text:
    William R. HARGIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-653.
    District Court of Appeal of Florida, Fifth District.
    July 21, 2006.
    William R. Hargis, Milton, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carlos A. Ivanor, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Ryan v. State, 837 So.2d 1075 (Fla. 3d DCA 2003).

SHARP, W., SAWAYA and LAWSON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joseph CARTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-555.
    District Court of Appeal of Florida, Third District.
    July 26, 2006.
    Rehearing Denied Sept. 20, 2006.
    Joseph Carter, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. King v. State, 808 So.2d 1237 (Fla.2002); Williams v. State, 891 So.2d 621 (Fla. 3d DCA 2005).


text:
    Corian JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2487.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 2006.
    Rehearing Denied Sept. 20, 2006.
    Corian Jones, in proper person.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.
    Before COPE, C.J., and WELLS and SUAREZ, JJ.
   PER CURIAM.

The defendant appeals the order denying his motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing.

The defendant claims that he should be permitted to withdraw his plea to aggravated battery and attempted armed robbery because counsel affirmatively misad-vised him regarding the consequences of his plea. He asserts that counsel told him that the conviction would not be admitted as Williams rule evidence during the guilt phase of his upcoming murder trial and would only be admitted as an aggravating factor in the penalty phase.

We reverse and remand for an eviden-tiary hearing because the record does not conclusively refute the defendant’s claim of affirmative misadvice. During the plea colloquy, the trial court informed the defendant that the plea conviction could be used as an “aggravator” in his upcoming murder trial. The judge did not specifically advise the defendant that the conviction could be introduced as Williams rule evidence in the murder trial’s guilt phase. The transcript is consistent with the defendant’s assertion that counsel advised him that the plea conviction could only be used as an aggravator in the penalty phase of the first-degree murder trial.

Because the defendant’s claim of affirmative misadvice is not conclusively refuted by the record, we remand for an evi-dentiary hearing.

Reversed and remanded.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


author: CANADY, Judge.

text:
    Robert Clayton GEHRING, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-945.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2006.
    Rehearing Denied Sept. 15, 2006.

      James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Robert Clayton Gehring, Jr., appeals his convictions for aggravated stalking and carrying a concealed firearm. We affirm the aggravated stalking conviction without comment. Based on the authority discussed below, we reverse the conviction for carrying a concealed firearm.

Detectives with the Lee County Sheriffs Department were investigating a complaint against Gehring for violation of an antistalking injunction. The detectives, believing they had probable cause to make an arrest for aggravated stalking, went to Gehring’s address and learned that Geh-ring lived in a trailer on the property. They waited for fifteen minutes, and Geh-ring arrived in a vehicle. Gehring exited the vehicle, and the detectives explained to him that he was under arrest. Gehring was placed into a marked patrol unit that had arrived on the scene, and the detectives looked into the vehicle Gehring had been driving. In the vehicle, they found items relating to the aggravated stalking as well as shotgun shells and a pistol grip shotgun. The shotgun was lying on the front passenger seat underneath a blue jacket.

Gehring was later charged with aggravated stalking and carrying a concealed firearm. Gehring proceeded to jury trial and was convicted as charged on both counts. The trial court sentenced Gehring to five years in prison on the aggravated stalking count and to twenty-nine months and fifteen days in prison on the carrying a concealed firearm count.

On appeal, Gehring argues that the trial court erred in denying his motion for judgment of acquittal on the carrying a concealed firearm charge because the shotgun was not on or about his person when it was discovered. Gehring claims that he had gotten out of the car and was arrested before the detectives found the shotgun in the vehicle. Gehring relies on two cases: Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996), and White v. State, 902 So.2d 887 (Fla. 1st DCA 2005).

“A person who carries a concealed firearm on or about his or her person commits a felony of the third degree .... ” § 790.01(2), Fla. Stat. (2003). “For a firearm to be concealed, it must be (1) on or about the person and (2) hidden from the ordinary sight of another person.” Ensor v. State, 403 So.2d 349, 354 (Fla.1981). A firearm is on or about a person if it is “physically on the person or readily accessible to him. This generally includes the interior of an automobile and the vehicle’s glove compartment, whether or not locked.” Id.

In Lamb, 668 So.2d at 667, the appellant was involved in a shooting and then returned home in his car. ‘When he arrived, he removed the firearm from the front seat and placed it beneath the vehicle’s driver’s seat.... He then exited and locked the automobile and walked toward his home.” Id. An officer who had been following the appellant pulled up nearby, observed the appellant, and then arrested him. Id. Later that evening, officers returned with the appellant to his home, the appellant informed the officers that his gun was in the car, and an officer retrieved the gun. Id. On appeal, the appellant argued that the trial court erred in denying his motion for judgment of acquittal of the charge of carrying a concealed firearm. We held: “At the time of his arrest, we conclude as a matter of law that the appellant’s firearm was not readily accessible to him.... [N]o view of the undisputed evidence supports the conclusion that he carried a concealed firearm ‘on or about his person’ in this instance.” Id. at 668. Accordingly, we reversed the conviction.

In White, 902 So.2d at 888, the First District found

that although [the] appellant had previously occupied the vehicle in which the firearm was found, and which he admitted was his, he was standing outside the automobile at the time the searching officer recovered the weapon within it. Only after the revolver was seized was [the] appellant arrested for its possession.

The court relied on Lamb and reversed the appellant’s conviction of carrying a concealed firearm, concluding that the revolver was not on or about the appellant’s person. Id.

The State asserts that this issue was not preserved because Gehring’s trial counsel did not move for a judgment of acquittal of the carrying a concealed firearm charge on this basis. “In general, to raise a claimed error on appeal, a litigant must object at trial when the alleged error occurs.... The sole exception to the contemporaneous objection rule applies where the error is fundamental.” F.B. v. State, 852 So.2d 226, 229 (Fla.2003). With respect to claims of insufficiency of the evidence, an error is fundamental “when the evidence is insufficient to show that a crime was committed at all.... Thus, an argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved.” Id. at 230.

In moving for a judgment of acquittal, Gehring’s trial counsel did not make the specific argument that the evidence was insufficient to establish that the firearm was on or about Gehring’s person. Counsel only argued that the State had not proven the aggravated stalking count. Therefore, the specific issue raised on appeal was not preserved. See Goad v. State, 887 So.2d 415, 416 (Fla. 2d DCA 2004) (“Goad did not make this argument in his motion for judgment of acquittal on the burglary charge and, thus, has not preserved this issue for review.”). However, the error is fundamental because the evidence was insufficient to establish that a crime was committed at all. See F.B., 852 So.2d at 230.

The evidence presented at trial did not show that the firearm was simultaneously carried by Gehring and concealed. Based on Lamb, we must reverse Gehring’s conviction for carrying a concealed firearm. Cf. J.E.S. v. State, 931 So.2d 276 (Fla. 5th DCA 2006) (holding that evidence was sufficient to support charge of carrying a concealed firearm where appellant seated in vehicle was ordered out of vehicle and search of vehicle revealed firearm hidden under seat).

Affirmed in part; reversed in part.

FULMER, C.J., and DAVIS, J, Concur.


author: TAYLOR, J.

text:
    Angeline ALOIS, Appellant, v. Daniel T. ALOIS, Jr., Appellee.
    No. 4D05-1964.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Rehearing Denied Oct. 4, 2006.

      Douglas R. Bell, Fort Lauderdale, for appellant.
    John H. Pelzer and Robyn L. Vines of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellee.
   TAYLOR, J.

Angeline Alois (former wife) appeals a post-decretal order requiring her to pay child support of $786 per month, plus a share of the children’s medical expenses and private school tuition. The order also calculated an arrearage which accumulated during the proceedings below. The former wife contends that the trial court failed to properly consider the overall financial situation of the parties in awarding child support and calculated the arrearage from an incorrect starting date. She asserts that she is unable to pay the amount of child support ordered by the court and still maintain any reasonable standard of living. Based on our review of the record, we agree with the former wife’s position on all points and reverse and remand this cause with directions to reduce her child support obligation to $200 per month, recalculate the arrearage, and establish different payment terms for the arrearage.

Daniel T. Alois, Jr. (former husband) and the former wife were married on August 31, 1985. They have three children, Amanda (now age 18, who presumably graduated from high school in June 2006), Danielle (now 15), and Danny (now 12), The parties divorced in May 2001, making this a fifteen-year marriage.

The former husband is a firefighter for the City of Oakland Park. The former wife is a job cost bookkeeper. The former husband’s gross income is $79,000. The former wife’s gross income is $34,587.

The 2001 dissolution decree incorporated the parties’ mediation agreement. The parties agreed to a “hyper-rotating” custody of the children on a schedule to accommodate the former husband’s work hours, such that the children were changing houses every 24-48 hours. The former husband agreed to pay the former wife $600 a month in child support and to pay the children’s private school tuition through grade eight (then $500 a month) and all of the children’s uncovered medical expenses. The former wife received no alimony.

Within two years after the divorce, the former husband remarried and the former wife purchased a house with her paramour, Glenn Gallowitz. The latter event caused a strain between the former wife and her oldest daughter, Amanda, who essentially stopped coming to her mother’s house. On May 15, 2003, Gallowitz hit the former wife and pushed her into a wall in front of Danielle and Danny. Gallowitz called the former husband to come pick up the children because of what • had happened. From this point forward, the former husband had de facto primary custody of all three children. The two daughters have had only minimal visitation with the former wife, but Danny has maintained a standard visitation schedule with his mother.

Four days after the May 15 incident, the former husband filed a motion to modify child custody, seeking primary residential custody. In his motion he did not address child support. On June 23, 2003, the parties entered into an agreed temporary order, which stated that until September. 1, 2003, the former husband would be declared primary custodian of the children, that the former wife would have visitation, and that the former wife would refund half of the $600 a month in child support which she was still receiving by income deduction order.

On December 12, 2003, the former husband filed a motion for refund of the child support he had paid after August 2003 and was continuing to pay. The motion did not request that the former wife pay any child support to him.

On February 26, 2004, the former husband filed a pleading titled “Father’s Supplemental Petition for Modification of Final Judgment: To-Wit: Primary Residence, Timesharing and Child Support.” In that pleading, the former husband requested that, among other things, the trial court “adjust the child support obligations, commensurate with Florida’s Child Support Guidelines, taking into consideration the children’s private school tuition and the substantial timesharing he enjoys with his children....”

The former husband has a monthly gross income of $6,583 and a net income of $4,767. Even though his current wife is a police officer, the former husband claims to pay all of the household expenses from his income alone. His mortgage is $959 and his car payment is $370.34 a month. According to the former husband, he spends $1,802 per month on the children, including $680 a month in private school tuition. He- claims a total monthly deficit of $1,145.84.

The former husband stated in his affidavit that his home is worth $180,000. At trial he stipulated that the tax appraisal on the home is $194,000. He testified that he does not know the home’s actual value. He drives an $18,000 Dodge Ram and owns a 1984 Chevy Cavalier that is driven by Amanda. He testified that he paid $2,000 for the Cavalier and recently spent $2,000 to repair it; he lists it as only an $800 asset. He has $10,000 in a retirement plan. The two mortgages on his home total $94,757, leaving him a total net worth of at least $94,843 (mostly home equity, which exceeds $85,000).

The former husband testified that Danny’s tuition is $360 per month, his books are $400 annually, and his registration is $200 annually. The former husband must also donate $450 a year to the church to get a parishioner discount. He must also buy uniforms. The monthly tuition for Amanda and Danielle is $200 apiece; annual registration for each is $100; uniforms are $400 a year for both, and supplies amount to $300 a year. He also pays $800 a year for his daughters’ cheerleading activities.

The former husband testified that he pays between $60 and $100 a month for Amanda’s gasoline and $100 for her car insurance. As mentioned above, he recently paid $2,000 to repair her car. He spends $100 a month on cell phones for the two girls, and $120 a month for their lunch money. He said he spends $500 a month on children’s entertainment and $80 a month for other children’s birthday presents. He also testified to spending $10 a month on eyeglasses, $50 a month on cosmetics and toiletries, $40 a month on the children’s grooming expenses, and $174 a month on Daniel’s braces. Both parents want the children to stay in their current private, parochial schools. The cost will be $650 per child.

The former wife’s monthly gross income is $2,882, and her net income is $2,325.22. The former wife’s financial affidavit is starkly different from the former husband’s, except that she also claims a deficit of $1,619.32 per month. Her expenses can be divided into two categories: “hard expenses,” over which she has little control, and “soft expenses,” which she may be able to reduce or eliminate altogether. The hard expenses are:

$915.70 — Half of mortgage payment
$52.50 — Half of the homeowner’s association fee
$40.00 — Half of the water, garbage, sewer
$100 — Half of the electricity
$380.00 — Car payment
$100 — Gasoline
$100 — Insurance
$200 — Food
$20 — Grooming

Her hard expenses total $1,908.20. Payment of these expenses leaves her less than $420 per month for softer expenses, which include telephone, home and car repairs, pest control, meals outside the home, cable television, entertainment, dry cleaning/laundry, clothing, medical/dental/prescriptions, cosmetics and toiletries, gifts, pet food, vacations, credit card debt, and life insurance.

The former wife’s main asset is the home she jointly purchased with Gallowitz. The home is valued at $335,000, with a $224,225 mortgage. Because the home is jointly owned, it cannot be re-financed without Gallowitz’s cooperation. The former husband has not requested that the former wife be forced to partition this home. The former wife drives a 2002 Dodge Stratus worth $14,000. Her pension plan is worth $1,200.

On February 15, 2005, the magistrate issued her report. She determined that the former husband should be the primary residential parent of all three children, but that the former wife should have substantial time-sharing with Danny. The magistrate ruled that she had jurisdiction to award child support retroactive to the date of the initial petition requesting a change in child custody, but awarded retroactive support as of the date of expiration of the parties’ temporary agreement, September 1, 2003. She also ruled that the former wife must refund the $7,800 in child support she had received since that date.

The magistrate determined the children’s total need for basic child support under the guidelines as $2,506.26 per month. The mother’s share was 33%, yielding a guideline support amount of $827. The court applied a 5% reduction, for a total child support amount of $786 for the time prior to commencement of Danny’s substantial time-sharing (i.e., the retroactive period prior to December 1, 2004). The court ordered that the wife continue to pay this amount after December 1, 2004, even though her child support obligation dropped to $505 per month at that point. The higher payment was to continue in order to pay arrearages and (beginning in September 2005) to pay $150 a month toward the children’s private school. The child support portion of the monthly payment is to drop to $325 per month upon Amanda’s graduation from high school, commencing June 1, 2006. Nonetheless, the payment will remain at $786 per month for the foreseeable future, based on the $150 private school tuition contribution and the arrearage.

The magistrate calculated that in addition to the $7,800 refund of the former husband’s child support payments, the former wife owed $11,790 in retroactive child support (less a credit for $800 she expended on the children during this time frame). Thus, the former wife’s total arrearage was calculated to be $18,790.

With respect to private school, the magistrate found that it had been the family practice to have the children in private school and continue such schooling beyond the eighth grade. She felt it was possible to meet the private school costs within the “family budget.” She required the former wife to pay $150 per month toward that schooling, commencing with the 2005/2006 school year, plus half of each child’s annual registration fee.

The magistrate also made the former wife responsible for 33% of the children’s uncovered medical expenses, including reimbursement for one-third of Danny’s orthodontic treatment. This obligation was in addition to child support.

The former wife objected to the magistrate’s report. In ruling on the exceptions, the circuit court did not hear any evidence and simply commented that, “the child support was determined by the net income of both parties, not the expenses.” The circuit court approved the report on April 7,2005.

The abuse of discretion standard of review applies to trial court orders in modification of child support proceedings. Woolf v. Woolf, 901 So.2d 905, 911 (Fla. 4th DCA 2005).

Parents have a legal duty to provide financial support for their children. Dep’t of Revenue v. Jackson, 846 So.2d 486, 492 (Fla.2003). However, proceedings under chapter 61 are equitable in nature and thus are governed by basic rules of fairness. Camus v. Prokosch, 882 So.2d 428, 430 (Fla. 1st DCA 2004). One of the most basic rules of fairness is that a court cannot order a parent to pay child support which that parent cannot afford to pay. As Florida Statute section 61.14(5)(a) states:

When a court of competent jurisdiction enters an order for the payment of alimony or child support or both, the court shall make a finding of the obligor’s imputed or actual present ability to comply with the order.

Here, no such finding was made. Further, on this record, we believe no such finding could have been made.

Section 61.18, Florida Statutes, states that “the court may at any time order either or both parents who owe a duty of support to a child to pay support in accordance with the guidelines in s. 61.30.” That section, in turn, states that the child support guideline amount “presumptively” establishes the amount the trier of fact shall order as child support. § 61.30(l)(a), Fla. Stat. (2005).

Subsection 61.30(ll)(a) states that the court “may adjust the minimum child support award, or either or both parents share of the minimum child support award,” based upon several different considerations, including, “[a]ny other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.” § 61.30(1 l)(a)l 1., Fla. Stat. (2005). This latter provision is necessary in some cases to avoid conflict with the rule of fairness that prohibits ordering a parent to pay child support which he or she cannot afford to pay. See Jackson, 846 So.2d at 490 (“Trial court is vested with discretion to vary the support amount after considering all relevant factors, including, but not limited to ... the financial status and ability of each parent.”); see also Finley v. Scott, 707 So.2d 1112, 1117 (Fla.1998) (“The court is then to evaluate from the record the statutory criteria of ... the financial status and ability of each parent ... ”).

In Ballesteros v. Ballesteros, 819 So.2d 902, 903 (Fla. 4th DCA 2002), the former husband had a net monthly income of $1,758.08. The trial court awarded combined alimony and child support in excess of $1,000, leaving the former husband just $695.67 on which to live. We reversed, stating:

Although the parties are of modest means, the alimony award, combined with the child support award and health insurance for the minor child, left former husband without the means to support himself, such that no reasonable man could differ as to the impropriety of the court’s award.

Id.

In Radziwon v. Radziwon, 710 So.2d 748 (Fla. 4th DCA 1998), the court ordered the payment of $866 a month in alimony and $200 a month in arrears, leaving former husband with only $709 a month to support himself. We stated:

Appellant’s monthly expenses for basic necessities such as food, housing, utilities and transportation amount to a minimum of $1,168.00 a month. Since it is apparent that appellant cannot support himself after paying $866.00 a month in alimony and $200.00 a month in arrears, we hold that the trial court abused its discretion in modifying the alimony award.

Id. at 748.

In Thomas v. Thomas, 418 So.2d 316 (Fla. 4th DCA 1982), the former husband made $2,065.22 per month. We stated:

Appellant contends the trial court abused its discretion in awarding appel-lee $1,200 per month, or fifty-eight percent of his net income, in alimony and child support. We agree and are compelled to reduce the child support $50 per month per child in order to secure appellant’s economic survival. After the reduction, he is left, after payment of his rent and the loan upon his automobile, with $330 per month to pay his other necessities.

Id. at 316; see also Moss v. Moss, 636 So.2d 164, 165 (Fla. 4th DCA 1994) (reversing a guidelines child support award where it left the former husband only $380 per month on which to live, while noting that “the trial court has the discretion to deviate from the statutory guidelines after considering a parent’s overall financial circumstances and impose an obligation upon a parent within his ability to pay”).

The common theme throughout the above cases is that the court should consider the non-custodial parent’s “basic necessities such as food, housing, utilities and transportation,” along with the parent’s net income and support obligation, to determine if the parent can economically survive. In this case, we have carefully examined the record, including the former wife’s financial affidavit, which shows that she has $1,908.20 in reasonable, fixed costs (such as her mortgage and car payment) per month. With a net income of $2,325.22, it is apparent that she cannot economically survive the current $786 monthly payment (and additional $57.42 orthodontist expense) on her recurring income. This is true even if she eliminates any expenses for a cell phone, cable television service, pet, clothing, entertainment, or vacations.

As the former husband points out, the $786 child support payment is just 34% of the former wife’s net income. Indeed, this is a lower percentage than that of the noncustodial parent’s income in the above cases. Thomas is probably closest at 58%. The statute specifically permits an adjustment to the guideline amount in cases exceeding 55% of gross income. See § 61.30(ll)(a)9, Fla. Stat. (2005). However, the former wife is not arguing that this support amount is per se excessive in its percentage. Rather, she asserts that, based on her particular circumstances, she lacks the ability to pay 34% of her modest income and take care of her basic needs for survival.

In Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990), we stated:

... this is not to say that an award amounting to any particular percentage of a party’s income forms a bright-line rule resulting in a finding of an excessive award and an abuse of discretion. Each case’s resolution must rest on its individual facts.

The former wife also contends that she cannot afford to pay uncovered medical expenses or private school tuition. The court ordered the former wife to pay $150 a month toward private school, commencing with the 2005/2006 school year, plus half of the annual registration fees. Despite the parties’ tradition of sending their children to private school, the issue is how much, if anything, the non-custodial parent can afford to spend on private school. See Pollow v. Pollow, 712 So.2d 1235, 1236 (Fla. 4th DCA 1998) (“Private educational expenses may be awarded only where the non-custodial parent has the ability to pay for that private school.”); Todesco v. Todesco, 583 So.2d 774, 775 (Fla. 4th DCA 1991) (same). Here, the record reveals that the non-custodial parent has no ability to pay anything toward private school.

In sum, the trial court abused its discretion in awarding the former husband child support in the amount of $786 per month and requiring the former wife to pay a portion of the children’s uncovered medical expenses and private school tuition. We therefore reverse the post-judgment order. To secure the former wife’s economic survival, we are compelled to cap the former wife’s total responsibility for child support at $200 per month, with no additional liability for the children’s uncovered medical expenses or private school tuition. This reduced amount must be used in recalculating the arrearage. The arrearage payments should be paid at the $200 rate, commencing upon Danielle’s graduation from high school (at which point the former wife’s child support obligation presumably will end).

The former wife also challenges the starting date used by the trial court in determining retroactive child support. We agree that the trial court erred in awarding the former husband six months of retroactive support, from September 2003 through February 2004. See Bardol v. Martin, 763 So.2d 1119, 1119 (Fla. 4th DCA 1999) (“Regarding dissolution, courts generally have only awarded retroactive child support back to the date the petition for support or modification of existing support was filed.”); Waite v. Kennedy, 724 So.2d 572 (Fla. 3d DCA 1998) (holding that trial court erred in granting retroactive child support prior to date of filing of counter-petition seeking that relief); Anderson v. Anderson, 609 So.2d 87, 88 (Fla. 1st DCA 1992) (holding that it was error to award child support retroactive to a date prior to a request for modification of an order which previously addressed child support); Berger v. Berger, 559 So.2d 737, 738 (Fla. 5th DCA 1990) (remanding for trial court to adjust child support to reflect that it is retroactive to the date of filing the petition for modification); see also Owens v. Eskelman, 712 So.2d 472, 473 (Fla. 1st DCA 1998) (holding that court could not enter child support award where it was not requested in petition for custody); Torres v. Torres, 739 So.2d 599, 600 (Fla. 2d DCA 1997) (“It is settled that a trial court cannot modify a child support obligation absent a pleading or motion requesting such modification.”).

We reverse and remand for recalculation of the arrearage, using the appropriate starting date and the $200 monthly child support amount.

Reversed and Remanded.

KLEIN and SHAHOOD, JJ., concur.


author: KLEIN, J.

text:
    Thomas G. TINSLEY, Appellant, v. MANGONIA RESIDENCE I, LTD., Appellee.
    No. 4D05-549.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Rehearing Denied Oct. 4, 2006.

      Jack J. Aiello of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellant.
    Patrick W. Maraist and John T. Metzger of McDonald Hopkins Co., P.A., West Palm Beach, for appellee.
   KLEIN, J.

In this foreclosure case, which was dismissed for lack of prosecution, the trial court awarded prevailing party attorney’s fees against the assignee of the party who was foreclosing, even though the assignee, who was the real party in interest, had not formally been made a party. We reverse.

Vikar Associates, Inc. held a mortgage which was in default and filed a complaint to foreclose against appellee Mangonia. During the litigation Vikar assigned its interest in the loan documents and the foreclosure suit to Thomas Tinsley. About a year after the assignment. Vikar filed a motion to substitute Tinsley as plaintiff in place of Vikar; however, the motion was not called up for a hearing. Following the motion to substitute there was no record activity in the case for more than one year and Mangonia moved to dismiss for lack of prosecution. Mangonia sought attorney’s fees from both Vikar and Tinsley, even though Tinsley was not a party. Vikar responded to the motion asserting non-record activity which should prevent dismissal, and also argued that Tinsley was not a party and fees could not be awarded against Tinsley. After further proceedings, the trial court granted the motion to dismiss, awarded attorney’s fees and costs to Mangonia, and entered a judgment for them against Tinsley.

We agree with Tinsley that the court erred in assessing attorney’s fees and costs against him where, as here, he was not substituted as a party. Florida Rule of Civil Procedure 1.260(c) provides:

Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule.

This requires a court order for substitution of parties where there is an assignment. Because no party obtained a court order substituting Tinsley for Vikar, Vikar, as the rule permits, remained as the party pursuing the action, and the court was without jurisdiction to award fees or costs against Tinsley, a non-party.

Appellant also argues that, when the court dismissed the complaint for failure to prosecute, the counterclaim should also have been dismissed. We agree. Rule 1.420(e) provides that, where there is a failure to prosecute, the “action” shall be dismissed. The use of the word “action” means dismissal of all claims. Leon v. Old Republic Ins. Co., 561 So.2d 1304 (Fla. 3d DCA 1990); Hanson v. Poteet, 556 So.2d 828 (Fla. 2d DCA 1990).

We reverse the judgment for attorney’s fees and costs against Tinsley and remand for dismissal of the counterclaim.

GUNTHER and TAYLOR, JJ., concur.


text:
    Richard GREGORY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1378.
    District Court of Appeal of Florida, Fourth District.
    Aug. 16, 2006.

      John H. Lipinski of the Law Office of J.H. Lipinski, Pembroke Pines, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Richard Gregory appeals his criminal conviction and sentence for burglary of a dwelling with a battery. He contends that the trial court erred in denying his motion for judgment of acquittal and in failing to instruct the jury on justifiable use of force. We find no error in the denial of the defendant’s motion for judgment of acquittal, but agree that the court erred in denying the defendant’s request for the self-defense instruction. We therefore reverse for a new trial.

The defendant and the victim, Marcia Perea, were neighbors, friends and lovers. The defendant visited Ms. Perea in her home often, every day or every other day. At around 6:00 p.m. on the evening of May 12, 2003, the defendant came to her house and brought two bottles of wine. He put them down, unopened, less than five feet from the front door. That evening, the defendant and Perea spent time together relaxing on the patio, listening to music, drinking, and -making love. . They- drank quite a bit and Perea was a “little looped.” The defendant drank a few beers. He fell asleep for an hour or so.

Around 11:00 p.m., Perea woke the defendant and asked him to leave, so she would not have to set the alarm for 5:30 a.m., the time he went to work. The defendant was slightly agitated because he had been in a deep sleep and was still half asleep. But he put on his pants and quickly and quietly walked out the door. About two seconds or one minute later, hé knocked on the door. Perea knew it was him knocking. She opened the door halfway. He was coming in and turning to his right to get the bottles of wine. He was partially outside the front door, reaching for the wine. She did not want him to take the wine because she was afraid he would drink it and drive or get hurt. So she started pushing him out the -door as hard as she could push. She is 5' 3" and weighs 115 pounds. ' The defendant is not a tall man, but he is much stronger than Perea. She told him to go home and made clear to him that she did not want him in her house. She pushed him to keep him out of her house and he pushed back; they were pushing each other simultaneously for a few seconds. Once inside, the defendant grabbed Perea by the neck, picked her up, and bashed her head into a picture, breaking the glass. He also pushed her head into the wall. He said that she fell over the dog. She did not ■ know. if he threw her on the floor, but she recalled that he pushed her head into the tile floor.

The defendant then stopped. He said he felt “terrible, terrible, terrible.” He helped Perea get up from the floor and supported her slowly out to the patio to sit down in a chair. He lit a cigarette for her. They sat together for thirty to forty minutes.

The attack occurred on Monday night. On Tuesday night, the defendant came by and brought Perea some Tylenol. They went out to dinner together. She wanted to forgive him. She suffered bad bruises and swelling on her elbows, had a lump on her head and, as the result of her neck being held, she could not swallow for about three weeks. She testified that she sustained no permanent cuts or deformities.

On Wednesday, she called the police. Then she obtained a restraining order. Afterwards, however, they continued to see each other. He kept telling her how sorry he was and she believed his remorse was genuine. As a result of the incident on May 12, 2003, the defendant was charged by information with burglary of a dwelling with battery.

At trial, the defendant requested an instruction on the justifiable use of force. The trial court refused to give this instruction, which would have instructed the jury that one of the issues in the case was whether the defendant had acted in self-defense in touching or striking Perea. See Fla. Std. Jury Instr. (Crim.) 3.6(g).

As to lesser-included offenses, the court instructed the jury on Burglary of a Dwelling, Trespass of an Occupied Structure with a Human Being, Trespass of an Unoccupied Structure, and Battery. The court provided the jury with a verdict form listing all the offenses separately and instructing them to check only one box. Defense counsel did not object or request the court to instruct the jury on the option of finding the defendant guilty of a trespass and battery combination. The jury found the defendant guilty of Burglary of a Dwelling with a Battery. He was sentenced to fifteen years imprisonment.

The defendant argues that the trial court erred in failing to instruct the jury on the justifiable use of force. A criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy. Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998); Smith v. State, 424 So.2d 726 (Fla.1982); Brozey v. State, 911 So.2d 867, 868 (Fla. 2d DCA 2005); Cartegena v. State, 909 So.2d 414, 415 (Fla. 5th DCA 2005); Upshaw v. State, 871 So.2d 1015, 1017 (Fla. 2d DCA 2004) (quoting Arthur v. State, 717 So.2d 193, 194 (Fla. 5th DCA 1998)); Garramone v. State, 636 So.2d 869 (Fla. 4th DCA 1994); Simon v. State, 589 So.2d 381, 382 (Fla. 4th DCA 1991); Deveaugh v. State, 575 So.2d 1373, 1374 (Fla. 4th DCA 1991); Cooper v. State, 573 So.2d 74, 76 (Fla. 4th DCA 1990); Kilgore v. State, 271 So.2d 148, 152 (Fla. 2d DCA 1972).

The trial court should not weigh the evidence for the purpose of determining whether the instruction is appropriate. Garramone, 636 So.2d at 870 (citing Smith). In Garramone, we quoted Kilgore, 271 So.2d at 152:

It is not the quantum or the quality of the proof as to self defense that determines the requirement for giving the charge. If any evidence of a substantial character is adduced ... the element of self-defense becomes an issue, and the jury, as the trier of the facts, should be duly charged as to the law thereon, because it is the jury’s function to determine that issue.

Id. (citing Kiernan v. State, 613 So.2d 1362 (Fla. 4th DCA 1993)).

Here, there was testimony that Perea pushed the defendant away when he reached for the wine and that afterwards a shoving match ensued. Because of evidence that the defendant was first struck by Perea and that he responded only with the use of non-deadly force, the defendant was entitled to have the jury instructed on his theory of self-defense. Failure to give the requested instruction on the justifiable use of non-deadly force was reversible error. See Cartegena, 909 So.2d at 416.

The defendant also argues that the trial court erred in failing to instruct the jury that they could convict him of a combination of the two lesser-included misdemeanor offenses, trespass and battery. However, the defendant waived this issue, because he did not request the instruction and assented to the court’s decision to list trespass and battery separately on the verdict form. We have held that this is not fundamental error. See Giangrasso v. State, 793 So.2d 71, 73 (Fla. 4th DCA 2001); see generally Whyte v. State, 881 So.2d 1183 (Fla. 5th DCA 2004); Morris v. State, 658 So.2d 155, 156 (Fla. 1st DCA 1995) (in non-capital cases failure to instruct on lesser-included offenses is not fundamental error).

Although this issue was not preserved for review, we address it to guide the trial court in the event this case is retried as a result of our reversal for failure to give the self-defense jury instruction. The defendant was entitled to an instruction and verdict form that would have permitted the jury to return a verdict of trespass coupled with a battery. See Gian-Grasso v. State, 899 So.2d 392, 393 (Fla. 4th DCA 2005) (explaining that “a defendant is entitled to have a jury consider convicting him of the two separate component offenses of a compound offense such as burglary with a battery”). On retrial, if requested, the jury should be permitted to consider the alternative of convicting the defendant of both component offenses, rather than burglary or just one of the component offenses. Id.

Reversed and remanded for a new trial.

GUNTHER and KLEIN, JJ., concur.


text:
    Carla ASCENCIO-SAVOLA, Defendant/Appellant, v. Juan-Carlos "J.C." PLANAS, Plaintiff/Appellee, and Lester Sola, Supervisor of Elections, Miami-Dade County, Florida, in his official capacity; and the Florida Department of State, Defendant/Appellees.
    No. 3D06-1992.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2006.
    Rehearing Denied Aug. 25, 2006.
    Wampler, Buchanan, Walker, Chabrow, Baneiella & Stanley and Joseph' R. Buchanan and Ricardo A. Baneiella, Miami, for appellant.
    Meyer and Brooks and Jennifer S. Blohm (Tallahassee), for appellee, J.C. Pla-nas.
    Gray Robinson and Pete Antonacci (Tallahassee), for appellee, Florida Department of State.
    Murray A. Greenberg, Miami-Dade County Attorney, and Oren Rosenthal, Assistant County Attorney, for appellee, Lester Sola.
    Before SUAREZ, CORTINAS, and LAGOA, JJ.
   PER CURIAM.

The trial court’s Judgment granting declaratory and injunctive relief is affirmed. This Opinion shall take effect immediately and will not be delayed by the filing of any motion for rehearing or other post-decision motion.

Affirmed.


text:
    Rhondel PARIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1644.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 2006.
    Rhondel Paris, in proper person.
    Charles J. Crist, Jr.r Attorney General, for appellee.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). This Court must reverse any order summarily denied unless the postconviction Record conclusively establishes that the appellant is not entitled to relief. See Fla. R.App. P. 9.141(b)(2)(A).

Because the Record before us fails to make the required showing, we reverse the order on appeal and remand for an eviden-tiary hearing, or for the attachment of Record excerpts conclusively showing that the appellant is not entitled to relief. See Fla. R.App. P. 9.141(b)(2)(D).

Reversed and remanded for further proceedings.


author: ROTHENBERG, Judge. SHEPHERD, J.,

text:
    J.C., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D05-1949.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 2006.

      Kevin Coyle Colbert, Miami, for appellant.
    Calianne P. Lantz, Assistant District Legal Counsel, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The father, J.C., appeals from an order adjudicating his children, D.C. and L.C., dependent. We affirm.

In February 2005, the Florida Department of Children and Family Services (“Department”) took the children into custody, and thereafter filed a Dependency Petition (“Petition”) against the mother and father. The Petition alleges, in part, that the father neglected the children and/or was likely to neglect the children, and that the children were under imminent risk of harm, abuse, or neglect.

At the adjudicatory hearing, Detective Streeter of the North Miami Police Department testified as follows: On January 18, 2005, he conducted a surveillance of the father and mother’s home during the morning, afternoon, and evening, and that during this period, he observed numerous people drive up to the residence, proceed to a detached structure behind the main house, and participate in what appeared to be hand-to-hand drug transactions with the father. Based upon what he observed, Detective Streeter sent an informant to the residence on January 19, 20, and 21, 2005, and on each day, the informant purchased narcotics from the father. Thereafter, on January 31, 2005, a warrant was executed on the residence and marijuana, cocaine, and a firearm were seized. Detective Streeter, however, could not remember whether the narcotics were found in the main house or the detached structure, but was certain that the firearm was discovered hidden in a dresser, located in a bedroom in the main house.

The trial court entered an order adjudicating the children dependent as to the father, finding that “The Department has proven by a preponderance of the evidence that the [ ] children are under substantial risk of imminent threat of harm or abuse and neglect, within the meaning and intent of chapter 39 Florida Statutes, which is likely to cause the children’s physical health to be significantly impaired,” and that the father has “neglected and/or is likely to neglect the children, ... thereby causing the children’s physical, mental and/or emotional health to be significantly impaired and/or the children to be at perspective [sic] risk of significant impairment....” In doing so, the trial court found that the father sold drugs while the children were in his care, the children were exposed to drug related activities, and the father maintained an unsecured firearm while the children were in his care. The father appeals the trial court’s order.

The father contends that the trial court reversibly erred by adjudicating the children dependent. We disagree.

In a dependency proceeding, the allegations contained in the dependency petition must be established by a preponderance of the evidence. See M.F. v. Fla. Dep’t of Children & Families, 770 So.2d 1189, 1192 (Fla.2000). Moreover, a trial court’s determination of dependency is a mixed question of law and fact, which will be upheld on appeal if the trial court applied the correct law and its ruling is supported by competent substantial evidence. See Id.; A.B. v. Fla. Dep’t of Children & Family Servs., 901 So.2d 324, 326 (Fla. 3d DCA 2005).

In the instant case, the trial court applied the correct law, which includes the statutory definition of a dependent child, as provided in section 39.01(14), Florida Statutes (2004), the definition of neglect, as provided in section 39.01(45), Florida Statutes (2004), and the definition of abuse, as provided in section 39.01(2), Florida Statutes (2004). Section 39.01(14) provides, in part, as follows:

“Child who is found to be dependent” means a child who, pursuant to this chapter, is found by the court:
(a) To have been abandoned, abused, or neglected by the child’s parent or parents or legal custodians;
(f) To be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.

Section 39.01(45), Florida Statutes (2004), defines neglect, in part, as follows:

“Neglect” occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.

(emphasis added). Section 39.01(2) defines abuse, in part, as follows:

“Abuse” means any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.

As the trial court applied the correct law, we must next determine whether its ruling, that the children are dependent based on neglect, and/or risk of imminent neglect and/or abuse, is supported by competent substantial evidence. In the instant case, there was absolutely no evidence that the children were deprived of necessary food, clothing, shelter, or medical treatment. The neglect and/or risk of imminent neglect that was alleged by the Department in the Petition, and which was ultimately found to exist by the trial court, was based on the environment that the children were permitted to live in. Specifically, the trial court found, and we agree, that the Department established by a preponderance of the evidence that the children lived in an environment where (1) the children’s father conducted numerous hand-to-hand drug transactions throughout the day, (2) the mother was aware of the drug transactions, but did nothing to protect the children, and (3) there was an unsecured firearm that was accessible to the children.

We also agree that the father’s actions in creating such an environment fall within the definition of abuse, as such an environment is likely to cause substantial impairment to the physical, mental and/or emotional health of these children.

Based upon the totality of the circumstances, we conclude that the trial court’s ruling finding the children dependent based on neglect, and/or risk of imminent neglect and/or abuse, is supported by competent substantial evidence. The evidence demonstrates that the father conducted numerous drug transactions on the property where the children lived. It is common knowledge that there is a potential for violence during drug transactions, especially when a firearm is accessible. While there is no evidence that the children were present or even aware that their father was selling drugs from the structure within the curtilage and directly behind their home, and no evidence of violence, based upon the ages of the children (ten and a half, and seven years of age), the proximity of the drugs, the number of transactions, the fact that the transactions occurred throughout the day and evening, and the presence of an unsecured firearm within the home, we conclude that there was sufficient evidence to support the trial court’s finding that the children’s physical and mental health were at substantial risk of imminent harm.

Affirmed.

COPE, C.J., concurs.

SHEPHERD, J.,

dissenting.

I respectfully dissent.

The majority concludes that anytime a parent sells drugs in the vicinity of his offspring, the right to remove the offspring attaches a fortiori. I am unwilling to license such an unbridled assertion of government power. While Chapter 39 of the Florida Statutes is designed to allow the state to intervene in homes with “bad parents,” the statute establishes a careful balance between government interference and the primacy of the family in our social structure. Absolutes are not favored. See In re M.F. v. Fla. Dep’t of Children & Families, 770 So.2d 1189 (Fla.2000). To the contrary, the not-to-be-forgotten purpose of Chapter 39 of the Florida Statutes administered by the Department of Children and Families (DCF) is to “preserve and strengthen the child’s family ties.” § 39.001(l)(f), Fla. Stat. (2005). It is our duty to preserve the balance.

The trial court in this case adjudicated D.C. and L.C. dependent as to the father, J.C., on the ground they were “under substantial risk of imminent threat of harm or abuse and neglect” within the meaning of § 39.01(14)(f), Fla. Stat. (2005). However, there is no evidence in the record that 1) J.C. kept drugs in the home; 2) exposed the children to drugs; or 3) the children were aware of the father’s activities in the detached structure behind the home. DCF did not “get wind” of J.C.’s criminal activity until after he was arrested. Although the mother did not participate in the father’s misdeeds, the state removed the children from both parents and adjudicated the children dependent as to both.

I do not condone the father’s activities. On a visceral or emotional level, one can understand DCF’s actions. But DCF, like all other litigants, must prove its case, especially where such a vital matter — the parent-child bond — is at stake. I do not believe it did so here.

FACTS

The record in this case is sparse. Read most favorably to DCF, it reflects that on January 18, 2005, City of North Miami Beach Detective David Streeter initiated surveillance of J.C.’s property. Streeter testified he observed “subjects driving up to the residence going to the rear and side of the residence, going to the detached structure in the back that appeared to be an efficiency [apartment] ... and what appeared to be hand-to-hand drug transactions outside.” (Emphasis added). Over the next three days, Street-er arranged three buys to confirm the accuracy of his observations. All three drug transactions took place inside the detached structure. Notably, Streeter did not testify that any of the subjects went inside the residence. Streeter did not see the children at any time. Shortly after the third purchase occurred on January 21, 2005, J.C. was arrested and taken into custody.

Thereafter, on January 24, 2005, DCF received an abuse report, presumably from the police department. Lead Child Protective Investigator, David Okon, and a colleague, Apolla Bustamante, reported to the family home and spoke with the mother outside the presence of the children. Although she knew what the father had been doing behind the home, she did not participate. When asked if the children “appeared abused or neglected in any way,” Okon replied, “No.” Okon did not remove the children at that time. Rather, he returned to his office to “do paperwork” and discuss the matter with his boss. The next, day, January 25, 2005, without further investigation, Okon returned to the home and removed the children.

On January 31, 2005, after the children were removed from the home, the police executed a search warrant on the premises. A gun was found in a sock in a drawer in one of the bedrooms of the home. Based on testimony of Okon, Bustamante, and Streeter, the trial court adjudicated the children dependent as to both parents.

The Adjudicatory Order

The trial court held a joint adjudicatory trial on the Dependent Petition as against both parents. The crux of the trial court’s reasoning for adjudicating the children dependent as to the father was its finding that “the Father sold drugs while the children were in his care, the children were exposed to drugs and drug related activities and the Father maintained an unsecured firearm while the children were in his care.” The adjudication as to the mother was based upon her “fail[ure] to protect the children from an inadequate caretaker.”

Dependency Adjudications

The Florida Legislature has explained that a prime purpose of the Florida Juvenile Justice Act (the “Act”), Chapter 39 of the Florida Statutes, is to guarantee to each child in Florida safe and supportive home environment:

39.001 Purposes and intent ...
(1) PURPOSES OF CHAPTER. — The purposes of this chapter are:
(a) To provide for the care, safety, and protection of children in an environment that fosters healthy social, emotional, intellectual, and physical development; to ensure secure and safe custody; and to promote the health and well-being of all children under the state’s care.

§ 39.001(l)(a), Fla. Stat. (2005). Coextensive with this purpose is a second equally important goal: preservation of the family. Section 39.001(l)(f), Florida Statutes (2005) reads:

(1) PURPOSES OF CHAPTER. — The purposes of this chapter are:
(f) To preserve and strengthen the child’s family ties whenever possible, removing the child from parental custody only when his or her welfare cannot be adequately safeguarded without such removal.

§ 39.001(l)(f), Fla. Stat. (2005). Thus, an adjudication proceeding “is not merely an inquiry ... as to what may be in the best interest of the child. It is an interference with the fundamental right of [ ] parent[s] to raise their children.” A.M.T. v. State, 883 So.2d 302, 306 (Fla. 1st DCA 2004)(in-ternal citations omitted). Parents’ fundamental liberty interest in determining the care and upbringing of their children “does not evaporate simply because they have not been model parents.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); O.C. v. Dep’t of Children & Family Servs., 934 So.2d 623, 628 (Fla.2d DCA 2006). Accordingly, to support an adjudication of dependency in this state, the parent’s harmful behavior must be a present threat to the child. See B.C. v. Dep’t of Children & Families, 846 So.2d 1273 (Fla. 4th DCA 2003).

Under the Florida Juvenile Justice Act, a “[cjhild who is found to be dependent” includes one who has been “abandoned, abused or neglected by the child’s parent[s]”, or a child who is found “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent[s].” § 39.01(14)(a), (f), Fla. Stat. (2005)(em-phasis added). Therefore, “before we can affirm the trial court’s adjudication of dependency, we must find: competent, substantial evidence that the child was abandoned; competent, substantial evidence that the child was abused; competent, substantial evidence that the child was neglected; or the risk of abandonment, abuse or neglect is imminent.” J.B.M. v. Dep’t of Children & Families, 870 So.2d 946, 949 (Fla. 1st DCA 2004). I address each possibility in turn.

Abandonment

An abandoned child is one whose parent or caregiver “while being able, makes no provision for the child’s support and makes no effort to communicate with the child....” §39.01(1), Fla. Stat. (2005). While the Dependent Petition alleges abandonment, there was no allegation or evidence of abandonment introduced or argued during trial. Consequently, there can be no finding of dependency based upon abandonment, and we cannot affirm the trial court on this ground. See J.B.M., 870 So.2d at 950.

Abuse

The second ground by which a child may be found dependent is abuse. An abused child is one who is subjected to “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2), Fla. Stat. (2005)(emphasis added). “Abuse of a child includes acts or omissions.” Id. For the children to be adjudicated dependent under this statute, DCF must prove: (1) a “willful” or “threatened” act; (2) the act must “result[ ]” in “injury” or “harm”; and (3) that “injury” or “harm” must either:

(a) “cause[ ] ... the child’s physical, mental or emotional health to be significantly impaired;” or

(b) [be] likely to cause the child’s physical or emotional health to be significantly impaired.

“Physical injury,” “mental injury,” and “harm” are further defined. “ ‘Physical injury’ means death, permanent or temporary disfigurement, or impairment of any bodily part.” § 39.01(52), Fla. Stat. (2005). “‘Mental injury’ means an injury to the intellectual or psychological capacity of a child as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior.” § 39.01(43), Fla. Stat. (2005). “Harm” is defined to include all manner of actual physical, mental, and emotional harm or exposing a child to such substances (1) when a mother’s use of a controlled substance during her pregnancy demonstrably adversely affects the child; or (2) where a parent engages in “[c]ontin-ued chronic and severe use of a controlled substance [and] the child is demonstrably adversely affected by such usage.” § 39.01(30)(g), Fla. Stat. (2005). A plain reading of this section of Chapter 39 makes it clear that it is intended to reach cases of actual abuse. T.S. v. Fla. Dep’t of Children & Families, 935 So.2d 626 (Fla. 1st DCA 2006)(noting that a child may be found dependent if the child has been “abandoned, abused, or neglected by the child’s parentfs]” or is in “substantial risk of imminent abuse, abandonment, or neglect by the parent[s]”); J.B.M., 870 So.2d at 951 (“if there is no evidence the child actually suffered harm or injury— physical, mental or emotional — as a consequence of a parent’s alcohol or drug use, evidence that the parent has a drug or alcohol problem, standing alone, is insufficient to support a finding of dependency”)(emphasis added); E.M.A. v. Dep’t of Children & Families, 795 So.2d 183, 185 (Fla. 1st DCA 2001)(applying the imminence requirement of section 39.01(14)(f) of the Florida Statutes in the absence of proof of actual abuse, abandonment, or neglect). That this section of the Act is intended to cover instances of actual abuse is further confirmed by the last sentence which excludes corporal punishment from its reach unless it “result[s] in” harm to the child. § 39.01(2), Fla. Stat. (2005)(em-phasis added).

As confirmed by the testimony of Investigator Okon at trial, the children in this case had not been subject to any actual abuse by either parent. There is no ground for a finding of actual abuse of these children under the Florida Juvenile Justice Act.

Neglect

The final ground we may consider in a dependency action is whether there is competent, substantial evidence the child was neglected. Under section 39.01(45), Florida Statutes (2005),

“Neglect” occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment ... or is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.

§ 39.01(45), Fla. Stat. (2005)(emphasis added).

As recognized by the majority, there is “absolutely no evidence that the children were deprived of necessary food, clothing, shelter, or medical treatment.” See supra majority p. 186. Furthermore, as stated by the majority, “there is no evidence that the children were present or even aware that their father was selling drugs.” Id. at p. 187. Thus, there again is no evidence the children have been at any time the subject of any actual physical, mental, or emotional neglect. Nevertheless, the majority suggests an adjudication is appropriate in this case because the environment in which the children found themselves was likely to cause substantial impairment to their “physical, mental and/or emotional health.” Id. To the extent that either DCF or the majority wishes to suggest the adjudication in this case was appropriate based upon a “danger” that the physical, mental, or emotional health of the children would be “significantly impaired” in the future, the evidence still must meet the imminen-cy requirement of section 39.01(14)(f). See B.C., 846 So.2d at 1274; see also In re: J.L. v. Dep’t of Children & Family Servs., 824 So.2d 1023, 1025 (Fla. 2d DCA 2002)(“[w]hile prospective neglect or abuse can be a basis for an adjudication of dependency, the Department must meet the statute’s imminency requirement”); E.M.A., 795 So.2d at 185 (“The statutory definitions of ‘abuse’ and ‘neglect’ do not expressly include [a] requirement of imminence. However, when [absent actual abuse, abandonment or neglect] these definitions are read in pari materia with the related language in section 39.01(14)(f), a risk of imminent neglect seems to be required to establish that a child is ‘dependent’ as a matter of law.”)(internal citations omitted).

There is no ground in this case for a finding of actual neglect of the children. As demonstrated next, neither did the evidence adduced at trial support an adjudication under section 39.01(14)(f) of the Florida Statutes.

Imminency

In the absence of actual abuse, abandonment, or neglect, a finding of dependency can still be made if a child is found by the court “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” § 39.01(14)(f), Fla. Stat. (2005). While all imminent abuse or neglect is prospective in nature, all prospective abuse is not imminent within the meaning of the statute. Thus, in all imminency eases the issue is whether “future behavior will adversely affect the child and can be clearly and certainly predicted.” In re P.S. v. Dep’t of Children & Family Servs., 825 So.2d 530, 531 (Fla. 2d DCA 2002); Palmer v. Dep’t of Health & Rehab. Servs., 547 So.2d 981, 984 (Fla. 5th DCA 1989); see also Nicholson v. Scoppetta, 3 N.Y.3d 357, 787 N.Y.S.2d 196, 820 N.E.2d 840, 845 (2004)(“Imminent danger ... must be near or impending, not merely possible.”).

In this case, any arguable danger to the children was removed by the North Miami Beach Police Department at the time of J.C.’s arrest. DCF presented no evidence at trial concerning whether, post-arrest, there remained any “impending,” “possible,” or even probable danger to J.C.’s children. See J.C. v. Dep’t of Children & Families, 773 So.2d 1220, 1222 (Fla. 4th DCA 2000)(a possibility of future harm “[does] not rise to the level of injury ... likely to cause the child’s physical, mental, or emotional health to be significantly impaired”). Nevertheless, placing its primary reliance in both its brief and at oral argument on D.D. v. Dep’t of Children & Families, 773 So.2d 615, 618 (Fla. 5th DCA 2000), DCF argues the adjudication in this case should be affirmed. This reliance is misplaced.

In D.D., DCF presented multiple witnesses concerning incidents of. verbal and physical abuse perpetuated by a father upon the mother in the presence of E.R., the couple’s minor child. E.R. was adjudicated dependent as to the father, and the father appealed. Based upon the trial court’s conclusion that the child had witnessed her father’s abuse against her mother when the parties were a couple, and that the mother and father were more likely than not to continue their relationship in the future, the court adjudicated E.R. dependent as to the father. The Fifth District Court of Appeal affirmed:

The evidence of the father’s abuse of the mother as witnessed by the child, together with evidence indicating that the parents will more likely than not resume their relationship in the future and thus resume their cycle of domestic violence in the presence of the child, establishes prospective neglect sufficient to support a finding of dependency, even in the absence of medical or other expert testimony.

Id. (emphasis added). Unlike D.D., however, there is no record evidence here concerning whether or not J.C. was likely, post-arrest, to engage in any unlawful activity, let alone in the vicinity of the children. The state agencies that needed to protect these children were the police department and the office of the state attorney. They did their job. Moreover, “[i]n cases like this one, where the record discloses no prior act of [actual] neglect or abuse, the Florida Legislature apparently has concluded that the mere possibility of future abuse, neglect, or abandonment will not support a finding of dependency.” R.S. v. Dep’t of Children & Families, 881 So.2d 1130, 1133 (Fla. 4th DCA 2004).

Finally, I find it instructive that our supreme court very recently rejected a per se rule of the type today adopted by the majority in the equally if not more troublesome context of child sexual abuse in the home. In In re M.F., 770 So.2d at 1189, rebuffing authority from this district and the Second District Court of Appeal, the supreme court disapproved an adjudication of dependency of a father, R.F., as to two biological children with whom he had lived in the same structure based solely upon a recent conviction for attempted sexual battery on his stepdaughter. “A simple showing that a parent committed a sex act on one child does not by itself constitute proof that the parent poses a substantial risk of imminent abuse or neglect to the child’s sibling....” Id. at 1194. Our case involves the undisputed criminal act of the sale of drugs outside a home. If a conviction for sexual misconduct occurring in the home is insufficient without more to meet the statutory imminence requirement as to children living with the offending party in the same home, I am hard-pressed to find that the sale of drugs outside the home, standing alone as in this case, would support an adjudication as the majority opines. As Justice Pariente cautions in her special concurrence in In re M.F., per se rules can all too quickly implicate “due process concerns” in the sensitive area of fundamental parental rights, id. at 1196, especially where “our Legislature has not [seen fit to] specifically provide[ ] a per se rule” that selling drugs in the vicinity of children constitutes grounds for an adjudication of dependency. Id. Cf. § 39.806(l)(f), Fla. Stat. (2005)(providing that grounds for termination of parental rights exist when the parent engages in egregious conduct that threatens the life of the child’s sibling or results in the sibling’s serious bodily injury or death).

I do not believe DCF met the imminen-cy requirement in this case.

Conclusion

“Parents have a fundamental liberty interest in determining the care and upbringing of their children ‘free from the heavy hand of government paternalism.’ ” O.C., 934 So.2d at 623 (internal citations omitted). “This liberty interest ‘does not evaporate simply because they have not been model parents.’ ” Id. “The State of Florida does not demand perfection from its families.” T.G. v. Dep’t of Children & Families, 927 So.2d 104, 107 (Fla. 1st DCA 2006)(internal citations omitted). “[Rather], the State demands that children be protected from abuse and from the substantial risk of imminent abuse.” Id.

Upon discovery of J.C.’s illegal activities, there was aggressive criminal justice intervention. J.C. was taken into custody. But in our society, one whose liberty is restrained for the commission of a criminal act does not lose all of his other liberties. Among those, he does not lose his liberty interest in his children and their upbringing unless another agency of the state, DCF, can prove under another set of laws that the children have been abused or are at a substantial risk of imminent abuse, abandonment, or neglect.

However tempting it might be to affirm this case, either as additional punishment of J.C. or because he was not using best practices as a parent, the laws of this state do not permit either. See T.G., 927 So.2d at 107; In re M.F., 770 So.2d at 1193. (“The purpose of a dependency proceeding is not to punish the offending parent.”). Rather, child dependency laws of this state focus on the “care, safety, and protection” of the child. § 39.001(l)(a). They provide the exclusive means whereby a court can declare a child to be dependent. I.T. v. Dep’t of Health Rehabilitative Servs., 532 So.2d 1085, 1087 (Fla. 3d DCA 1988). Applying these laws to the facts of this case, I conclude that because DCF failed to offer sufficient proof at trial either that the children had suffered any actual harm or were at substantial risk of imminent abandonment, abuse, or neglect under the dependency laws of this state, we are compelled to reverse.

I would reverse the adjudication of dependency below.

      . D.C. was born on July 15, 1994, and L.C. was born on October 2, 1997, thus making them ten and a half years old and seven years old, respectively, at the time the events stated below occurred.

      . The children were also adjudicated dependent as to the mother, who resides in the same residence, and her appeal is pending under Case No. 3D05-1779.

      . Bustamante confirmed that "[ajpparently [the children] weren't aware of what was going on....” According to Bustamante, the mother "made it seem like [J.C.'s drug selling] was not putting the children at risk because it was being done outside of where they were residing, at the back.” Bustamante was not involved in the decision to remove the children from the home.

      . The majority opinion emphasizes the discovery of the gun. However, given the fact DCF’s intervention commenced before the execution of the search warrant, it is clear the existence of the gun had nothing to do with whether DCF considered its intervention legally authorized or necessary. Moreover, the existence of a gun in a sock in a house, without more — e.g., some proof of prospective harm, — is legally insufficient to support a dependency adjudication. See infra pp. 191-93.


author: WARNER, J.

text:
    Tyrone WOODLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1863.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.
    Rehearing Denied Sept. 29, 2006.

      Kayo E. Morgan of Kayo E. Morgan, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Tyrone Woodly, appeals the trial court’s denial of his post-sentencing motion to withdraw his plea without holding an evidentiary hearing on the issue. Because the allegations of his motion either were legally insufficient or were conclusively refuted by the record, we affirm.

The state charged Woodly with robbery with a firearm, armed kidnapping, and attempted murder. The probable cause affidavit stated that the victim was shot and robbed:

[Woodly] entered the business with two other [] males. All three of the suspects produced handguns and demanded money. The victim, in fear for his life, gave the suspects $1,000. The victim was tied up using duct tape and was held against his will at gunpoint. The suspects began to demand more money from the victim.
[The victim] was held against his will at gunpoint. The suspects began to demand more money from the victim. In an attempt to get more money from the victim the robbers took off .the shoe of [the victim] and cut his toe. [The vie-tim] in fear for his life agreed to give more money to the robbers. [He] then attempted to escape. While attempting to escape, [the] victim was shot twice in an attempt to kill him. [The victim] was shown a six person photographic lineup and he immediately and without hesitation picked out Woodly [as] the person who robbed him.

The information alleged that one of the other suspects actually discharged the firearm resulting in the victim’s injuries. However, at the plea hearing the prosecutor also noted that Woodly’s fingerprints were on the duct tape used on the victim.

Nearly a year after the information was filed, the case came on for trial. Before voir dire commenced, Woodly complained about his lawyer. The court asked if he wanted to discharge his lawyer, to which Woodly said “if that’s possible, Judge.” The court then conducted a Nelson inquiry. Woodly complained that his lawyer did not visit him and added, “I’m being charged with attempted murder. I didn’t [shoot] this man.... I’m charged with kidnapping, nothing really I did.”

Woodly’s lawyer generally explained that the case had been delayed by witness problems and bad address problems, but elaborated that the deposition of the main witness in the case had not been completed until the night before. He had already gone over the deposition extensively with Woodly.

The court found that Woodly’s lawyer was providing effective assistance of counsel and refused to replace counsel. The judge gave Woodly three choices: to hire another private attorney, to keep his present counsel, or to represent himself. However, the court refused to continue the trial because the request was being made on the day of trial, and Woodly had never raised his dissatisfaction with counsel even though his case had been before the court practically once a month during the past year. Woodly then chose to continue with his present counsel.

Counsel then told the court that plea negotiations were still ongoing. The state had offered Woodly a plea deal of fourteen (14) years in prison with a ten (10) year minimum mandatory sentence. Counsel told the court that, even assuming Woodly were found guilty of only “lesser” offenses on two of the charges, Woodly’s sentence would be more than the plea offer.

The court asked what the potential penalties were, and the prosecutor informed that Woodly was “looking at life because of the robbery firearm as a principal.” . However, this was not a mandatory life sentence. The court then confirmed that Woodly’s “potential penalty would be up to life discretionary with a ten year minimum mandatory” under the 10-20-Life law.

Defense counsel tried to get Woodly to accept the state’s offer, and at first Woodly agreed to accept it. However, when he continued to express dissatisfaction with his lawyer, the court told him that he had the option of going to trial, as a jury venire was waiting outside. Woodly then decided to go to trial.

However, during the lunch break for the jury, Woodly’s co-defendant changed his plea, and Woodly also changed his mind about going to trial. The court then conducted a plea colloquy. When asked whether he was satisfied with his lawyer’s services, he said, “the truth, no.” When pressed, he complained that his lawyer had not obtained a favorable plea deal, given that he had never been convicted of any other crime. The prosecutor responded that there was nothing that defense counsel could have said to convince him to give Woodly a better offer.

After further discussions, the court again asked Woodly whether he wanted to accept the offer or continue with jury selection. Once again, Woodly said he would take the plea. The court asked, “Anyone forcing you, coercing you or threatening you into taking this plea?” Woodly responded, “No.” The court asked whether Woodly was entering into the plea voluntarily, to which he replied “yes.”

The court then asked, “Mr. Woodly, has anyone, including your attorney, told you anything different than what I’ve told you here in open court?” Woodly again replied “no.” The court explained that Woodly was facing up to life imprisonment with a 10-year minimum mandatory on each count in the information pursuant to the 10-20-Life provision of the Florida Statutes. Woodly indicated that he understood this. The court specifically asked the defendant:

Has anyone, including [defense counsel] ... twisted your arm or unduly influenced you or pushed you emotionally to such extent that you’re changing this plea but that’s not what you want to do? Has anyone done that?
[DEFENDANT WOODLY]: No.

The court asked whether Woodly wanted to accept the state’s offer, and he said “yes.” Defense counsel stipulated to the factual basis of the plea, as contained in the probable cause affidavit. The court sentenced Woodly pursuant to the negotiated plea — fourteen (14) years, with a ten-year minimum mandatory sentence.

Five days later, Woodly filed a motion to withdraw his plea through new counsel. As grounds for withdrawal, Woodly cited (1) the court’s refusal to grant a continuance for him to obtain a new attorney, which he regarded as coercion; (2) counsel’s misadvice to Woodly that his case was indefensible and that he would be convicted and sentenced to life in prison; however, Woodly claimed that he was aware of several witnesses who would undermine the testimony of the state’s key witnesses; and (3) counsel’s failure to inform him of the “independent act doctrine” or the “mere presence doctrine,” which he claimed were lawful defenses to the charges. Woodly alleged that, had he known' of these defenses, he would not have entered his plea. The state responded asking the trial court to deny Woodly’s motion without prejudice to his filing for collateral relief under rule 3.850. The court did just that, attaching the state’s response as well as a transcript of the change of plea hearing. This appeal followed.

We conclude that the court did not err in summarily denying Woodly’s post-sentence motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(Z). The standard of review of a trial court’s denial of a motion to withdraw plea is abuse of discretion. Boule v. State, 884 So.2d 1023, 1024 (Fla. 2d DCA 2004). Pursuant to Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e) and Florida Rule of Criminal Procedure 3.170(Z), a defendant may withdraw a plea within thirty (30) days after the rendition of the sentence, but only upon the following grounds: (a) the lower tribunal’s lack of subject matter jurisdiction; (b) a violation of the plea agreement, if preserved by a motion to withdraw plea; (c) an involuntary plea, if preserved by a motion to withdraw plea; (d) a sentencing error, if preserved; or (e) as otherwise provided by law.

Where a defendant files a facially sufficient motion to withdraw his plea, he is entitled to an evidentiary hearing on the issue unless the record conclusively refutes his allegations. See Snodgrass v. State, 837 So.2d 507 (Fla. 4th DCA 2003); Simeton v. State, 734 So.2d 446 (Fla. 4th DCA 1999).

In this case, we deal only with the claim that appellant’s plea was involuntary. We conclude that the record refutes each of the reasons Woodly alleged to support the withdrawal of his plea as being involuntary. First, as to the denial of a continuance so that Woodly might obtain private counsel, the court was not required on the day of trial to accede to such a request, particularly where Woodly clearly had made no arrangements for private counsel.

In fact, under the circumstances of this case, Woodly had simply asked to discharge appointed counsel for ineffectiveness. Our supreme court has said, “if a trial court decides that court-appointed counsel is providing adequate representation, the court does not violate an indigent defendant’s Sixth Amendment rights if it requires him to keep the original court-appointed lawyer or represent himself. Foster v. State, 704 So.2d 169,172 (Fla. 4th DCA 1997).” Weaver v. State, 894 So.2d 178, 188 (Fla.2004). In Foster we noted:

Although a criminal defendant has a Sixth Amendment right to select his own private attorney, the right “is circumscribed in several important respects.” See Wheat, 486 U.S. [153] at 159, 108 S.Ct. [1692] at 1697 [100 L.Ed.2d 140 (1988) ]. While the Sixth Amendment affords criminal defendants a “presumption in favor of counsel of choice,” id., “where ‘considerations of judicial administration’ supervene, the presumption in favor of counsel of choice is rebutted and the right must give way,” United States v. Voigt, 89 F.3d 1050, 1074 (3d Cir.), cert. denied, 519 U.S. 1047, 117 S.Ct. 623, 136 L.Ed.2d 546 (1996)....
[I]n Bowman v. United States, 409 F.2d 225 (5th Cir.1969), the appellate court affirmed the trial court’s refusal to substitute counsel and grant a continuance to allow the defendant to procure other counsel where these requests were made on the morning of trial. The appellate court noted that the appellant had failed to raise any specific deficiency in counsel’s performance, that appointed counsel was ready for trial, and that the defendant had given no reason for waiting until the morning of trial before bringing his dissatisfaction to the trial court’s attention. Id. at 226. Under these circumstances, the court was apparently skeptical of the defendant’s motivation in seeking the continuance and substitution:
We and other courts of appeals have repeatedly made clear that the right to counsel “cannot be ... manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.” ... Judges must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay.

704 So.2d at 173 (footnote omitted).

Similarly, in this case, Woodly waited until the morning of trial to raise his dissatisfaction with his court-appointed attorney when the case had been pending for over a year, a point not lost on the trial court. We think the record conclusively refutes Woodly’s allegations with respect to his complaint of going to trial with appointed counsel.

In his second ground to withdraw his plea, Woodly maintains that he was assured by appointed counsel that if he did not take the negotiated plea, the trial judge would impose a life sentence after trial if he were convicted. The allegation that counsel misadvised appellant that he would receive a life sentence if convicted is cognizable under rule 3.170(i). Boule v. State, 884 So.2d 1023, 1024 (Fla. 2d DCA 2004). However, here the record conclusively refutes the allegations. In Woodly’s presence, the prosecutor stated that the potential penalty was up to life imprisonment on each count. .The court confirmed that the life sentence was discretionary and not mandatory. Further, through its questioning, the trial court confirmed that no one, including Woodly’s attorney, had told Woodly anything different than what the court was informing him about his sentence. The trial court informed Woodly that if he proceeded to trial he was facing up to life imprisonment with a ten-year minimum mandatory on each count in the information pursuant to the 10-20-Life provision of the Florida Statutes. Based upon the transcript,. Woodly was well aware that he was not facing a mandatory life sentence on the charges to which he pled guilty.

This case therefore bears similarity to Jones v. State, 680 So.2d 585 (Fla. 4th DCA 1996). There, the defendant filed a post-conviction motion under rule 3.850, alleging that his lawyer misstated the law by advising him, prior to entering his plea, that if he were found guilty as an habitual offender “you’re never going to get out of prison because the judge is obligated to sentence you to life.” Id. at 586. During the plea conference, the trial court told the defendant: “You also understand you are habitually qualified. .That means if the Court were to declare you to be a habitual offender, that you could be sentenced to life as a habitual offender.” Id. at 587 (emphasis added). This court held that the defendant’s claim of an involuntary plea was refuted by the transcript, which demonstrated that the trial court correctly advised him about the potential habitual offender sentence. In Jones, just as in the present case, the judge did not tell the defendant that if convicted after trial, then imposition of a life sentence was mandatory. The Jones court reasoned:

Here, the judge correctly advised defendant as to the possibility of life imprisonment upon conviction as an habitual felony offender. Defendant indicated that he understood the nature of the potential sentence. If he had been told something different by his lawyer, defendant was obligated to speak up at the plea conference and ask the court about the discrepancy. He could not stand mute, accept the benefits of. the plea, and then collaterally attack its voluntariness on the basis of something that should have been cleared up at the time of the plea.

Id. See also Ragoobar v. State, 893 So.2d 647 (Fla. 4th DCA 2005).

Additionally, Woodly sought to withdraw his plea because his attorney failed to inform him of available defenses to the charges — namely, the “independent act” doctrine and the “mere presence” doctrine. However, based upon the record and the stipulated factual basis of the plea, it is clear that the “independent act” and “mere presence” doctrines were not “available” defenses, and Woodly has not alleged any other facts to show their availability.

In Snodgrass, we said:

Where a motion to withdraw a plea oc- . curs after sentencing, the appellant has the burden of proving that “a manifest injustice has occurred.” LeDuc v. State, 415 So.2d 721, 722 (Fla.1982); State v. Wiita, 744 So.2d 1232, 1234 (Fla. 4th DCA 1999). This is a more stringent standard than a motion to withdraw a plea filed before sentencing; the burden falls on the defendant to prove that withdrawal is necessary to correct the manifest injustice. See Scott v. State, 629 So.2d 888, 890 (Fla. 4th DCA 1993).

837 So.2d at 508 (emphasis in original). Such proof must be more than mere general allegations. Cf. Robinson v. State, 761 So.2d 269 (Fla.1999) (requiring defendant- to offer proof of involuntariness in connection with a rule 3.170(f) motion). Without some circumstance which would show that the defense of “independent act” or “mere presence” was available at trial, the trial court did not abuse its discretion in denying the motion to withdraw the plea on this ground.

Finally, Woodly’s complaint that he knew of witnesses who would contradict the state’s witnesses also fails as being legally insufficient to show that his plea was involuntary. Absent coercion, mistake or misadvice, defendants may not “renege on plea agreements on the basis that they have miscalculated their risks and benefits or have belatedly discovered a new defense.” United States v. Muriel, 111 F.3d 975, 981 (1st Cir.1997). In this case, there was no coercion, misadvice, or misapprehension regarding the investigation defense counsel had done. If Woodly knew of witnesses who would support his claims, then he could have gone to trial. He cannot show that his plea was involuntary based upon matters known to him at the time he decided to plead guilty, even if counsel may have been ineffective in failing to obtain their statements.

Because the record before the trial court refuted each of Woodly’s grounds for determining that his plea was involuntary, we affirm. We do so, however, without prejudice to Woodly filing a motion for postconviction relief on any grounds not disposed of by this opinion.

Affirmed.

GROSS and HAZOURI, JJ., concur.


author: MAY, J.

text:
    FEDERATED NATIONAL INSURANCE COMPANY, Appellant, v. Linda ESPOSITO, Appellee.
    No. 4D05-4480.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.

      Anne D. Ogden of Bazinsky & Korman, P.A., Plantation, for appellant.
    Martin E. Leach of Feiler, Leach & McCarron, P.L., Coral Gables, for appel-lee.
   MAY, J.

The order confirmed an appraisal award; the dispute is between an insured and insurer over hurricane damage to a residence; the real issue — attorney’s fees. The insurer argues the court erred in confirming the appraisal award and entering a judgment because it timely participated in the appraisal and paid the award without the need for court intervention. We agree and reverse.

On February 18, 2005, the insured invoked the appraisal process after failing to reach an agreement with the insurer on the value of the damaged property over a five month period. On March 3, 2005, the insured’s attorney wrote to the insurer’s attorney concerning the rescheduling of an “Examination Under Oath.” It identified the insured’s appraiser and requested the insurer provide its appraiser no later than March 11, 2005.

On March 11, 2005, the insurer’s appraiser sent a letter to the insured’s appraiser. The letter referenced a prior phone conversation between the two, listed several potential umpires, and confirmed a March 19, 2005 meeting between the two. On April 15, 2005, the insured’s attorney again wrote to the insurer’s attorney. The letter demanded the appraisal, advised the insurer that it had twenty days within which to select its appraiser (which it had already done), and warned of a pending civil remedy.

Despite the progress of the appraisal process, on May 10, 2005, the insured filed a petition to compel appraisal against the insurer. According to the allegations, the insured had filed a demand for appraisal, a reasonable time had passed since the request, and the insurer had failed to comply. The petition alleged an attorney had been retained to protect the insured’s interests because of the insurer’s non-compliance. In its answer, the insurer admitted the existence of the insurance contract, denied the remaining allegations, and asserted its affirmative defenses, which focused on the insured’s refusal to allow the insurer’s representative access to her residence for inspection purposes.

On June 30, 2005, the trial court entered an agreed order appointing a neutral umpire and ordered the parties to coordinate the date and time of the appraisal. The appraisal award was issued on July 21, 2005. The insurer paid the award in full. Less than two weeks later, the insured filed a motion to confirm the appraisal award and to enter a judgment. The trial court granted the motion on October 19, 2005. From this order, the insurer appeals.

The insurer claims the trial court erred by entering the order confirming the appraisal award when the award had already been paid. It argues the insured only sought confirmation of the award to seek attorney’s fees. The insured responds that the insurer never moved to vacate, modify, or clarify the award. Further, the insured argues the filing of the petition positively affected the insurer’s participation in the appraisal process.

The precise issue raised is whether a court should confirm an appraisal award after it has been paid. The underlying question driving this case is whether an insurer is subject to attorney’s fees, pursuant to section 627.428, Florida Statutes (2005), if the insured initiates litigation even though the insurer complies with the terms of the alternative dispute resolution provided for in the insurance contract. Because of the laudable goal of the appraisal process — to resolve disputes without litigation — and the potential to evade that goal by resort to the court system, we hold that there is no need to confirm an appraisal award in circumstances such as those presented here.

Two cases shed light on this issue, Nationwide Property and Casualty Insurance v. Bobinski, 776 So.2d 1047 (Fla. 5th DCA), review denied, 791 So.2d 1094 (Fla.2001), and Travelers Indemnity Insurance Company of Illinois v. Meadows MRI, LLP, 900 So.2d 676 (Fla. 4th DCA 2005).

In Nationwide, the insured filed suit to confirm an appraisal award and determine its right to attorney’s fees. The insured filed suit seventeen days after the completion of two appraisals and full voluntary payment of both claims. The Fifth District found the court erred in awarding fees because no final judgment had been entered. The court noted that “[ajttor-nejds fees have been awarded when suit was filed prior to payment of the appraisal or arbitration award or to compel an insurer to participate in an appraisal.” Id. (citing State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832-33 (Fla.1993)).

Our court reached a different conclusion in Travelers. However, several facts distinguished the case from Nationwide. In Travelers, the insurer first engaged in a four-month investigation to determine exclusively the existence of coverage for the loss. In response, the insured retained legal counsel. After efforts to settle the dispute failed, the insured invoked the appraisal provision of the insurance contract. The appraisal process lasted over a year. During that time, the insured filed a declaratory judgment action to determine the procedure to be used during the appraisal and entitlement to attorney’s fees. Once the appraisal process was completed, the insurer quickly paid the insured. Travelers, 900 So.2d at 676-78.

This court distinguished Nationwide. We noted that the insured had filed the declaratory judgment action before completion of the appraisal and the insurer failed to appeal the final judgment confirming the appraisal award. Id. at 678. We also noted that the “suit and any accompanying legal work at bar was not merely a means to an end.” Id. We therefore affirmed the court’s award of attorney’s fees:

We find this case distinguishable from Travelers and more like Nationwide. First, the insurer in Travelers failed to appeal the order confirming the appraisal award. Here, the insurer has specifically appealed a similar order. Second, Travelers involved a coverage dispute between the insured and the insurer; no coverage dispute exists in this case. .

Third, the insured in Travelers was required to seek declaratory relief to proceed with the appraisal process; there was no declaratory relief sought in this case. We acknowledge that the insured in this case sought and obtained an agreed order, appointing a neutral umpire, but that is not the same as having to litigate coverage or the appraisal process. Fourth, the insurer in this case met the insured’s. demand for appointment of an appraiser in the time frame provided, agreed to the neutral umpire, and paid the appraisal award in a timely manner. And last, this case does not yet involve an award of fees following entry of an un-appealed final judgment.

We cannot fault the insurer for complying with the terms of its insurance contract by participating in the appraisal process and paying in a timely manner. To do so would dissuade insurers from complying with the terms of their own agreements. In this case, the insured filed the petition before the appraisal award was issued, but not prior to the time the carrier had already appointed its own appraiser and participated in the appraisal process. The insurer did not contest coverage, but rather participated in the contractual appraisal process because it could not reach an agreement with the insured over the disputed amount of the insured’s claim. To rule otherwise would encourage an insured to run to the courthouse rather than to participate in the alternative dispute resolution outlined by the agreement between the parties. This is contrary to the intent and purpose behind the appraisal process.

To affirm the confirmation order, thereby authorizing a future award of attorney’s fees, where the parties voluntarily participated in alternative dispute resolution would also be contrary to the intent and purpose of section 627.428, Florida Statutes (2005). “The purpose behind section 627.428 is plainly to place the insured or beneficiary in the place she would have been if the carrier had seasonably paid the claim or benefits without causing the payee to engage counsel and incur obligations for attorney’s fees.” Travelers, 900 So.2d at 679.

We therefore reverse and remand the case to the trial court to vacate the order confirming the appraisal award.

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