text:
    In re AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE-RULE 3.704 AND RULE 3.992.
    No. SC07-484.
    Supreme Court of Florida.
    April 19, 2007.
    O.H. Eaton, Jr., Chair, Criminal Court Steering Committee, Circuit Judge, Eighteenth Judicial Circuit, Sanford, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Criminal Court Steering Committee (Committee) has filed an emergency petition proposing amendments to the Florida Rules of Criminal Procedure to conform the rules to recent legislation. We have jurisdiction. See art. V, § 2(a), Fla. Const.

In chapter 2007-2, section 5, Laws of Florida, as part of the Anti-Murder Act, effective March 12, 2007, the Legislature amended section 921.0024(l)(b), Florida Statutes, to mandate the assessment of community sanction violation points for violations occurring on or after March 12, 2007, of probation or community control by a violent felony offender of special concern as defined in section 948.06, Florida Statutes (2006). Specifically, twelve community sanction violation points must be assessed for violations by qualifying offenders, other than violations that involve a failure to pay costs or fines or to make restitution or that include a new felony conviction. ' Twenty-four community sanction violation points must be assessed for a violation by a qualifying offender based upon a new felony conviction.

The Committee proposes amendments to rule 3.704, The Criminal Punishment Code, and having consulted with the Florida Department of Corrections, to rule 3.992, Criminal Punishment Code Score-sheets. Rule 3.704(d)(16) governs the assessment of community sanction violation points. The amendment to rule 3.704(d)(16) adds the two new alternative provisions for imposition of community sanction points as established by chapter 2007-2, section 5, Laws of Florida, for violations occurring on or after March 12, 2007. The proposed amendments to rule 3.992(a) add the two new alternative provisions to the Criminal Punishment Code Scoresheet, revise the “Effective Date” footer on the scoresheet, and include several technical changes. The proposed amendment to rule 3.992(b), the Supplemental Criminal Punishment Scoresheet, is limited to revising the “Effective Date” footer.

After considering the Committee’s pro-' posáis and reviewing the relevant legislation, we adopt the proposed amendments with minor modifications. Accordingly, we adopt rule 3.704(d)(16) and the criminal punishment code scoresheets found at rules 3.992(a) and 3.992(b), as reflected in the appendix to this opinion. New language is indicated by underscoring, and deleted language is struck through. The amendments shall become effective immediately upon release of this opinion. However, because the Court did not publish the amendments for comment prior to their adoption, interested persons shall have sixty days from the date.of this opinion in which to file comments with the Court.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 3.704 THE CRIMINAL PUNISHMENT CODE

(a)-(c) [No Change]

(d) General Rules and Definitions

(1)-(15) [No Change]

(16) Community sanction violation points occur when the offender is found to have violated a condition of:

(A) Probation;

(B) Community Control; or

(C) Pretrial intervention or diversion. .

Community sanction violation points are assessed when a community sanction violation is before the court for sentencing. Six community sanction violation points must be assessed for each violation or if the violation results from a new felony conviction, 12 community sanction violation points must be assessed. For violations occurring on or after March 12, 2007, if the community sanction violation that is not based upon a failure to pay fines, costs, or restitution is committed by a violent felony offender of special concern as defined in s. 948.06, twelve community sanction violation points must be assessed or if the violation results from a new felony conviction, 24 community sanction points must be assessed. Where there are multiple violations, points may be assessed only for each successive violation that follows a continuation of supervision, or modification or revocation of the community sanction before the court for sentencing and are not to be assessed for violation of several conditions of a single community sanction. Multiple counts of community sanction violations before the sentencing court may not be the basis for multiplying the assessment of community sanction violation points.

(17)-(28) [No Change]

Committee Notes

[No Change]

      . The proposed amendments conform the rules to chapter 2007-2, section 5, Laws of Florida (amending section 921.0024(l)(b), Florida Statutes).

      . Section 921.0024(4), Florida Statutes (2006), requires that the Department of Corrections develop and submit the revised Criminal Punishment Code Scoresheet to the Court for approval by June 15 of each year, as necessary, in consultation with the Office of the State Courts Administrator, state attorneys, and public defenders.

      . An original and nine paper copies of all comments must be filed with the Court on or before June 19, 2007, with a certificate of service verifying that a copy has been served on the Committee Chair, Honorable O.H. Eaton, Jr., Circuit Judge, Eighteenth Judicial Circuit, 101 Bush Blvd., Sanford, Florida 32773, as well as separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until July 10, 2007, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court's administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


source: Caselaw Access Project

author: PER CURIAM. QUINCE, J.,

license: Public Domain

text:
    In re AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE-FINAL ARGUMENTS.
    No. SC06-2065.
    Supreme Court of Florida.
    May 3, 2007.
    William C. Vose, Chair, The Florida Bar Criminal Procedure Rules Committee, Orlando, FL, John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
    Arthur I. Jacobs of Jacobs and Associates, P.A., Fernandina Beach, FL on behalf of the Florida Prosecuting Attorneys Association, Inc.; H. Scott Fingerhut, Miami, FL on behalf of the Florida Association of Criminal Defense Lawyers, the Florida Public Defender Association, the American Civil Liberties Union of Florida, the Wilkie D. Ferguson, Jr. Bar Association, the Florida Innocence Initiative, the Miami Chapter of the Florida Association of Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, and Gerald Kogan; the Honorable C. Richard Parker, President, Florida Public Defender Association, Public Defender, Eighth Judicial Circuit, Gainesville, FL; and Marcelino J. Huerta, III, Tampa, FL, Responding with comments.
   PER CURIAM.

The Florida Bar’s Criminal Procedure Rules Committee (Rules Committee) has filed a report proposing amendments to the Florida Rules of Criminal Procedure. The proposals are in response to a request from this Court that the Rules Committee reconsider rule amendments proposed by the Supreme Court Criminal Court Steering Committee (Steering Committee), in light of the 2006 Florida Legislature’s creation of section 918.19, Florida Statutes, in chapter 2006-96, Laws of Florida. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(f).

BACKGROUND

In a report filed on May 4, 2005, the Steering Committee proposed amending Florida Rule of Criminal Procedure 3.250, Accused as Witness, and creating Florida Rule of Criminal Procedure 3.381, Final Arguments. The Steering Committee’s proposed amendment to rule 3.250 eliminated the portion of the rule providing that “a defendant offering no testimony in his or her own behalf, except the defendant’s own, shall be entitled to the concluding argument before the jury.” That committee’s proposed new rule 3.381 addressed the order of closing arguments in criminal cases: “In all criminal prosecutions, the state shall be entitled to an opening and a concluding argument before the jury or the court sitting without a jury.” According to the Steering Committee’s proposed committee notes, “[t]he rule was proposed because the state has the burden of proof and to bring Florida practice in line with the practice in civil cases and in other jurisdictions.”

The Steering Committee’s proposed amendments were published, along with other proposals not relevant here, in the October 1, 2005, edition of The Florida Bar News. Upon consideration of both a majority and minority report of its Fast-Track Subcommittee, in a comment filed on April 25, 2006, the Rules Committee supported the Steering Committee’s proposals in concept and offered alternative language for new rule 3.381, expressly excluding the sentencing phase of a capital case from the rule and providing that the failure of the prosecutor to make a closing argument would not deprive the defendant of his right to make a closing argument or preclude the prosecutor from making a rebuttal closing argument. The minority of the Fast-Track Subcommittee opposed both rule proposals.

On May 4, 2006, the Legislature passed a law providing that in criminal trials, the State shall open and conclude closing argument. See ch. 2006-96, § 1, at 1359, Laws of Fla. (creating § 918.19, Fla. Stat. (2006)). The new legislation provides that the order of closing argument as established under the statute controls unless this Court determines that the subject is procedural and issues a substitute rule of criminal procedure. Id. The law also repealed Florida Rule of Criminal Procedure 3.250, to the extent that it is inconsistent with the act. See ch. 2006-96, § 2, at 1359, Laws of Fla.

In light of chapter 2006-96, Laws of Florida, on July 18, 2006, the Court referred the Steering Committee’s proposals to the Rules Committee for fast-track reconsideration. The Rules Committee filed a report on October 20, 2006, recommending that rule 3.250 be amended as proposed by the Steering Committee and that new rule 3.381 be created as revised by the Rules Committee. The Board of Governors of The Florida Bar rejected the Rules Committee’s proposals and adopted the minority report of the Fast Track Subcommittee of the Rules Committee that was originally filed with the Rules Committee’s comment on the Steering Committee’s proposals. The Rules Committee’s proposals were published in the November 15, 2006, edition of The Florida Bar News. The Court received a number of comments. Oral argument was held on February 15, 2007.

After reviewing the Rules Committee’s proposed amendments, considering both the majority and minority reports of the Rules Committee’s Fast Track Subcommittee and the comments received, and having heard oral argument, we adopt the proposed amendment to rule 3.250 and new rule 3.381.

DISCUSSION

Chapter 2006-96, Laws of Florida, created a new statutory provision, section 918.19, Florida Statutes, governing closing argument in criminal trials. The statute provides that in accord with the common law, the prosecuting attorney shall open the closing arguments, defendant or his or her attorney may reply, and the prosecuting attorney may reply in rebuttal. Under the version of rule 3.250 in effect when section 918.19, Florida Statutes, was enacted, however, the defense had the right to concluding closing argument if the defendant offered no evidence at trial other than his own testimony.

At common law, the rule governing closing argument in criminal cases provided that because the State carried the burden of proof, it was entitled to conduct initial and concluding closing arguments. Faulk v. State, 104 So.2d 519, 521 (Fla.1958). While Florida rejected the common law rule in 1853 when it enacted the statutory precursor to rule 3.250, see Heffron v. State, 8 Fla. 73 (Fla.1858), today the common law rule is followed in forty-seven states and the District of Columbia as well as in federal criminal trials. See Fed. R.Crim.P. 29.1.

We adopt the proposals as requested by the Rules Committee. By amending rule 3.250 and creating rule 3.381, we bring Florida procedure into accord with the procedure in the overwhelming majority of jurisdictions as well as effectuating the new legislation. We do so without reaching any of the constitutional issues raised in this proceeding. Accord Amendment to Fla. Rules of Crim. Pro. Creating Rule 3.853 (DNA Testing), 807 So.2d 633, 634 (Fla.2001) (adopting new rule 3.853 to establish procedures for postconviction DNA testing, to effectuate chapter 2001-97, section 1, Laws of Florida, creating sections 925.11 and 943.3241, Florida Statutes, without addressing constitutional issues raised).

CONCLUSION

Accordingly, we amend the Florida Rules of Criminal Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon release of this opinion.

It is so ordered.

LEWIS, C.J., and WELLS, PARIENTE, CANTERO, and BELL, JJ„ concur.

QUINCE, J., dissents with an opinion, in which ANSTEAD, J., concurs.

QUINCE, J.,

dissenting.

I would not adopt the rule proposed by The Florida Bar’s Criminal Procedure Rules Committee, but would instead maintain the rule as it presently exists. The present rule allows the defense to have opening and closing final arguments in cases where the defense calls no witnesses other than the defendant himself. I believe this is a better practice and helps to level the field in these criminal cases. Although the Legislature has enacted section 918.19, Florida Statutes (2006), to give the State the opening and closing final arguments, I believe that this is a matter of procedure and is within the jurisdiction of the Court.

ANSTEAD, J., concurs.

APPENDIX

RULE 3.250 ACCUSED AS WITNESS

In all criminal prosecutions the accused may choose to be sworn as a witness in the accused’s own behalf and shall in that case be subject to examination as other witnesses, but no accused person shall be compelled to give testimony against himself or herself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his or her own behalfT and a defendant offering no testimony-in his or her own behalf, except the defen-dasfe-own, shall be entitled to the concluding argument before the jury.

RULE 3.381 ' FINAL ARGUMENTS

In all criminal trials, excluding the sentencing phase of a capital case, at the close of all the evidence, the prosecuting attorney shall be entitled to an initial closing argument and a rebuttal closing argument before the jury or the court sitting without a jury. Failure of the prosecuting attorney to make a closing argument shall not deprive the defense of its right to make a closing argument or the prosecuting attorney’s right to then make a rebuttal argument. If the defendant does not present a closing argument, the prosecuting attorney will not be permitted a rebuttal argument.

      . Also in that report, the Steering Committee proposed an amendment to rule 3.390 (Final Instructions Before Closing Arguments), which is being considered in In re Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Criminal Procedure, the Standard Jury Instructions in Civil Cases, the Standard Jury Instructions in Criminal Cases — Implementation of Jury Innovations Committee Recommendations, No. SC05-1091 (Fla. oral argument held Feb. 14, 2007). The proposed amendment to rule 3.250 and proposed new rule 3.381 were severed from the other proposals in case No. SC05-1091 and referred to the Rules Committee.

      . See Preston v. State, 260 So.2d 501, 505 (Fla.1972); Nicole Velasco, Taking the "Sandwich” Off of the Menu: Should Florida Depart from Over 150 Years of its Criminal Procedure and Let Prosecutors Have the Last Word?, 29 Nova L.Rev. 99, 121 n. 199 (2004); § 17-8-71, Ga.Code Ann. (West 2006).


author: PER CURIAM. WELLS, J., BELL, J.,

text:
    In re REPORT AND RECOMMENDATIONS OF THE JUDICIAL COMPENSATION WORK GROUP-AMENDMENT TO THE RULES OF JUDICIAL ADMINISTRATION.
    No. SC06-1036.
    Supreme Court of Florida.
    May 17, 2007.
    Gary D. Fox, Chair, Rules of Judicial Administration Committee, Miami, FL, John F. Harkness, Jr., Executive Director and J. Craig Shaw, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Nancy S. Isenberg, President, Florida Trial Court Staff Attorneys Association, Tallahassee, FL, Stephen Krosschell, Clearwater, FL, and Cristina Bertrand, Miami, FL, Responding with comments.
   PER CURIAM.

The Judicial Compensation Work Group has submitted to the Court a proposed new Rule of Judicial Administration addressing judicial compensation. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(g)(1).

BACKGROUND

The Judicial Compensation Work Group (work group) was established by the Chief Justice of this Court in the spring of 2005 for the purpose of “improving the internal Judicial Branch processes for developing and approving proposals relating to judicial compensation and benefits, in a unified manner that effectively spans the levels of court and holistically considers the overall needs of the court system.” Judicial Comp. Work Group, Report and Recommendations 1 (2005). The work group, which consisted of fifteen judges from Florida’s district, circuit, and county courts, was directed to undertake the following tasks:

1. Evaluate the current processes employed in the Florida State Courts System to develop judicial compensation proposals;
2. Review and analyze the processes used by other court systems to develop judicial compensation proposals; and
3. Propose a decision-making protocol for implementation by the Florida State Courts System that unifies the approach to judicial compensation throughout the levels of court.

Id.

In conducting its study, the work group reviewed the following materials:

A memorandum prepared by the National Center for State Courts providing an overview of the use of compensation commissions or benchmarking processes in the various states; a summary of experiences with compensation commissions and other processes for setting judicial compensation in other states prepared by [the Florida Office of the State Courts Administrator]; the most recent National Center for State Courts survey of judicial salaries, dated October 1, 2004; and a study by the American Bar Association and Federal Bar Association on federal judicial pay, dated May 2003.

Id. at 1-2.

The work group issued its final report in August 2005 and made three recommendations: (1) the adoption of a rule of procedure setting forth the judicial branch’s policy with respect to judicial compensation; (2) the adoption of a judicial branch policy with respect to yearly across-the-board pay adjustments; and (3) the establishment of a unified committee on judicial compensation, with a specified membership:

Recommendation One:

The policy of the Judicial Branch -with respect to judicial compensation should be that each tier of the judiciary should be benchmarked against the Supreme Court justices so that the salary of a district court of appeal judge would be set at 95%, the salary of a circuit court judge should be set at 90%, and the salary of a county court judge would be set at 85% of a Supreme Court justice, respectively.
Further, the work group recommends that this policy should be established in the Rules of Judicial Administration and a recital of the policy made each year in the Judicial Branch Legislative Budget Request as a means of communicating this policy to the Legislature.

Recommendation Two:

The policy of the Judicial Branch should be that judicial officers and employees of the Branch should be included in any across-the-board pay adjustments provided each year to state employees in the Executive and Legislative branches.

Recommendation Three:

The policy of the Judicial Branch should be to establish a unified committee on judicial compensation to address judicial pay matters not covered by the policies outlined in Recommendations One and Two. Membership should include the chairs and chairs-elect of the district court, circuit court, and county court conferences; the chairs and vice chairs of the District Court of Appeal Budget Commission and the Trial Court Budget Commission; and the Chief Justice.

Id. at 2-4. The report and recommendations of the work group were approved by the Court.

The work group submitted a proposed new Rule of Judicial Administration implementing Recommendation One, and the proposed new rule was published for comment in the July 15, 2006, edition of The Florida Bar News. Comments now have been filed by several entities.

AMENDMENTS

The work group proposes adoption of a new Rule of Judicial Administration implementing Recommendation One of its report. The overarching purpose of the proposed new rule is to establish a unified position on judicial compensation that would effectively govern internal activity with respect to judicial pay, as well as external communications with the Legislature. The proposed new rule provides that the salary relationships for the various levels of state judges should be bench-marked at the annual pay of the state supreme court justices: the annual pay of a district court of appeal judge should be ninety-five percent of the annual pay of a supreme court justice; the annual pay of a circuit court judge should be ninety percent of the annual pay of a supreme court justice; and the annual pay of a county court judge should be eighty-five percent of the annual pay of a supreme court justice.

In its comment, the Florida Rules of Judicial Administration Committee (committee) notes that its members voted thirty-seven to two to offer no comment regarding the proposed rule, based on the belief that matters regarding judicial compensation are not within the scope of the committee’s function. The remaining comments are addressed below.

First, as for attorney Krosschell’s comment that the proposal violates the separation of powers doctrine, this is a matter that may be addressed in a proper ease and controversy, not in this rules case. See In re Amendments to the Fla. Evidence Code, 825 So.2d 339, 341 (Fla.2002); In re Amendments to the Fla. Evidence Code, 782 So.2d 339, 341 (Fla.2000). Second, as for the comments of both FTCSAA and the law clerks’ group that the proposed new rule should include judicial staff attorneys’ and law clerks’ salaries, we note that the work group was charged by the Chief Justice with developing a uniform protocol for addressing judicial compensation, not judicial staff compensation. It would be illogical to use the report for a purpose for which it was never intended and that was never studied or evaluated by the work group. And third, as for the comment of the law clerks’ group that the proposed new rule should provide for representation by law clerks on the judicial compensation committee discussed in Recommendation Three, we apply the same analysis — it would be illogical to use the report for a purpose for which it was never intended and that was never studied by the work group.

Based on the foregoing, we hereby adopt new Rule of Judicial Administration 2.244, Judicial Compensation, as set forth in the appendix to this opinion. We note that the pay scales set forth in this rule are intended to be flexible guidelines, not rigid rules, and we recognize that there will be times when it may be impractical to adhere to these guidelines on a strict annual basis. The new rule shall become effective immediately upon the release of this opinion. We refer the comments of FTCSAA and the law clerks’ group to the Trial Court Budget Commission, and the District Court of Appeal Budget Commission; we express no opinion on those comments.

It is so ordered.

LEWIS, C.J., and ANSTEAD, PARIENTE, and QUINCE, JJ., concur.

WELLS, J., dissents with an opinion.

BELL, J., dissents with an opinion, in which CANTERO, J., concurs.

WELLS, J.,

dissenting.

I do not believe that this is properly either a rule or an administrative order.

BELL, J.,

dissenting.

While I certainly agree with the policy set out in Recommendation One, I believe that this policy should be adopted by administrative order, not by a Rule of Judicial Administration. The current rules do not contain any such broad, general policy decisions, and we should not open the door to do so in this matter.

Recommendation One is not a court rule. A “court rule” is defined as “[a] rule of practice or procedure adopted to facilitate the uniform conduct of litigation applicable to all proceedings, all parties, and all attorneys.” Fla. R. Jud. Admin. 2.120(a) (emphasis added). Instead of setting forth a rule of practice or court procedure, Recommendation One actually “set[s] forth the official policy of the judicial branch of state government concerning ... salary.” Fla. R. Jud. Admin. 2.244 (emphasis added). Such policy decisions have historically and appropriately been accomplished by entry of an administrative order. As the Rules of Judicial Administration state, an “administrative order” is “[a] directive necessary to administer properly the court’s affairs but not inconsistent with the constitution or with court rules and administrative orders entered by the supreme court.” Fla. R. Jud. Admin. 2.120(c).

In essence, because a policy statement regarding the salary relationships of judicial officers directs the proper administration of court affairs, not the practice and procedures of our courts, I believe that Recommendation One should be adopted by administrative order issued by the Chief Justice, not by a new Rule of Judicial Administration.

CANTERO, J., concurs.

APPENDIX

Rule 2.244. JUDICIAL COMPENSATION

(a)Statement of Purpose. The purpose of this rule is to set forth the official policy of the judicial branch of state government concerning the appropriate salary relationships between justices and judges at the various levels of the state courts system. Although ultimate discretion in establishing judicial compensation is vested in the Florida Legislature, the salary relationships referenced in this rule reflect the policy of the judicial branch when requesting adjustments to judicial salaries.

(b) District Court of Appeal. The annual- salary of a district court of appeal judge should be equal to 95 percent of the annual salary of a supreme court justice.

(c) Circuit Court. The annual salary of a circuit court judge should be equal to 90 percent of the annual salary of a supreme court justice.

(d) County Court. The annual salary of a county court judge should be equal to 85 percent of the annual salary of a supreme court justice.

      . Comments have been filed by the following entities: the Florida Rules of Judicial Administration Committee; the Florida Trial Court Staff Attorneys Association (FTCSAA); a group of sixteen judicial law clerks; and attorney Stephen Krosschell.

      . See Fla. R. Jud. Admin. 2.230(b)(10) ("The Trial Court Budget Commission is charged with specific responsibility to ... recommend to the supreme court legislative pay plan issues for trial court personnel.”).

      . See Fla. R. Jud. Admin. 2.235(b)(10) ("The District Court of Appeal Budget Commission is charged with specific responsibility to ... recommend to the supreme court legislative play plan issues for district court personnel.”).


author: GREEN, J.

text:
    Danny ADAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2042.
    District Court of Appeal of Florida, Third District.
    Dec. 21, 2006.
    Rehearing and Rehearing En Banc Denied May 24, 2007.
    Bennett H. Brummer, Public Defender, and Valerie Jones, Assistant Public Defender.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before GREEN and SHEPHERD, JJ„ and SCHWARTZ, Senior Judge.
   GREEN, J.

The defendant, Danny Adams, appeals from the denial of his rule 3.850 motion for post-conviction relief. We treat this appeal as a petition for common law habeas corpus, and grant the same.

Facts:

In 1989 Danny was charged with second degree murder. Upon defense counsel’s motion, the trial court ordered a psychological evaluation to determine whether Danny was competent to stand trial.

Competency Evaluation

The evaluation revealed that, possibly due to head trauma, Danny suffered from organic brain damage. He left school in the ninth grade, functionally illiterate, to go to work. Thereafter, he had trouble holding down a job because he often got lost on his way to work.

At age twenty-six (five years before the charged offense), Danny was diagnosed with schizophrenia. He was determined to be mentally disabled and received SSI disability payments, as well as psychiatric treatment and psychotropic medication.

The court appointed doctors found that Danny had an IQ of 47, and that he had “very little social awareness,” “limited” judgment and “memory defects.” Danny was found to be “oriented to place and person” but not to time. His memory was found to be “impaired for immediate, recent, and remote events.” On March 7, 1990, the trial court declared Danny incompetent to stand trial, and remanded him to the custody of HRS.

The Plea

Over a year later, the parties stipulated to Danny’s competence, and entered into a negotiated plea agreement which took his severe intellectual and mental deficits into account. This agreement required Danny to plead no contest to second degree murder, in exchange for a sentence of twelve years in prison, with drug treatment and credit for time served, followed by ten years probation. A special condition of probation was that upon release from prison Danny would undergo a psychological evaluation and if required would receive follow-up treatment.

Another negotiated special condition of Danny’s probation, was that because of his severe deficits, Danny’s penal exposure, in the event of a “technical” violation of probation, would be capped at seventeen years in prison, with credit for the twelve years already served. In that regard, the following discussion took place at Danny’s sentencing:

[DEFENSE COUNSEL]: As a further provision to the probation, that in the event there’s a violation of probation Mr. Adams maximum exposure is 12 years. I am sorry, 17 years giving him credit for the 12 years which he will have received in the event of violation.
[THE STATE]: That, of course, does not contemplate obviously it he commits another homicide not only is his exposure on probation violation, but I would agree it would be 17 years.
THE COURT: Does that mean for any except homicide?
[THE STATE]: No, for a probation violation. If he commits another crime, he needs to understand that...
Now, there is also a provision on the record that if you violate your probation once you are released for any reasons other than the commission of additional criminal offenses, that there would be a 17-year cap on the violation. So that is the limit and I will accept that and that is part of the plea negotiation...
THE COURT: ... I want it to be clear. If the defendant commits another crime while he is on probation, then the 17-year cap would apply, but I don’t anticipate Mr. Adams will be in any more trouble.
[DEFENSE COUNSEL]: The cap, the 17-year cap is the cap for any probation violation? Obviously, it is not a cap for a separate sentence should he commit another crime? Is that what the court intended?
THE COURT: If you want me to correct that, I will.
[DEFENSE COUNSEL]: Yes, I would like you to correct it.
THE COURT: The cap in the Danny Adams case, 17 years is the cap for any sentence in any probation violation that may arise.

Thereafter, the trial court accepted Danny’s plea of no contest, and he was sentenced according to the terms of the plea agreement. The special condition containing the sentencing cap for a technical violation was not memorialized in the original order of probation.

Violation of Probation

In 1996, after his release from prison, Danny was charged with violating his probation by testing positive for using illegal drugs. This matter came up before a different judge, prosecutor and assistant public defender, none of whom were aware of his original plea agreement and its special conditions. This lack of awareness is best illustrated by the following discussion:

THE COURT: I see from the reports there was a dual diagnosis. Does he have a history of psychological problems, if you recall?
PUBLIC DEFENDER: I don’t recall.
THE STATE: He was originally found incompetent for a period of time. That’s why the plea was as it was. He was sentenced — in looking at the report, there were some cases before where they felt he may have had some minimal brain injury.
The doctors who evaluated him did not believe there was any major mental illness of any kind. They recommended solely drug treatment placement.

Based on this “information” the trial court sentenced Danny to one-year community control followed by “ten years probation, special condition nine months residential treatment at Spectrum followed by three months aftercare, continued outpatient treatment, with random urine testing”. No psychological evaluation was requested, performed, or required.

Violation of Community Control

Predictably, following the successful completion of his residential drug treatment program, Danny was charged with violating his community control by failing to remain confined to his approved residence. At the time of his violation Danny was working twelve-hour days at a day labor pool. His community control permitted him to be out of the home on Saturdays to wash his clothes at a Laundromat from 3:00 p.m. to 6:00 p.m. The violation occurred on a Saturday when Danny’s probation officer visited his home at 6:21 p.m. and found that he was not yet there. She left immediately and therefore was not at the residence when Danny returned home ten minutes later, 30 minutes late.

At the violation hearing the community control officer testified that when she went to the home Danny was not there but his mother claimed that he had returned from the Laundromat and had left again to visit his daughter. Danny took the stand and claimed that the Laundromat was crowded and that he could not get to a drier until 5:15 p.m., so he did not get home until about 6:30 p.m. He also testified that he had called his mom to let her know that he was running late. At the conclusion of the testimony, the trial court found that Danny had violated his community control.

At sentencing, the court, the state and defense counsel all admitted to knowing very little, if anything, about Danny, the circumstances of the underlying offense, his conviction and/or sentence. Based upon the state’s recommendation the trial court sentenced Danny to life in prison for his tardiness. Specifically, the court found that:

[B]ased upon the fact this is the second violation for this case and the fact that you have violated every other time you have been given an opportunity to make your community control and violation I find you are a danger to the community and I will sentence you to life.

The revocation of probation and life sentence were affirmed by this court. Adams v. State, 714 So.2d 1018 (Fla. 3d DCA 1998).

Motion to Comet Sentence

In August 2003, Danny filed a pro se motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). He argued that the imposition of a life sentence for a technical violation of his community control (i.e., returning home thirty-minutes late) breached the original plea agreement that capped imprisonment for a technical violation at seventeen years. The court, a new judge with no familiarity with Danny or his case, concluded that the life sentence did not breach the plea agreement because the cap only applied to a technical violation of the original sentence and did not pertain to the subsequent sentence of community control. Specifically, the court found that:

At the time the Defendant entered the plea he was advised by the Court that if he committed a technical violation of his probation he. would be sentenced to no more than 17 years in prison. The defendant did commit a technical violation of his probation, and the Court honored the terms of the plea and revoked his probation and sentenced him to community control to be followed by probation. At the time of his sentencing on the probation violation, the Court did not set any sentencing caps in the event of a violation of his community control. Later, upon find that the Defendant violated his community control on August 11, 1997, the Court was no longer limited to the 17 year cap, and could lawfully sentence the Defendant to life in prison.

This appeal followed.

Habeas Corpus

As these facts illustrate, Danny is a schizophrenic with an IQ of 47. who ultimately plead to the charges against him because of the cap placed on his exposure to imprisonment. This cap was based on the parties’ and the court’s understanding that .Danny’s mental and intellectual deficits would make it difficult for him to abide by the technical requirements of his supervision. Regardless, once Danny was released from his initial imprisonment these protections somehow fell by the wayside. No one, including his own public defender, were aware of (or took into account) Danny’s limitations when he was sentenced for his technical probation violation. Clearly, the fact that the sentence for this violation was within the guidelines set at the original plea hearing was mere happenstance.

The state cavalierly claims that Danny has no recourse for his lot because we do not have the jurisdiction to entertain his claims. It argues that we cannot address the merits of Danny’s plight because he failed to file a motion to withdraw his plea at the first violation hearing. Moreover, the state suggests that the rule 3.850 motion was time barred. Although the state is technically correct, where as here, the court finds that a manifest injustice has occurred, it is the responsibility of that court to correct the injustice if it can. See Baker v. State, 878 So.2d 1236, 1246 (Fla.2004)(Anstead, C.J., specially concurring)(the writ of habeas corpus “is enshrined in our Constitution to be used as a means to correct manifest injustices and its availability for use when all other remedies have been exhausted has served our society well over many centuries. This Court will, of course, remain alert to claims of manifest injustice, as will all Florida courts.”). See also Jamason v. State, 447 So.2d 892, 895 (Fla. 4th DCA 1983)(“If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do just justice.”) (quoting Anglin v. Mayo, 88 So.2d 918, 919 (Fla.1956)). In this case, it is readily apparent that the system has failed Danny. All the participants at the original sentencing hearing carefully structured a sentence and plea agreement that took into consideration both the need for an appropriate punishment for Danny’s crime and his significant mental deficiencies.

No court, other than the original sentencing court and our court on this appeal, has been apprised of Danny’s intellectual and mental deficits. As a result, Danny is now serving a life sentence in prison for returning home one half hour later than he was supposed to when one of his documented deficiencies has been found to be a lack of temporal awareness. This is a manifest injustice which we cannot permit to stand. Accordingly, we grant the petition for habeas corpus, reverse the sentencing order and remand with directions that the lower court resentence Danny for his community control violation, taking into account his deficits, and in accordance with his original plea agreement.

Petition granted.

SCHWARTZ, Senior Judge, concurs.

SHEPHERD, J., dissents.

      . Spectrum was a residential drug treatment in Miami-Dade County.

      . Defense counsel, at oral argument, admitted that the original plea agreement and Danny's deficits were not raised on that appeal.


author: PER CURIAM.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Carlton MATTHEWS and James Wadley, Respondents.
    Nos. 3D06-3168, 3D06-3203.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 2007.
    Veronica Robinson, Chief Legal Counsel, Department of Children and Families, and Leslie Hinds St-Surin, Assistant District Legal Counsel, for petitioner.
    Bennett H. Brummer, Public Defender, and Valerie Jonas and John Eddy Morrison, Assistant Public Defenders, for respondents.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Petitions denied. See Hadi v. Cordero, 955 So.2d 17 (Fla. 3d DCA 2006).

This opinion shall take effect immediately notwithstanding the filing of any motions for rehearing.


text:
    Billy CULPEPPER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3214.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Rehearing and Rehearing En Banc Denied June 14, 2007.
    Billy Culpepper, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Parks v. State, 944 So.2d 1230 (Fla. 5th DCA, 2006).


text:
    David Charles MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2632.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    David Charles Miller, in proper person.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before GERSTEN, CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. RApp. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(D).

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

Reversed and remanded for further proceedings.


author: WELLS, J.

text:
    Beatriz L. LABBEE, Appellant, v. James B. HARRINGTON, et al., Appellees.
    No. 3D06-1516.
    District Court of Appeal of Florida, Third District.
    March 7, 2007.
    Rehearing Denied June 5, 2007.

      Knecht Knecht and Harold C. Knecht, Miami, for appellant.
    Dennis R. Haber, Palmetto Bay; Ditt-mar Hauser, Coconut Grove, for appellees.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   WELLS, J.

Beatriz L. Labbee appeals an order denying her request for an award of trial and appellate attorney’s fees under section 57.105. We affirm in part, and reverse in part.

In Labbee v. Harrington, 913 So.2d 679 (Fla. 3d DCA 2005), this court ordered the reinstatement of a default judgment which the trial court had previously set aside. At that time, we denied Ms. Labbee’s motion for appellate attorney’s fees under section 157.105. Pointing to that denial, defendant James B. Harrington argued below that our fee ruling had become the “law of the case,” requiring vacation of an earlier trial court order which had awarded section 57.105 fees for what had occurred both at the trial and at the appellate levels. This argument was correct as to the appellate fees at issue, but is not correct with regard to the fees incurred at the trial level. Without comment or conjecture on Ms. Labbee’s entitlement to section 57.105 fee award for what occurred in the trial court, we conclude that because it appears that the trial court made its decision not based on its determination of Ms. Labbee’s entitlement to the fees, but rather on Harrington’s “law of the case” argument, remand is required. We therefore reverse that portion of the order which denies entitlement to a fee award for pre-mandate services rendered in the trial court, and remand for a hearing on entitlement, and thereafter award section 57.105 fees, if appropriate.

Affirmed in part, reversed in part, and remanded.

      . Section 57,105 provides in relevant part:
      (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
      (a) Was not supported by the material facts necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts.


author: LaROSE, Judge.

text:
    SOUTHERN HERITAGE HARDWOOD FLOORING, INC., a Florida corporation, Appellant, v. SUNSTATE IMPORT EXPORT, INC., a Florida corporation, and Michael Fritz, Appellees.
    No. 2D06-5213.
    District Court of Appeal of Florida, Second District.
    March 9, 2007.
    Bernard H. Gentry and Natasha S.W. Rieger of Clark, Campbell & Mawhinney, P.A., Lakeland, for Appellant.
    Stephen M. Teplin of Ruden, McClosky, Smith, Schuster & Russell, P.A., St. Pe-tersburg, for Appellees.
   LaROSE, Judge.

Southern Heritage Hardwood Flooring, Inc., challenges the trial court’s order transferring its lawsuit against Sunstate Import Export, Inc., and Michael Fritz (collectively, Sunstate) from Polk County to Duval County. We have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(A). We affirm the transfer without discussion. See Perez v. Ferrell, 932 So.2d 388, 390-91 (Fla. 2d DCA 2006) (holding that where defendants’ venue interests conflict, plaintiff may make final venue choice, but where there is no conflict, plaintiff may not defeat individual defendant’s venue privilege). We write to address Sunstate’s contention that Southern Heritage stipulated to the venue transfer and thus waived the issue for appeal.

Our record reflects no such stipulation. Rather, Southern Heritage agreed to transfer count five only after and because the trial court, over objection, ruled that it would transfer twelve of the thirteen counts in the complaint to Duval County. The trial court offered Southern Heritage the option of severing count five for trial in Polk County. See Perez, 932 So.2d at 391 (citing James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487, 488 (Fla. 2d DCA 1970)) (explaining that section 47.021, Florida Statutes (2005), gave defendant a venue privilege and section 47.041, Florida Statutes (2005), allowed trial court to order separate trials). Faced with trying only one count in Polk County after the trial court ruled that the remaining counts would be transferred to Duval County, Southern Heritage opted not to sever count five.

Affirmed.

DAVIS and CANADY, JJ., Concur.


author: SHEPHERD, J.

text:
    LAZCAR INTERNATIONAL, INC., Appellant, v. Rene CARABALLO, Appellee.
    No. 3D05-2512.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.
    Rehearing and Rehearing En Banc Denied June 8, 2007.
    Gordon C. Watt, for appellant.
    Arnaldo Velez, Coral Gables, for appel-lee.
    Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ.
   SHEPHERD, J.

Lazcar International, Inc. (Lazcar) appeals from a trial court order granting Rene Caraballo’s motion to vacate a final default judgment. We reverse with directions to the trial court to re-instate the judgment.

The pertinent portions of the record can be related succinctly. On November 23, 2004, Lazcar filed suit against Caraballo and Orlando Lorenzo alleging open account, account stated, and unjust enrichment for non-payment of sums due for the international shipment of several horses. Lazcar alleged that Caraballo “and/or” Lorenzo were jointly and severally liable to it on each claim. On February 15, 2005, Lazcar obtained the entry of a default final judgment against Caraballo. It is undisputed that Caraballo waited at least six weeks after learning of the default judgment before moving for relief in a sworn motion to vacate default filed by him on May 4, 2005. Lazcar contends that the trial court erred as a matter of law in granting the motion due to a lack of competent substantial evidence to demonstrate that Caraballo acted with due diligence in seeking relief from the default. We agree.

For a trial court to grant a motion to set aside a default final judgment, the moving party must show three things: (1) the failure to file a responsive pleading was the result of excusable neglect; (2) the moving party has a meritorious defense; and (3) the moving party acted with due diligence in seeking relief from the default. Goodwin v. Goodwin, 559 So.2d 109, 109 (Fla. 2d DCA 1990). It has long been the law of this state, well understood by practitioners, that “swift action must be taken upon first receiving knowledge of any default.” Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329, 1330 (Fla. 4th DCA 1978). As this court has said,

[I]t would appear that [this] requirement ... is directly related to the reasons for the entry of the default in the first place — to provide for prompt disposition of legal proceedings. In essence, one might say, then, that timely action is required to avoid “defaulting” upon the opportunity to set aside a previously entered default.

Techvend v. Phoenix Network, Inc., 564 So.2d 1145, 1146 (Fla. 3d DCA 1990) (internal citations omitted). It is also well settled in this state that evidence advanced to support the due diligence prong of a motion to vacate a default must be sworn. Church of Christ Written in Heaven v. Church of Christ Written in Heaven, 947 So.2d 557, 559 (Fla. 3d DCA 2006)(pointing out that a motion to vacate default must be supported by sworn statements or affidavits); Lanza v. Allied Trucking, 930 So.2d 633, 634 (Fla. 3d DCA 2006)(affirming an order granting a defendant’s motion to vacate default where defendant “filed two affidavits to support the claims of excusable neglect and due diligence”); Roberts v. Safeway Ins. Co., 610 So.2d 700, 701 (Fla. 3d DCA 1992)(reversing an order denying a motion to vacate default judgment where defendant’s “affidavit establishes that [defendant] exercised due diligence under the circumstances”).

In this case, the only explanation offered to excuse the six-week delay found in the record is in the form of unsworn representations of counsel made at the hearing on the motion. Counsel argued that after receiving notice of the default judgment in mid-March 2005, Caraballo consulted with him “sometime in April or thereabouts.” Counsel further stated that for his own reasons, he waited another “couple of weeks,” until May 4, to complete and file the sworn motion. Unsworn argument of counsel is insufficient to satisfy the due diligence element of a motion to vacate a default final judgment. Polygram Latino U.S. v. Torres, 751 So.2d 90 (Fla. 3d DCA 1999)(ruling that the trial court abused its discretion in granting defendant’s motion to vacate default judgment “[s]ince the motion seeking relief consisted of merely unsworn to representations of counsel, unsupported by proof showing any excusable neglect, and the only evidence before the court actually refuted these representations”); see also Daughtrey v. Daughtrey, 944 So.2d 1145, 1148 (Fla. 2d DCA 2006)(“[a]s this court has previously observed, unsworn representations by counsel about factual matters do not have any evidentiary weight in the absence of a stipulation”); State v. Bauman, 425 So.2d 32, 35 n. 3 (Fla. 4th DCA 1982)(“We say again that facts are not established for consideration by the trial court or by appellate review when attorneys make representations in their arguments before the trial court. Facts are established by testimony, affidavits and stipulations. It is of no moment in establishing facts that attorneys are ‘officers of the court’ as we so often read when an unsworn representation is made.”).

Absent competent substantial evidence of some exceptional circumstance explaining the delay, Westinghouse Credit Corp., 356 So.2d at 1330, a six-week delay in filing a motion to vacate a default after receiving notice constitutes a lack of due diligence as a matter of law. See, e.g., Trinka v. Struna, 913 So.2d 626, 628 (Fla. 4th DCA 2005)(finding “[t]hat defendant’s attorney ignored his duty to act with all due diligence” where “more than a month passed between the discovery of the default and the entry of the final judgment without any attempt to vacate the default”); Fischer v. Barnett Bank of S. Fla., N.A., 511 So.2d 1087, 1088 (Fla. 3d DCA 1987)(finding a “five week delay by the defendants [in filing motion to vacate] entirely inexcusable”); Bayview Tower Condo. Ass’n v. Schweizer, 475 So.2d 982, 983 (Fla. 3d DCA 1985)(finding a delay of one month “showed a lack of due diligence in seeking relief after learning of the default and was fatal to the subject motion to vacate filed below”); see also Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300, 304 (Fla. 2d DCA 2004)(con-cluding “that the seven-week delay here was unreasonable”). Of course, here, there is no competent evidence of any circumstance, exceptional or not, explaining the delay. However, even if the unsworn argument of defense counsel at the hearing on the motion to vacate is considered, the order under review still fails. We find nothing said by defense counsel to be graspable by Caraballo as an “exceptional circumstance” to explain the delay.

Finally, we note that the reason expressed by the trial court for vacating the final default judgment was that through the use of the phrase “and/or,” Lazcar displayed insufficient certainty of pleading for the court to “legally find Caraballo had any liability whatsoever in this case.” Although a default judgment can be vacated on the ground suggested by the trial court, see Becerra v. Equity Imports, Inc., 551 So.2d 486, 488 (Fla. 3d DCA 1989)(ruling that a default judgment must be set aside where the complaint fails to state a cause of action because “[fjailure to state a cause of action, unlike formal or technical deficiencies, is a fatal pleading deficiency not curable by a default judgment”), the court erred in employing this ground in its reasoning in this case. In another era, our high court commendably denounced the use of the phrase “and/or” as “one of those inexcusable barbarisms ... sired by indolence and dam[n]ed by indifference [which] has no ... place in legal terminology.” Cochrane v. Fla. E. Coast Ry. Co., 107 Fla. 431, 145 So. 217, 218 (1932). “The coiner of it certainly had no appreciation for terse and concise English.” Id. In the end, however, the court concluded that it was “not ... reversible error” to employ the phrase in the initial pleading in a civil case, id., and that remains true to this day. Belz Investco Ltd. P’ship v. Groupo Immobiliano Cababie, S.A., 721 So.2d 787, 788-89 (Fla. 3d DCA 1998)(“Thus, although the plaintiffs allegations were arguably inconsistent, and inartistically plagued by the phrase ‘and/or,’ the complaint sufficed to survive [defendant’s] motion to dismiss for failure to state a cause of action.”). Cf. Dorsett v. McRay, 901 So.2d 225 (Fla. 3d DCA 2005)(finding that “fundamental error indeed occurred ... through the use of the ‘and/or’ conjunction” during jury instructions in a criminal case). Although we join our predecessors of that earlier day in continuing to rue the use of the phrase “and/or” by lawyers and judges in the legal profession — harboring no illusion that we will be any more successful in muffling the term than our predecessors— we find that the allegations of the complaint stated a cause of action.

Reversed and remanded with directions.

      . The suit against Lorenzo was dismissed voluntarily shortly after entry of the Default Final Judgment.


author: ROTHENBERG, Judge.

text:
    Diana PEREDA, Appellant/cross-appellee, v. Maria PARAJON, Food Service Refrigeration, Inc., and Carlos E. Linares, Appellees. Maria Parajon, Cross-appellant, v. Diana Pereda, Food Service Refrigeration, Inc., and Carlos E. Linares, Cross-appellees.
    Nos. 3D04-2832, 3D04-2975.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.
    Rehearing and Rehearing En Banc Denied June 14, 2007.

      Bernstein, Chackman & Liss and Neil Rose, Hollywood, and Y. Julia Luyster, Fort Lauderdale, for appellant/cross-'ap-pellee Diana Pereda.
    Koltun & Lazar, P.A., and Scott Lazar; Lauri Waldman Ross, P.A., and Theresa L. Girten, Miami, for appellee/cross-appellant Maria Parajon.
    Kubieki Draper, P.A., and Caryn L. Bel-lus, Miami, for appellees/cross-appellees Food Service Refrigeration, Inc. and Carlos E. Linares.
    Before GERSTEN, CORTIÑAS, and ROTHENBERG, JJ. .
   ROTHENBERG, Judge.

One of the defendants below, Diana Pereda (“Pereda”), appeals (1) a final judgment in favor of the co-defendants, Carlos E. Linares (“Linares”) and Food Service Refrigeration, Inc. (“Food Service”), based on a jury verdict of no liability on the part of Linares; and (2) the trial court’s post trial motion order (a) denying motions for new trial on the basis of juror nondisclosure; (b) denying motions for new trial based on Linares’ expert witness’ surprise trial testimony; and (c) granting an addi-tur for future pain and suffering or in the alternative a new trial on the issue of future non-economic damages in favor of the plaintiff, Maria Parajon (“Parajon” or “plaintiff’). The plaintiff, Parajon, cross-appeals both orders but does not challenge the portion of the post trial motion order granting a new trial on the issue of future non-economic damages. Because we conclude the trial court abused its discretion in denying Parajon’s motion for new trial based on a juror’s nondisclosure of her prior litigation history, we reverse and remand for a new trial on all issues.

In May 2002, Parajon, who was sitting on a bus bench waiting for a bus, was injured when Pereda swerved to avoid hitting a van driven by Linares and owned by his employer, Food Service. Linares was making a u-turn from a left turning lane which turns into a shopping center where the bus bench is located. Parajon sued both drivers and Food Service for the injuries she suffered as a result of the accident.

During voir dire of the jury, Parajon’s counsel asked the panel members the following:

Is there anybody sitting on this panel now that has ever been under the care of a physician for personal injuries, whether you had a lawsuit or not?
In other words, you may not have had any sort of lawsuit, but you slipped and fell, you got hurt, there is no claim brought, but you were under the care of a physician for personal injuries? Anybody?

Several prospective jurors responded in the affirmative, thereby allowing Parajon’s counsel to ask follow-up questions to ascertain the particulars thereof. Prospective juror Lisa Berg (“Berg”) did not respond to this inquiry. Subsequently, Parajon’s counsel asked the panel members, “Anybody on the panel that is involved — not necessarily that has been — that has accidents — have you had any accidents?” Again, Berg failed to respond to the inquiry. Parajon’s counsel additionally asked all of the potential jurors sitting in Berg’s row, “Is there anyone in this row that feels if the proper question had been asked by me, and I just did not ask the right question, you have not given a response, maybe it would help me in terms of evaluating this case? Anybody?” Berg, once again, failed to reveal that she had been involved in prior personal injury litigation. Berg was ultimately seated as a juror and selected as the foreperson.

After a four-day trial, the jury returned a verdict in favor of Parajon and against Pereda solely, finding no liability on the part of Linares, and awarding Parajon a total of $450,000.00. Subsequent to the jury verdict, Parajon’s counsel learned that Berg had previously been involved as a claimant in a personal injury case. Consequently, Parajon filed a motion to interview Berg and a motion for new trial based on Berg’s nondisclosure of her prior personal injury litigation history. Defendant Pereda joined in Parajon’s motion for new trial based on Berg’s nondisclosure. The trial court granted Parajon’s motion to interview Berg and she was subsequently interviewed.

When interviewed, Berg, a lawyer and a shareholder of a large law firm, admitted, for the first time, that she in fact had been involved in an automobile accident approximately three years prior to the accident in the instant case. Berg testified that she had been transported by ambulance to the hospital from the accident scene and that she had sustained injuries as a result of the accident. She further admitted that following her release from the hospital, she hired an attorney to represent her in making a claim for personal injuries resulting from the accident and that she had been under the care of an orthopedic surgeon for the treatment of these injuries. The claim was ultimately settled by her insurance company for $4,000.00 plus payment of her medical bills and property damage. When asked if she had any negative feelings about the settlement amount, Berg responded, “Well, I think everyone always wants more money.” The trial court, satisfied with Berg’s explanation, denied Pa-rajon’s motion for new trial based on juror nondisclosure, finding that Parajon failed to establish the materiality of Berg’s nondisclosure since the record evidence demonstrated that “there is no basis to believe that plaintiffs counsel would have used a peremptory challenge to strike Ms. Berg had he known the information she disclosed at the interview.”

We review an order granting or denying a motion for new trial based on juror nondisclosure for abuse of discretion. Palm Beach County Health Dep’t v. Wilson, 944 So.2d 428, 430 (Fla. 4th DCA 2006); State Farm, Fire & Cas. Co. v. Levine, 875 So.2d 663, 666 (Fla. 3d DCA 2004). To determine whether a juror’s nondisclosure warrants a new trial, the complaining party must show that: (1) the information is relevant and material to jury service in the case; (2) the juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party’s lack of diligence. Roberts v. Tejada, 814 So.2d 334, 339 (Fla.2002)(citing De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995)); Bernal v. Lipp, 580 So.2d 315, 316 (Fla. 3d DCA 1991). Because all three prongs were clearly established, we conclude that the trial court abused its discretion in denying Parajon’s motion for a new trial.

The first prong requires that the complaining party establish that the non-disclosed matter was relevant and that the nondisclosure was material to jury service on the case. Roberts, 814 So.2d at 339. There is no “bright line” test for materiality and thus, materiality must be based on the facts and circumstances of each case. “Nondisclosure is considered material if it is substantial and important so that if the facts were known, the [complaining party] may have been influenced to peremptorily challenge the juror from the jury.” Id. at 341. “Remoteness in time is one aspect to consider in determining the impact, if any, of a juror’s prior exposure to the legal system on his present ability to serve in a particular ease.” Id. at 342; Wilson, 944 So.2d at 430. “Other factors may include the character and extensiveness of the litigation experience, and the juror’s posture in the litigation.” Roberts, 814 So.2d at 342.

We find, in this instance, that both Para-jon’s and Pereda’s respective counsels may indeed have been influenced to challenge Berg peremptorily had the facts of her personal injury litigation history been known. Berg’s personal injury claim, although settled out of court, was not so remote in time as to not be considered material. Furthermore, Berg was a plaintiff in a personal injury matter, which the record indicates she settled out of court at the urging of her parents in order to put the matter behind her. Certainly, her involvement in this matter may have affected her point of view in the action. We, therefore, conclude that her nondisclosure, which precluded counsel’s ability to question Berg about the experience and to fairly evaluate her as a prospective juror, was material.

It is clear from the record that Berg concealed her personal injury litigation history, which is the second prong of the test. She is a lawyer and an officer of the court. It is, therefore, difficult to imagine that she did not think the questions posed by Parajon’s counsel applied to her. See De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995)(concluding that “in view of the juror’s involvement with so many lawsuits, it is difficult to believe he simply did not think the questions posed by counsel applied to him”). We need not, however, make a credibility determination because whether or not her concealment was intentional is of no import, since the courts have emphasized numerous times that, “ ‘a juror’s nondisclosure need not be intentional to constitute concealment,’ because the impact remains the same, counsel is prevented from making an informed judgment regarding the composition of the jury and the utilization of his or her peremptory challenges.” Taylor v. Magana, 911 So.2d 1263, 1268 (Fla. 4th DCA 2005)(quoting Roberts, 814 So.2d at 343-44); see also Wilson, 944 So.2d at 430.

The final part of the test, due diligence, also clearly was met by Para-jon’s counsel. “The ‘due diligence’ test requires that counsel provide a sufficient explanation of the type of information that potential jurors are being asked to disclose, particularly if it pertains to an area about which an average lay juror might not otherwise have a working understanding.” Roberts, 814 So.2d at 343. “Resolution of the ‘diligence’ issue requires a factual determination regarding whether the explanations provided by the judge and counsel regarding the kinds of responses which were sought would reasonably have been understood by the subject jurors to encompass the undisclosed information.” Wilson, 944 So.2d at 430 (quoting Roberts, 814 So.2d at 343). The record evidence demonstrates that other prospective jurors, none of whom were lawyers, clearly understood what type of information Para-jon’s counsel was asking them to disclose. It is hard to imagine that Berg, a lawyer and partner of a large law firm who admitted that her practice involves litigation, did not understand the questions being posed to her and the venire by Parajon’s counsel. Consequently, we find that Parajon’s counsel made a diligent inquiry of each of the prospective jurors regarding any involvement in personal injury litigation, whether as a party or otherwise.

Because we find that all three prongs of the test were met, we conclude that the trial court abused its discretion in failing to grant Parajon’s motion for a new trial based on juror nondisclosure and, therefore, reverse and remand for a new trial. In light of our decision to grant a new trial based on juror Berg’s nondisclosure of her personal injury litigation history, we need not and, therefore, decline to decide the other issues on appeal.

REVERSED and REMANDED.

      . The $450,000.00 damages award consisted of $146,236.71 in past medical expenses; $85,000.00 in future medical expenses; $100,000.00 in past pain and suffering; and $118,763.29 in future pain and suffering. Along with other post-trial motions, Parajon filed a motion for additur as to future pain and suffering, which the trial court granted, increasing the award of future non-economic damages to $600,000.00. Pereda, however, rejected the additur amount, thereby entitling Parajon to a new trial on future non-economic damages only.


text:
    Ben E. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2582.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.
    Rehearing and Rehearing En Banc Denied June 5, 2007.
    Ben E. Smith, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before GERSTEN, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See State v. Spella, 567 So.2d 1051 (Fla. 5th DCA 1990).


text:
    David SAWYER, Appellant, v. FLORIDA DEVELOPMENT ASSOCIATES, LTD., Appellee.
    No. 3D06-2408.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Leiby Sterns and Roberts and Ian T. Kravitz and Michael E. Stearns, Fort Lauderdale, for appellant.
    Becker & Poliakoff and Lee Weintraub, Fort Lauderdale, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

David Sawyer appeals a trial court order awarding attorney fees to Florida Development Associates based on an order entered in a prior appeal involving these same parties, which awarded appellate attorney fees to Florida Development “provided ap-pellee [Florida Development] prevails on the merits.” On the merits of that appeal, we affirmed a trial court order dismissing Sawyer’s Complaint to Stay Arbitration against him personally. Sawyer v. Fla. Dev. Assocs., Ltd., 919 So.2d 487 (Fla. 3d DCA 2005). Acknowledging that our prior order on attorney fees was susceptible arguably to two different interpretations, we conclude the award was made prematurely-

In 2004, the Florida Development Association filed a demand for arbitration against several parties, including Sawyer, pursuant to a construction subcontract entered into between Florida Development and Quality Concrete. Sawyer signed the agreement as Vice President of Quality Concrete. The contract contains a prevailing party attorney fees provision. Sawyer’s effort to extract himself personally from the arbitration proceeding failed below and on appeal to this court. Id. On motion by Florida Development, we “granted [attorneys fees to appellee Florida Development] and remanded to the trial court to fix amount provided appellee ultimately prevails on the merits.” On remand, the trial court entered a dismissal of the complaint and granted to Florida Development attorney’s fees as the prevailing party on that case before the termination of the arbitration proceeding.

We concede that our fee order was not a model of clarity. Each party read it through his own prism upon its issuance, and neither sought clarification. The order can be read either to: (1) provide fees to Florida Development after prevailing on the modest amount of judicial effort left to formally dismiss the case upon our remand; or (2) provide fees to Florida Development if it ultimately is successful in the related arbitration proceeding. The trial court’s interpretation of our order was not unreasonable. Nevertheless, we conclude the parties’ subcontract intended that fees would be shifted as required at the conclusion of the arbitration. See Marine Midland Bank Cent v. Cote, 384 So.2d 658, 659 (Fla. 5th DCA 1980)(“When a case is appealed and the appellate court acts by issuing its mandate, the trial court must follow the dictate of the mandate and should not stray from it.”). At the conclusion of the pending arbitration proceeding, Florida Development Associates may, if it is the prevailing party and it becomes necessary, enforce the fee order at issue here through a motion filed pursuant to section 682.12, Florida Statutes (2005), Florida Rule of Civil Procedure 1.525, and Florida Rule of Appellate Procedure 9.400.

Reversed and remanded with directions.


text:
    Mary ADELEKE, Appellant, v. Patrick ADELEKE, Appellee.
    No. 3D06-734.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Rehearing Denied May 17, 2007.
    Pamela A. Leone; Chandra Parker Dou-cette, Boca Raton, for appellant.
    Young, Berman, Karpf, & Gonzalez, P.A., and Andrew Berman, and George W. Wickhorst, III, North Miami Beach, for appellee.
    Before GREEN, RAMIREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


text:
    Matthew J. McKINNEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1355.
    District Court of Appeal of Florida, First District.
    April 4, 2007.
    Rehearing Denied June 15, 2007.
    Matthew J. McKinney, 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.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


text:
    Nancy RODRIGUEZ, and Fernando Rodriguez, Petitioners/Cross-Appellants, v. FERNWOODS CONDOMINIUM ASSOCIATION # 2, INC., and Miriam Diaz-Octubre, Respondents/Cross-Appellees.
    Nos. 3D06-1030, 3D06-867.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Martin A. Feigenbaum, Miami, for petitioners/cross-appellants.
    Manzini & Associates and Nicolas A. Manzini for appellee, Miriam Diaz-Octu-bre.
    Before FLETCHER, RAMIREZ, and WELLS, JJ.
   WELLS, J.

We have for review a consolidated cross-appeal and petition for writ of certiorari challenging the same post-judgment order permitting a new party to intervene following final judgment; reserving ruling on a motion to disqualify plaintiffs’ counsel; and abating collection of a final money judgment. Because the court below was without jurisdiction to enter this order, we reverse the post-judgment order and dismiss the extraordinary writ in light of this decision.

On October 4, 2004, a final money judgment was entered below against Fern-woods Condominium Association # 2, Inc. in favor of Nancy and Fernando Rodriguez. No appeal was prosecuted from that judgment.

Almost a year and a half later, in February 2006, Fernwoods filed a Florida Rule of Civil Procedure 1.540(b) motion for relief from judgment. On March 10, 2006, that motion was denied. Fernwoods moved for rehearing and filed an amended rule 1.540(b) motion. On March 21, 2006, these motions also were denied. Eight days later, on March 29, 2006, Judge Jon I. Gordon entered an order granting an ore terms motion made by Miriam Diaz-Octu-bre, a Fernwoods Condominium owner, to intervene in the action. In that same order, Judge Gordon also reserved ruling on a motion to disqualify Fernwoods’ attorney and abated further collection activity. Judge Gordon simultaneously, but in a separate order, recused himself from the case.

Fernwoods appealed from the March 21 order denying the motion for rehearing of its rule 1.540(b) motion and from the March 29 order granting intervention and abating collection. Octubre cross-appealed the March 10 order denying the rule 1.540(b) motion. The Rodriguezes cross-appealed the March 29 order permitting intervention and abating collection and also sought certiorari review of that order. We consolidated the appeal and the petition for writ of certiorari for review.

Fernwoods has now dismissed its appeals from the March 21 and March 29 orders; Octubre has also dismissed her cross-appeal from the March 10 order. This leaves pending for resolution only the Rodriguez’ cross-appeal of the March 29 order permitting Octubre to intervene and staying collection and their certiorari petition challenging the propriety of that same order. As the following eases establish, the March 29 order must be reversed: Goolsby v. State, 914 So.2d 494, 496 (Fla. 5th DCA 2005) (concluding that “any order entered simultaneously with an order of recusal ... [is] void and [has] no effect”); Barnett Bank of South Florida, N.A. v. Tarr, 557 So.2d 595, 595-96 (Fla. 4th DCA 1990) (holding that an order granted simultaneously with a recusal order is void, unless “the trial judge’s written order ... was but a reduction of an earlier adverse oral ruling made prior to the recusal”); Economic Dev. Corp. of Dade County, Inc. v. Turner, 485 So.2d 494, 494 (Fla. 3d DCA 1986) (quashing an order permitting intervention after judgment became final) (citing Dickinson v. Segal, 219 So.2d 435, 436 (Fla.1969) (stating that “the general rule— universally — is that intervention may not be allowed after final judgment”)); Mellon United Nat’l Bank v. Cochran, 776 So.2d 964, 964 (Fla. 3d DCA 2000) (confirming that a stay of a money judgment pending execution may be obtained only by posting a bond as set forth in rule 9.310(b)); as well as Florida Rule of Appellate Procedure 9.310(b)(1) (requiring posting of a bond to secure a stay of a money judgment).

Therefore, the March 29, 2006 order authorizing intervention, reserving ruling on a motion to disqualify plaintiffs’ counsel, and abating or staying collection of the final judgment in the Rodriguez’ favor is reversed. In light of this ruling, the petition for writ of certiorari is dismissed as moot and the motion for relief from stay carried with this proceeding is granted.

Reversed.

      . Because it was timely, we treat this appeal as an appeal from the March 10 order denying the rule 1.540 motion.

      . The Rodriguezes also moved for relief from stay in this court, a request apparently addressed to the same March 29 order. We have carried that motion with the consolidated appeal and certiorari proceeding.

      . We note that neither Fernwoods nor Octu-bre filed an answer brief in the pending cross-appeal from the March 29 order and although Octubre filed a response to the petition for writ of certiorari, she made no argument on the merits of the March 29 order arguing instead that the final judgment was void, an argument related only to her now dismissed cross-appeal.

      .We also view Octubre’s attempt to withdraw her motion to intervene filed in the court below while this appeal was pending as a concession that the March 29 order permitting her to intervene should be reversed.


author: LAGOA, Judge.

text:
    L.D., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D06-865.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Rehearing and Rehearing En Banc Denied June 6, 2007.

      Karl E. Hall, Jr., Miami, for appellant.
    Karla Perkins, Miami, for appellee.
    Hillary S. Kambour, Guardian Ad Li-tem.
    Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, Judge.

Appellant, L.D., the mother, appeals from a final order terminating her parental rights pursuant to sections 39.806 and 39.810, Florida Statutes (2005). L.D. argues that no competent, substantial evidence supported the trial .court’s finding that she engaged in conduct towards her child that demonstrated her continued involvement would threaten his life, well-being or physical, mental, or emotional health, irrespective of the provision of services. L.D. further argues that termination of her parental rights was not the least restrictive alternative. We agree and reverse the trial court’s termination order.

I. FACTUAL HISTORY

L.D., the mother of four children, has struggled with alcohol addiction. In 2003, L.D. left her second child (“D.D.2”) with a relative. After she failed to return, D.D.2 was brought into state care and the Department of Children and Family Services (“the Department”) issued a pick-up order for L.D.’s third child (“D.D.3”), the subject of these parental termination proceedings. L.D. brought D.D.3 to the Department on her own accord.

After a referral to drug court, L.D. entered into a consent plea regarding D.D.2, in which plea she admitted to her substance abuse problem. After completing a residential treatment program, L.D. was placed in a halfway house, the Jefferson Reaves House (“JRH”). D.D.3 was placed in L.D.’s care while she lived at JRH. While at JRH, however, and at all other times she resided in residential facilities, the Department failed to aid L.D. in finding employment and affordable housing. As a result, L.D. was required to leave JRH because she could not find employment on her own and the Department removed D.D.3 from L.D.’s custody.

Because L.D. had been unable to secure housing and employment, the Department found her non-compliant with her case plan and initiated termination proceedings. At the same time, L.D. voluntarily entered the Susan B. Anthony substance abuse treatment center. In the aftermath of Hurricane Wilma, when the center was essentially shut down, L.D. suffered a relapse. At the time of trial, L.D. had been sober four months, and her treating therapist testified that she would complete the program within six months.

II. ANALYSIS

The trial court found that L.D.’s involvement with D.D.3 threatened “the life, safety, well-being or physical, mental or emotional health of the child irrespective of the provision of services.” The record before us, however, contains no competent, substantial evidence to support such a conclusion.

Prior to terminating a parent’s rights under section 39.806(l)(c), Florida Statutes (2005), three evidentiary requirements must be met. “First, the trial court must find [that] the [child’s] life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services. ‘In essence, the trial court must find that any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent.’ ” M.H. v. Department of Children and Families, 866 So.2d 220, 222 (Fla. 1st DCA 2004). Moreover, “there must be a nexus between the conduct and the abuse, neglect, or specific harm to the child.” D.P. v. Department of Children and Family Servs., 930 So.2d 798, 801 (Fla. 3d DCA 2006). Second, the Department must show that there is no reasonable basis to believe a parent will improve. See D.P., 930 So.2d at 802; M.H., 866 So.2d at 222-23. Third, the Department must show that termination is the least restrictive means of protecting a child from serious harm. D.P., 930 So.2d at 802.

Here, the Department failed to meet any of these evidentiary requirements. With respect to the first requirement, the record contains no evidence that L.D.’s involvement with D.D.3 threatened him with harm of any kind. Significantly, there is no evidence in the record to support a nexus between the mother’s conduct of drinking alcohol and harm to the child. Although the trial court relied on a factual finding that L.D. is “a long time drug addict who does not exercise good judgment,” courts, including this one, have held that “a parent’s drug addiction, standing alone, is an insufficient ground upon which to terminate parental rights.” D.P., 930 So.2d at 802 (quoting M.H. v. Department of Children & Families, 866 So.2d 220, 222 (Fla. 1st DCA 2004)). Instead, the Department must prove by clear and convincing evidence that the child’s life, safety or health will be endangered by further contact, that improvement is exceedingly unlikely, and that termination is the least restrictive mans of protecting the child.

In this case, the Department failed to meet this exacting burden. Although L.D. suffers' from alcohol addiction, for which she is receiving treatment, there is no record evidence that she poses any risk of harm to the children at this time. L.D.’s case manager has observed her interactions with D.D.3, as well as with her other children, and testified that L.D. is a loving parent with a strong bond to her children.

The Department also failed to meet the second evidentiary requirement. Every witness testified that L.D. has a chance to improve. Despite her relapses, L.D. “immediately self-referred into another inpatient facility.” M.H., 866 So.2d at 223 (original emphasis). “This indicates [L.D.’s] strong desire to overcome her addiction and parent her children, and demonstrates a reasonable basis to believe [L.D.’s] problems could be improved, despite DCF’s utter failure to provide her with requested, necessary services.” Id.

Here, the trial court essentially fashioned a per se rule that termination is proper whenever a parent suffers a relapse while in treatment, regardless of whether it was an isolated incident. The Supreme Court, however, has strongly disapproved of per se rules in the parental rights context, instead favoring a flexible approach that analyzes the termination petition amongst the totality of the circumstances. R.F. v. Department of Children and Families, 770 So.2d 1189, 1194 (Fla.2000). In reviewing those circumstances, it is clear that a parent need not demonstrate that she is a “model parent”:

Parents have a fundamental liberty interest in determining the care and upbringing of their children free from the heavy hand of government paternalism. This liberty interest does not evaporate simply because they have not been model parents. The State of Florida does not demand perfection from its families. Rather, the State demands that children be protected from abuse and from the substantial risk of imminent abuse.

J.C. v. Department of Children and Family Servs., 937 So.2d 184, 193 (Fla. 3d DCA 2006) (Shepherd, J. dissenting) (citations and quotations omitted).

The record demonstrates L.D.’s commitment to both bettering herself and capably raising her child. The trial court, however, punished L.D. for a relapse that on this record may have merely amounted to a single drink and certainly did not result in harm to the child. L.D. has completed a parenting class, and has demonstrated her parenting skills by aiding the other parents at the Susan B. Anthony center. Moreover, the guardian ad litem, who testified that termination is proper, never met the mother or observed her interact with her children. L.D. has actively sought employment, but without the Department’s aid she has been unsuccessful. On this record, we cannot find that there exists competent, substantial evidence to support the trial court’s finding that “it would be futile to continue to offer [L.D.] services.”

Finally, the Department failed to prove that termination of L.D.’s parental rights is the least restrictive means of protecting the child. “This [least restrictive means test] requires the court to utilize measures short of termination if such measures can permit a safe re-establishment of the parent-child bond.” E.R. v. Department of Children and Family Servs., 937 So.2d 1196, 1199 (Fla. 3d DCA 2006). As previously noted, the record evidence shows that L.D. is a loving parent with a strong bond to D.D.3.

Additionally, although the trial court found that there was “no suitable permanent custody arrangement with a relative of the child” [and thus] “termination of parental rights as to the mother is the least restrictive alternative,” the record does not contain competent, substantial evidence to support that finding. Here, L.D.’s sister expressed her desire to have the child placed with her. No home study or other investigation was ever conducted to determine the suitability for this relative placement. The trial court, however, rejected the maternal aunt out-of-hand because she came forward late in these proceedings and because two of her own children lived with her mother. The aunt, however, testified that her two sons lived with her mother because the school district her mother lived in was better suited for their needs. Accordingly, because the possibility of a relative placement was disregarded without first conducting a home study, and no other relative was even contacted, the finding that termination of L.D.’s parental rights is the least restrictive means of protecting the child is not supported by competent, substantial evidence.

V. CONCLUSION

Because termination of L.D.’s parental rights is not supported by competent, substantial evidence, the trial court’s order terminating parental rights is reversed. The matter is remanded for the case plan to be extended, and grant L.D. an opportunity to regain reunification with her child.

Reversed and remanded.

      . L.D.'s third child is the focus of these proceedings. Her first child has been adjudicated dependent and placed with his father. L.D.’s second child has been placed with a maternal relative and her fourth child remains in her care.

      . To the extent that L.D. may have been given some referrals at other times, the record is devoid of evidence as to the dates and types of services L.D. may have been offered.


text:
    The CIRCLE VILLAS CONDOMINIUM ASSOCIATION, INC., a Florida not for profit corporation, Appellant, v. The CIRCLE PROPERTY OWNERS’ ASSOCIATION, INC., Appellee.
    No. 4D06-3412.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2007.

      Kenneth E. Zeilberger of Katzman & Korr, P.A., Fort Lauderdale, for appellant.
    David J. Schottenfeld of David J. Schot-tenfeld, P.A., Plantation, for appellee.
   PER CURIAM.

Appellant, The Circle Villas Condominium Association, Inc. (Condominium), timely appeals the trial court’s final order of dismissal, dismissing its action against The Circle Property Owners’ Association, Inc. (Association). We reverse and remand.

“The Circle” is a planned condominium unit development comprised of several individual associations, which are condominium associations, including Condominium. Association is a homeowners association responsible for the maintenance of various common areas located within The Circle, including a recreational parcel. Association’s maintenance responsibility is defined in Article III of the Declaration of Covenants and Restrictions governing The Circle (Declaration), recorded in Broward County’s official records. Condominium and owners of units in Condominium are members of Association and pay maintenance assessments to Association. Association also serves as a master association.

Condominium brought a complaint against Association, “in its name on behalf of its individual homeowners and members concerning matters of common interest to its homeowners and members.” Condominium alleged that Association breached the terms of Article III of the Declaration, and “failed and refused to maintain the common areas/elements and the recreational parcel, and has allowed same to fall into a state of disrepair.” Article III of the Declaration provides that Association shall own and maintain the common elements. Condominium sought damages and an accounting.

Association filed a motion to dismiss Condominium’s complaint. In its motion Association alleged dismissal was appropriate because Condominium did not have standing to bring the action. Specifically, Association argued that dismissal was proper because Condominium was not a member of Association, as defined in the Declaration. Association also claimed mediation was appropriate pursuant to section 720.311, Florida Statutes.

The trial court referred the matter to a General Magistrate, who heard oral argument on Association’s motion to dismiss. In her report, the Magistrate determined that pursuant to Article IX of the Declaration, only individual owners could file a complaint, and therefore, Condominium lacked standing to bring the action. Article IX provides:

MEMBERSHIP IN ASSOCIATION: APPURTENANCE: VOTING
Membership in ASSOCIATION shall be as provided in the ARTICLES and BYLAWS. Membership in ASSOCIATION shall be established and terminated at all times as an appurtenance to ownership of UNITS and an appurtenance to ownership of Eligible Property as provided in said ARTICLES and BYLAWS, and herein. Voting rights of members and elections and/or designation of directors of ASSOCIATION shall be as determined and provided in the ARTICLES and BY-LAWS.

The Magistrate recommended the complaint be dismissed.

Condominium filed exceptions to the Magistrate’s report. Condominium claimed that the Magistrate failed to apply Florida Rule of Civil Procedure 1.221, that Condominium argued, “expressly grants [Condominium] the authority and standing to bring this action against [Association].” Rule 1.221 provides in pertinent part:

After control of a condominium association is obtained by unit owners other than the developer, the association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all unit owners concerning matters of common interest, including, but not limited to, the common elements; the roof and structural components of a building or other improvements; mechanical, electrical, and plumbing elements serving an improvement or a building; representations of the developer pertaining to any existing or proposed commonly used facilities; and protesting ad valo-rem taxes on commonly used facilities.

Fla. R. Civ. P. 1.221.

Because Condominium alleged further that its claims against Association were based upon Association’s failure to maintain the common recreational facilities, Condominium argued it had the standing to bring the action. The trial court entered an order overruling the Condominium’s exceptions and accepting the Magistrate’s report, dismissing the action. Condominium appeals the dismissal.

Condominium contends on appeal that it had standing to bring this action against Association because Rule 1.221 expressly provides that a condominium association may institute and maintain actions in its name on behalf of all unit owners concerning matters of common interest. We agree.

“Whether a party has standing to bring an action is a question of law to be reviewed de novo.” Wexler v. Lepore, 878 So.2d 1276, 1280 (Fla. 4th DCA 2004). As Condominium correctly notes, “[t]his court has recognized that an association may sue and be sued as the representative of condominium unit owners in an action to resolve a controversy of common interest to all units [pursuant to Rule 1.221].” Four Jay’s Constr., Inc. v. Marina at the Bluffs Condo. Ass’n, Inc., 846 So.2d 555, 557 (Fla. 4th DCA 2003) (citing Kesl, Inc. v. Racquet Club of Deer Creek II Condo., Inc., 574 So.2d 251 (Fla. 4th DCA 1991); Juno by the Sea Condo. Apts., Inc. v. Juno by the Sea N. Condo. Ass’n, 418 So.2d 1190 (Fla. 4th DCA 1982)). Here, Condominium’s complaint states that Condominium brings “this action in its name on behalf of its individual homeowners and members concerning matters of common interest to its homeowners and members.” Moreover, the subject matter of the suit is Association’s alleged failure to maintain the common areas and recreational facility pursuant to its obligations under Article III of the Declaration, which provides in pertinent part: “ASSOCIATION shall own, administer, repair, replace, maintain, operate and manage RECREATION PARCEL and EASEMENT PARCEL.”

Association raises two arguments in response. Both arguments fail. First, Association claims that dismissal was appropriate because the allegations of Condominium’s complaint were contrary to the provisions of membership set forth in Article IX of the Declaration, set forth above. Association alleges Article IX specifically limits its membership to those persons owning a unit within the premises subject thereto. However, Article IX does not foreclose Condominium’s ability to bring legal action against Association on behalf of its members regarding a matter of common interest, pursuant to Rule 1.221. Rather, it merely defines who is a member of the association. Therefore, Article IX does not negate Condominium’s standing to bring suit.

Association maintains next that dismissal was proper because Condominium failed to comply with the conditions precedent to filing an action imposed pursuant to section 720.311(2)(a), Florida Statutes. Section 720.311(2)(a) provides in pertinent part:

Disputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association shall be filed with the department for mandatory mediation before the dispute is filed in court.

§ 720.311(2)(a), Fla. Stat. (2005). However, as Condominium correctly arg-ues, this argument is without merit. Section 720.302(4), Florida Statutes (2005), states: “This chapter does not apply to any association that is subject to regulation under chapter 718, chapter 719, or chapter 721; or to any nonmandatory association formed under chapter 723.” It is undisputed that Condominium is a condominium association governed by Chapter 718, Florida Statutes. Thus, section 720.311(2)(a) does not apply to Condominium.

Based on the foregoing, the trial court erred in dismissing Condominium’s complaint against Association.

Reversed and Remanded for Further Proceedings.

WARNER, POLEN and HAZOURI, JJ., concur.

      . “Department” refers to the Department of Business and Professional Regulation. § 720.301(5), Fla. Stat. (2005).