author: KLEIN, J.

text:
    STATE of Florida, Petitioner, v. Marc ROGERS, Respondent.
    No. 4D07-426.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Bill McCollum, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, Daniel Cohen, Travis Dunnington and Scott Berry, Assistant Public Defenders, West Palm Beach, for respondent.
   KLEIN, J.

Respondent, who is charged with second degree murder for the stabbing death of his roommate, has raised the defense of insanity. A mental health expert privately retained by respondent concluded that he was insane. On respondent’s motion in limine, the trial court ruled that the state could not elicit testimony from this expert as to what the respondent told the expert about the offense, because it would violate his Fifth Amendment privilege against self-incrimination. The state seeks certio-rari review, and we grant the petition.

The trial court’s ruling was apparently based on Parkin v. State, 238 So.2d 817 (Fla.1970); however, we find it distinguishable. In Parkin, the defendant was charged with first degree murder of her husband and, after she served notice of her intent to rely on an insanity defense, the court appointed two psychiatrists to examine her. She refused to answer any questions, citing self-incrimination, and the trial court ruled that, unless she cooperated with the court’s experts, her independent experts would not be permitted to testify. The case found its way to the Florida Supreme Court, which held that where the facts surrounding the crime have been elicited-from the defendant during a compulsory mental examination, those facts are protected by the privilege against self-incrimination, unless the defense opens the door to that area.

The state argues, and we agree, that Parkin is distinguishable because in Parkin the examination of the defendant was compulsory. Rule 3.216(d) authorizes compulsory examination by experts to determine the sanity of a defendant. In this case, the expert was selected by the respondent, and the examination was not compulsory. Parkin, accordingly, provides no privilege against self-incrimination. Nor is there a psychotherapist-patient privilege, where, as here, the patient is relying on a mental condition as a defense. § 90.503(4)(c), Fla. Stat. (2006). The court therefore erred in granting the motion in limine.

In State v. Pettis, 520 So.2d 250 (Fla.1988), our supreme court held that the state can seek certiorari review of pretrial orders excluding evidence which substantially impairs the state’s ability to prosecute. Under section 775.027(2), Florida Statutes (2000), the burden of proving the defense of insanity is on the defendant. The trial court’s ruling in this case, by restricting what the state can elicit from respondent’s expert, does substantially impair prosecution under Pettis, and we accordingly grant the petition as to respondent’s privately retained expert.

We deny the petition as to the state’s expert, because the state conceded in the trial court that it could not rely on any admissions respondent made to him about the crime, unless respondent opened the door.

GUNTHER and SHAHOOD, JJ., concur.

      . Section 775.027(2), which became effective in 2000, changed the burden of proof for the defense of insanity. Florida Standard Criminal Jury Instruction 3.6(a) conforms to section 775.027(2). Yohn v. State, 476 So.2d 123 (Fla.1985), which put the burden on the state to prove that the defendant was sane, is no longer good law.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John Patrick PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1785.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Loren D. Rhoton of Rhoton & Hayman, P.A., Tampa, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Appellant’s postconviction relief claim that prior to entering Ms plea, his counsel misadvised him as to the length of a potential sentence, is conclusively refuted by the thorough and detailed plea conference conducted by the trial court. See Scheele v. State, 953 So.2d 782 (Fla. 4th DCA 2007), reh’g granted No. 4D06-38 (Fla. 4th DCA May 9, 2007) (observing that “[w]hat is said and done at a plea conference carries consequences”).

Affirmed.

STONE, GROSS and HAZOURI, JJ., concur.


author: HAZOURI, J.

text:
    STATE of Florida, Appellant, v. G.C., a Child, Appellee.
    No. 4D06-3099.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellee.
   HAZOURI, J.

G.C. was charged in a petition for delinquency with aggravated assault of his mother and possession of cannabis. A hearing was held at which G.C.’s counsel advised the court that G.C. was currently living with his grandmother in Peru. G.C.’s counsel sought permission from the court to take a plea over the telephone and advised the court that G.C. was waiving his right to appear at the sentencing hearing. The trial court confirmed via telephone that G.C. in fact wished to waive his presence at the sentencing hearing. The state objected to this procedure.

The trial court conducted the sentencing hearing via telephone and concluded that G.C. was waiving his presence at the sentencing hearing and was voluntarily entering his plea of no contest. The trial court withheld adjudication of guilt, suspended G.C.’s driver’s license for six months, and administered a “stern judicial warning.” The state appeals this disposition order asserting it is illegal because G.C. was not present at the sentencing hearing. We disagree.

In Capuzzo v. State, 596 So.2d 438 (Fla.1992), our supreme court recognized that sentencing is a critical stage of the proceeding which entitles the defendant to be present. However, a defendant may waive that right to be present. In Capuzzo, the defendant voluntarily absented himself from the sentencing hearing and was sentenced in absentia. The supreme court reasoned that Capuzzo could not claim lack of express waiver at sentencing because he chose to flee the trial court’s jurisdiction. In the instant case, G.C. waived his right to be present at the sentencing hearing. Therefore, the state’s assertion that this is an illegal disposition under Florida Rule of Appellate Procedure 9.145(c)(1)(G) is without merit. Because there is no basis for the state’s appeal, we dismiss it.

Dismissed.

WARNER and POLEN, JJ., concur.


text:
    Hatachi COKE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3228.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Hatachi Coke, Milton, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant, Hatachi Coke, seeks review of an order denying his rule 3.800(a) motion to correct illegal sentence. Coke alleges his 25-year minimum mandatory sentence, imposed pursuant to section 775.087(2)(a)3., Florida Statutes, is illegal because the information did not sufficiently allege death or great bodily injury, despite the jury finding of great bodily injury for shooting the victim in the legs. We disagree and affirm.

In pertinent part, the State charged Coke, by information, with aggravated battery, by alleging:

HATACHI O. COKE on or about August 25, 2000, in the County of Palm Beach and State of Florida, while in possession of a firearm, did actually and intentionally touch or strike FER-NIE EMMANUEL against the will of FERNIE EMMANUEL, and in doing so used a pistol which HATACHI O. COKE discharged at FERNIE EMMANUEL, shooting FERNIE EMMANUEL in the legs, and used a firearm a deadly weapon, contrary to Florida Statutes 784.045(1)(a)2 and 775.087(2). (2 DEG FEL)

(Emphasis added). The jury found Coke guilty as charged and made a specific finding of fact that the victim suffered great bodily injury.

For the trial court to enhance the sentence, pursuant to section 775.087(2)(a)3., Florida Statutes (2000), the “grounds for enhancement must be charged in the information” and the jury must make a factual finding concerning those grounds. Dallas v. State, 898 So.2d 163, 165 (Fla. 4th DCA 2005) (citing Jackson v. State, 852 So.2d 941, 944 (Fla. 4th DCA 2003)); see also Davis v. State, 884 So.2d 1058 (Fla. 2d DCA 2004). To impose the 25-year minimum mandatory enhancement, the information must allege Coke discharged a firearm and caused great bodily harm, and the jury must have made factual findings as to these grounds.

We conclude these requirements were satisfied in this case. First, the information made specific reference to the enhancement statute. Second, the information alleged the defendant shot the victim in the legs, which we find sufficiently advised the defendant of the “great bodily harm” element. We do not believe due process requires any more specificity. In fact, the allegations are more specific than simply alleging “great bodily harm.” Under this factual scenario, the information sufficiently put the defendant on notice of the likelihood of enhanced sentencing, pursuant to section 775.087(2)(a)3., Florida Statutes. And, the jury specifically found that the victim suffered great bodily harm.

Affirmed.

STONE, POLEN and MAY, JJ., concur.

      . Each of these cases reversed sentences under section 775.087, Florida Statutes, but under distinguishable factual circumstances.


text:
    Gerald L. PARROW, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1181.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.

      Gerald L. Parrow, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s filing a new 3.800(a) motion which states with specificity where in the record the information containing his credit request may be found and what credit he is seeking.

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


text:
    Edgar JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1080.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Edgar Johnson, Bushnell, pro se.
    No appearance required for appellee.
   PER CURIAM.

We dismiss the appeal of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(c) as a non-appealable order. See Reile v. State, 901 So.2d 196, 197 (Fla. 4th DCA 2005); Grosse v. State, 511 So.2d 688 (Fla. 4th DCA 1987).

STEVENSON, C.J., TAYLOR and MAY, JJ., concur.


text:
    John E. GALLOWAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-665.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

John E. Galloway has appealed from a probation revocation disposition and sentence. We reverse and remand for entry of an order specifying the conditions of probation found by the court to have been violated. This issue was preserved for appellate review through counsel’s filing of a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We decline to consider this a “minor” sentencing error in light of appellate counsel’s challenges to specific conditions referenced orally by the trial court. Compare Mills v. State, 948 So.2d 994 (Fla. 4th DCA 2007).

GROSS, TAYLOR and MAY, JJ., concur.


text:
    John E. GALLOWAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-666.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

John E. Galloway has appealed from a probation revocation disposition and sentence. We reverse and remand for entry of an order specifying the conditions of probation found by the court to have been violated. This issue was preserved for appellate review through counsel’s filing of a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). We decline to consider this a “minor” sentencing error in light of appellate counsel’s challenges to specific conditions referenced orally by the trial court. Compare Mills v. State, 948 So.2d 994 (Fla. 4th DCA 2007).

GROSS, TAYLOR and MAY, JJ., concur.


text:
    Ric L. BRADSHAW, in his official capacity as the Sheriff of Palm Beach County, Florida, Petitioner, v. Glenn SANDLER, Respondent.
    No. 4D07-596.
    District Court of Appeal of Florida, Fourth District.
    May 9, 2007.

      Fred H. Gelston of Fred H. Gelston, P.A., West Palm Beach, for petitioner.
    Richard G. Lubin and Jonathan Wasser-man of Richard G. Lubin, P.A., West Palm Beach, for respondent.
   PER CURIAM.

The Sheriff of Palm Beach County seeks certiorari relief to quash a lower court order requiring the Sheriff to transport a pre-trial jail inmate to a private dentist office for treatment. We grant the petition and quash the lower court order.

Glenn Sandler is currently incarcerated in the Palm Beach County Jail awaiting trial on charges of solicitation of murder and trafficking in cocaine. Upon arrest and arraignment, the lower court denied bond, and the Sheriff has held Sandler at the jail since November 10, 2005. Since the order denying bond was issued, San-dler has been transported out of the jail on four occasions: once to his son’s funeral, once to visit his ill father, and twice to visit a cardiologist. On December 11, 2006, Sandler filed a motion for another escorted trip outside the jail, this time to see his personal dentist. Despite the Sheriffs objection, the lower court granted the motion without an evidentiary hearing. The order requires the Sheriff to transport Sandler to the private office using whatever security measures the Sheriff believes is necessary. Further, the order requires Sandler to pay the costs associated with the security detail. A subsequent order required the Sheriff to comply within seventy-two hours. Upon emergency motion to stay, we granted temporary relief to the Sheriff to allow for review.

While certiorari relief is appropriate in “very limited circumstances,” such relief is proper where “the order departs from the essential requirements of law and leaves the party with no adequate remedy by final appeal.” Palm Beach County Sch. Bd. v. Morrison, 621 So.2d 464, 468 (Fla. 4th DCA 1993), Johnson v. Levine, 736 So.2d 1235, 1238 (Fla. 4th DCA 1999). In this particular situation, the Sheriff has no adequate remedy by final appeal. See Armor Corr. Health Servs., Inc. v. Ault, 942 So.2d 976 (Fla. 4th DCA 2006). Because Sandler must pay the costs of security, the Sheriffs injury is not the monetary obligation of transporting Sandler, but simply the requirement to transport Sandler outside the jail. Once the Sheriff complies with the order, San-dler cannot be “untransported.” The harm is complete upon the doing of the act; as such, this Court has jurisdiction to redress the claim of error.

In Ault, we addressed a similar issue concerning the separation of powers doctrine. There, we noted the “[ojperation of the county jail is within the province of the executive and legislative branches of government, not the judicial branch.” Id. at 977 (citing Arrington v. Wainwright, 452 So.2d 1120, 1121 (Fla. 4th DCA 1984)). As such, “the trial court has no authority to dictate how [the private health care provider] carries out the sheriffs duty to provide medical care to jail inmates.” Id. Health care decisions of jail inmates are exclusively within the province of the Sheriff, and the Sheriff may impose reasonable guidelines as to how those health care services are provided.

The lower court understood the prohibition announced in Ault, but believed the order merely transporting San-dler to the dentist did not dictate any specific medical treatment. The judge believed the order complied with the basic premise of Ault. We disagree. The initial decision that a dental consultation is even necessary is a health care decision that should be left to the Sheriff. Ordering the Sheriff to transport Sandler to the dentist necessarily makes a finding that the inmate is in need of dental care. Such a decision can only be made by the health care provider chosen by the Sheriff. Id. Additionally, in the absence of any eviden-tiary hearing, the judge could not make a fair determination as to whether Sandler is in need of any medical or dental treatment. As such, we are compelled to grant the petition and quash the order.

Sandler’s remedy is to follow the specific procedures put in place by the Sheriff, which all inmates must abide by to receive health care. If, after exhausting his administrative remedies, Sandler believes he has not received any, or adequate, dental care, he may file a petition for writ of habeas corpus in the trial court. If no relief is found therein, he may seek mandamus relief in this Court. Until that point, the courts are without jurisdiction to meddle in the health care decisions made by the Sheriff or his designated agent.

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


text:
    Kevin B. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2120.
    District Court of Appeal of Florida, First District.
    May 9, 2007.

      Kevin B. Brown, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BROWNING, C.J., POLSTON and HAWKES, JJ., Concur.


author: PLEUS, C.J.

text:
    Reginald SIBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2075.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2007.

      James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, C.J.

Sibley was charged with seven counts, as follows: Count 1: organized fraud; Count 2: fraudulent use of personal identification information; Count 3: grand theft; and Counts 4-7: uttering a forged instrument. After pleading no contest to all seven counts pursuant to a negotiated plea agreement, Sibley appealed his convictions and sentences on double jeopardy grounds. He argues that Counts 2-7 are subsumed in Count 1. We affirm Sibley’s convictions and sentences on all counts except Count 3 for grand theft. Convictions arising out of the same criminal episode for organized fraud and grand theft violate double jeopardy. However, convictions for organized fraud, fraudulent use of personal identification information and uttering forged instruments do not violate double jeopardy. We therefore reverse Sibley’s conviction and sentence on Count 3 and remand with directions to vacate the conviction and sentence on Count 3.

Facts

Pursuant to a written plea agreement, Sibley agreed to plead to all seven counts in exchange for a total sentence of 24 months probation with a possibility for early termination after 12 months. The plea agreement further contained the following standard language: “I understand that if I enter a plea without reserving the right to appeal, I will give up my right to appeal all matters relating to the judgment, including the issue of guilt or innocence, except for the limited review available by collateral attack.”

At the plea hearing, however, Sibley’s attorney explained that his client would readily admit to committing all of the offenses, but was pleading no contest because “[t]he issue with the no contest plea is I believe is [sic] the double jeopardy bars the position — number of count one and the remainder visa-versa [sic].”

During the plea colloquy, the following discussion ensued:

[DEFENSE ATTORNEY]: There is a factual basis for all of the charges. Mr. Sibley did all of these things and he will tell you that if you asked him.
He will tell you he did all of these things.
Yes, we believe there is a factual basis.
The only legal issue in regard to count one and the remaining counts, I think the various things in counts 2 through 7 are the basis for the charge in count one.
I think that’s barred right up to that. But nonetheless, there is a factual basis for each count independently.
THE COURT: All right. Is Mr. Sibling [sic] waiving any right to attack the information or is there anything he is waiving by entering this plea today?
[DEFENSE ATTORNEY]: No, Your Honor, that is the purpose of the no contest plea.
THE COURT: Is he reserving the right to attack the information?
[DEFENSE ATTORNEY]: That is not necessarily to attack the information.
Double jeopardy is something that can be raised at any time.
He is pleading no contest specifically for that reason.
Since he flew in from California and wants to resolve the case.
THE COURT: I’m trying to find out is there anything we are going to have to deal with down the road because I don’t want to take the plea if I have to deal with it tomorrow.
[PROSECUTOR]: I don’t anticipate so.
[Defense attorney] seems to feel there is double jeopardy sentencing issues involved in each count.
I disagree. If [defense attorney] shows me some case law that supports that we will stipulate to amending the sentencing order.
BY THE COURT:
Q. Mr. Sibley, do you understand there may be an argument in terms of double jeopardy.
By entering this plea today, I will allow you to raise it at another time but at this point you are entering a plea that could subject you to—

The trial court accepted Sibley’s plea and sentenced him pursuant to the plea agreement.

Arguments

Sibley argues that his convictions and sentences on Counts 2 through 7 should be reversed because they involve the same criminal episodes referenced in Count I, and thus are barred on double jeopardy grounds. The State raises three arguments in response. First, the State claims that Sibley’s appeal should be dismissed for lack of jurisdiction because Sibley waived any double jeopardy argument when he entered into a negotiated plea agreement with the State. Second, the State argues that Sibley failed to preserve his double jeopardy argument by failing to sufficiently raise the issue or obtain a ruling from the court below. Third, on the merits, the State claims that at most, only Count 3 should be vacated on double jeopardy grounds.

Sibley’s Alleged Waiver of Double Jeopardy

The State cites several cases espousing the general rule that a defendant waives any double jeopardy claims when he enters into a negotiated plea agreement with the State. See, e.g., Novaton v. State, 634 So.2d 607 (Fla.1994); Denyer v. State, 845 So.2d 295 (Fla. 5th DCA 2003); Lewis v. State, 827 So.2d 1052 (Fla. 5th DCA 2002). However, an exception to the general rule occurs when

(a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation.

Novaton, 634 So.2d at 609.

This case does not fall neatly into either the general rule or the exception. Sibley entered into a written plea agreement which clearly benefited him and which purported to waive any right to appeal. However, at a subsequent plea hearing, Sibley’s attorney made repeated statements indicating that Sibley did not intend to waive his right to challenge the convictions on double jeopardy grounds. Sibley’s counsel explained that the reason Sibley was pleading no contest instead of guilty was because a double jeopardy issue existed. When asked specifically by the court if Sibley was waiving any right to attack the information or waiving anything by entering a plea, Sibley’s counsel responded, “No, Your Honor, that is the purpose of the no contest plea.” Then, Sibley’s counsel added, “Double jeopardy is something that can be raised at any time. He is pleading no contest specifically for that reason.”

Although the prosecutor disagreed that a double jeopardy violation existed, she did not affirmatively object to Sibley pleading under those circumstances. Then the court stated, “Mr. Sibley, do you understand there may be an argument in terms of double jeopardy. By entering this plea today, I will allow you to raise it at another time.... ”

The above statements made during the plea hearing do not demonstrate that Sib-ley waived his double jeopardy argument. To the contrary, they demonstrate that he intended to attack his convictions on double jeopardy grounds, that the State tacitly acquiesced to that intention, and that the court expressly allowed Sibley to raise the double jeopardy argument “at another time.” Under these circumstances, the State has failed to demonstrate that Sibley waived his double jeopardy arguments.

Sibley’s Alleged Failure to Preserve his Double Jeopardy Claim

The State argues, pursuant to section 924.051(4), Florida Statutes, that this Court lacks jurisdiction because Sibley failed to expressly reserve his right to appeal a legally dispositive issue during his no contest plea. Both section 924.051(4) and Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) provide a means to appeal from a no contest plea if the defendant expressly reserves the right to appeal a prior dispositive order of the lower tribunal. The State correctly observes that Sibley has not met this requirement because there was no order of the lower tribunal. Sibley never obtained a ruling on his double jeopardy argument below.

However, we have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(e), which states that a defendant may not appeal from a guilty or a nolo contendere plea except “as otherwise provided by law.” We have construed that provision to include double jeopardy challenges after a no contest plea because a double jeopardy violation constitutes fundamental error which may be raised for the first time on appeal. See Barfield v. State, 871 So.2d 929, 930-31 (Fla. 5th DCA 2004). Thus, even though Sibley did not technically reserve his right to appeal this issue, it is fundamental and can be raised for the first time on appeal.

Double Jeopardy Analysis

Sibley argues that Counts 2 through 7, for identify theft, grand theft and uttering a forged instrument, are all subsumed under Count I, organized fraud, for the purposes of double jeopardy. In support of this argument, Sibley cites to Saddler v. State, 921 So.2d 777 (Fla. 1st DCA 2006). However, Saddler held only that convictions for organized fraud and grand theft violate double jeopardy. It did not address the additional crimes of identity theft or uttering a forged instrument, which are present in this case. The State concedes that Sibley’s conviction in Count 3 for grand theft violates double jeopardy.

Regarding Counts 4 through 7 for uttering forged instruments, we have previously held that convictions for uttering and for organized fraud which are based on the same criminal episode do not violate double jeopardy. See Donovan v. State, 572 So.2d 522, 526 (Fla. 5th DCA 1990).

Regarding Count 2 for fraudulent use of personal identification information, no court has previously addressed the issue of whether convictions for this crime and the crime of organized fraud violate double jeopardy. The analysis below demonstrates that convictions for these two crimes do not violate double jeopardy because each crime contains different elements.

Section 775.021(4), Florida Statutes (2003), provides that defendants shall be convicted and sentenced for separate criminal offenses committed in the course of one criminal episode or transaction, except for: (1) offenses which require identical elements of proof; (2) offenses which are degrees of the same offense as provided by statute; and (3) offenses which are lesser included offenses, the statutory elements of which are subsumed by the greater offense. The elements of organized fraud are:

(1) Engaging in or furthering a systematic, ongoing course of conduct (2) with (a) intent to defraud, or (b) intent to obtain property by false or fraudulent pretenses, representations, or promises, or willful misrepresentations of a future act, (3) resulting in temporarily or permanently depriving any person of the right to property or a benefit therefrom, or appropriating the property to one’s own use or to the use of another person not entitled thereto.

Donovan, 572 So.2d at 526 (citing § 817.034(4)(a), Fla. Stat.). Fraudulent use of personal identification information is addressed in section 817.568(2)(a), Florida Statutes, which states:

(2)(a) Any person who willfully and without authorization fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning an individual without first obtaining that individual’s consent, commits the offense of fraudulent use of personal identification information, which is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Therefore, the elements of fraudulent use of personal identification information are: (1) willfully and fraudulently using or possessing with intent to fraudulently use; (2) another person’s personal identification information; and (3) without that person’s authorization or prior consent. § 817.568(2)(a), Fla. Stat.

In comparing the elements of these two crimes, it is apparent that each contains elements the other does not and that they do not meet any of the statutory exceptions in section 775.021(4). For example, organized fraud requires proof of an ongoing course of conduct and deprivation of property. Fraudulent use of personal identification information does not require proof of these elements, but does require proof of using or possessing someone’s personal identification information. Organized fraud does not. Accordingly, convictions and sentences for both arising out of the same criminal episode do not violate double jeopardy. We affirm the convictions and sentences on all counts except Count 3 for grand theft. As to that count, we reverse and remand to vacate the conviction and sentence on Count 3.

AFFIRMED IN PART; REVERSED IN PART, REMANDED.

GRIFFIN and LAWSON, JJ., concur.


author: MONACO, J.

text:
    Timothy James MULLIGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1651.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2007.
    James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

We affirm the trial court’s finding that the appellant, Timothy James Mulligan, violated the terms of his probation, as well as the sentence for that violation. Mr. Mulligan also asserts that he was not given credit for the time he actually served in prison for the incarcerative portion of his split sentence. See Sainvilus v. State, 689 So.2d 1261 (Fla. 3d DCA 1997). We affirm in this respect, as well, because the error, if any, is unpreserved.

A sentencing error is not appropriately raised on appeal unless it has first been brought to the attention of the trial court either at the time of sentencing or by motion for relief pursuant to Florida Rules of Criminal Procedure 3.800(b). See Fla. R.App. P. 9.140(e); State v. Hamner, 816 So.2d 810, 812 (Fla. 5th DCA 2002). Rule 3.800(b)(2) requires the motion to be filed before the first brief of the party is served. As Mr. Mulligan failed to use either alternative method for relief, he is precluded from raising this issue in his direct appeal. He may, however, seek appropriate post-conviction relief. See Maddox v. State, 760 So.2d 89 (Fla.2000); Hayden v. State, 833 So.2d 275 (Fla. 5th DCA 2002); Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000).

AFFIRMED.

GRIFFIN and THOMPSON, JJ., concur.


text:
    Johnny SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2208.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2007.

      James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Johnny Smith [“Defendant”] appeals the judgment and sentences he received for burglary of a dwelling, burglary of a conveyance, and third-degree grand theft. We conclude that the evidence was sufficient, though barely, for the jury to find that Smith burgled a dwelling. We agree, however, that the State failed to prove that the value of the computer stolen in the burglary was $300 or greater. 812.014(2)(c), Fla. Stat. (2005). At trial, the victim testified that the stolen computer was a Dell laptop, less than a year old, and “might have been about six months old at the time” of the theft. He and his wife had paid around $1,200 when they purchased it. The computer was working when it was returned. No further testimony was presented concerning the laptop.

To convict for grand theft, the state must prove the element of value beyond a reasonable doubt. Evans v. State, 452 So.2d 1040, 1041 (Fla. 2d DCA 1984); see also Pickett v. State, 839 So.2d 860, 861 (Fla. 2d DCA 2003). Under the applicable statutory definition, “value” means “the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a), Fla. Stat. (2005). “Value may be established by direct testimony of fair market value or through evidence of the original market cost of the property, the manner in which the items were used, the condition and quality of the items, and the percentage of depreciation of the items since their purchase.” Pickett, 839 So.2d at 861-62; see also J.M. v. State, 890 So.2d 369, 370 (Fla. 4th DCA 2004) (“[O]wner’s testimony that he paid between $315 and $320 for the vehicle when he purchased it three to four months before the subject theft ... was insufficient to establish that the goped’s fair market value was $300 or more at the time it was stolen.”); D.L. v. State, 546 So.2d 454 (Fla. 3d DCA 1989) (evidence only as to the retail cost of the stolen property, one year prior to the theft, was insufficient to sustain conviction for grand theft).

In Doane v. State, 847 So.2d 1015, 1017 (Fla. 5th DCA 2003), the stolen property consisted of two computer monitors, two central processing units, two keyboards, a scanner, a printer, and a 35 mm Nikon camera. The victim testified that “he paid $1,588 on February 6, 1997 for one of the computers, and the scanner was purchased on February 27, 1997 for $320.” Id. He also testified “that the other computer was purchased by his property manager and he did not recall how much that computer cost other than it was ‘several thousand dollars.’ ” Id. In explaining its conclusion that this testimony “was insufficient to prove that the property was worth over $300 at the time of the theft,” this court said:

The State failed to adduce any other direct testimony of the market value of the stolen property. The State also failed to present any testimony as to the manner in which the items had been used, its general condition and quality, or its depreciation percentage. Furthermore, as computer equipment can become obsolete very quickly, the value of the stolen equipment was not “so obvious as to defy contradiction.”

Id. at 1017-18. (citations omitted).

The State argues that “[wjhile it is true that computer equipment can become obsolete very quickly ... given the fact that the computer was still in working condition and only about six months old, the jury could use their common sense and determine that its value was in excess of $300.00.” Because no competent evidence was offered to prove the stolen property’s value at the time of the crime, we vacate the Defendant’s conviction and sentence for grand theft third degree and instruct the lower court to enter a judgment of guilty for petit theft. In all other respects, we affirm.

AFFIRMED in part; REVERSED in part.

GRIFFIN, THOMPSON and MONACO, JJ., concur.

      . The Doane opinion fails to say when the theft was committed.

      . The evidentiary issues giving rise to this appeal are basic ones. The State Attorney might consider relying less on intuition and more on training.


author: GRIFFIN, J.

text:
    Christopher R. SCHIAVONE, Appellant, v. George APOSTOLICAS, Appellee.
    No. 5D06-3192.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2007.
    John M. Brennan and Daniel E. Traver, of Gray Robinson, P.A., Orlando, and James E. Cecchi, of Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart Olstein, Rose-land, NJ, for Appellant.
    Michael R. Levin and Leslie B. Bissinger, of Baker Hostetler, LLP, Orlando, for Appellee.
   GRIFFIN, J.

Appellants seek review by appeal of a non-final order that disposes of two motions: Motion to Dismiss Apostólicas’ Amended Complaint With Prejudice, and Motion to Dismiss Apostólicas’ Amended Complaint for Lack of Personal Jurisdiction. We affirm the order to the extent it addresses the issue of in personam jurisdiction. We lack jurisdiction to review the portion of the order denying the motion to dismiss the complaint.

AFFIRMED in part; DISMISSED in part.

THOMPSON and MONACO, JJ., concur.


text:
    Robert A. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-70.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2007.
    Robert A. Robinson, Bonifay, pro se.
    Bill McCollum Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the order denying his Florida Rule of Criminal Procedure 3.800(a) motion in connection with his conviction for capital sexual battery. We reject Appellant’s challenge, except in one respect. We agree with Appellant that, based on the law applicable to his case, he is eligible for parole on the capital sexual battery conviction after serving a minimum mandatory twenty-five-year term. See Duffy v. State, 874 So.2d 1242 (Fla. 2d DCA 2004).

Among other things, Appellant was convicted of sexual battery on a person under 12 years of age. The information alleged that the offense occurred on September 24, 1994. In 1994, section 775.082(1), Florida Statutes (Supp.1994), provided that a person convicted of any capital felony other than murder in the first degree or a capital felony under section 790.161, Florida Statutes, was required to be sentenced to life imprisonment, but was eligible for parole after serving twenty-five years. This legislative enactment took effect on May 25, 1994. Section 775.082(1) was amended, effective October 1, 1995, to state that a person convicted of a capital felony shall be punished either by death or life imprisonment without parole. The 1994 version applies to Appellant.

Appellant alleged in ground one of his rule 3.800(a) motion that he was improperly sentenced to life without parole. The trial court denied relief on this ground by stating that it was raised in a previous rule 3.800(a) motion. As the State concedes, a review of the court’s ruling fails to demonstrate that the court ruled on the precise issue raised by Appellant.

As the trial court has not conclusively refuted Appellant’s claim, the State requests that the case be remanded for additional review by the trial court. On remand, the lower court can either attach the written sentence showing that Appellant did receive a life sentence with a minimum mandatory twenty-five-year term, or the trial court may correct the sentence to include the minimum mandatory provision.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SAWAYA, MONACO and TORPY, JJ., concur.

      . Capital sexual battery is not a capital felony under section 790.161.

      . Ch. 94-228, § 1, Laws of Fla.

      .Ch. 95-294, § 4, Laws of Fla.


author: DAVIS, Judge.

text:
    FIRST AMERICAN HOLDINGS, INC., a Florida corporation; and First American Banking Corporation, Appellants, v. PRECLUDE, INC., a Florida corporation; and Arnold, Matheny & Eagan, P.A., Appellees.
    No. 2D06-317.
    District Court of Appeal of Florida, Second District.
    May 11, 2007.

      Geoffrey Todd Hodges of G.T. Hodges, P.A., Lutz, for Appellants.
    John Calhoun Bales and Kimberly S. Mello of John Bales Attorneys, St. Peters-burg, for Appellee Arnold, Matheny & Ea-gan, P.A.
    No appearance for Appellee Preclude, Inc.
   DAVIS, Judge.

First American Holdings, Inc., and First American Banking Corporation (collectively, “the Bank”) challenge the final judgment dissolving a writ of garnishment. The issue presented here is whether an attorney who is holding a Ghent’s funds in the attorney’s trust account must, upon receipt of a writ of garnishment, stop payment on a check drawn on those funds and delivered to the payee client. While we certify the issue as a matter of great public importance, we hold that an attorney does have a duty to stop payment on such a check. Accordingly, we reverse the trial court order dissolving the writ.

These proceedings began when the Bank sought to collect on a $26,000 judgment it had obtained against Preclude, Inc. In an unrelated lawsuit, Preclude, which is represented by the law firm of Arnold, Matheny & Eagan, P.A. (“AME”), had obtained a $50,000 settlement from Greenleaf Products, Inc., which Greenleaf had agreed to pay into AME’s trust account pursuant to the terms of the settlement. The details of these lawsuits are not relevant to this action.

On June 19, 2002, the Bank served AME with a writ of garnishment seeking to collect its $26,000 judgment from the $50,000 Greenleaf settlement. However, because AME had not yet received the settlement payment from Greenleaf, AME answered that while Greenleaf was indebted to Preclude, AME did not currently hold any funds belonging to Preclude. Two days later, on June 21, 2002, AME received the proceeds of the settlement and deposited them into its trust account. On that same date, AME issued two trust account checks on those funds. One, in the amount of $26,736.24, was made payable to AME’s operating account for attorneys’ fees. The other, for the balance of the funds, was made payable to Preclude. The check to Preclude was hand delivered to the president of Preclude on that same day.

Four days later, on June 25, 2002, the Bank served a second writ of garnishment on AME, again attempting to collect on the judgment against Preclude. Once again, AME answered the writ by denying that it was in possession or control of any funds that were the property of Preclude. Upon subsequent review of the records, however, the Bank determined that as of June 25, 2002, the check issued to Preclude had not yet been presented for payment to AME’s bank. In fact, it was not presented for payment until June 28, 2002, after AME had answered the writ of garnishment denying possession of the funds.

The Bank filed this action seeking to hold AME responsible for the payment of the funds represented by the trust account check issued to Preclude, arguing that AME’s answer had not been truthful. The Bank argued that since the check had not yet cleared the bank, the funds were still in AME’s trust account at the time of the service of the second writ and that AME had a duty to issue a stop payment order for the check and to preserve the funds for the Bank’s collection. AME argued that such a duty only applied to banks and that since it was not a bank, it did not have such a duty. It further argued that since the check was in the personal possession of Preclude, AME did not have possession or control of the funds at the time that the second writ was served.

The trial court agreed with AME. Basing its ruling on Hiatt v. Edwards, 52 Ga.App. 152, 182 S.E. 634 (1935), the trial court granted AME’s motion for summary judgment and entered final judgment dissolving the second writ of garnishment. The Bank now appeals that judgment.

The Florida garnishment statute requires that upon being served with a writ of garnishment, the garnishee must serve an answer stating whether it is indebted to the defendant and what sum the garnishee “has in his or her possession or control at the time” that the writ is served. § 77.04, Fla. Stat. (2002). Additionally, the law makes the garnishee liable for any amount that it holds but fails to properly report in the answer or fails to retain for the benefit of the garnishor. § 77.06. As a general rule, funds held by an attorney in his trust account are subject to garnishment. Robert C. Matt & Co. v. Colvin, 419 So.2d 745 (Fla. 4th DCA 1982); Wilkerson v. Olcott, 212 So.2d 119 (Fla. 4th DCA 1968). However, the issue we must resolve is whether funds held in the attorney’s trust account are still considered to be in the “possession or control” of the attorney at the time the attorney receives the writ of garnishment if the attorney has previously drawn a check on those funds and has personally delivered it to his client but the client has not yet presented the check for payment.

Florida courts have determined that a bank has a duty to retain funds subject to garnishment in that situation. See Gelco Corp. v. United Nat’l Bank, 569 So.2d 502 (Fla. 3d DCA 1990). In Gelco, the Third District noted that “ ‘[a] check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment Id. at 503 (alteration in original) (quoting § 673.409(1), Fla. Stat. (1989)). The court then concluded, “The fact that a check has been written and delivered to the payee prior to service of the writ of garnishment is not a basis for relief from the writ.” Id. The court specifically rejected the argument that upon receipt of the check by the payee, the payor effectively assigned the funds still in the payor’s account pending the payment of the check. Thus, upon receipt of a writ of garnishment, a bank must place a stop payment on the account to protect the funds in the account for the benefit of the garnishor even if a check drawn on the account has already been delivered to the payee. The question we must resolve is whether an attorney is held to the same duty with regard to the funds held in the attorney’s trust account.

While the courts of several states have determined that a nonbank garnishee has no duty to stop payment on a previously delivered check that has yet to clear the garnishee’s bank, see Cent Sec. & Alarm Co. v. Mehler, 125 N.M. 438, 963 P.2d 515 (1998); Schwerdt, Grace & Niemackl v. Speedway Festivals, Inc., 7 Kan.App.2d 40, 637 P.2d 477 (1981), the only case in Florida that addresses this issue suggests that Florida does place such a duty on the nonbank garnishee, see Michael Acri Boxing Promotions, Inc. v. Miles, 758 So.2d 704 (Fla. 4th DCA 2000). Without stating any of the facts or describing the issue, the Fourth District simply affirmed the trial court’s ruling and cited three cases. One of the cases cited is Gelco, 569 So.2d 502, which deals with a bank garnishee. However, the special concurrence in Michael Acri does give some insight into the issue involved and suggests that Florida does impose a duty on a nonbank garnishee to retain funds held pending payment of outstanding checks. “This and other Florida courts apparently impose a duty on a garnishee-maker of a check that was issued in discharge of an obligation to a judgment debtor to stop payment on the check when served with a writ of garnishment.” 758 So.2d at 705 (Stone, J., concurring). The concurrence goes on to suggest that in the concurring author’s opinion, the position of the other states that does not place such a duty on the nonbank garnishee is the “better policy.” Id. The implication is that Florida does extend the duty to stop payment on checks to both bank and nonbank garnishees.

A review of the out-of-state opinions that distinguish between bank and nonbank garnishees suggests that the underlying concern is the liability of the non-bank garnishee to innocent third parties who might have accepted the check from the payee in exchange for value before service of the writ of garnishment. If the nonbank garnishee stops payment on the check, it might subject itself to liability to an innocent third party. However, the Florida garnishment law addresses this concern. Section 77.06(3) provides that the garnishee shall not be held liable to the defendant or “to any other person claiming the same or any interest therein or claiming to have sustained damage” due to the garnishee’s retention, in good faith, of the funds until the matter is properly resolved by the garnishment procedures.

Similarly, the language of section 673.409(1), Florida Statutes (2002), stating that the check does not create an assignment of the funds, supports the proposition that the garnishee maintains “possession or control” of the funds until the check is paid by the garnishee’s bank and that the nonbank garnishee must report and retain the funds once served with a writ of garnishment.

The final issue, then, is whether there is any reason to treat attorneys’ trust accounts differently from bank and non-bank garnishees, both of which are required to retain the funds for the benefit of the garnishor. AME suggests that an attorney’s trust account should be treated differently because unlike a bank, an attorney is not a neutral third party in a garnishment proceeding; rather, an attorney has a professional duty to protect his or her client’s interests, putting the attorney in a potentially precarious position if he or she stops payment on a check contrary to the client’s interests.

This argument is premised on the reasoning that since the funds held by the attorney in the trust account are, in fact, the client’s, the attorney has a fiduciary duty to pay those funds only at the direction of the client. Accordingly, retaining the funds for the benefit of the client’s creditor would violate that fiduciary duty. However, this argument leads to the erroneous conclusion that the attorney’s trust account should not be subject to garnishment. See Robert C. Malt & Co., 419 So.2d 745. To exempt trust accounts from the garnishment provisions that apply to bank and nonbank garnishees would result in allowing the client a protection in the trust account that he would not have if the funds were in his own account. The garnishment statutes do not provide for such a protection, and we decline the invitation to create the same.

Our conclusion is further supported by rule 5-1.1 of the Rules Regulating the Florida Bar, which sets forth an attorney’s obligations regarding trust account funds. Although subparagraphs (a) and (b) recognize that a client’s funds held in an attorney’s trust account are held in “trust” and direct that such funds be handled pursuant to the instruction of the client, subpara-graph (e) provides that where a third party claims an interest in the client’s funds, the attorney must promptly notify the client or third party of the receipt of such property. This requirement is consistent with our interpretation of the garnishment statute. Likewise, subsection (f) supports our decision because it directs that if a dispute arises over the ownership of the funds, the attorney is to hold the funds until the dispute is resolved. Since the garnishment statute specifically states that the execution and delivery of a check does not transfer control of the funds to the payee until the payee presents the check for payment, it is clear that an attorney maintains control of the funds in his or her trust account until presentment and, accordingly, must comply with the garnishment statute as to those funds in his or her control.

Based on our review of the statutory and decisional law, we conclude that Florida does impose on both bank and nonbank garnishees the duty to retain funds held by the garnishee even after a check on those funds has been drawn by the garnishee and delivered to the payee. Furthermore, we can conceive of no reason to create a third category for attorneys’ trust accounts. Accordingly, we conclude that the attorney garnishee has the same duty as other nonbank garnishees, even in matters related to trust accounts. We therefore reverse the trial court’s order dissolving the writ of garnishment and remand for further proceedings consistent with this opinion.

However, we recognize that this is a case of first impression that addresses a question of great importance to attorneys and their clients. As such, we certify the following question as one of great public importance:

DOES AN ATTORNEY GARNISHEE HAVE A DUTY TO ISSUE A STOP PAYMENT ORDER FOR A CHECK DRAWN ON HIS OR HER TRUST ACCOUNT AND DELIVERED TO THE PAYEE PRIOR TO THE RECEIPT OF A WRIT OF GARNISHMENT IF THE SERVICE OF THAT WRIT OCCURS PRIOR TO THE PRESENTMENT OF THAT CHECK FOR PAYMENT TO THE ATTORNEY’S BANK?

Reversed and remanded; question certified.

SILBERMAN and VILLANTI, JJ„ Concur.

      . The funds paid to AME’s operating account are not subject to this appeal.


text:
    In the Interest of D.N.H.W., a child. N.W.T. and G.S.T., Appellants, v. L.H.D. and S.W., Appellees.
    Nos. 2D06-5214, 2D06-5425.
    District Court of Appeal of Florida, Second District.
    May 11, 2007.

      Paul S. Maney of Maney, Damsker, Jones, & Kuhlman, Tampa, for Appellants.
    Lorena L. Kiely of Law Office of Lorena L. Kiely, Tampa, for Appellee L.H.D.
    No appearance for Appellee S.W.
   PER CURIAM.

N.W.T. and G.S.T., the maternal grandparents, appeal two orders of the circuit court determining that Florida has jurisdiction over the custody of their grandchild and granting custody of the child to L.H.D., the child’s mother. The grandparents argue that the circuit court did not have subject matter jurisdiction to make an initial custody determination, and we agree.

In July 2004, the grandparents, the mother, and the child — who are all residents of Alabama — came to Florida to stay in the grandparents’ vacation home. In August 2004, the mother returned to Alabama, leaving the child with the grandparents. In November 2004, the grandparents filed a petition for dependency in Pinellas County circuit court, seeking temporary custody of the child. The petition alleged that the child “currently resides with the Maternal Grandparents ... in Pinellas County, Florida” and that the child had resided with such grandparents “since his birth, both in the State of Alabama and Pinellas County, Florida.” The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) affidavit filed by the grandparents stated that the child had resided in Pinellas County from “August” to “present.” The affidavit did not list any other dates or places of residence.

Shortly thereafter, the grandparents and the mother entered into a joint stipulation agreeing to adjudication of dependency and temporary custody of the child with the grandparents and setting a case plan for the mother. The circuit court adopted the stipulation by order in December 2004. The grandparents returned to Alabama in December 2004.

On September 15, 2006, the circuit court held a hearing and orally ruled that the child should be returned to the custody of the mother. Before the trial court issued a written order reflecting its oral ruling, the grandparents filed a petition for custody of the child in an Alabama circuit court on October 5, 2006. On October 9, 2006, the Florida circuit court signed an order reflecting its oral rulings at the September 15, 2006, hearing.

On October 26, 2006, the Alabama circuit court entered an order concluding that Alabama was the home state of the child and that Florida never had subject matter jurisdiction over the custody issue. On October 27, 2006, the Alabama circuit court signed a separate order granting the grandparents temporary custody of the child until an evidentiary hearing could be held and enjoining the mother from removing the child from the care and custody of the grandparents.

On November 3, 2006, the mother filed in Florida circuit court a motion for immediate return of the child. Following a hearing, the Florida circuit court signed an order on November 9, 2006, granting the mother’s motion. The Florida circuit court ruled that Florida has continuing and exclusive subject matter jurisdiction over the custody of the child.

The grandparents appeal both the October 9, 2006, and the November 9, 2006, orders, claiming that the Florida circuit court did not have subject matter jurisdiction over the custody issue because Florida is not the child’s “home state” under section 61.514, Florida Statutes (2004).

In light of the undisputed facts of this case, the issue of whether the Florida circuit court has subject matter jurisdiction under the UCCJEA involves a question of law and is therefore subject to de novo review. See Arjona v. Torres, 941 So.2d 451, 454 (Fla. 3d DCA 2006); Sanchez v. Fernandez, 915 So.2d 192, 192 (Fla. 4th DCA 2005); see also Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) (“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.”). But see Munnerlyn v. Wingster, 825 So.2d 481, 482 (Fla. 5th DCA 2002) (“A trial court’s determination of subject matter jurisdiction is subject to an abuse of discretion standard of review.”); Birnbaum v. Birnbaum, 615 So.2d 241, 242 (Fla. 3d DCA 1993) (holding that “the trial court did not abuse its discretion or authority in concluding it was vested with subject matter jurisdiction to proceed on the issue of custody”).

“Subject matter jurisdiction — the ‘power of the trial court to deal with a class of cases to which a particular case belongs’ — is conferred upon a court by constitution or by statute.” Strommen v. Strommen, 927 So.2d 176, 179 (Fla. 2d DCA 2006) (quoting Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994)). Parties cannot agree to jurisdiction over the subject matter where none exists, and the defense of lack of subject matter jurisdiction can be raised at any time. Cunningham, 630 So.2d at 181; Strommen, 927 So.2d at 179; Ruble v. Ruble, 884 So.2d 150, 152 (Fla. 2d DCA 2004). “A trial court’s lack of subject matter jurisdiction makes its judgments void....” Strommen, 927 So.2d at 179.

Subject matter jurisdiction over child custody matters is governed by the UCCJEA. “The UCCJEA is ... a jurisdictional act which controls custody disputes.” Arjona, 941 So.2d at 454 (emphasis omitted). Section 61.514, titled “Initial child custody jurisdiction,” provides in relevant part:

(1) Except as otherwise provided in s. 61.517, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state....

“ ‘Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” § 61.503(7).

On the date the proceeding was commenced in this case, Florida was not the “home state” of the child because the child had not lived in Florida for six consecutive months. Rather, Alabama had jurisdiction to make the initial custody determination pursuant to section 61.514(1)(a) because even though the child was absent from Alabama when the petition for dependency was filed, Alabama had been the home state of the child within six months before the filing of the petition and the mother continued to live in Alabama. See § 61.514(1).(a). Because the Florida circuit court did not have jurisdiction to make an initial custody determination under section 61.514, the orders on appeal are void. See Gonzalez v. Gonzalez, 654 So.2d 257, 259 (Fla. 3d DCA 1995) (holding that portion of final judgment of dissolution of marriage awarding visitation rights with the child to the husband was void because the trial court did not have subject matter jurisdiction).

The mother argues that even if Florida did not have jurisdiction under section 61.514, Florida had jurisdiction under section 61.517, which provides for the exercise of temporary emergency jurisdiction. Section 61.517, titled “Temporary emergency jurisdiction,” provides in relevant part:

(1) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
(2) If there is no previous child custody determination that is entitled to be enforced under this part, and a child custody proceeding has not been commenced in a court of a state having jurisdiction under ss. 61.514-61.516, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under ss. 61.514-61.516. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under ss. 61.514-61.516, a child custody determination made under this section becomes a final determination if it so provides and this state becomes the home state of the child.

We agree that the Florida circuit court had temporary jurisdiction to enter the December 2004 order effectively awarding temporary custody to the grandparents under section 61.517. However, that provision did not confer to the Florida circuit court jurisdiction to make an initial custody determination under section 61.514. Any temporary child custody determinations made in this case under section 61.517 remained in effect until the October 27, 2006, order of temporary custody was obtained from the circuit court in Alabama, the state having proper jurisdiction under section 61.514. See § 61.517(2).

Accordingly, we reverse the orders on appeal and remand for entry of an order consistent with this opinion.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . Alabama’s version of the UCCJEA is essentially identical to Florida’s. See Ala.Code §§ 30-3B-201, 30-3B-102 (2004).


text:
    R.L., Father of C.F. and M.S., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D06-3691.
    District Court of Appeal of Florida, Fifth District.
    May 11, 2007.
    Peter T. Hickey, Sanford, for Appellant.
    Charles D. Peters, Department of Children and Families, Orlando, for Appellee, Department of Children and Families.
    Mercedes E. Scopetta, Orlando, for Ap-pellee, Guardian ad Litem.
   PER CURIAM.

AFFIRMED.

[T]he existence of a long-term relative placement is not the “dispositive constitutional consideration” in applying the least restrictive means test. Nor is the least restrictive means test intended to preserve the parental bonds at the cost of a child’s future. Instead, this test requires that “those measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent-child bond.” The “clear purpose” of the least restrictive means test is “reestablishment of the parent-child bond.”

A.J. v. K.A.O., 951 So.2d 30 (Fla. 5th DCA 2007) (citations omitted).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Wanza L. HARDY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2328.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2007.
    James S. Purdy, Public Defender, and Tomislav D. Golik, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Francis v. State, 808 So.2d 110, 134 (Fla.2001); Ridley v. State, 407 So.2d 1000, 1002 (Fla. 5th DCA 1981).

PLEUS, C.J., GRIFFIN and LAWSON, JJ., concur.


author: PER CURIAM. Judge FARMER.

text:
    FUNNY CIDE VENTURES, LLC., and Sackatoga Stable, Appellants, v. The MIAMI HERALD PUBLISHING CO., and Knight-Ridder, Inc., Appellees.
    No. 4D06-2347.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, for appellant.
    Sanford L. Bohrer and Scott D. Ponce of Holland & Knight, LLP., Miami, for appel-lee.
   PER CURIAM.

The elusiveness of horse racing’s Triple Crown set the stage for this appeal, in which the plaintiffs argue the trial court erred in granting summary judgment for the defendants. The amended complaint alleged that the defendants’ publication of an article that stated that the jockey had admitted having something in his hand during his ride of the horse Funny Cide in the Kentucky Derby ultimately led to significant financial losses for the plaintiffs. The trial court disagreed and granted summary judgment for the defendants. We affirm.

The plaintiffs’ horse, Funny Cide, won the Kentucky Derby in 2003. Shortly thereafter, and before the running of the Preakness, the Miami Herald falsely reported that the jockey Jose Santos admitted carrying an object in his hand during the Kentucky Derby. The article implied that he had cheated in the race by using an illegal battery-operated device. The Herald published a “correction & clarification” after being served with a statutory demand for retraction. The Herald agreed that Santos had not admitted to holding the object and apologized for the error.

Jose Santos rode Funny Cide to victory in the Preakness, winning by several lengths. But, the Triple Crown eluded the jockey and the horse when they placed third in the Belmont.

The plaintiffs, Sackatoga Stable and Funny Cide Ventures, LLC, (FCV) filed an amended complaint against the Herald for injurious falsehood and claimed damages for lost marketing and horse racing revenue because of the article. Specifically, the amended complaint alleged:

Third persons were influenced by [the Heraldj’s publications, and falsely made to believe that Sackatoga [and FCV] conducted its horse racing business unlawfully. Consequently, Sackatoga [and FCV] suffered in its business relationships, and the value of the Funny Cide brand was diminished by [the Herald]’s publications.

As discovery took place, the plaintiffs’ claim took new shape. The plaintiffs claimed that the article caused the jockey to over-ride the horse in the Preakness in an attempt to vindicate himself and the horse, used up too much of the horse’s strength, and resulted in a third-place finish in the Belmont. In answers to interrogatories, the plaintiffs claimed their damages took the form of the loss of the winner’s purse in the Belmont and the bonus for the Triple Crown.

The defendant filed a motion for summary judgment on multiple grounds. One basis for the motion was that the claim was not legally supportable because the defendants did not cause the damages. The trial court granted the motion and entered summary judgment.

We review summary judgments de novo. L’Etoile Homeowners Ass’n. v. Fresolone, 940 So.2d 1170, 1170 (Fla. 4th DCA 2006).

The plaintiffs alleged the tort of injurious falsehood. In such actions, the pecuniary loss recoverable is “restricted to that which results directly and immediately from the falsehood’s effect on the conduct of third persons and the expenses incurred to counteract the publication.” Bothmann v. Harrington, 458 So.2d 1163, 1170 (Fla. 3d DCA 1984). This requires the damages to “have been foreseeable and normal consequences of the alleged wrongful conduct, and the conduct must be a substantial factor in bringing about the losses.” Id.

Here, despite the novelty and creativity of the allegations, it cannot be said that the loss of the Belmont and the Triple Crown was a direct and immediate result of the Herald article. Simply put, it was not legally foreseeable that the article would cause the jockey to over-ride the horse in the Preakness, sapping the horse of its strength, and resulting in a third-place finish in the Belmont. Those damages are too tenuous and this claim cannot be countenanced in the law. We agree that the trial court correctly entered summary judgment for the defendants.

Affirmed.

STONE and MAY, JJ., concur.

Opinion by

Judge FARMER.

I. Foreword

Once there was a maverick law Professor who denounced all legal writing. He said there were two things wrong with it: its content and its style. This was more than 70 years ago.

Judicial writing is still a prominent form of legal writing. Most of it is dreary and tedious. As he said, opinions are filled with “long, vague and fuzzy words.” Another critic has described them as “wordy, unclear, pompous, and dull.” Their style comes from the law reviews, the very one the maverick professor found ponderous and obscure.

A surprising number are way too long. There is often a painstaking account of background and trial which turns out to be unnecessary to grasp the essential issues to be decided. Many have extended discussions of rules and principles no one really challenges, or few would dispute. Judges pile on needless details of date, time and place, modified by confusing identifying terms (appellant-cross appel-lee-defendant) without regard to clarity. Extended comparative quotations alternate with exposition of one sort or another. Legal issues are analyzed through mind-numbing, many-factored “tests”. Each factor is unloaded nit by nit, as though the judges actually decided the dispute in precisely that way. Arcane legal terminology is woven in and out, even though simpler, plainer words could be used. Simplicity, tone, style, voice, personality, levity — all are shunned.

I admit that I too have made a generous contribution to this legal ennui all by myself. I can hardly deny my contributions — as this (with its footnotes) attests. My worst offenses came, I hope, when I was newer to this game. But now I wish to make a good act of contrition, do some penance, and offer an explanation for the opinion I prepared for the court in this case.

From the very moment of my appointment as a judge, I have chafed under this norm for appellate opinion writing. How did it become conventional? Who made it required? Why hasn’t it been changed?

I struggled against it. There must be other styles, different tones, alternate voices. Not for every opinion. But for some.

One technique occurred to me. This idea would have an opinion in some of the forms, styles and characteristics associated with fiction. Good fiction is set in human experience. Good fiction illuminates. Fiction’s style may yield questions, but the right questions can lead to discovery of truth.

A judge would use this style with restraint and propriety (of course). But in some cases such a style could be better suited to explain an outcome. A light fictional tone could express not ridicule but the heavy strain on logic or principle raised by some contentions in some contexts. In fact, this very case seemed appropriate to convey the essential idea. Although the argument is not frivolous, a lighter, story-like tone could better reveal the reasoning behind the result. This style would portray the inherent defect in the argument and in the process make legal reasoning vivid, law’s result apt.

One prominent judge separates opinion writing into a “pure” form and an “impure” form. The former is the traditional version and the latter an occasional nonconformist form. He explained:

“The pure style is an anodyne for thought. The impure style forces — well, invites — the writer to dig below the verbal surface of the doctrines that he is interpreting and applying. What he may find is merely his own emotions .... But if the judge is lucky, he may find, when he digs beneath the verbal surface of legal doctrine, the deep springs of the law.”

It is not that one style is best. The judge chooses the one or the other because:

“If you are the kind of judge who thinks that the considerations that bear on a judicial decision range far beyond the canonical materials of formalist legal thought — if you think that values (not just “feelings”), history, and policy are legitimate considerations — you will find the ‘pure’ style confining because it is not designed for the expression of those considerations. To the impure poet, ‘nothing that is available in human experience is to be legislated out of poetry.’ Substitute ‘law’ for ‘poetry’ and we have the credo of the ‘impure’ judicial stylist.”

In my view nothing that is available in human experience ought to be banned by convention in judicial opinion writing.

I should state publicly my own resolution, made several months ago. I had decided that the style of some opinions could — and should — be unconventionally changed for greater openness to all readers. I would try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees. Then came this case.

When the panel conferred after oral argument, I did not detect any disagreement. "While there was — how shall I say this? — an engaging air about a Derby-Preakness winner contending that a newspaper article caused the horse to lose the Belmont and the Triple Crown, even still there was yet within a serious aspect. The opinion had to show that the false bravado behind the certainty of the ten-dollar window is not enough legally to make damages probable. So after thinking on the matter, I conceived of an unconventional approach. I would try a style, a tone, a voice to make apparent even to non-lawyers what I believed is the basic defect in their argument. The very style of the opinion itself would illuminate the legal analysis and outcome.

As it turns out, the other two members of the panel could not endorse the opinion or even some slightly altered version. They had concerns. Some other judges shared them. So I give this explanation for what I wrote, laying my version along side the panel’s substitute. Readers can compare a conventional opinion with an unconventional style — the pious with the impious.

II. Opinion

[Heading ]

The Backstretch

The horse won the Kentucky Derby. Decisively. Tenth fastest time in Derby history. First jewel in the Crown.

Sure, there was some racket in the press afterwards. The Miami newspaper said it saw something in the jockey’s hand, some illegal electric thing, maybe to spark the horse. Turns out the paper was seeing a fantasy in a shadow and retracted the story. But the noise had already begun. Are we looking at a Triple Crown horse?

Then the horse won the Preakness Stakes. And it’s not even close. Wins by nearly ten lengths. The horse is so far out front, looks like he could make it past the wire and into the barn before they can take the photo. Hardly anyone asked if the horse ran out of gas for the Belmont. Are you kidding? Racing was all stirred up about the Crown. The feedbox noise grew hot.

Was it a dream, or did I hear stories about a guy who read in the paper the horse wins it all by a half? About another guy who said it was no bum steer, it was from a handicapper that’s real sincere? Even about a third guy who knew this is the horse’s time because his father’s jockey’s brother’s a friend?

Whatever. It’s a lock. Two jewels for the Crown. Make room for the third.

Only, wait a minute. Did I hear another story about this one guy who wasn’t so sure? Said it all depends if it rained last night?

Anyway for the rest it’s money in the bank. Everyone makes the horse the winner, so why worry about the race?

The horse did not win the Belmont Stakes. Yeah, he finished in the money, best he could do was show. Third place brings some money but not like a win. And it definitely doesn’t make the Crown. The guys in the stories were wrong.

Except maybe the one. It was a sloppy track. You sure it didn’t rain last night?

Anyhow the horse sues the paper. Says the false report in the Miami paper damaged him. Paper says name your damages. Allow me to clarify, says he. Belmont purse is $1 million. Collaterals bring another $5 million. So I’m out $6 million.

But the steward in the court saw an illegal substance in the damages and disqualified them. The horse now wants the judges to let him back in.

The judges think it rained last night.

The Finish Line

This background is admittedly not your standard law talk — certainly not a conventional statement of background for a legal opinion. It might even be thought distorted humor rather than the good side of the opinion. But it is meant to set the stage for a serious legal issue.

The trial judge decides what proof goes to the jury, and the jury decides the damages. No argument about that. But his damages have to be reasonably possible, no matter how certain the horse is about his loss. And the proof must allow the jury to find the loss probable, even if not certain. The judge’s role is to figure out what evidence of the possible could also be probable.

According to someone, it’s possible to trace every happening on earth back to something else. Like, for want of a nail the kingdom was lost. But that is not so with damages, which must be “proximate” to the wrong. The question is how close must they be? How proximate to get the loss to the jury? Between the merely possible and the possibly probable, when does evidence become too uncertain? Can the horse get there just by insisting that even damages depending on many variables are virtually certain? That’s the general question.

And then there’s the particular tort in this case. In an action for injurious falsehood, disparagement damages are “restricted to that which results directly and immediately from the falsehood’s effect on the conduct of third persons.... ” Bothmann v. Harrington, 458 So.2d 1163, 1170 (Fla. 3d DCA 1984); see also Restatement (Second) of Torts, § 633 (1967). Defendant’s wrongful act “must be the legal cause of the claimed pecuniary losses.” 458 So.2d at 1170. The damages must be the “foreseeable and normal consequences [e.s.] of the alleged wrongful conduct, and the conduct must be a substantial factor in bringing about the losses.” Id.; see also Jacksonville v. Raulerson, 415 So.2d 1303, 1305 (Fla. 1st DCA 1982) (legal cause exists only where injuries are the reasonably foreseeable result of the wrongful act).

An essential element of injurious falsehood is that it caused the victim special damages. See Donald M. Paterson Inc. v. Bonda, 425 So.2d 206, 208 (Fla. 4th DCA 1983) (failure to produce evidence of any damage); and Continental Dev. Corp. of Fla. v. Duval Title & Abstract Co., 356 So.2d 925, 927 (Fla. 2d DCA 1978) (actionable injurious falsehood must cause actual or special damage). The victim’s proof must eliminate the possibility that a loss of a future expectation can be explained by other factors. See generally Restatement (Second) of Toets, § 633(1)(a), Reporters Note (1967). Consequently, whatever may be the line for proximate damages in tort actions legally, for this cause of action the horse must plead and prove special damages that — after eliminating all other causes for his claimed loss of an expectation — are directly and immediately caused by the falsehood.

The horse’s theory of damages goes like this. The false Miami Herald article about the Kentucky Derby win insulted the integrity of the jockey. Feeling wronged, jockey overcompensates in the Preakness. Right out of the gate he uses the whip on the horse all the way to the wire in spite of a big lead. So at Belmont — and we got this from the horse’s mouthpiece — the horse had already spent all his reserves and had nothing left to win the Triple Crown. As a result of the disparagement, he lost the money a Belmont win would have brought.

Readers will grasp the crucial implication buried deep inside this damages scenario. If the disparagement is what caused the horse to lose the Belmont, then the horse must have been sure to win the race without it. Does the evidence bear out this implication?

No, because the horse’s theory doesn’t eliminate other factors. Nothing shows that the article was likely a substantial factor at Belmont. To the contrary, the Herald countered with evidence of written statements from the horse’s own jockey and managing partner not long after the race. They wrote then that the loss came from a muddy track at Belmont, and the horse spent too much energy before entering the gate. So what makes a win at Belmont inevitable? Are they saying all winners of both the Derby and Preakness go on to win the Belmont?

With his accustomed candor, the horse’s able appellate counsel conceded there are far more Triple Crown losers than winners. In fact history shows it’s two-to-one against. If it were otherwise, the possibility of a Triple Crown would not ignite such excitement. And needless to say, the Damon Runyon stories and the Frank Loes-ser lyrics would lose their most vital element. Runyon, who understood such things, was known to say that “all life is six-to-five against,” making a loss probable in most anything but also making winning just close enough to be tantalizing. All life — we are led to believe — includes horse racing. And as Sky Masterson repeated from the “Good Book”: “the race is not to the swift ... but time and chance happen to them all.”

The writings of both the owner and the jockey show they believed that a sloppy track was the substantial factor in the loss at Belmont, rather than the jockey’s ride in the Preakness. The horse may even have exhausted too much energy at Belmont before the start of the race. He did delay in getting out of the gate. The prospect of a win is touched by so many variables it’s just naturally in doubt. Without some sign of evidence disposing of other causes for his loss at Belmont, the horse is stuck with the variables.

These other, more direct, immediate and normal causes persisting, we need not labor in this case to cast for all time where damages become too speculative for trial. Here it is enough for us to say the theory behind the loss of a Belmont win may be this side of possible but it is a long way from being directly and immediately caused by the Herald’s articles, or from being the foreseeable and normal consequences of disparagement.

Damages must fit snugly in the context. The context is there is no certainty in horse racing. The horse has to win the race. In competition you have to play and win. No one is certain to win today simply because he won before. A win yesterday doesn’t promise another today or tomorrow. If it did, there would be many more Triple Crowns; more pennants for the Boston Red Sox; San Diego would be last year’s Super Bowl champ; Florida State would be the ACC football champ; and the former Soviet Union would have the gold medal in hockey from the 1980 Olympics.

The decision has to beAffirmed.

Shame it rained last night.

      . Fred Rodell, Goodbye to Law Reviews, 23 Va. L.Rev. 38, 38 (1936). He is also rumored to have disdained the title of Professor, ruefully explaining that he never played piano in vaudeville or a bawdy house.

      . David Mellinkoff, The Language Of The Law 24 (1963).

      . Richard A. Posner, Judges’ Writing Styles (And Do They Matter?), 62 U. Chi. L.Rev. 1421 (1995) (referring to Pure and Impure Poetry, in Robert Penn Warren, Selected Essays at 26 (Random House 1958).

        Pure and impure are his replacements for the slightly invidious terms high and low. If I were writing Judge Posner’s piece, I might have used my religious metaphor (contrition and penance) to suggest the terms pious (describing the authorized style) and impious (describing the "reformed” style).

      . 62 U. Chi. L.Rev. at 1447.

      . 62 U. Chi. L.Rev. at 1448.

      . Is there still a two-dollar window?

      .Does all this sound like it came from a newspaper guy who wrote a book and a songwriter who put it to words and music? Yeah, I know. Book’s by Damon Runyon. Songwriter's name is Frank Loesser; music is Fugue for Tinhorns; play is Guys and Dolls. You could look it all up.

      . See n. 8.

      . He's a gelding — no breeding rights. A win would have made a nice nest egg.

      . Maybe the owners of the horse will understand this.

      . The history is striking. Since 1919, only eleven horses have won all three races: Sir Barton (1919), Gallant Fox (1930), Omaha (1935), War Admiral (1937), Whirlaway (1941), Count Fleet (1943), Assault (1946), Citation (1948), Secretariat (1973), Seattle Slew (1977), and Affirmed (1978). Twenty horses have won the Kentucky Derby and the Preakness Stakes but failed in the Belmont Stakes: Burgoo King (1932), Bold Venture (1936), Pensive (1944), Tim Tam (1958), Carry Back (1961), Northern Dancer (1964), Kauai King (1966), Forward Pass (1968), Majestic Prince (1969), Canonero II (1971), Spectacular Bid (1979), Pleasant Colony (1981), Alysheba (1987), Sunday Silence (1989), Silver Charm (1997), Real Quiet (1998), Charismatic (1999), War Emblem (2002), Funny Cide (2003), and Smarty Jones (2004). See www.thetriplecrown challenge.com.

      . Introduction by William Kennedy, Guys AND DOLLS: The STORIES OF DAMON RUNYON, XIV (Penguin Group 1992).

      . Ecclesiastes. 9:11.

      . No reference of course to the last Triple Crown winner, Affirmed (1978).


author: PER CURIAM. WARNER, J.,

text:
    STATE of Florida, Appellant, v. David FONTAINE, Appellee.
    No. 4D05-3772.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellant.
    William B. Richbourg, Pensacola, for ap-pellee.
   PER CURIAM.

The state appeals a downward departure sentence for appellant’s conviction for aggravated child abuse. The trial court departed on two grounds. As competent substantial evidence supported the trial court’s finding that the capacity of the defendant to appreciate the criminal nature of his conduct or to conform to the requirements of law was substantially impaired at the time of the offense, we affirm.

Appellant, David Fontaine, pled guilty to aggravated child abuse for beating his fi-aneée’s nine-year-old son. During the course of disciplining the child, Fontaine struck him repeatedly with a belt, causing welts and bruises all over his body. Fon-taine filed a motion for downward departure from the lowest permissible sentence under the criminal punishment code, and the court held an evidentiary hearing on the grounds for departure.

At the evidentiary hearing, Fontaine’s fiancée, with whom he had a child, testified that his behavior changed after he had been in a serious accident and was given a substantial amount of drugs. She described him as very depressed. Fontaine’s mother testified similarly and noted that the more medications he took, the angrier he got.

Fontaine himself testified and explained that after the accident he went through multiple surgeries. Between his depression and “the pain and the anger from the oxycontin, I was not myself.” He said that he was still depressed, and he felt that the incident of child abuse occurred due to his problems with depression, pain, and the side effects of oxycontin. He had a lot of anger and hostility. Moreover, he did not remember the entire incident. Shortly after the incident, he changed doctors and was taken off several of his medications. After he was released from jail, he signed up for anger management classes. Trying to explain his behavior, he said, “It wasn’t me; I exploded. I didn’t do it on purpose.” He expressed extreme remorse.

The trial court decided to downward depart based upon its conclusion that the offense was an isolated incident for which Fontaine showed remorse. The court also found that Fontaine’s capacity to appreciate the criminal nature of his conduct or to conform that to the requirements of law was substantially impaired at the time of the offense. The court placed him on probation for five years. The state appeals the downward departure.

A trial court uses a two-step inquiry when deciding whether to depart from the sentencing guidelines. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). First, the trial court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it. Id. Legal grounds are set forth in case law and statute, and facts supporting the grounds must be proven at trial by a preponderance of the evidence. Id. The burden of proof lies with the defendant. State v. Silver, 723 So.2d 381, 383 (Fla. 4th DCA 1998). This is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling. Banks, 732 So.2d at 1067. Second, the trial court further must determine whether it should depart, i.e., the court weighs the totality of the circumstances to determine whether departure is the best sentencing option for the defendant in the pending case. Id. at 1068. This second aspect of the decision to depart is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion. Id.

The state contests the trial court’s findings on both reasons for departure. Fon-taine abandons any argument in support of the trial court’s first ground for departure, but contends that competent substantial evidence supports the departure on the second ground. We need not address the first ground because the second ground is dispositive.

Section 921.0026(2)(c), Florida Statutes, provides that a downward departure is permitted if “[t]he capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired.” The trial court applied a valid basis for downward departure. The record contains factual support for this ground. As a result of a serious accident and multiple surgeries, Fontaine was on multiple medications, including ox-ycontin. 'His fiancée testified that his doctor did not properly dose-reduce medications when changing them. Both because of the accident and the medications, he had significant pain, depression, and anger. Fontaine did not remember much of the incident which occurred in a fit of anger while Fontaine was disciplining the child. Such an incident had never occurred before and shocked his fiancée. After the incident, he stopped taking oxy-contin and several other medications.

This evidence could lead to the conclusion that Fontaine’s capacity to appreciate the criminal nature of his conduct in striking the child while disciplining him was substantially impaired because of the effects of the various medications he was taking, his pain, and his depression. While the case is close, and some of the evidence was conflicting, the trial court as finder of fact had evidence from which to draw its conclusion. Thus, the first step of the inquiry is met.

As to the second step of the inquiry, the trial court exercised its sound discretion in departing, and we find no abuse of that discretion.

For these reasons, we affirm the downward departure sentence imposed by the court.

STEVENSON, C.J., and TAYLOR, J., concur.

WARNER, J., concurs specially.

WARNER, J.,

concurring specially.

I concur in the majority opinion, but I would also affirm the trial court’s finding that this offense was committed in an unsophisticated manner, and was an isolated incident for which Fontaine showed remorse. See § 921.0026(2)(j), Fla. Stat. (downward departure permissible where “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.”). All three elements must be met before the trial court may depart under this factor. State v. Cooper, 889 So.2d 119, 119 (Fla. 4th DCA 2004); Staffney v. State, 826 So.2d 509, 511-12 (Fla. 4th DCA 2002).

Fontaine abandoned that argument because of case law which suggested to him that a finding that a crime was an isolated incident could not stand where a defendant had any prior criminal history. In State v. Deleon, 867 So.2d 636, 637 (Fla. 5th DCA 2004), the court determined that the defendant’s offense “could not have been characterized as isolated because his score sheet reflected previous offenses including four third-degree felonies, one second-degree felony and various misdemeanors.” Similarly, in State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005), the court said, “A defendant’s extensive prior criminal record precludes a showing that an offense was ‘an isolated incident.’” (emphasis added). See also State v. McGriff, 698 So.2d 331, 332 (Fla. 2d DCA 1997).

Here, Fontaine committed two misdemeanors (larceny and reckless driving) ten years earlier. That was his only criminal record. Having only two misdemeanor convictions ten years before the current offense does not prevent a finding that this offense is an isolated incident. This incident is an isolated incident, and no prior case law suggests to the contrary. Whether an incident is isolated is an issue of fact to be determined by the trial court and will not be reversed if there is competent substantial evidence to support it.

I also conclude that competent substantial evidence supports the other two elements, namely its unsophisticated manner and appellant’s showing of remorse. Therefore I would affirm on this aspect as well.

      . In State v. Cooper, 889 So.2d 119 (Fla. 4th DCA 2004), our court cited to Deleon generally as authority for our conclusion that the trial court's finding of an "isolated” incident was not supported by the record. In a parenthetical, we incorrectly quoted from the Deleon opinion that "where defendant's scoresheet reflected previous felonies and misdemeanors, his conduct could not have been characterized as isolated." That quote does not appear in the Deleon opinion, and the quote in this concurring opinion is correct. It appears that the state and Fontaine have taken the parenthetical in Cooper to mean any prior offenses will prevent a finding that the incident is isolated. That is not the case.


text:
    Richard “Rick” RHODEN and Elizabeth Rhoden, his wife, Petitioners, v. RINKER MATERIALS OF FLORIDA, INC., a foreign corporation, and Michael A. Steward, and State Farm Mutual Automobile Insurance Company, Respondents.
    No. 1D06-4220.
    District Court of Appeal of Florida, First District.
    May 17, 2007.
    Curry G. Pajcic and Benjamin E. Richard, of Pajcic & Pajcic, P.A., Jacksonville, for Petitioners.
    Michael Mattson and Warren B. Kwav-nick, of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., for Respondent Rinker Materials of Florida, Inc.
   PER CURIAM.

We deny the petition for writ of certiorari. The order at issue was filed on July 12, 2006. The petition for writ of certiorari was filed on August 16, 2006. Accordingly, the petition was not timely filed. Fla. R.App. P. 9.130(b). Additionally, even if the order was timely filed, the petition would be denied because there is an adequate remedy on appeal. See Dunmore v. Eagle Motor Lines, 560 So.2d 1261 (Fla. 1st DCA 1990).

DENIED.

BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.