Fla. 1st DCA Sept.5, 2006), we quash the circuit court’s order on indigen-cy imposing a lien for initiating the petition for writ of mandamus as well as the order imposing the lien for initiating this proceeding. The circuit court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien orders.

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


text:
    Troy D. RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0167.
    District Court of Appeal of Florida, First District.
    April 10, 2008.
    Troy D. Richardson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Hollingsworth v. Szczecina, 731 So.2d 790 (Fla. 1st DCA 1999) (stating that appellate court did not have jurisdiction to grant belated appeal of civil proceeding and dismissing appeal without prejudice to the right to seek relief in the trial court by motion pursuant to Florida Rule of Civil Procedure 1.540).

PETITION DENIED.

ALLEN, WEBSTER, and DAVIS, JJ., concur.


author: PALMER, C.J.

text:
    Steve JOHNSON, Appellant, v. Jean JOHNSON, Appellee.
    No. 5D07-1807.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2008.
    Robert L. Appleget, Jr., and Anne E. Raduns-Owen of Trow, Appleget & Perry, Ocala, for Appellant.
    Jonathan P. Culver of Jonathan P. Cul-ver P.A., Ocala, for Appellee.
   PALMER, C.J.

Steve Johnson (Husband) appeals the final judgment dissolving his marriage to Jean Johnson (Wife). The sole issue on appeal is whether the trial court properly determined that certain real property was non-marital property belonging solely to Wife. Determining that the trial court had sufficient evidence before it to find the property to be Wife’s non-marital property, we affirm.

Wife filed a petition seeking to dissolve the parties’ marriage. In her financial affidavit, Wife listed 5.25 acres of real property as non-marital property belonging solely to her. Husband, acting pro se, responded by filing a letter with the trial court contending that the 5.25 acres of real property was purchased by Wife during the parties’ marriage. Husband also filed a financial affidavit in which he listed the real property at issue as non-marital property but claimed that it belonged exclusively to him.

Wife filed an answer to Husband’s pro se letter (which was treated as a counter-petition) in which she alleged that the real property in dispute was purchased prior to the parties’ marriage. Wife admitted that the closing on the property occurred after the parties were married; however, she claimed that all payments on the property were made solely from her personal accounts.

A partial agreement on the parties’ dissolution petitions was reached during mediation. The only issue not settled during mediation was whether the real property was a marital or non-marital asset. A hearing was held before a General Magistrate regarding the real property. Husband appeared at that hearing acting pro se.

During the hearing, Wife testified that, prior to the marriage, she was looking for a piece of property to purchase. One month after she married Husband, Wife closed on the purchase of 5.25 acres of property. The mortgage, note, and title on the property were all signed by Wife using her maiden name. Wife testified that she paid the down payment on the property using money from her mother’s mutual funds. Some of the monthly payments on the property came from a bank account which Wife maintained with her son; other payments were made from an account Wife shared with her mother. Still other payments were made from money derived from the sale of her mother’s house. Wife paid the taxes on the property from her separate account. Husband testified, stating he had written the contract leading to the sale of the property. Although Husband claimed he had made a $1,000.00 down payment on the property, on cross-examination Husband admitted that the $1,000.00 came from Wife’s account.

After considering the testimony and evidence presented at the hearing, the General Magistrate recommended that the property be classified as non-marital property belonging solely to Wife because it was acquired with her non-marital funds.

After the General Magistrate issued its recommendation, Husband retained counsel. Counsel filed exceptions to the recommendation, claiming that the property was a marital asset because it was acquired during the marriage. Husband’s counsel also alleged that Wife failed to plead non-marital assets as required by law and requested that the matter be set for a hearing before the trial court.

A hearing was held before the trial court. According to the court file, both parties appeared and testified during the hearing. However, no transcript of that evidentiary hearing is included in the record filed on appeal. Following the hearing, the trial court entered an order accepting the recommendation of the General Magistrate and denying Husband’s exceptions. The trial court entered a final dissolution judgment ruling that the property in question was non-marital property owned by Wife. This appeal timely followed.

Husband first challenges the final dissolution order claiming that the trial court lacked the authority to award the property to Wife because Wife failed to allege in her pleadings that the property was a non-marital asset and failed to indicate in her case management statement that there were non-marital assets to be determined by the court. Husband relies on Smith v. Smith, 655 So.2d 1267 (Fla. 5th DCA 1995) to support his position. Such reliance is misplaced because Smith is factually distinguishable.

In Smith, Husband requested, in his petition for dissolution, that the trial court enter a final judgment granting equitable distribution of the marital assets and debts. In her answer and counterpetition, Wife sought equitable distribution of the parties’ marital assets and debts, as well as an equitable distribution of the parties’ marital assets titled in Husband’s name. At trial, Husband attempted to raise a claim, for the first time, that two certificates of deposit were non-marital assets notwithstanding the fact that pretrial, the parties had agreed that the certificates were marital assets. Wife objected, arguing that Husband was modifying the issues at trial as set by the pleadings. The trial court found that the certificates of deposit were non-marital assets owned by the Husband. On appeal, this court reversed, concluding that the trial court erred in ruling that the certificates were to be considered non-marital assets because the pleadings and representations that the parties made to the court prior to trial established that they were marital assets.

In contrast, here, the categorization of the 5.25 acres as either marital or non-marital was the main issue before the General Magistrate and was tried without objection by Husband. Accordingly, this issue was clearly tried by consent. See LRX, Inc. v. Horizon Associates Joint Venture ex rel. Horizon-ANF, Inc., 842 So.2d 881 (Fla. 4th DCA 2003)(holding that an issue is “tried by consent” when there is no objection to the introduction of evidence on that issue). See also Fla. R. Civ. P. 1.190(b).

Next, Husband challenges the final dissolution order claiming that the General Magistrate’s finding that no commingled marital funds were used to purchase the 5.25 acres is not supported by the evidence. However, Husband has failed to provide us with a transcript of the second evidentiary hearing held in this case, therefore, we are unable to fully evaluate the sufficiency of the evidence presented. See Esaw v. Esaw, 965 So.2d 1261 (Fla. 2d DCA 2007)(holding the appellant has the burden of providing a proper record to the reviewing court). Notably, the transcripts that are contained in the record filed on appeal provide competent substantial evidence to support the trial court’s ruling that the real property was non-marital property belonging solely to Wife.

We note in closing that both parties have filed motions seeking an award of appellate attorney’s fees in this case. However, both motions are denied because the parties agreed during mediation that they would be responsible for their own fees. Furthermore, a fee award entered pursuant to section 57.105 of the Florida Statutes (2005) is not available because the appeal contained justiciable issues.

AFFIRMED.

PLEUS and EVANDER, JJ., concur.

      . In so doing, our court stated that the trial court had “no jurisdiction” to determine that the certificates were non-marital assets. The court’s use of the term "no jurisdiction” seems to be an unfortunate choice of words in this decision. Clearly, the court possessed jurisdiction to decide whether property in a dissolution of marriage case is marital or non-marital. It appears that a better way to characterize a failure to plead a cause of action would be as a violation of the opposing litigant’s due process rights. See Barreiro v. Barreiro, 377 So.2d 999, 1000 (Fla. 3d DCA 1979). See generally Scott Stephens, Florida’s Third Species of Jurisdiction, 82 The Florida Bar Journal 3 (March 2008).


author: LAWSON, J.

text:
    Leonard LUCKEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3851.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2008.

      Leonard Luckey, Orlando, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING

LAWSON, J.

We grant rehearing, vacate our prior opinion filed on February 15, 2008, and substitute the following in its place.

Leonard Luckey, appearing pro se, appeals the trial court’s orders denying his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court summarily denied five of Luckey’s six postconviction claims, and denied the last claim after conducting an evidentiary hearing. We affirm the summary denial of Luckey’s claims two, three, four, and five, without further comment. We reverse as to Luckey’s other two claims, for the reasons explained below.

Luckey was charged by amended information with burglary of a dwelling with a battery. He was tried by jury, convicted as charged and sentenced to natural life as a Prison Releasee Reoffender (“PRR”). His conviction and sentence were affirmed on appeal. Luckey v. State, 876 So.2d 575 (Fla. 5th DCA 2004). A mandate was issued on June 29, 2004.

Luckey filed his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 on June 22, 2006. As his first issue, Luckey claimed that his counsel was ineffective for failing to request that he receive a “further” mental health examination, failing to tell the court that he was taking prescribed psychotropic medication during the trial, and also failing to request that the court instruct the jury that he was taking psychotropic medication pursuant to Florida Rule of Criminal Procedure 3.215. We read Luckey’s claim as an attempt to assert that counsel was ineffective for allowing Luckey to proceed to trial while incompetent, or for failing to pursue an available insanity defense. The State pointed out and the trial court agreed that as to this claim Luckey has not asserted in his motion that he actually was incompetent to proceed to trial or insane at the time of his offense. We agree that the claim was therefore facially insufficient. Cf. Gillis v. State, 807 So.2d 204 (Fla. 5th DCA 2002) (recognizing postconviction relief movant’s conclusory allegations that he was incompetent to plead guilty to robbery, unsupported by any corroborating evidence, was insufficient to state a claim for relief); Baker v. State, 404 So.2d 1151 (Fla. 5th DCA 1981) (holding a motion by a prisoner asserting, as basis for his claim of ineffective assistance of counsel, his own mental incompetence at time of trial, in general terms with no corroboration and no evidence of confirmation did not warrant or mandate evidentiary hearing on motion for postconviction relief).

However, the Florida Supreme Court has recently ruled that a defendant who files a legally insufficient rule 3.850 motion should be given at least one opportunity to correct the deficiency, unless it is apparent that the defect cannot be corrected. See Spera v. State, 971 So.2d 754 (Fla.2007). Although the trial court denied Luckey’s motion prior to the issuance of Spera, this case was in the appellate “pipeline” when Spera was decided. Therefore, Spera applies. See Smith v. State, 598 So.2d 1063,1066 (Fla.1992).

In his sixth claim, Luckey contends that his trial counsel was ineffective for failing to warn him that he faced a mandatory term of life imprisonment as a PRR if he rejected the State’s fifteen-year plea offer in favor of going to trial. An eviden-tiary hearing was held on the matter. Our review of the transcript of this hearing raises substantial competency concerns that the trial court should have addressed before proceeding further. At the start of the proceeding, Luckey claimed that he did not understand why he was in court or what was going on. He offered to plead guilty to whatever charges he was there to address, and repeatedly noted that he had just been transported from the “psych” unit. When questioned about whether he had any discussions with his trial counsel about plea offers by the State or whether he recalled any discussion about being a PRR, Luckey stated that he did not recognize his trial counsel, James Caldwell, who was present at the hearing. Luckey could not recall going to trial on a burglary charge, and claimed to be unaware that he had received a life sentence. Luckey also repeatedly informed the court that he was taking medication for his mental condition and asked if he could come back to court after the next dose of meds — when he might be able to understand what was going on and why he was there. Under these circumstances, the trial court should have addressed Luckey’s mental competence before proceeding with an evidentia-ry hearing on Luckey’s claim. Cf. Fla. R.Crim. P. 3.210; Boyd v. State, 910 So.2d 167, 186-88 (Fla.2005) (recognizing trial courts are to order competency hearings whenever it appears necessary based on the defendant’s history or behavior in court); Molina v. State, 946 So.2d 1103 (Fla. 5th DCA 2006) (holding a trial court’s failure to order a competency hearing on its own motion whenever it has reasonable grounds to believe that the defendant is not competent to proceed constitutes an abuse of discretion).

The State argues that we should affirm the trial court’s findings as to Luck-ey’s sixth claim, despite Luckey’s potential mental incompetence during the hearing on that claim, because proceedings under Florida Rule of Criminal Procedure 3.850 are civil in nature, and the rules of criminal procedure relating to competency therefore do not apply in criminal postcon-viction proceedings. See Jackson v. State, 452 So.2d 533 (Fla.1984). While technically correct, this argument overlooks the fact that Luckey was still entitled to basic due process in the handling of his postcon-viction evidentiary hearing. Jones v. State, 740 So.2d 520 (Fla.1999). Due process “envisions a court that ‘hears before it condemns, proceeds upon inquiry, and renders judgment only after proper consideration of issues advanced by adversarial parties. In this respect the term ‘due process’ embodies a fundamental conception of fairness that derives ultimately from the natural rights of all individuals.’ ” Id. at 523 (quoting Scull v. State, 569 So.2d 1251, 1252 (Fla.1990)). “Procedural due process, therefore, requires adequate notice and an opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Id. (quoting Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971)). There is no sense in which a hearing can be labeled “meaningful” when a person is lead into a courtroom and told to present his evidence if that person is so mentally incompetent at the time that he cannot even comprehend why he is there. Luckey was purportedly representing himself at a hearing which, were we to affirm, would have been his only shot at presenting evidence on a facially sufficient post-conviction claim challenging his conviction and mandatory life sentence. At a minimum, he presumably would have presented his own testimony, in support of that claim, had he been competent to do so. It is quite obvious to us that the requirements of due process were not satisfied just because Luckey was in the room when the hearing proceeded — with the trial court unsuccessfully attempting to focus Luckey on the issues relevant to his claim, and with only the State’s evidence presented. Cf. Carter v. State, 706 So.2d 873 (Fla.1997) (recognizing that due process considerations may require a trial court to address issues relating to a defendant’s mental competence under certain circumstances in postconviction death penalty proceedings).

In Carter, the Florida Supreme Court noted that the rules for determining competency in criminal cases should be used as a guide when a trial court is required by due process considerations to address competency in the civil context of postconviction proceedings. Although the holding of Carter is limited to death penalty cases, the same basic due process considerations apply here as well. Therefore, we hold that the trial court erred by proceeding with the evidentiary hearing without first addressing Luckey’s mental competence.

Accordingly, we affirm the trial court’s denial of Luckey’s claims two, three, four and five, and reverse its denial of the other two claims. We remand for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

TORPY and COHEN, JJ., concur.

      . § 775.082(9), Fla. Stat. (2003).

      . The supreme court later approved an amendment to Florida Rule of Criminal Procedure 3.851, adding a subsection (now subsection (g)), expressly addressing competency determinations during the postconviction process for death penalty cases, consistent with its holding in Carter.


author: SAWAYA, J.

text:
    Joseph THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3771.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2008.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

Joseph Thompson entered an open plea to the trial court to possession of cannabis in excess of twenty grams, possession of cannabis with intent to sell, and one count of possession of drug paraphernalia. Having previously filed a motion to suppress based on what he perceived to be insuffi-ciencies in the factual allegations of the search warrant to establish probable cause, Thompson entered a plea of no contest to the charges and reserved his right to appeal the trial court’s order denying that motion.

True to his expressed intent to appeal that order, Thompson asks this court to reverse the trial court’s denial of his motion and remand this case with instructions to discharge him. Having thoroughly considered his arguments in support thereof, we decline that request and affirm the order denying his motion to suppress without further comment.

Thompson presents an alternative issue: his convictions for both possession of cannabis in excess of twenty grams and possession of cannabis with intent to sell, which arise from possession of the same cannabis, violate the proscription against double jeopardy. We note, parenthetically, that because Thompson entered an open plea to the charges and there is nothing in the record indicating that Thompson otherwise knowingly waived any double jeopardy violation, he may properly challenge his convictions on double jeopardy grounds. See Melvin v. State, 645 So.2d 448 (Fla.1994); Novaton v. State, 684 So.2d 607 (Fla.1994) (holding that a bargained-for plea waives the right to attack multiple convictions on double jeopardy grounds); Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004); see also Lewis v. State, 827 So.2d 1052 (Fla. 5th DCA 2002).

Resolution of this issue requires analysis of the statutes he was convicted of violating in light of the provisions of section 775.021(4)(b), Florida Statutes (2006), which establish rules of construction to determine if a double jeopardy violation has occurred. Analysis of these statutes, and similar statutes prohibiting possession of drugs other than cannabis, leads to the conclusion that the Legislature did not intend to twice punish the purveyor of illegal drugs who is caught with possession of his wares before he has the chance to sell them. Gibbs v. State, 698 So.2d 1206 (Fla.1997) (holding that convictions for trafficking possession and simple possession of

cocaine offended double jeopardy protections); Paccione v. State, 698 So.2d 252 (Fla.1997); Crites v. State, 959 So.2d 1265 (Fla. 5th DCA 2007); Robinson v. State, 901 So.2d 1027 (Fla. 4th DCA 2005); Williams v. State, 700 So.2d 190 (Fla. 5th DCA 1997). It is not necessary for us to engage in a detailed discussion of that analysis because that is provided in the decisions just cited. Thompson is, therefore, correct in his assertion that convictions for both possession of cannabis in excess of twenty grams and possession of cannabis with intent to sell violate the proscriptions against double jeopardy when, as in the instant case, they are related to the same cannabis. Paccione; Crites; Robinson; Williams. Hence, one of the convictions must be eliminated.

Conceding the error, the State correctly suggests that the proper conviction to eliminate is the one for possession of cannabis over twenty grams. Crites; Williams. Accordingly, the conviction for possession of cannabis over twenty grams is reversed and the sentence imposed for that offense is vacated. The remainder of the judgment and sentences is affirmed. We remand to the trial court to enter a corrected judgment and sentence.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, C.J. and GRIFFIN, J., concur.

      . § 893.13(l)(a)2., Fla. Stat. (2006) (prohibiting possession of cannabis with intent to sell); § 893.13(6)(a), Fla. Stat. (2006) (prohibiting possession of cannabis over twenty grams).


text:
    Gary L. CALAHAN, Appellant, v. Heidi CALAHAN, Appellee.
    No. 5D07-456.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2008.
    Bryan S. Gowdy and John S. Mills of Mills & Creed, P.A., Jacksonville, for Appellant.
    Neal L. Betancourt of Rotchford & Be-tancourt, P.A., Jacksonville, for Appellee.
   PER CURIAM.

After the magistrate recommended that Appellant’s child support and alimony obligations be reduced, based on a change of circumstances, the circuit court rejected the magistrate’s recommended order. Appellant challenges the order of the circuit court.

It is without dispute that Appellant’s income materially changed for the worse after the final judgment was entered. What is disputed is whether the reduction in income was contemplated by the parties at the time Appellant executed the marital settlement agreement that was incorporated into the final judgment. The magistrate failed to make a finding on this linchpin issue. Upon reviewing the record, the circuit court concluded that the evidence indisputably compels the conclusion that the change was contemplated. Based on that conclusion, the circuit court entered judgment for Appellee.

On appeal, Appellant argues that the magistrate implicitly addressed the factual issue of whether the change was contemplated, and the circuit court improperly substituted its factual finding for that of the magistrate. See Anderson v. Anderson, 736 So.2d 49, 50-51 (Fla. 5th DCA 1999) (when reviewing magistrate’s recommended order, circuit court may not make independent factual findings). Ap-pellee argues that the issue was not addressed by the magistrate and the circuit court acted properly because the fact is not disputed in the record. We disagree with both arguments. We think that the magistrate failed to make a finding on this point. Further, our reading of the record leads us to conclude that the record evidence is in conflict on this issue and would support a finding either way. In light of our conclusion, the parties agree that the appropriate disposition is to remand this case to the circuit court with instructions

that it remand it to the magistrate to make a factual finding on this disputed issue.

REVERSED AND REMANDED.

ORFINGER, TORPY and LAWSON, JJ., concur.


text:
    Rodolfo RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2924.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2008.
    Rodolfo Ramos, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

We are bound to reverse and remand the appealed order summarily denying claims three and five of Appellant’s Rule 3.850 post-conviction motion pursuant to the high court’s recent decision in Spera v. State, 971 So.2d 754 (Fla.2007). Under Spera, Appellant is entitled to an opportunity to replead these two claims, which the trial court correctly found to be devoid of facts, conclusory and legally insufficient.

REVERSED and REMANDED.

SAWAYA and COHEN, JJ„ concur.


text:
    Corey D. HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-4076.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2008.
    Corey D. Hicks, Bowling Green, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

The appellant, Corey D. Hicks, seeks review of the denial by the trial court of his petition for writ of habeas corpus. Mr. Hicks essentially sought to assert a claim of ineffective collateral counsel growing out of his failed efforts to obtain post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure.

We affirm the order denying the petition in all respects. As the trial court noted, a claim of ineffective assistance of collateral counsel does not provide a valid basis for relief. See Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).

It appears that counsel retained by Mr. Hicks did file a timely, though unsuccessful, motion for post-conviction relief. If that is not the case, as Mr. Hicks may be implying, and if he otherwise qualifies, Mr. Hicks may have another avenue of relief under rule 3.850(b)(3).

AFFIRMED.

SAWAYA, MONACO, and TORPY, JJ., concur.


text:
    TEXAS AUTO MART, INC., Appellant, v. THRIFTY RENT-A-CAR SYSTEM INC., Appellee.
    No. 5D07-1876.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2008.

      Scott E. Siverson, Orlando, for Appellant.
    Daniel J. Gerber and Timothy N. Bench of Rumberger, Kirk & Caldwell, Orlando, for Appellee.
   PALMER, C.J.

Texas Auto Mart (TAM) appeals the final order entered by the trial court dismissing with prejudice its complaint against Thrifty Renfr-A-Car System (Thrifty). Determining that TAM did not establish prejudice sufficient to defeat the requirement for the trial court to enforce the parties’ contractual venue selection clause, we affirm.

TAM filed suit against Thrifty in Orange County based upon a 2002 lease agreement. Pursuant to the lease, TAM rented commercial property from Thrifty. Count I alleged a claim for breach of contract, count II alleged a claim for recoupment, and count III alleged a claim for recovery of a security deposit. TAM attached a copy of the parties’ lease agreement to its complaint. Of importance to the instant appeal, the lease agreement contains the following venue selection clause:

ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS LEASE AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE OKLAHOMA STATE COURTS OF COMPETENT SUBJECT MATTER JURISDICTION SITTING IN TULSA COUNTY, OKLAHOMA, OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA.

Thrifty responded to the complaint by filing a motion to dismiss based on improper venue. Citing to the above referenced contractual venue provision, Thrifty argued that proper venue was in Oklahoma.

While the matter was pending in the trial court, TAM filed a notice advising the trial court that, in 2002, Thrifty had filed a lawsuit against TAM in Orange County concerning the same lease agreement. That complaint alleged a claim for eviction, a claim for damages (unpaid rent), and a claim on a guaranty. That lawsuit was later involuntarily dismissed by the trial court due to Thrifty’s failure to prosecute.

The matter proceeded to an evidentiary hearing before the General Magistrate. The General Magistrate thereafter issued a report which recommended that the trial court deny Thrifty’s motion to dismiss on the basis of improper venue because, by filing its 2002 lawsuit in Orange County, Thrifty had waived its right to enforce the venue selection provision of the parties’ lease agreement against TAM in the instant lawsuit.

Upon review of the General Master’s report, the trial court ruled that, although Thrifty had expressly waived its right to enforce the parties’ venue selection provision in its 2002 lawsuit, such waiver was not perpetual and, thus, did not extend beyond the involuntary dismissal entered in that action. The court further held that dismissal of TAM’s instant complaint with prejudice was warranted because venue was not proper in Orange County. This appeal timely followed.

TAM argues that the trial court reversibly erred in granting Thrifty’s motion to dismiss based on improper venue. We disagree.

Florida law authorizes parties to stipulate in their contract to the venue that will be used to interpret and enforce their contract. See Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986). If a venue selection clause unambiguously mandates that litigation be subject to an agreed upon venue, then it is reversible error for the trial court to ignore the clause. See Ware Else, Inc. v. Ofstein, 856 So.2d 1079, 1081 (Fla. 5th DCA 2003). However, contractual venue selection clauses can be waived. See Three Seas Corp. v. FFE Transp. Servs., Inc., 913 So.2d 72, 74-75 (Fla. 3d DCA 2005); Fla. R. Civ. P. 1.140. Waiver is “defined as the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005).

TAM argues that the trial court erred, as a matter of law, in granting Thrifty’s dismissal motion on the basis of improper venue because Thrifty “permanently waived” its right to enforce the venue selection clause set forth in the parties’ lease agreement when Thrifty filed its 2002 lawsuit against TAM in Orange County. TAM acknowledges that there is no Florida case law which supports its position; however, TAM suggests that this court should look to Florida arbitration cases which generally hold that a party’s active participation in the judicial process results in a waiver of its arbitration rights. Although there is no arbitration case which mirrors the facts presented in this case, the case which is most instructive is The Hillier Group, Inc. v. Torcon, Inc., 932 So.2d 449 (Fla. 2d DCA 2006).

In that case, Torcon subcontracted with Hillier to perform services on a building project. The subcontract contained an arbitration provision. When the owner sued Torcon, Torcon filed a suit against Hillier for a breach of contract and indemnity. Torcon also filed a separate action against Hillier for declaratory relief relating to its obligation to participate in pre-suit mediation. Hillier sought arbitration in the indemnity action but did not demand arbitration in its answer in the declaratory judgment action. Torcon moved to dismiss the indemnity action arguing that, by not demanding arbitration in the declaratory judgment action, Hillier had waived its right to demand arbitration in the indemnity action. The trial court agreed and denied the motion to dismiss the indemnity action. On appeal, the Second District Court of Appeal reversed, holding that litigation by a party of arbitrable issues might support a finding of the waiver of the right to arbitrate related issues in subsequent proceedings where the party’s participation in the earlier litigation gave it an unfair advantage or prejudiced the other party. The court concluded that Hillier’s waiver of the right to seek arbitration in the declaratory judgment action had not caused any prejudice to Torcon and, accordingly, there was no basis to extend Hillier’s waiver in one action to the other.

Similarly, we hold that no waiver of venue selection in this suit resulted from Thirty’s filing of its 2002 lawsuit because TAM has not shown either that it has been prejudiced by Thrifty’s waiver of the venue clause in the earlier action or that Thrifty has been provided with any advantage as a result thereof. Accordingly, the venue provision remains enforceable.

AFFIRMED.

PLEUS and EVANDER, JJ., concur.


text:
    Bobby JOHNSON, Petitioner, v. STATE of Florida and Walter A. McNeil, Secretary, Florida Department of Corrections, Respondents.
    No. 1D08-1389.
    District Court of Appeal of Florida, First District.
    April 11, 2008.
    Bobby Johnson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

BARFIELD, POLSTON, and ROBERTS, JJ., concur.


author: NORTHCUTT, Chief Judge.

text:
    In the Interest of J.H. and S.H., children. E.H., Petitioner, v. Department of Children and Family Services, Respondent.
    No. 2D07-2143.
    District Court of Appeal of Florida, Second District.
    April 16, 2008.

      Scott L. Robbins, Tampa, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Kelley Schaeffer and Christopher Perone, Assistant Attorneys General, Tampa, for Respondent.
   NORTHCUTT, Chief Judge.

Without prior notice, the circuit court ordered that E.H. could have only supervised visitation with his children, J.H. and S.H., until he complied with a recommendation for evaluation and treatment that was based on information known to be erroneous. The Department of Children and Family Services properly concedes that the court’s order departed from the essential requirements of law resulting in irreparable harm. Accordingly, we grant E.H.’s petition for writ of certiorari and quash the order on review.

The children live with their mother, from whom E.H. is divorced. The mother consented to a dependency adjudication based on allegations completely unrelated to E.H. (Although the dependency petition initially alleged that E.H. had abandoned the children, the Department soon dismissed the petition against him.) At the time of the dependency adjudication, E.H. had unsupervised visitation with the children. E.H. subsequently sought custody of the children, but the court first ordered a domestic violence evaluation. Thereafter, having complied with her case plan, the mother filed a motion for reunification that was granted after a hearing.

At that hearing the mother asked to have E.H. restricted to supervised visitation with the children. This issue was not noticed for the hearing. In fact, E.H. was not even present, although his attorney was. Moreover, no evidence supported the requested change.

Nevertheless, the circuit court ordered that E.H. could have only supervised visitation with his children until he submitted to a psychological evaluation. The circuit court maintained its insistence on the evaluation over the Department’s protests, in two subsequent hearings, that there was no factual basis for ordering it. Indeed, the appendix filed in this court reflects a total absence of factual support for the court’s order.

When a child has been adjudicated dependent, the circuit court is authorized to order a nonoffending parent “to participate in treatment and services identified as necessary.” § 39.521(l)(b)(l), Fla. Stat. (2006). Certainly, any such intrusion on the parental rights of the nonoffender must be justified by competent substantial evidence. See C.K. v. Dep’t of Children & Families, 949 So.2d 336 (Fla. 4th DCA 2007) (reversing obligations imposed on nonoffending parent in absence of sufficient evidence). Here, there was none.

Petition granted; order quashed.

FULMER and WHATLEY, JJ., Concur.


author: PER CURIAM. EMAS, KEVIN, J., Associate Judge,

text:
    STATE of Florida, Appellant, v. Anne LANIER, Appellee.
    No. 4D06-4526.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas and Thomas A. Palmer, Assistant Attorneys General, West Palm Beach, for appellant.
    J. David Bogenschutz of Bogenschutz, Dutko & Kroll, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The state appeals the trial court’s order granting a defendant’s sworn motion to dismiss an information under Florida Rule of Criminal Procedure 3.190(c)(4). We affirm because the undisputed facts did not rise to the level of the criminal conduct charged.

The information in this case alleged that Anne Lanier, an elementary school teacher:

Count I [Child Abuse]
... did knowingly or willfully abuse a child by committing an intentional act that could reasonably be expected to result in physical or mental injury to S.Y., a child, by stomping on the foot of S.Y. with her foot without causing great bodily harm, permanent disability, or permanent disfigurement to S.Y., contrary to F.S. 827.03(1).
Count II [Child Abuse]
... did knowingly or willfully abuse a child by committing an intentional act that could reasonably be expected to result in physical or mental injury to S.C., a child, by causing S.C. to be seated in a chair in very close proximity to descending steps knowing that S.C. suffered from an attention deficit disorder and developmental delays, and was experiencing behavioral difficulties, and/or did cause the chair in which S.C. was seated to fall down steps, without causing great bodily harm, permanent disability, or permanent disfigurement to S.C., contrary to F.S. 827.03(1).
Count III [Child Neglect]
... while being a caregiver to S.C., a child, did willfully or by culpable negligence, neglect S.C. by failing or omitting to provide the care, supervision, and services necessary to maintain the physical and mental health of S.C., including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine and medical services that a prudent person would consider essential for the well-being of S.C., without causing great bodily harm, permanent disability, or permanent disfigurement to S.C., to wit: by causing S.C. to be seated in a chair in very close proximity to descending steps knowing that S.C. suffered from an attention deficit disorder and developmental delays, and was experiencing behavioral difficulties, contrary to F.S. 827.03(3)(c).

Lanier filed a sworn motion to dismiss each of the three counts under Rule 3.190(c)(4). The state’s traverse did not deny any of the material facts contained in the sworn motion, but alleged several additional facts. Lanier accepted the state’s additional factual allegations as true for purpose of the motion; the trial court properly considered all of these facts to rule on the motion. See State v. Kalogeropolous, 758 So.2d 110 (Fla.2000); State v. Teague, 452 So.2d 72 (Fla. 1st DCA 1984); Kuhn v. State, 439 So.2d 291 (Fla. 3d DCA 1983); State v. Holliday, 431 So.2d 309 (Fla. 1st DCA 1983), approved, 465 So.2d 524 (Fla.1985).

For the purpose of the motion to dismiss, the undisputed facts are:

Count I — Child Abuse Upon S.Y.: Undisputed Material Facts

1. S.Y. was four years old at the time of the incident;

2. While walking on school grounds, S.Y. stepped on the foot of another student;

3. Defendant then asked S.Y. if S.Y. would like to be stepped on, and then intentionally and forcefully stomped on S.Y.’s foot;

4. At the time, S.Y. stood on a concrete surface and wore sneakers on his feet;

5. S.Y. had no lasting injuries, no bruises, and no physical trauma that required any treatment;

6. S.Y.’s mother was unable to determine, even after he went home, whether or not he had sustained any injury whatsoever; and

7. The policy of the Broward County School Board provided that “corporal punishment shall not be used under any circumstances.”

Counts II and III — Child Abuse and Child Neglect Upon S.C.

1. S.C. was four years old at the time of the incident;

2. S.C. suffered from Attention Deficit Hyperactivity Disorder and autism or an autism-related disorder;

3. Defendant was fully aware S.C. suffered from these disorders;

4. S.C. was misbehaving and was difficult to manage or control in the classroom and Defendant acted to “punish” S.C. for disrupting nap time for other students;

5. Defendant placed S.C. unrestrained in a small chair outside of the classroom;

6. S.C. was within Defendant’s sight and was a short distance outside the portable classroom.

7. The chair was positioned immediately at the top of and facing toward a descending set of three concrete or metal steps;

8. Defendant then pushed the chair, in which S.C. was seated, towards the steps with her foot;

9. S.C. fell down the steps and struck his head on some part of the stairway or ground, injuring his head and leg;

10. S.C.’s injuries substantially cleared up in a relatively short amount of time; and

11. The policy of the Broward County School Board in effect at the time provided that “corporal punishment shall not be used under any circumstances.”

The trial court, relying primarily on King v. State, 903 So.2d 954 (Fla. 2d DCA 2005), dismissed the child abuse counts (Counts I and II). Following State v. Sammons, 889 So.2d 857 (Fla. 4th DCA 2004), the court dismissed the child neglect count (Count III). We review de novo the trial court’s order of dismissal. See State v. Santiago, 938 So.2d 603 (Fla. 4th DCA 2006).

The function of a motion to dismiss is to test the legal sufficiency of the state’s case. See Sammons, 889 So.2d at 858. A motion to dismiss “is well taken only if no material facts are in dispute and the most favorable construction of the undisputed facts in favor of the [s]tate would not establish a prima facie case of guilt.” Sammons, 889 So.2d at 858. “To make a prima facie case, the [s]tate may rely on circumstantial evidence; all inferences from facts revealed by the motion and related papers are resolved in favor of the [s]tate.” Id Such circumstantial evidence “must be consistent with the defendant’s guilt and inconsistent with any reasonable hypothesis of innocence.” Wilson v. State, 824 So.2d 835, 337 (Fla. 4th DCA 2002) (iquoting Bowen v. State, 791 So.2d 44, 52 (Fla. 2d DCA 2001)); accord State v. Law, 559 So.2d 187,188 (Fla.1989).

Section 827.03(1), Florida Statutes (2006), defines the crime of “child abuse” as:

(a) Intentional infliction of physical or mental injury upon a child;
(b) An intentional act that could reasonably be expected to result in physical or mental injury to a child; or
(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child. A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree.

“Mental injury” under the statute is “an injury to the intellectual or psychological capacity of a child as evidenced by a dis-cernable and substantial impairment in the ability to function within the normal range of performance and behavior.” § 39.01(43), Fla. Stat. (2002); see DuFresne v. State, 826 So.2d 272, 277-78 (Fla.2002); Zerbe v. State, 944 So.2d 1189, 1193 (Fla. 4th DCA 2006).

As to both S.Y and S.C., the state charged child abuse under section 827.03(l)(b) — that Lanier committed an “intentional act that could reasonably be expected to result in physical or mental injury to a child.”

The circuit court correctly relied upon King to dismiss the charges based on section 827.03(l)(b). King involved a teacher who spanked a student with a wooden paddle; the student “suffered significant welts and bruises on her buttocks.” 903 So.2d at 955. The state charged the teacher with violating section 827.03(1). Reversing the teacher’s conviction, the second district held that “spankings that result in ‘significant bruises or welts’ do not rise to the level of felony child abuse” under section 827.03(1), which requires “more serious beatings that do not result in permanent disability or permanent disfigurement.” King, 903 So.2d at 955 (quoting State v. McDonald, 785 So.2d 640, 646 (Fla. 2d DCA 2001)). Also, the court noted that there was “no corresponding mental injury.” Id. at 956. We applied King in Zerbe, a case involving the conduct of a karate instructor; we reversed a conviction under section 827.03(l)(b) and held that as a matter of law the teacher’s “repetitive requests for” an eleven year old child “to go to the bathroom” could not “reasonably be expected to cause mental injury.” 944 So.2d at 1193.

Lanier’s conduct in this case is less egregious than that of the defendant in King. There was no intentional act that could “reasonably be expected to result in physical or mental injury to a child” under section 827.03(l)(b). The foot “stomp” caused no bruises, no physical trauma, and required no treatment; such an act could not “reasonably be expected” to cause physical injury. Similarly, pushing a chair “towards” steps, or positioning a chair near steps, is very different from pushing a chair down the steps. Sitting near steps, even for a child with ADHD, is not an activity that could reasonably be expected to result in physical injury to the child.

We reject the state’s contention that Lanier’s violation of a school board policy against corporal punishment is significant in deciding whether there has been a section 827.03(1) violation. The statute defines the crime in terms of “reasonableness,” focusing on the nature and extent of an act, rather than on the authority to impose physical discipline. A teacher stands in loco parentis to a student. See State v. Christie, 939 So.2d 1078, 1079-80 (Fla. 3d DCA 2005); State v. D.T.W., 425 So.2d 1383, 1386 (Fla. 1st DCA 1983). At common law, one standing in loco par-entis had the right “to moderately chastise for correction a child under his or her control and authority.” Raford v. State, 828 So.2d 1012, 1015 n. 5 (Fla.2002) (quoting Marshall v. Reams, 32 Fla. 499, 14 So. 95 (1893)). Nothing in section 827.03, or any related statute, abolishes that right. While a teacher may be subject to disciplinary charges for violating the school board’s employment policy, that policy does not trump the argument that certain conduct has not violated the criminal law.

To permit local regulations to control the definition of a criminal statute runs afoul of Florida’s policy that the criminal law be “uniform throughout the state.” State v. Lozano, 616 So.2d 73, 76 (Fla. 1st DCA 1993); State v. Oehling, 750 So.2d 109, 111 (Fla. 5th DCA 1999). The supreme court construed a provision of an earlier constitution to mean that laws for the punishment of crime must be “of uniform operation throughout the State.” City of Fort Lauderdale v. King, 222 So.2d 6, 7-8 (Fla.1969); see also Carlton v. Johnson, 61 Fla. 15, 55 So. 975 (1911). That policy was carried over into Article III, Section 11(a)(4) of the current Florida Constitution, which provides that there “shall be no special law or general law of local application pertaining to ... punishment for crime.” If the application of a criminal statute hinges on the existence of a local policy, then the statute fails to “give fair warning ... of the nature of the conduct proscribed” contrary to section 775.012(2), Florida Statutes (2007).

Count III of the information charged a violation of section 827.03(3)(c). We agree with the trial court’s determination that the undisputed material facts did not establish a prima facie case of guilt on the charge of child neglect. The pertinent portion of the statute, section 827.03(3) provides:

(3)(a) “Neglect of a child” means:
1. A caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child;
2.(c) A person who willfully or by culpable negligence neglects a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree.

The State argues that a prima facie case of child neglect was established because La-nier failed “to provide the supervision necessary to maintain his physical health when she seated him on the edge of the steps and pushed his chair ... and caused S.C. to fall over the edge and tumble down the stairs.... ” However, the episode consisted of a series of continuous events during which S.C. was within sight of the teacher, and just outside the portable classroom. The facts indicate that the teacher was “actually keeping an eye” on the child rather than ignoring him. Sammons, 889 So.2d at 859. As we held in similar circumstances in Sammons, Lanier’s conduct did fail to provide the child with supervision “necessary to maintain the child’s” physical health. Id.

Affirmed.

KLEIN and GROSS, JJ.

EMAS, KEVIN, J., Associate Judge, concurs in part and dissents in part with opinion.

EMAS, KEVIN, J., Associate Judge,

concurring in part and dissenting in part.

I agree with the majority that the undisputed facts fail to establish a prima facie case of child neglect (Count III). However, I disagree with the majority’s holding that, as a matter of law, the undisputed facts fail to establish a prima facie case of child abuse. Counts I and II of the information allege that Defendant committed child abuse under section 827.03(l)(b) by engaging in “an intentional act that could reasonably be expected to result in physical or mental injury to the child.” The majority concludes that the trial court properly relied upon King v. State, 903 So.2d 954 (Fla. 2d DCA 2005), in dismissing these counts. King was premised upon a teacher’s assertion of the affirmative defense of parental privilege to use reasonable corporal punishment upon a student. Under Florida’s current statutory scheme, however, this affirmative defense is unavailable to Defendant, and the holding and rationale of King are thus inapplicable to this case.

In Raford v. State, 828 So.2d 1012 (Fla. 2002), the Supreme Court reviewed the caselaw interpreting Florida’s child abuse laws and their interplay of those laws with the common law parental privilege of corporal punishment. As the majority correctly notes, Raford recognized that, at common law, a parent or one standing in loco parentis (such as a teacher) had the right to reasonably discipline a child under his or her control and authority. Citing this language, the majority in the instant case concludes that “[njothing in section 827.03, or any related statute, abolishes that right. While a teacher may be subject to disciplinary charges for violating the school board’s employment policy, that policy should not trump the argument that certain conduct has not violated the criminal law.”

However, the Raford court’s reference to the common-law origins of the parental privilege was merely an historical acknowledgment; after noting this history and the subsequent legislation in the area of child abuse laws, Raford held that the parental privilege of corporal punishment is no longer a creature of common law:

To the extent [prior caselaw] relied upon any common law privilege for corporal punishment, that privilege is itself now defined and limited by the current statutory scheme.

828 So.2d at 1019 (quoting with approval State v. McDonald, 785 So.2d 640, 647 (Fla. 2d DCA 2001)).

Raford recognized that the difficult task of “delineating a precise line between permissible corporal punishment and prohibited child abuse” is “principally a legislative function, better left to the Legislature.” Id. at 1020-21. The Legislature has made that delineation by enacting a variety of laws relating to child abuse and the permissible use of corporal punishment. With regard to school officials, the Legislature in 2002 created section 1003.32, Florida Statutes (2006), which authorizes and circumscribes the use of corporal punishment as a form of student discipline. It provides in pertinent part:

Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned to him or her by the principal or the principal’s designated representative and shall keep good order in the classroom and in other places in which he or she is assigned to be in charge of students.
(1) In accordance with this section and within the framework of the district school board’s code of student conduct, teachers and other instructional personnel shall have the authority to undertake any of the following actions in managing student behavior and ensuring the safety of all students in their classes and school and their opportunity to learn in an orderly and disciplined classroom:
(k) Use corporal punishment according to school board policy....

(Emphasis added).

By the plain language of the statute, the Legislature has granted individual school districts the authority to limit the manner and circumstances by which a teacher may impose corporal punishment.

Consistent with this statutory scheme, and pursuant to Raford, a defendant charged with child abuse under 827.03(1) may raise as an affirmative defense the parental privilege of corporal punishment by establishing that:

1.defendant is the parent of the child or one who stands in loco parentis;
2. defendant’s actions constitute corporal punishment; and
3. the corporal punishment utilized was “reasonable” or “nonexcessive.”

Although Defendant, as a school teacher, satisfies the first element of the defense, she cannot establish that her actions constitute corporal punishment, reasonable or otherwise. The parties in this case stipulated that the Broward County School Board expressly prohibits teachers from using any form of corporal punishment. Thus, when reading section 1003.32 in conjunction with school board policy, as expressly contemplated by the statute, Defendant is foreclosed from relying upon the affirmative defense of parental privilege, because her actions cannot legally constitute corporal punishment (the second element of the affirmative defense). Stated another way, because Defendant was prohibited from imposing any form of corporal punishment, her conduct in this case, as a matter of law, cannot be considered reasonable or nonexcessive corporal punishment (the third element of the affirmative defense).

By contrast, in King v. State, 903 So.2d 954 (Fla. 2d DCA 2005), a private school administrator was charged with felony child abuse for paddling an eight-year old student as punishment for cheating and lying. The student suffered significant welts and bruises, but did not require medical treatment. The school expressly approved the use of paddling as corporal punishment and the parents of each student signed a form consenting to the use of paddling as a disciplinary measure on their child. The second district held that, in the context of a teacher imposing authorized corporal punishment, “spankings that result in ‘significant bruises or welts’ do not rise to the level of felony child abuse, which requires ‘more serious beatings that do not result in permanent disability of permanent disfigurement.’ ” Id. at 955 (quoting State v. McDonald, 785 So.2d 640, 646 (Fla. 2d DCA 2001)).

King is necessarily limited to those situations in which a defendant can validly assert the affirmative defense of parental privilege to impose corporal punishment. King’s conduct did not rise to the level of child abuse because the defendant stood in loco parentis, the punishment imposed was expressly authorized by the school and the parents, and the punishment was, as determined by the district court, “reasonable” corporal punishment. Unlike the defendant in King, the Defendant in this case was prohibited from imposing any corporal punishment. In the absence of a corporal punishment privilege, Defendant’s actions must be assessed in the same manner as those of any other non-parental (or non-in loco parentis) defendant. Czapla v. State, 957 So.2d 676 (Fla. 1st DCA 2007). That is, Defendant’s conduct is to be measured not in terms of whether her actions were “reasonable” (as the majority asserts) but whether those actions “could reasonably be expected to result in physical or mental injury to a child.” § 827.03(l)(b), Fla. Stat. I cannot agree with the majority’s conclusion that Defendant’s actions, as a matter of law, could not reasonably be expected to result in injury. Defendant’s actions present a question of fact that should be resolved by the trier of fact. See, e.g., Fieldhouse v. Tam Inv. Co., 959 So.2d 1214 (Fla. 4th DCA 2007) (in civil context, whether an injury is a reasonably foreseeable consequence of defendant’s conduct is ordinarily an issue for trier of fact, precluding summary judgment). I believe that the state has established a prima facie case of guilt as to the child abuse counts, and a jury should be permitted to determine whether the state can establish guilt beyond a reasonable doubt.

      . The same allegations form the basis for Counts II and III, and the alleged victim in both counts is S.C.

      . This legislation became effective January 7, 2003 after the date of the decision in Raford. See Ch. 2002-387, Laws of Fla.

      . The remainder of section 1003.32(1) contains certain minimum guidelines which must be followed before a school official may utilize corporal punishment in disciplining a student, including a requirement that "[a] teacher or principal may administer corporal punishment only in the presence of another adult who is informed beforehand, and in the student’s presence, of the reason for the punishment.”


author: STONE, J.

text:
    Edward HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2160.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.

      Carey Haughwout, Public Defender, and Peggy Natale and Ephgrat Livni, Assistant Public Defenders, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for ap-pellee.
   STONE, J.

Harris, age sixteen, along with four other youths, stopped a Mexican man riding a bike through their neighborhood, kicked him to death, and stole the bike and cash. He appeals his convictions for first-degree felony murder and robbery, for which he received a life sentence. We affirm.

Harris first challenges an order denying his motion to suppress a confession as not given knowingly and voluntarily. He asserts error in that: inadequate Miranda warnings were given in light of the suspect’s age, experience, background, and intelligence; the method used by police officers in giving the warnings minimized the significance of the rights; the officers misled him as to his true legal position with respect to the impact of admitting to a robbery resulting in homicide; and the officers conducted the interrogation without properly informing a parent. The trial court entered a fourteen page order making findings in favor of the state.

There was testimony that Harris’ mother was home when the officers arrived and was told that her son was going to be taken to the police station for questioning about a recent murder in Fort Pierce. His mother did not indicate that she wanted to come to the station or that she wanted an attorney for her son. She told the officers that she knew something bad had happened on the night of the homicide. Harris was handcuffed and transported to the station.

That same day, a detective returned to Harris’ house to gather some of his clothing. The mother cooperated and signed a “consent to search” form. She never said that she wanted to see her son or that she wanted him to have an attorney. Much later, Harris’ mother did come to the station but the interrogation had concluded “long before” she arrived.

There was testimony that Harris was read his Miranda rights, indicated he had been arrested before and had heard his rights previously, and did not indicate that he had any trouble understanding his rights. He was calm and responsive during the interview, which was videotaped. Harris was in the tenth grade at an alternative high school for slow learners and made good grades in some subjects. He had slightly less than “C” average grades. When asked if he wanted to talk and tell his side of the story, Harris answered, “Yeah, you can hear my part of the story.”

After eliciting from Harris an admission that he was at the scene of the crime, the interview continued as follows:

Q: This is your chance to give your side of the story. Okay?
A: Uh huh.
Q: For you to tell the truth about what happened.
A: Uh huh.
Q: Okay? Otherwise we’re going to have to go by what other people say you did. Okay? Now, two people saying that, two so far that I talked to, saying that you were there and that you were kicking the Mexican — okay?—and that you were stomping on his head like you were trying to kill him.
A: (Moves head side to side).
Q: Okay?
A: (Inaudible.)
Q: That’s first degree murder. You realize that.
A: Yes, sir.
Q: That you were trying to kill him, that’s what they said it looked like. But I don’t think you were necessarily trying to kill him. I think you were just trying to get some money from a Mexican, and that you were going to rough him up a little bit. That happens all the time, doesn’t it?
A: Yes, sir.
Q: Is that what’s happening?
A: What?
Q: You were just trying to get some money—
A: No, I wasn’t stomping—
Q: —rough him up a little bit?
A: ... I kick him a couple times, I hit him a couple times.
Q: You kicked him a couple times.
A: Yeah.
* * ⅜
Q: ... Now let me ask you this. It was your guys’ intention just to rob him and not to stomp him.
A: Yes, sir.
Q: Was that what yon guys wanted to
do, just to rob him?
A: Yes.

Whether a juvenile’s statement was knowing and voluntary is based on the totality of the circumstances. State v. S.V., 958 So.2d 609, 611 (Fla. 4th DCA 2007); State v. Cartwright, 448 So.2d 1049, 1051 (Fla. 4th DCA 1984); Rimpel v. State, 607 So.2d 502 (Fla. 3d DCA 1992). We conclude that there was no error or abuse of discretion in denying the motion to suppress.

The relevant factors generally considered in evaluating a juvenile’s statement are: (1) the methodology employed to administer the Miranda rights; (2) the age, experience, background, and intelligence of the child; (3) whether the parents were contacted and whether the child had an opportunity to speak with them prior to giving the statement; (4) whether the questioning occurred in the station house; and (5) whether the child executed a written waiver of rights. S.V., 958 So.2d at 611 (citing Ramirez v. State, 739 So.2d 568, 576 (Fla.1999)).

The law is settled that police are not required to give any particular notice to a parent before questioning a juvenile. S.V., 958 So.2d at 611 (citing Frances v. State, 857 So.2d 1002, 1003-04 (Fla. 5th DCA 2003)). Nor is there an affirmative obligation on the part of the police to extend an opportunity to a juvenile to speak with his parents prior to questioning where the juvenile does not request such opportunity. Id.

Here, at no time did Harris ever ask for his mother or an attorney to be present. The period of interrogation was brief, and Harris does not claim he was physically threatened or promised anything in return for his statement. Moreover, there is competent, substantial record evidence that Harris understood he had a right to remain silent and that the consequence for waiving that right would be the use of his statement against him at trial. He knew the detectives were investigating the death of a Mexican man and that law enforcement believed a robbery was committed in the same episode.

Just because Harris was a poor student does not mean that he did not understand his rights. Not only did sixteen-year-old Harris have prior experience with the law, but he was read his rights, and he waived them in writing. Further, there was no confusion as to whether and why he was in custody. In addition, the record contains ample testimony that Harris’ mother was told that her son was being taken to the police station to be questioned about a homicide.

In Brookins v. State, 704 So.2d 576 (Fla. 1st DCA 1997), the court upheld the conviction of a sixteen-year-old murder suspect, with an IQ of 73, who voluntarily waived his rights during a police interrogation and further recognized that a confession is not involuntary simply because an officer agrees to make the defendant’s cooperation known to the state and to the court.

Burch v. State, 343 So.2d 831 (Fla.1977), is also instructive. Burch was questioned for five and a half hours, the detectives accused Burch of the crime, and fabricated evidence against him. The detectives administered a fake polygraph test and then informed him that he failed it. Id. Thereafter,

[t]he detective interrogating him stated he would make the decision whether to charge appellant with first or second degree murder and that he wanted to believe appellant had not premeditatedly killed the girl. He also advised the appellant to consider the difference between a capital crime and a seven-to-twenty year sentence in determining whether to confess and explain the circumstances.

Id. Subsequently, Burch confessed. Id.

The court found that Burch was fully advised of his rights, he did not ask to leave, he did not request counsel, nor did he ask to stop the interrogation. Id. at 832-33. The court concluded that Burch’s statement was admissible.

Harris claims that his admissions were obtained through police trickery, and the detectives “delude[d]” him by minimizing the dangers of admitting to the assault and robbery and threatening to prosecute for first-degree premeditated murder on the basis of statements allegedly made by other defendants. Harris’ knowledge of whether he would be charged with robbery or with felony murder would not have enhanced his understanding that he had a right to remain silent, nor would it have enhanced his understanding that anything he said would be used against him if he waived his rights. Indeed, Harris said he understood that anything he said could be used against him in court. See State v. Manning, 506 So.2d 1094, 1096 (Fla. 3d DCA 1987) (finding that Manning, not knowing his true situation, i.e., that he was under arrest, was “insufficient to find that his waiver was not voluntary.”); id. at 1097-98 (“The use of tricks or factual misstatements in and of itself does not render a confession involuntary. There must be coercion involved, and a misstatement of fact is not coercion.” (citations omitted)); State v. Moore, 530 So.2d 349, 350 (Fla. 2d DCA 1988) (concluding that misstatements and alleged suggestions of leniency made to the defendant during questioning did not invalidate the confession).

Further, the detectives did not make promises or threats that coerced Harris into confessing. Rather, they made general statements, such as, that a witness had identified Harris and that Harris faced significant jail time. They did not offer a quid pro quo bargain for a confession. See Philmore v. State, 820 So.2d 919, 928 (Fla.2002) (finding that statements suggesting leniency in interview are objectionable only if they amount to express quid pro quo deal). Nor did the detectives indicate that murder resulting from a robbery is any less serious than intentional murder. They only inquired as to whether the boy had planned a robbery, as opposed to having grabbed the victim off the bike to intentionally beat him to death.

We also reject Harris’ claim that the trial court erred in failing to appoint Harris a new attorney after conducting a Nelson hearing. The record reflects that the trial court did conduct an extensive inquiry into Harris’ “dissatisfaction” with his counsel. While Harris expressed dissatisfaction with counsel, he did not make an unequivocal request to discharge counsel; rather, his “request” to discharge— “What if I want to get another — a different lawyer (indiscernible) counsel?” — was equivocal at best. As the ambiguous question was first raised on the eve of trial, and recognizing that Harris never raised it in his multiple meetings with counsel, the trial court concluded that the question was simply a delay tactic. The only claim of incompetence mentioned on appeal is that counsel failed to investigate alibi witnesses. However, when the court inquired about this, it learned that in several meetings with counsel, Harris never mentioned witnesses placing him somewhere else at the time of the crime, or claimed that his confession was not true. Hence, the corn-plaint boils down to problems with communication.

As this court recently reiterated, “ ‘£j]udges must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay.’ ” Tyler v. State, 945 So.2d 662 (Fla. 4th DCA 2007) (quoting Foster v. State, 704 So.2d 169, 173 (Fla. 4th DCA 1997)). In any event, the trial court gave Harris time to confer with counsel about a possible alibi defense. In addition, Harris said on the record that he understood and agreed with counsel’s decision not to call any witnesses or put on any defense before the jury.

As to all other issues raised, we also find no reversible error or abuse of discretion.

WARNER and GROSS, JJ., concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


author: PER CURIAM. WARNER, J.,

text:
    James HUTCHINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3062.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.
    James Hutchinson, Zephyrhills, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the denial of a motion to correct an illegal sentence because the permitted sentencing ranges, which were adopted effective July 1, 1988, see Puffinberger v. State, 581 So.2d 897, 900 (Fla.1991), cannot be applied to Defendant’s guidelines sentence for count II, which was committed on May 24, 1987.

Defendant appears to have been sentenced to a term of years that could not have been imposed with a corrected score-sheet, a situation which meets the requirement for relief pursuant to rule 3.800(a). Brooks v. State, 930 So.2d 835 (Fla. 4th DCA 2006), approved, 969 So.2d 238 (Fla.2007).

We agree with the state that the case must be remanded to the trial court for the preparation of a corrected scoresheet for count II and a determination of whether Defendant still would qualify for the same sentence. We reverse and remand for that purpose.

Reversed and Remanded.

STONE and FARMER, JJ., concur.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurs specially.

I concur in the opinion only because I am bound by the supreme court’s pronouncement in Leonard v. State, 760 So.2d 114, 116 n. 4 (Fla.2000). I write to note that this is a prime example of the need to revamp postconviction relief in Florida. The defendant in this case was sentenced for first-degree murder and kidnapping committed twenty years ago. His motion to correct an illegal sentence, filed in 2006, addresses an illegal sentencing only for his kidnapping count. He is still under a sentence for life in prison, with a mandatory minimum of twenty-five years, for the concurrent first-degree murder count.

In Higgins v. State, 890 So.2d 519 (Fla. 4th DCA 2005), we rejected the state’s argument that a defendant suffers no prejudice from an illegal sentence when it is imposed concurrently with other unchallenged sentences. We relied on a footnote in Leonard which said:

The State also argues that Leonard has suffered no prejudice from the erroneous imposition of this illegal sentence because it is to be served concurrently with other sentences that are unchallenged. However, the fact that the illegal sentence is to be served concurrently with another sentence does not mean that it should remain uncorrected.

760 So.2d at 116 n. 4.1 am not sure why it is necessary to go through this essentially meaningless exercise of correcting an illegal sentence imposed so long ago, which will have absolutely no effect on the defendant’s liberty. He will have served his sentence for kidnapping before he completes his sentence for murder.

In this case a trial court had to review the defendant’s motion. The state attorney presented a response. This court has reviewed the appeal, and the state again was ordered to respond. We have written an opinion and directed the trial court to correct the scoresheet and review the sentence in light of the application of the correct guidelines. Potentially, the trial court may have to resentence the defendant, requiring his presence in court, at further expense to the state. However, none of this will make any difference whatsoever to his liberty interests. The amount of judicial and state attorney time, as well as expense, wasted on this case should cry out for revision of our rules of procedure on postconviction motions, particularly corrections of illegal sentences.


author: POLEN, J. POLEN, J.

text:
    E.I., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D07-4847.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2008.
    Opinion Granting Clarification May 7, 2008.

      Lori D. Shelby, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   POLEN, J.

Appellant E.I., the mother, appeals the trial court’s non-final denial of her motion for extraordinary relief and reunification in the case of the minor child, Et.I. E.I. argues the trial court erred in denying her motion for extraordinary relief and in failing to reopen the case. While we agree with the trial court’s denial of E.I.’s motion for extraordinary relief and reunification, we find the trial court erred in failing to include the appropriate factual findings in its order and remand for entry of a corrected order.

When “a parent seeks reunification with a child, the child must be returned to his or her parent if the parent has substantially complied with the case plan and ‘if the court is satisfied that reunification will not be detrimental to the child’s safety, well-being, and physical, mental, and emotional health.’ ” T.F. v. Dep’t of Children & Family Servs., 881 So.2d 702, 702 (Fla. 1st DCA 2004) (quoting B.D.E. v. Dep’t of Children & Family Servs., 829 So.2d 359, 360 (Fla. 1st DCA 2002)).

Thus ... there are at least two factors that a trial court must consider when ruling on a motion for reunification: the parent’s compliance with the case plan and whether reunification would be detrimental to the children. As the statute suggests, when a parent has requested reunification and substantially complied with her case plan, there is a presumption that the children should be returned.

C.D. v. Dep’t of Children and Families, 974 So.2d 495, 500 (Fla. 1st DCA 2008). The trial court must address the factors listed in section 39.522(2), which are:

(a) The compliance or noncompliance of the parent with the case plan;
(b) The circumstances which caused the child’s dependency and whether those circumstances have been resolved;
(c) The stability and longevity of the child’s placement;
(d) The preferences of the child, if the child is of sufficient age and understanding to express a preference;
(e) The recommendation of the current custodian; and
(f) The recommendation of the guardian ad litem....

§ 39.522(2), Fla. Stat.

Neither of the trial court’s orders denying E.I.’s motions to reopen the case lists the factors to be considered under section 39.522(2), Florida Statutes. While the trial court did not abuse its discretion in denying E.I.’s motion, based on the record before us, it failed to comply with the statute by not addressing all the statutory factors, specifically: what caused the dependency in the first place and whether these circumstances were resolved; the stability and longevity of the child’s placement; and the recommendation of the current custodian.

We affirm the trial court’s denial of E.I.’s motion but remand for entry of a corrected order in compliance with the statute. See C.D., 974 So.2d at 501. (“ordinarily a trial court’s failure to list adequate factual findings can be remedied by instructions to the trial court to enter those findings”). Of course nothing in this opinion precludes E.I. from bringing a new motion for reunification should she have additional evidence which would support such a ruling.

GROSS and MAY, JJ., concur.

On Motion FOR Clarification

POLEN, J.

Appellee, the Department of Children and Families, has filed a motion for clarification of this court’s opinion in E.I. v. Department of Children and Families, 979 So.2d 378, 2008 WL 1734505 (Fla. 4th DCA 2008). This court affirmed the trial court’s denial of E.I.’s motion for extraordinary relief and reunification but remanded for entry of a corrected order containing the appropriate factual findings required by Florida statute. The statute cited by this court was section 39.522(2), Florida Statutes, which deals with post-disposition changes in custody in active dependency cases.

On its motion for clarification, the Department asks this court to clarify its opinion by substituting section 39.621(10), Florida Statutes, as it is the controlling statute in this case as it deals with post-closure motions to reactivate. We agree with the Department’s assertion and correct the scrivener’s error in the previously issued opinion. We withdraw the section of the opinion referencing section 39.522(2), Florida Statutes, and substitute section 39.621(10), Florida Statutes, in its place. This substitution does not change the result of the case as the six factors to be considered by the court as per our opinion are found in section 39.621(10), Florida Statutes.

GROSS and MAY, JJ., concur.