author: CASANUEVA, Judge.

text:
    Andre WATERS, Appellant/Cross-Appellee, v. Tina BLAND, Appellee/Cross-Appellant. Tina Bland, Appellant, v. Andre Waters, Appellee.
    Nos. 2D03-3523, 2D04-5246, 2D04-2349.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.
    Elizabeth A. Beardsley, Carlos A. Ramirez and Victoria L. Bloomer of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant/ Cross-Appellee.
    Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellee/Cross-Appel-lant.
   CASANUEVA, Judge.

In this appeal involving primary residential responsibility for a minor child, the parties have raised a number of issues, only one of which has merit. In her cross-appeal in case number 03-3523, Ms. Bland contends that the trial court erred by failing to consider child care expenses when it fashioned the child support award. We agree.

Section 61.30(7), Florida Statutes (2002), mandates that child care costs incurred due to a parent’s employment or job search be adjusted and included in the child support calculation. Ms. Bland had been employed in Arizona but was required to return to Florida with the child; the record suggests that she will continue to be employed in Florida. On remand, the trial court must determine whether Ms. Bland meets the statutory criteria and, if so, calculate the appropriate child support award. If the evidence discloses that the child is being cared for by a family member, the trial court should make the necessary factual findings to support that conclusion.

Affirmed in part; reversed in part; remanded with instructions.

ALTENBERND and VILLANTI, JJ., Concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Vincent B. DANIEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1286.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Vincent B. Daniel appeals his judgment and sentence for attempted first-degree murder with a firearm. We affirm his conviction without discussion but reverse his minimum mandatory sentence imposed pursuant to the “10-20-Life” statute, section 775.087(2), Florida Statutes (2004).

On appeal, the State properly concedes that the trial court erred in imposing a twenty-five-year minimum mandatory sentence under section 775.087(2)(a)(3). The State charged in the amended information that Daniel committed attempted first-degree murder “by firearm” but did not allege that Daniel discharged a firearm or that death or great bodily harm resulted. The jury found Daniel guilty of attempted murder in the first degree and that Daniel “during the course of the crime, discharged a firearm that resulted in death or great bodily harm to a person.” The trial court imposed a thirty-five year sentence with a minimum mandatory of twenty-five years.

In order to subject Daniel to a twenty-five-year minimum mandatory under section 775.087(2)(a)(3), the State must allege in the information that Daniel discharged the firearm and that death or great bodily harm resulted. See Adams v. State, 916 So.2d 36, 37 (Fla. 2d DCA 2005); Davis v. State, 884 So.2d 1058, 1060-61 (Fla. 2d DCA 2004), review denied, 900 So.2d 552 (Fla.2005); Rogers v. State, 875 So.2d 769, 771 (Fla. 2d DCA 2004); Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002). “Neither a jury finding nor inclusion of the appropriate statute number in the information can cure this fatal defect.” Davis, 884 So.2d at 1061. Thus, we reverse Daniel’s twenty-five-year minimum mandatory sentence imposed under section 775.087(2)(a)(3) and remand for resentenc-ing.

The State contends that on remand the trial court can impose a ten-year minimum mandatory pursuant to section 775.087(2)(a)(l) for possession of a firearm during an enumerated felony. The State argues that the language of the amended information can by read to allege that Daniel possessed a firearm during the commission of the crime. In Altieri, the court determined that an allegation that the defendant “ ‘used a deadly weapon, to wit: a firearm’ ” was sufficient to give the defendant notice that he was subject to a minimum mandatory for possession of a firearm under section 775.087(2)(a)(l). 835 So.2d at 1185.

Here, rather than alleging that Daniel “used” or “possessed” a firearm, the State alleged that Daniel “from a premeditated design to affect the death of EDMUND R. SANFORD JR., a human being, did attempt to kill the said EDMUND R. SANFORD JR. by FIREARM[.]” The language that Daniel “did attempt to kill” the victim “by firearm” means that he committed the crime “by using a firearm.” In addition, no accomplices were charged with committing the crime with Daniel; therefore, if Daniel committed the crime “by firearm,” then he necessarily possessed the firearm. Cf. Leath v. State, 805 So.2d 956, 957 (Fla. 2d DCA 2001) (reversing three-year minimum mandatory for possession of firearm when the information alleged that the firearm was in the co-defendant’s possession). Furthermore, the jury, in finding that Daniel discharged a firearm, necessarily found that he possessed it. Thus, on remand, the trial court shall sentence Daniel to the ten-year minimum mandatpry pursuant to section 775.087(2)(a)(l). Daniel need not be present for resentencing.

Affirmed in part, reversed in part, and remanded.

WHATLEY, J., and BLACK, ANTHONY K., Associate Judge, Concur.


author: EVANDER, J.

text:
    SA-PG-OCALA, LLC, as Licensee, etc., et al., Appellants, v. Mary Frances STOKES, Appellee.
    Nos. 5D05-3776, 5D05-3777.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    Thomas A. Valdez and Matthew T. Roach of McCumber, Inclan, Daniels, Valdez, Buntz & Ferrera, P.A., Tampa, for Appellant SA-PG-Ocala, LLC.
    John M. Bringardner and Laetitia B. Piedra of Romaguera, Baker, Dawson, Bringardner & Dias, P.A., for Appellant HIS.
    Lisa M. McClellan and Anika R. Hard-mon of Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, P.L., Stuart, for Appellee.
   EVANDER, J.

The issue in this case is whether the arbitration agreement entered into between a nursing home and a nursing home patient was void as contrary to public policy because it substantially limited the patient’s remedies provided under the Nursing Home Residents’ Act. §§ 400.022-400.023, Fla. Stat. (2001). Consistent with the Fourth District Court of Appeal’s decision in Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA), rev. denied, 917 So.2d 195 (Fla.2005), we find the arbitration agreement to be void and therefore affirm the trial court’s decision denying appellants’ motions to compel arbitration.

In connection with her admission to appellants’ nursing home, appellee, Mary Stokes, signed an arbitration agreement providing that any controversy or dispute between the parties would be resolved by arbitration, as provided for by the Alternative Dispute Resolution Service Rules of Procedure for Arbitration of the American Health Lawyers Association (“AHLA”). Section 6.06 of such rules provides, in part:

[T]he arbitrator may not award consequential, exemplary, incidental, punitive or special damages against a party unless the arbitrator determines, based on the record, that there is clear and convincing evidence that the party against whom such damages are awarded is guilty of conduct evincing an intentional or reckless disregard for the rights of another party or fraud, actual or presumed.

As noted in Blankfeld, requiring clear and convincing evidence of intentional or reckless misconduct to recover certain damages would substantially impair negligence actions brought by nursing home patients, and would be contrary to the Nursing Home Residents’ Act. Such Act was enacted to protect nursing home patients. It would be against public policy to permit a nursing home to dismantle the protections afforded patients by the Legislature through the use of an arbitration agreement. See also Lacey v. Healthcare and Retirement Corp. of America, 918 So.2d 333 (Fla. 4th DCA 2005).

Appellants argue that the arbitrator, not the court, should determine if the remedial limitations set forth in this arbitration agreement render the arbitration agreement unenforceable. We disagree. It is the court’s obligation, in deciding a motion to compel arbitration, to determine whether a valid written agreement to arbitrate exists. Global Travel Marketing, Inc. v. Shea, 908 So.2d 392 (Fla.2005); See Seifert v. U.S. Home Corp., 750 So.2d 633 (Fla.1999).

Appellants next argue that the offending provisions of the AHLA rules may be severed from the arbitration provision. Again, we disagree. The offending provisions of the AHLA rules were incorporated into the arbitration agreement. The arbitration agreement did not include a severability clause. Accordingly, these provisions served to taint the entire agreement and rendered the arbitration agreement completely unenforceable. Presidential Leasing, Inc. v. Krout, 896 So.2d 938 (Fla. 5th DCA 2005). The trial court correctly refused to enforce the arbitration agreement.

AFFIRMED.

THOMPSON and MONACO, JJ., concur.

      . Appellants rely on Rollins, Inc. v. Lighthouse Bay Holdings, Ltd., 898 So.2d 86 (Fla. 2d DCA), rev. denied, 908 So.2d 1057 (Fla.2005), to support their contention the enforceability of the arbitration agreement should be decided by the arbitrator. However, a close reading of Rollins reflects the court initially determined the arbitration agreement was not unconscionable. Only after determining the validity of the arbitration agreement did the Second District Court of Appeal decide the enforceability of certain provisions limiting statutory remedies should be determined by the arbitrator. In this case, the arbitration agreement does not survive the threshold determination of validity.


author: ORFINGER, J.

text:
    Ivan IZQUIERDO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2151.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.

      Ivan Izquierdo, Crawfordville, Pro Se.
    No Appearance for Respondent.
   ORFINGER, J.

Ivan Izquierdo seeks a belated appeal of the summary denial of his motion for post-conviction relief. Because his request is both substantively and legally insufficient, we deny it.

Florida Rule of Appellate Procedure 9.140(b)(3) and Florida Rule of Criminal Procedure 3.850(g) both provide that a defendant has thirty days to file an appeal of the denial of a postconviction motion. Mr. Izquierdo ignores those provisions, and, instead, points to rule 9.141, which explains the proper review procedure for postconviction appeals. Specifically, rule 9.141(b)(2) governs the summary denial of rule 3.850 motions without an evidentiary hearing, and provides in relevant part:

(b) Appeals from Post-Conviction Proceedings Under Florida Rule of Criminal Procedure 3.800(a), 3.850, or 3.853.
(¾) Summary Grant or Denial of Motion Without Evidentiary Hearing.
(A) When a motion for post-conviction relief under rule 3.800(a), 3.850, or 3.853 is granted or denied without an eviden-tiary hearing, the clerk of the lower tribunal shall transmit to the court, as the record, copies of the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing, together with the certified copy of the notice of appeal.

Mr. Izquierdo maintains that this provision led him to believe that he had no duty to file a notice of appeal. Instead, he claims that he thought an appeal would be automatically filed, without any further action on his part. By itself, this error would require us to deny relief.

However, there are other problems with Mr. Izquierdo’s filing. Mr. Izquier-do’s request for a belated appeal is governed by Florida Rule of Appellate Procedure 9.141(c). Mr. Izquierdo’s petition does not satisfy any of the requirements of rule 9.141(c)(3). Further, rule 9.141(c)(5)(A) directs that “[t]he petitioner shall serve copies of the petition on the attorney general and state attorney.” It is unclear in this case whether Mr. Izquierdo has done so as his petition does not include a certificate of service.

Admittedly, rule 9.141(c)(5)(B) allows for the amendment of a petition that fails to satisfy any provisions of this rule. However, this does not help Mr. Izquierdo. Accepting his allegations as true, he has not alleged a valid reason for obtaining a belated appeal. See Dalzell v. State, 922 So.2d 247 (Fla. 5th DCA 2006) (holding that in a belated appeal proceeding, only if a petitioner files a legally sufficient petition, does the burden shift to the state to specifically dispute his allegations). No state action caused his failure to timely appeal. See Thomas v. State, 905 So.2d 1037, 1037-38 (Fla. 5th DCA 2005) (recognizing that state action may facilitate belated appeal); see also Latimore v. State, 696 So.2d 1290 (Fla. 4th DCA 1997) (holding that defendant was entitled to belated appeal because his right to appeal had been frustrated by circuit court clerk’s “state action”).

There is no constitutional right to a belated appeal of the denial of a postcon-viction motion. Therefore, a collateral defendant’s own failure to comply with the rules can result in his losing his right to appeal. See Cannon v. State, 763 So.2d 1289 (Fla. 5th DCA 2000) (finding that it was defendant’s fault that he did not timely appeal, and, therefore, as no state action was involved in his loss of his appeal rights, belated appeal was not appropriate).

PETITION FOR BELATED APPEAL DENIED.

PLEUS, C.J. and MONACO, J., concur.

      . Rule 9.141(c)(3) has the following requirements:
      (3) Contents. The petition shall be in the form prescribed by rule 9.100, may include supporting documents, and shall recite in the statement of facts
      (A) the date and nature of the lower tribunal’s order sought to be reviewed;
      (B) the name of the lower tribunal rendering the order;
      (C) the nature, disposition, and dates of all previous proceedings in the lower tribunal and, if any, in appellate courts;
      (D) if a previous petition was filed, the reason the claim in the present petition was not raised previously;
      (E) the nature of the relief sought; and
      (F) the specific acts sworn to by the petitioner or petitioner's counsel that constitute the alleged ineffective assistance of counsel or basis for entitlement to belated appeal, including in the case of a petition for belated appeal whether the petitioner requested counsel to proceed with the appeal.


author: BENTON, J.

text:
    G.T., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 1D06-0280.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2006.

      Mary Kathryn Brennan, Jacksonville Area Legal Aid, Inc., Jacksonville, for Appellant.
    W. Dekle Day, Assistant General Counsel, Jacksonville, for Appellee.
    Wendie Michelle Cooper, Appellate Counsel, Guardian Ad Litem Program, Orlando.
   BENTON, J.

G.T., a teenager in the custody of the Department of Children and Family Services (DCFS), appeals the circuit court order involuntarily committing him to a residential mental health treatment facility. At an evidentiary hearing conducted in purported conformity with Florida Rule of Juvenile Procedure Rule 8.350, no competent evidence was adduced to show that G.T. had been “diagnosed with a mental, emotional, or behavioral disorder of sufficient duration to meet one of the diagnostic categories specified in the most recent edition of the Diagnostic and Statistical Manual of the American Psychiatric Association.” § 394.492(5), Fla. Stat. (2005). Because DCFS offered nothing but hearsay to prove “an emotional disturbance as defined in s. 394.492(5) or a serious emotional disturbance as defined in s. 394.492(6),” § 39.407(6)(a)(3.), Fla. Stat. (2005), we reverse.

A year after DCFS took custody of G.T. and two months before DCFS filed a motion seeking to place him in an inpatient residential mental health treatment facility, DCFS terminated G.T.’s parents’ parental rights. Before the motion to confine him in the mental health treatment facility was heard, a guardian ad litem and counsel were appointed for G.T. As required by statute, he was “assessed for suitability for residential treatment by a qualified evaluator who has conducted a personal examination and assessment of the child,” before the motion seeking residential mental health treatment was filed. DCFS attached to its motion a report entitled “Initial Suitability Assessment For Residential Treatment,” attributed to Richard Filippi, a licensed psychologist.

Commitment proceedings under Rule 8.350 of the Florida Rules of Juvenile Procedure are designed to give a reliable answer to the question whether the dependent child proceeded against is suitable for residential mental health treatment:

(4) If the department seeks to place the child in a residential treatment center or hospital, the department shall immediately file a motion for placement of the child with the court. This motion shall include a statement as to why the child is suitable for this placement and why less restrictive alternatives are not appropriate and also shall include the written findings of the qualified evaluator.
(11) Hearing on Placement.
(B) All parties shall be permitted to present evidence and witnesses concerning the suitability of the placement.
(C) If the court determines that the child is not suitable for residential treatment, the court shall order the department to place the child in the least restrictive setting that is best suited to meet the child’s needs.

Fla. R. Juv. P. 8.350(a)(4), (11) (2005) (emphasis supplied). ‘“Suitable for residential treatment’ or ‘suitability’ ” is defined in section 39.407(6)(a)(3.), Florida Statutes (2005), as a

determination concerning a child or adolescent with an emotional disturbance as defined in s. 394.492(5) or a serious emotional disturbance as defined in s. 394.492(6) that each of the following criteria is met:
a. The child requires residential treatment.
b. The child is in need of a residential treatment program and is expected to benefit from mental health treatment.
c. An appropriate, less restrictive alternative to residential treatment is unavailable.

DCFS has the burden to prove that a dependent child has “an emotional disturbance as defined in s. 394.492(5)” or “a serious emotional disturbance as defined in s. 394.492(6),” and that the requirements of section 39.407(6)(a)(3.)(a.-c.) are met, by clear and convincing evidence, a burden DCFS acknowledges it bears.

At G.T.’s hearing, DCFS called his case manager, a supervisor at the transitional group home in which G.T. had been residing, and G.T.’s family services counselor. These witnesses testified that G.T. was disrespectful, defiant and verbally aggressive with staff, had stolen “hygiene items” from a supply closet that were for all the children’s use, returned “home” late, kept his room messy, and refused therapy offered in the transitional group home. The DCFS case manager also testified that these behaviors were similar to those G.T. exhibited in his prior placements. The guardian ad litem agreed that G.T. was in need of therapeutic services, and, although she believed G.T. would benefit more from a therapeutic group home than an inpatient program, endorsed the residential treatment recommendation.

Dr. Filippi, author of the suitability assessment report, did not appear at the hearing, but DCFS offered his report into evidence. G.T. objected to its admission on grounds that DCFS had laid no foundation for the report’s admissibility or established who wrote the report or the author’s qualifications, and that the report was hearsay and its admission would constitute a violation of G.T.’s confrontation rights under the state and federal constitutions. Over these objections, the trial court received the report, ruling that, while the report was hearsay, it was nevertheless admissible.

G.T. called three witnesses, including the guidance counselor at his high school and his art teacher. They testified that G.T. was doing well in school at the time of the hearing (although he was in “grade recovery” for two classes from the prior grading period), had no disciplinary problems, no impulse control problems, no problems being disrespectful to teachers, and had made friends with students who were also good student citizens.

Granting DCFS’s motion, the trial court found that G.T. “is a danger to himself and to others and suffers from a severe emotional disturbance,” and directed that G.T. be placed in residential treatment as soon as possible. In ruling that G.T. was emotionally disturbed, the trial court seemed to reject G.T.’s argument that the “emotional disturbance” criteria for involuntary commitment of dependent children require a diagnosis by a psychiatrist or psychologist. But the statute provides that the “qualified evaluator” must be “a psychiatrist or a psychologist licensed in Florida,” § 39.407(6)(b), Fla. Stat. (2005), and contemplates expert opinion attesting to a diagnosis that comports with a disorder specified in the Diagnostic and Statistical Manual of Mental Disorders of the American . Psychiatric Association. See § 394.492(5), (6), Fla. Stat. (2005).

DCFS offered no psychiatrist’s or psychologist’s expert opinion testimony that G.T. was “emotionally disturbed” or “seriously emotionally disturbed.” DCFS had to prove one or the other in order to show that G.T. was “suitable” for a mental health treatment placement. Dr. Filip-pi’s report was the only possible basis for any finding that G.T. was “diagnosed with a mental, emotional, or behavioral disorder of sufficient duration to meet one of the diagnostic categories specified in the most recent edition of the Diagnostic and Statistical Manual.” Along with Dr. Filippi’s own findings (themselves hearsay), the report also contained hearsay statements of others.

Acknowledging that the psychologist’s report was hearsay, the trial court ruled: “Dependency proceedings in Florida and in most sister states commonly involve the court’s consideration of reliable hearsay of this kind without the testimony of the de-clarant.” The learned trial judge’s analysis makes no distinction between, e.g., placing a dependent child with one set of foster parents rather than another, on the one hand, see Fla. R. Juv. P. 8.340(a) (2005), and, on the other, consigning a dependent child who may be doing satisfactorily in school to a mental health treatment facility under section 39.407(6), Florida Statutes (2005), and Florida Rule of Juvenile Procedure 8.350 (2005).

But an important distinction exists. Confinement on account of mental illness, like imprisonment for crime or preventive detention under the Jimmy Ryce Act, entails a serious deprivation of individual liberty. See Kephart v. Hadi, 932 So.2d 1086, 1090 (Fla. June 8, 2006) (“As we said in State v. Goode, 830 So.2d 817, 825-26 (Fla.2002), ‘[cjivil commitment proceedings involve a serious deprivation of liberty and, thus, such proceedings must comply with the due process clauses of the Florida and United States Constitutions.’ We have also recognized that confinement under the Act implicates an individual’s liberty interest in being free from physical restraint. See Westerheide v. State, 831 So.2d 93, 104 (Fla.2002).”); Ibur v. State, 765 So.2d 275, 276 & n. 1 (Fla. 1st DCA 2000) (“Because involuntary commitment is a substantial deprivation of liberty at which fundamental due process protections must attach, the patient cannot be denied the right to be present, to be represented by counsel, and to be heard.”) (citing In re Beverly, 342 So.2d 481, 489 (Fla.1977) (“The seriousness of the deprivation of liberty and the consequences which follow in adjudication of mental illness make imperative strict adherence to the rules of evidence generally applicable to other proceedings in which an individual’s liberty is in jeopardy.”)).

Concerns of this kind may account at least in part for our supreme court’s statement in M.W. v. Davis, 756 So.2d 90, 109 (Fla.2000), that “we cannot eschew the necessity for a hearing before a dependent child is placed in residential treatment against his ■wishes.” The M.W. court also noted:

Ironically, our rules provide more procedural protections in this situation for children in the custody of the state because they are delinquent than for those children who are in the custody of the state because they have been adjudicated dependent through no fault of their own. Cf. Fla. R. Juv. P. 8.095(a) (providing a procedure to commit a child to the custody of the Department when the child is charged with a delinquent act but is incompetent to proceed with the trial).

756 So.2d at 108 n. 36. See also Amend, to the Rules of Juvenile Proc., Fla. R. Juv. P. 8.350, 804 So.2d 1206, 1212-13 (Fla.2001) (modifying proposed rule so as to mandate a pre-commitment hearing, albeit without considering “potential” constitutional issues that might require such a hearing).

Although the Florida Supreme Court did not say in M.W., 756 So.2d at 106 (discussing need to “provide judicial and other procedures to assure due process through which children ... are assured fair hearings ... and the recognition, protection and enforcement of their constitutional and other legal rights”) (quoting § 39.001(l)(i), Fla. Stat. (Supp.1998)), that an evidentiary hearing was constitutionally required before placing a dependent child in a mental health treatment facility, it provided for nothing less in subsequently adopting Florida Rule of Juvenile Procedure 8.350, which plainly says: “All parties shall be permitted to present evidence and witnesses concerning the suitability of the placement.” Fla. R. Juv. P. 8.350(a)(ll)(B) (2005).

As DCFS points out, the trial court is also required to “consider” “[a]t the hearing” “the written findings of the evaluation and suitability assessment prepared by a qualified evaluator” prior to placement of a child in a residential treatment facility. But this directive does not by implication strip out of the Rule the provisions expressly granting the right to an evidentia-ry hearing. See Mitchell v. State, 911 So.2d 1211, 1214 (Fla.2005) (“‘The same principles of construction apply to court rules as apply to statutes.’ Gervais v. City of Melbourne, 890 So.2d 412, 414 (Fla. 5th DCA 2004) (citing Rowe v. State, 394 So.2d 1059 (Fla. 1st DCA 1981)).”); Young v. Progressive Se. Ins. Co., 753 So.2d 80, 84 (Fla.2000) (“Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another.”) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)). Rule 8.350 contemplates an evidentiary hearing for resolution of all material facts in dispute.

Even when hearsay can be considered over objection, hearsay (outside of the recognized exceptions to the rule excluding hearsay) is not deemed competent, substantial evidence sufficient to support a factual finding. See, e.g., Stewart v. State, 926 So.2d 413, 414 (Fla. 1st DCA 2006) (“Although hearsay evidence is admissible at the revocation hearing, the defendant’s probation or community control cannot be revoked solely on the basis of hearsay. Knight v. State, 801 So.2d 160 (Fla. 2d DCA 2001).”) (citation omitted); Merritt v. Crosby, 893 So.2d 598, 599 (Fla. 1st DCA 2005) (“The sole evidence to support the Commission’s finding of guilt consisted of the deputy’s recitation of [appellant’s girl-friendj’s hearsay statement, but hearsay alone is not sufficient to sustain the revocation of parole.”); Strickland v. Fla. A & M Univ., 799 So.2d 276, 279 (Fla. 1st DCA 2001) (“[Ajlthough hearsay is admissible in administrative proceedings, determinations of the Administrative Law Judge may not be based on hearsay alone.”). Cf. also Glover v. State, 871 So.2d 1025, 1025 (Fla. 1st DCA 2004) (“Because the state relied solely on hearsay evidence regarding Appellant’s release date from prison, it failed to prove an essential requirement for sentencing pursuant to the PRR Act.”); Sinclair v. State, 853 So.2d 551, 552 (Fla. 1st DCA 2003) (reversing a prison releasee reoffender sentence and remanding where the State relied solely on hearsay to establish the defendant’s prison release date). We do not hold that only the author of the statutorily required report is competent to testify. We reject the argument that all expert testimony must come from the author of the initial suitability assessment for residential treatment. DCFS can call any suitable expert to prove its case.

But it called none here. While DCFS argues that “[tjhe lower court in the instant case was provided [much] evidence of the subject’s uncooperative, disruptive and destructive behaviors,” DCFS does not argue that anything aside from Dr. Filippi’s written report established that G.T. suffered from a diagnosed mental or emotional disorder. See Parham v. J.R., 442 U.S. 584, 609, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) (“[Tjhe determination of whether [a person] is mentally ill turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.”) (quotation marks and citation omitted); Addington v. Texas, 441 U.S. 418, 430, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (“Psychiatric diagnosis ... is to a large extent based on medical ‘impressions’ drawn from subjective analysis and filtered through the experience of the diagnostician.”).

We reject DCFS’s contention that it may prove a child’s suitability for residential mental health treatment with a hearsay report like Dr. Filippi’s. The report was not competent evidence, and the trial court erred in basing findings of disputed fact on the report. In order to rely in an evidentiary hearing under Rule 8.350 on a mental health professional’s findings or expert opinion to establish the basis for placing a dependent child in a residential mental health treatment facility, DCFS must call the mental health professional as a witness, and the mental health professional must be subject to cross-examination both as to qualifications as an expert and as to any opinions offered as an expert.

Because the only basis for the finding that G.T. was “diagnosed with a mental, emotional, or behavioral disorder” was hearsay, the trial court’s finding that G.T. is “suitable for residential treatment” and thus that he is “a child or adolescent with an emotional disturbance ... or a serious emotional disturbance,” § 39.407(6)(a)(3.), Fla. Stat. (2005), lacks any support in competent evidence adduced at the evidentiary hearing.

Reversed.

ERVIN and BROWNING, JJ., concur.

      . Section 39.407(6), Florida Statutes, provides:

        (c) Before a child is admitted under this subsection, the child shall be assessed for suitability for residential treatment by a qualified evaluator who has conducted a personal examination and assessment of the child and has made written findings that:
      1. The child appears to have an emotional disturbance serious enough to require residential treatment and is reasonably likely to benefit from the treatment.
      2. The child has been provided with a clinically appropriate explanation of the nature and purpose of the treatment.
      3. All available modalities of treatment less restrictive than residential treatment have been considered, and a less restrictive alternative that would offer comparable benefits to the child is unavailable.
      § 39.407(6)(c), Fla. Stat. (2005).

      . The report stated that G.T. suffers from bipolar disorder, posttraumatic stress disorder, and oppositional defiant disorder, and that G.T. suffers from an "emotional disturbance serious enough to require residential care"; that residential treatment is recommended because G.T. requires the structure and intense therapy of inpatient therapy, has not responded to outpatient therapy, and is reasonably likely to benefit from the intensive therapy; and that G.T. “was provided with a clinically appropriate explanation of the nature and purpose of treatment,” but that G.T. was "unable to verbalize an understanding of his need for treatment as he denied or offered explanations for the reported disruptive behavior and failed placements.”

      . See also the additional criteria listed in section 39.407(6)(c), Florida Statutes (2005), set out ante note 1.

      . See In re J.W., 890 So.2d 337, 339, 340 (Fla. 2d DCA 2004) (noting that "neither the statute nor the rule address the burden of proof,” but holding that "the proper standard of proof in proceedings for the involuntary commitment of a dependent child to a residential mental health treatment facility is clear and convincing evidence”).

      . On cross-examination, the witness acknowledged that she had no personal knowledge of a theft.

      . The witness conceded that she had allowed G.T. to stay late at school for drama club activities, that G.T. was allowed to come back late if he made prior arrangements with staff, and that she only worked until 4:30 p.m. and was not there when G.T. returned on afternoons he had made arrangements to come back late.

      . Between February and November 2005, G.T. had been in two foster homes, one group home, and the transitional group home in which he resided at the time of the hearing, which was intended as a temporary placement.

      . G.T. also called a transitional group home vice-president, who testified that the therapy G.T. had refused consisted of medication management and crisis services, and did not include therapeutic psychological services.

      . This ruling necessarily amounts to a finding that G.T. met the criteria set out in section 394.492(5) or (6), Florida Statutes (2005). The order’s use of the phrase "severe emotional disturbance” suggests an intent to find a “serious emotional disturbance.” See generally Plummer v. State, 935 So.2d 35 (Fla. 1st DCA 2006). A child or adolescent who is seriously emotionally disturbed is statutorily defined, as follows:
      "Child or adolescent who has a serious emotional disturbance or mental illness” means a person under 18 years of age who: (a) Is diagnosed as having a mental, emotional, or behavioral disorder that meets one of the diagnostic categories specified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association; and
      (b) Exhibits behaviors that substantially interfere with or limit his or her role or ability to function in the family, school, or community, which behaviors are not considered to be a temporary response to a stressful situation.
      The term includes a child or adolescent who meets the criteria for involuntary placement under s. 394.467(1).
      § 394.492(6), Fla. Stat. (2005). Section 394.467(1) provides that "[a] person may be placed in involuntary inpatient placement for treatment upon a finding of the court by clear and convincing evidence that” "[tjhere is substantial likelihood that in the near future he or she will inflict serious bodily harm on himself ... or another person, as evidenced by recent behavior causing, attempting, or threatening such harm[.]” § 394.467(l)(a)(2.)(b.), Fla. Stat. (2005).

      . DCFS argues that the trial court needed to find only that appellant had an "emotional disturbance,” rather than the "severe emotional disturbance” the trial court in fact found, and that the trial court did not, therefore, need to find that appellant was, "dangerous.” Section 39.407(6)(a)(3.) requires that the court determine either that the dependent child has a "serious emotional disturbance,” or that the child has "an emotional disturbance as defined in s. 394.492(5)”:
      [A] determination concerning a child or adolescent with an emotional disturbance as defined in s. 394.492(5) or a serious emotional disturbance as defined in s. 394.492(6) that each of the following criteria is met....
      § 39.407(6)(a)(3.), Fla. Stat. (2005) (emphasis supplied). Section 394.492(5), unlike subsection (6)> provides that "[t]he term [‘emotional disturbance’] does not include ,a child or adolescent who meets the criteria for involuntary placement under s. 394.467(1),” § 394.492(5), Fla. Stat. (2005) (emphasis supplied), and does not, therefore, just as DCFS argues, require a finding of dangerousness.
      But section 394.492(5) also defines a child with an "emotional disturbance” (rather than a "serious emotional disturbance”) as one who is diagnosed with a mental, emotional, or behavioral disorder of sufficient duration to meet one of the diagnostic categories specified in the most recent edition of the Diagnostic and Statistical Manual of the American Psychiatric Association.... The emotional disturbance must not be considered to be a .temporary response to a stressful situation. § 394.492(5), Fla. Stat. (2005). Under either subsection, a mental health professional competent to do so must make the requisite diagnosis.

      . No statute or rule provides that an evaluator's report (while it must be "considered” by the court, even if hearsay) constitutes competent evidence on which the court may resolve conflicting factual contentions in deciding for or against placing a dependent child in a mental health treatment facility. This is in noteworthy contrast to disposition hearings under Rule 8.340. See Fla. R. Juv. P. 8.340(a) (2005) ("Information Available to Court. At the disposition hearing the court ... may receive any relevant and material evidence helpful in determining the proper disposition to be made. It shall include written reports required by law, and may include ... any psychiatric or psychological evaluations of the child ... that are relevant and material. Such evidence may be received by the court and may be relied upon to the extent of its probative value, even though not competent in an adjudicatory hearing.”).

      . In M.W. v. Davis, 756 So.2d 90, 92 (Fla.2000), the court held that the hearing requirements .in the Baker Act did not apply to dependent children facing confinement in locked mental health treatment facilities, when DCFS elected not to proceed under the Baker Act. Section 39.407(6), Florida Statutes (2005), still reads:
      Children who are in the legal custody of the department may be placed by the department, without prior approval of the court, in a residential treatment center licensed under s. 394.875 or a hospital licensed under chapter 395 for residential mental health treatment only pursuant to this section or may be placed by the court in accordance with an order of involuntary examination or involuntary placement entered pursuant to [the Baker Act] s. 394.463 or s. 394.467. All children placed in a residential treatment program under this subsection must have a guardian ad litem appointed.
      (Emphasis supplied.) Since the court adopted Florida Rule of Juvenile Procedure 8.350, however, the Rule has superseded the statutory language "without prior approval of the court" and mandates an evidentiary hearing in circuit court before confinement. See generally Baxstrom v. Herold, 383 U.S. 107, 110-15, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).

      . See, e.g., Pullen v. State, 802 So.2d 1113, 1119 (Fla.2001) (holding Anders procedure for withdrawal of counsel in criminal proceedings should apply to involuntary civil commitments under the Baker Act); Shuman v. State, 358 So.2d 1333, 1335 (Fla.1978) (stating that "[tjhose whom the state seeks to involuntarily commit to a mental institution are entitled to the protection of our Constitutions, as are those incarcerated in our correctional institutions,” and holding that indigents involuntarily committed are entitled to an appellate record of the commitment proceedings at public expense); Ibur v. State, 765 So.2d 275, 276 (Fla. 1st DCA 2000) (holding appellant had a due process right to testify at hearing for involuntary commitment because involuntary committees have the right to be present, represented by counsel, and heard).

      . Fla. R. Juv. P. 8.350(a)(ll)(A)(iv) (2005). We reject any suggestion that the written report should not (absent stipulation) be available even for the court's background “consideration,” unless authenticated at the evidentiary hearing and unless its author testifies at the hearing, as undermining the Rule's directive that the report be considered at the hearing.


author: PER CURIAM.

text:
    Ricardo GOODMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3155.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2006.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 373 So.2d 898 (Fla.1979); Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981).

SAWAYA, MONACO and TORPY, JJ., concur.


text:
    Joan P. CUSTODIO, Appellant, v. Richard BANFILL, Appellee.
    No. 5D05-4118.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2006.
    Joan P. Custodio, Bradenton, pro se.
    Richard Banfill, Spring Hill, pro se.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

THOMPSON, SAWAYA and LAWSON, JJ., concur.


text:
    Jefferson JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4314.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2006.
    Jefferson Johnson, Orlando, pro se.
    Charles J. Crist, Jr. Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    Marshall DIMICK, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1942.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2006.
    Marshall Dimick, Avon Park, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hall v. State, 823 So.2d 757 (Fla.2002).

THOMPSON, PALMER and ORFINGER, JJ., concur.


text:
    Timothy W. WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2339.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2006.
    Timothy W. Wallace, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. McCarthy v. State, 689 So.2d 1095, 1096 (Fla. 5th DCA 1997).

GRIFFIN, THOMPSON and PALMER, JJ., concur.


text:
    L.C. SNEAD, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1328.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 2006.
    L.C. Snead, South Bay, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant L.C. Snead was convicted of three counts of capital sexual battery. His victims were two young sisters. One of the sisters testified that Snead had penile and digital intercourse with her. The other sister testified that he made her have sex with him from December 1985 through December 1986. Snead was sentenced to three concurrent terms of life imprisonment with a minimum mandatory term of 25 years. Because Snead appeared to be abusing the legal process through his multiple post-conviction appellate filings, this court issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). He did not timely respond to this court’s order as to why he should not be barred from further pro se filings in this court.

We hold that Snead is barred from further pro se filings in this court on the basis that his present motion constitutes an abuse of process. It is exceedingly untimely and raises an issue he could have raised many years before. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”); see also Glasco v. State, 914 So.2d 512, 512 (Fla. 5th DCA 2005) (recognizing frivolous collateral appeals clog the courts and hurt meritorious appeals by inviting sweeping rulings and by engendering judicial impatience with all defendants); Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (finding that defendant’s pro se filings had become frivolous, an abuse of process, and a waste of the taxpayers’ money).

Accordingly, in order to conserve judicial resources, we prohibit Snead from filing with this Court any further pro se pleadings concerning Orange County, Ninth Judicial Circuit Court case number 48-1987-CF-1580. The Clerk of this Court is directed not to accept any further pro se filings concerning this case from L.C. Snead and any more pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat.; Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

MONACO, TORPY and EVANDER, JJ., concur.


text:
    Juan C. LANGLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1994.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 2006.
    Juan C. Langley, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

See Edwards v. State, 830 So.2d 141 (Fla. 5th DCA 2002) (Whether to classify an eligible defendant as a youthful offender, or to sentence a juvenile who was prosecuted as an adult to a youthful offender program are discretionary decisions of the trial court).

AFFIRMED.

THOMPSON, SAWAYA and MONACO, JJ., concur.


text:
    Billy WASHINGTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D05-815.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 2006.

      F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Billy Washington, Jr. appeals his conviction for manslaughter with a firearm. Mr. Washington argues that his conviction should be reversed due to prosecutorial misconduct during his trial. Specifically, Mr. Washington alleges that the prosecutor improperly shifted the burden of proof to him, and alluded to personal knowledge of evidence relating to the case that would be unavailable to the jury. We conclude that while some of the statements made by the prosecutor were arguably improper, none were objected to by defense counsel, and none rise to the level of fundamental error. We, therefore, affirm.

“[A]llegedly improper prosecuto-rial remarks cannot be appealed unless a contemporaneous objection is recorded. The exception to this general rule is the situation where the allegedly improper comments constitute fundamental error.” Kilgore v. State, 688 So.2d 895, 898 (Fla.1996) (citing Gibson v. State, 351 So.2d 948, 950 (Fla.1977)). Since Mr. Washington’s counsel did not object to the statements at issue, he can succeed only if the statements constituted fundamental error. Error is fundamental when it “reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). This Court has held that “[w]hen the prejudicial conduct in this collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and merits of the jury, fundamental error can override the failure of defense counsel to make timely objections.” Sempier v. State, 907 So.2d 1277, 1279 (Fla. 5th DCA 2005).

Having carefully reviewed the record, we conclude that the prosecutor’s arguments, to the extent they may have been improper, were not so prejudicial as to constitute fundamental error. Accordingly, Mr. Washington’s conviction is affirmed.

AFFIRMED.

SAWAYA and LAWSON, JJ„ concur.

      . Appellate counsel did not serve as Mr. Washington’s trial counsel.


author: THOMPSON, J.

text:
    WESTMINSTER COMMUNITY CARE SERVICES, etc. et al., Petitioners, v. P.H., A Minor, etc., et al., Respondent.
    No. 5D06-949.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 2006.
    Brooke C. Madonna, Courtney H. Smith and Amy L. Christiansen of Spector, Ga-don & Rosen, P.A., St. Petersburg, for Petitioners.
    Christopher V. Carlyle, Shannon McLin Carlyle, and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, for Respondent.
   THOMPSON, J.

Petitioners request certiorari review of the trial court’s non-final, pretrial order imposing sanctions against petitioners for their discovery violations. The petition is denied because petitioners have failed to demonstrate a clear departure from the essential requirements of law resulting in irreparable injury. See Malone v. Costin, 410 So.2d 569, 570 (Fla. 1st DCA 1982); see also Rydell v. Rutter, 834 So.2d 883, 885 (Fla. 5th DCA 2002).

PETITION DENIED.

SAWAYA and TORPY, JJ„ concur.


text:
    Robert Lee ACEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2374.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 2006.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Bell v. State, 895 So.2d 1290 (Fla. 5th DCA 2005) (holding “a claim ... that a defendant should have been sentenced by the judge who accepted the plea must be preserved to be cognizable on appeal”); Davis v. State, 783 So.2d 288, 289 (Fla. 5th DCA 2001) (“The withdrawal of a guilty plea is not a matter of right, but ... a question addressed to the sound discretion of the trial court.”); Kent v. State, 702 So.2d 265, 266 (Fla. 5th DCA 1997) (stating that allegations of memory loss and a failure to understand the seriousness of penalties are not necessarily sufficient grounds to require a competency hearing); Johnson v. State, 648 So.2d 263 (Fla. 5th DCA 1994) (“Where the mistake or misunderstanding in entering a plea is attributable to the defendant, it is not error for the court to refuse to allow withdrawal of it.”)

THOMPSON, SAWAYA and LAWSON, JJ., concur.


author: SAWAYA, J.

text:
    Cecil Ray HARRIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2672.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 2006.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

An inebriated individual, Cecil Ray Harris, attempted to gain entry into a bar. When he tendered payment of the cover charge, Harris was asked by employees of the bar to remove himself from the premises. With his reason and judgment diverted by an overindulgence in alcohol, and being ill-disposed to rejection, by employees of a bar no less, Harris began to hurl verbal obscenities at them. We will save the reader from disclosure of the vulgarity. When his misbehavior failed to cause the employees to relent and allow him to enter, Harris threatened to obtain a firearm and shoot everyone. Being displeased with Harris and his insufferable conduct, and concerned by his threats of violence, the employees summoned two police officers for assistance.

The police officers arrived and asked Harris to leave, but as a man of mettle he would not be turned away by anyone, not even police officers, so he “squared off, ready to fight.” When the officers attempted to arrest Harris for disorderly conduct, a melee ensued wherein Harris struck the officers. Pepper spray was applied to Harris, but to no avail. Although the struggle continued, the pugnacious Harris eventually passed out, bringing a welcome end to his obnoxious behavior. Handcuffed and vanquished, Harris was removed to jail.

Charged with resisting an officer with violence, Harris proceeded to trial. During jury instruction discussions, counsel for Harris asked that the jury be instructed on the lesser-included offense of resisting an officer without violence. He asked, too, that “knowingly and willfully” be included in that instruction so the jury would be required to find that Harris knew the individuals with whom he struggled were officers. Although the court granted the request to instruct the jury on this lesser-included offense, it rejected the request to alter the standard instruction to include “knowingly and willfully.” The jury found Harris guilty of the lesser offense of resisting an officer without violence. The trial court sentenced Harris to 270 days in county jail.

Dissatisfied with the result, Harris appeals, and of the issues he raises, we will discuss only two: 1) whether the conviction must be reversed because the evidence was insufficient to show that the police were engaged in the performance of a lawful duty at the time they arrested him; and (2) whether the trial court erred by refusing to instruct that resisting an officer without violence contains a knowledge element requiring that Harris have known that the persons he was resisting were police officers.

In his argument regarding the first issue, Harris actually invokes the First Amendment and the mantra of freedom of speech, contending that his foul and sordid exclamations, albeit offensive, were insulated from prosecution. His argument continues that the behavior for which the officers attempted to arrest him was his speech and, because this was constitutionally protected, his conduct was insufficient to constitute the offense of resisting an officer without violence. Thus, his arrest was illegal and, because a person may lawfully resist an illegal arrest, he cannot stand convicted of resisting an officer without violence. Even if his arrest was for disorderly intoxication, as Harris admits the record suggests, then the facts would support an arrest for resisting with violence, but do not support the offense of resisting without violence. Accordingly, Harris asks this court to reverse his conviction for insufficiency of the evidence in that it was not proven that the police were engaged in the performance of a legal duty at the time he was arrested.

We decline his request based on this argument. We believe that the facts of the case show that the officers were engaged in the lawful execution of their legal duty at the time Harris resisted them. Harris had threatened to get a gun and shoot the bar employees. Harris was clearly intoxicated, yelling obscenities, and appeared “ready to fight.” He would not leave the scene when instructed to and struck the officers as they were reaching out for his arm to arrest him for disorderly conduct. Harris’s subsequent actions certainly supported the charge of resisting an officer with violence.

It was Harris who requested an instruction on the lesser offense of resisting without violence, and we believe it was appropriate for the trial court to have given it. The reason for the rule that requires the trial court to instruct the jury on lesser-included offenses is based on the concept of jury pardons. The jury pardon has become ingrained in the rules of criminal procedure relating to determination of degree of offense and determination of attempts and lesser-included offenses. See Fla. R.Crim. P. 3.490 & 3.510(b). Moreover, the Florida courts have fully embraced it as an integral part of our jurisprudence, see Bufford v. State, 473 So.2d 795 (Fla. 5th DCA 1985), review denied, 482 So.2d 347 (Fla.1986), and they consistently hold that failure to instruct the jury on a lesser-included offense can constitute reversible error per se when the issue is raised on direct appeal. See Piccioni v. State, 833 So.2d 247 (Fla. 4th DCA 2002). In light of the facts, which would have supported a conviction for resisting an officer with violence, we do not believe it appropriate for Harris to now complain that the jury exercised its pardon power to convict him of his requested lesser offense of resisting without violence. See Kirby v. State, 625 So.2d 51 (Fla. 3d DCA 1993); Bradford v. State, 567 So.2d 911, 915 (Fla. 1st DCA 1990), review denied, 577 So.2d 1325 (Fla.1991); Budd v. State, 477 So.2d 52, 53 (Fla. 2d DCA 1985); see also State v. Espinosa, 686 So.2d 1345, 1348 (Fla.1996) (“[W]e do not believe that a defendant who requests an instruction on a lesser-included offense should be allowed to complain on a sufficiency of the evidence claim on the lesser-included offense when sufficient evidence exists to convict the defendant for the greater offense. To hold otherwise would allow a defendant to request an instruction on the lesser-included offense in anticipation that the jury will exercise its ‘pardon power,’ after which the defendant could seek reversal based on the sufficiency of the evidence.”) (citations omitted). Accordingly, no basis for reversal has been demonstrated in this issue.

Harris fares much better with his second issue — whether the trial court erred in refusing to instruct the jury that in order to commit the crime of resisting an officer without violence, he must have known the individuals he resisted were officers. A reading of section 843.02, Florida Statutes, which makes such conduct criminal, reveals the obvious: it does not explicitly require knowledge on the part of the defendant that that the individual is an officer. Nevertheless, we believe knowledge is an element of this offense and the jury should be so instructed, because without it, an individual may be punished for conduct that would otherwise be appropriate, such as resisting detention by an individual impersonating a law enforcement officer. See, e.g., A.F. v. State, 905 So.2d 1010, 1012 (Fla. 5th DCA 2005) (“ ‘It is an all too sad fact that persons have been victimized as a result of their trusting criminals who were impersonating police officers to facilitate crimes.’ ”) (quoting W.E.P., Jr. v. State, 790 So.2d 1166, 1172 (Fla. 4th DCA 2001)).

This rationale was explained by the court in Cooper v. State, 742 So.2d 855 (Fla. 1st DCA 1999):

While section 843.02 does not include the knowledge element, this court has held that an essential element of the crime of resisting an officer without violence is “knowledge [on the part of the defendant] that the officer intended to detain him or her.” See Calliar v. State, 714 So.2d 1134, 1135 (Fla. 1st DCA 1998) rev. granted, 727 So.2d 903 (Fla.1998). In Robinson v. State, 667 So.2d 384 (Fla. 1st DCA 1995), we determined that a conviction for resisting arrest without violence could not be obtained unless the defendant had knowledge that he was being detained. See id. at 386. While these cases dealt primarily with knowledge of detention, implicit in their holdings is the requirement that the defendant know that the person effectuating the detention is a police officer. Clearly, if appellant believed he was being detained by a drug dealer, he would have had the right to resist the detention. Thus, in this case, as in other similar factual circumstances, knowledge that the person is an officer is an element of the crime of resisting an officer without violence.

Id. at 857-58. Harris argues that in his case, evidence was presented that he was not aware that the men who struggled with him were police officers and that this was his primary defense at trial. Accordingly, it was critical that the jury be correctly instructed that he had the intent to resist law enforcement officers.

We conclude that failure to instruct the jury on the knowledge element requires reversal of Harris’s conviction for resisting an officer without violence and remand for a new trial on that charge. We note, parenthetically, that we have come to this conclusion having indulged the presumption of correctness that accompanies this issue on appeal. See Turner v. State, 809 So.2d 59, 62 (Fla. 5th DCA 2002) (“A trial court has wide discretion in instructing the jury, and the court’s decision regarding jury instructions is presumed correct on appeal.”) (citing James v. State, 695 So.2d 1229, 1236 (Fla.1997)), review denied, 829 So.2d 920 (Fla.2002).

AFFIRMED in part; REVERSED in part; REMANDED.

THOMPSON and LAWSON, JJ., concur.

      . The court gave the following instruction to the jury:
      Before you can find the defendant guilty of resisting an officer without violence, the State must prove the following three elements beyond a reasonable doubt. Number one, Cecil Ray Harris, Junior, resisted, obstructed or opposed Kyle McDaniel and/or Mark Chrisman. Two, at the time, Kyle McDaniel and/or Mark Chrisman were engaged in the execution of a legal process, or in the lawful execution of a legal duty. Three, at the time, Kyle McDaniel and/or Mark Chrisman was an officer. The Court now instructs you that every Volusia County beach patrol officer is an officer within the meaning of the law. The Court further instructs you that making a lawful arrest constitutes a lawful execution of a legal duty.

      . Harris also argues that it was error to deny his request that the jury be instructed on attempted resisting arrest without violence and simple assault and battery as lesser-included offenses of resisting arrest without violence. We disagree and affirm as to this issue without further discussion.

      . See State v. Estevez, 753 So.2d 1 (Fla.1999); Amado v. State, 585 So.2d 282, 283 (Fla.1991) ("We still allow juries to convict on lesser offenses under our recognition of the jury's right to exercise its 'pardon power.’ "); State v. Wimberly, 498 So.2d 929, 932 (Fla.1986) ("The requirement that a trial judge must give a requested instruction on a necessarily lesser included offense is bottomed upon a recognition of the jury's right to exercise its 'pardon power.' "); State v. Baker, 456 So.2d 419 (Fla.1984); see also Firsher v. State, 834 So.2d 921 (Fla. 3d DCA), review denied, 859 So.2d 514 (Fla.2003); Mosley v. State, 482 So.2d 530, 531-32 (Fla. 1st DCA) ("It is only because the Supreme Court of Florida has adopted the phenomenon of the 'jury pardon' as part of the jurisprudence of our State that a defendant can be heard to complain about the failure to instruct on lesser offenses notwithstanding the fact that he has been properly proved and found guilty of the offense charged.") (footnote omitted), approved, 492 So.2d 1071 (Fla.1986); Bufford v. State, 473 So.2d 795, 796 (Fla. 5th DCA 1985) ("The requirement that the jury be charged on lesser included offenses is solely based on the jury's pardon power.”), review denied, 482 So.2d 347 (Fla.1986).


text:
    Belvin Gene YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2046.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2006.
   SILBERMAN, Judge.

Belvin Gene Young appeals the denial of his pro se motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand.

In his motion, Young argued counsel was ineffective for failing to challenge the absence of a factual basis for his plea. The postconviction court denied the motion, finding Young stipulated to the factual basis when he pleaded nolo contendere to the charge.

A stipulation with no factual basis in the record is insufficient. Jones v. State, 846 So.2d 1224, 1225 (Fla. 2d DCA 2003) (citing Koenig v. State, 597 So.2d 256, 258 (Fla.1992)). The postconviction court did not attach the transcript of the plea colloquy to its order, and nothing in the record before this court indicates the trial court determined a factual basis existed for Young’s plea. Accordingly, we reverse and remand for reconsideration of Young’s motion. See Nealy v. State, 775 So.2d 365 (Fla. 2d DCA 2000). On remand, the postconviction court shall either attach those portions of the record that conclusively refute Young’s claim or conduct an evidentiary hearing on the issue.

Reversed and remanded.

NORTHCUTT and CANADY, JJ., Concur.


text:
    Donnie Ray HARGROVE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5439.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2006.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Donnie Ray Hargrove, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed without prejudice to any right Donnie Ray Hargrove may have to file a facially sufficient and timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

STRINGER, DAVIS, and SILBERMAN, JJ„ Concur.


author: LAGOA, Judge.

text:
    Rosy De La TORRE, Appellant, v. NEW CENTURY MORTGAGE CORPORATION and Florida Unemployment Appeals Commission, Appellees.
    No. 3D05-2698.
    District Court of Appeal of Florida, Third District.
    Aug. 23, 2006.

      Rosy De La Torre, in proper person.
    John D. Maher, Tallahassee, for appel-lees.
    Before COPE, C.J., LAGOA, J., and SCHWARTZ, Senior Judge.
   LAGOA, Judge.

Rosy De La Torre (“Torre”) appeals an order of the Unemployment Appeals Commission (“Commission”) affirming an unemployment compensation appeals referee’s decision, which disqualified Torre from receiving unemployment benefits and found that Torre had received benefits for which she was not entitled. We affirm.

On November 4, 2003, appellee, New Century Mortgage Corporation (“New Century”), a mortgage lender, employed Torre as an account manager. Over the course of her employment, New Century became concerned about Torre’s tardiness. On March 28, 2005, New Century gave Torre a verbal warning explaining that her job would be in jeopardy if she did not improve her attendance pattern. New Century also agreed to allow Torre to change her schedule by 30 minutes so she could arrive at 9:00 a.m. instead of 8:30 a.m. A second warning was given on June 1, 2005. On July 6, 2005, Torre was discharged for excessive tardiness.

Torre applied for unemployment benefits. The initial determination was that Torre was eligible for benefits because she was discharged for a reason other than misconduct connected with her work. New Century appealed and, after a hearing where the parties were present and testimony was presented, the appeals referee found that Torre was discharged due to excessive tardiness and therefore unable to receive unemployment compensation.

An appeals referee’s findings will not be overturned unless they are not supported by competent, substantial evidence in the record. See Garcia v. Fla. Unemployment Appeals Comm’n, 872 So.2d 966, 969 (Fla. 3d DCA 2004). We affirm as we conclude that the referee’s findings are supported by competent, substantial evidence in the record.

Torre challenges the appeals referee’s conclusions that her discharge was due to misconduct within the meaning of the unemployment compensation statute. Misconduct is defined in Section 443.036(29), Florida Statutes (2005), as follows:

(29) “Misconduct” includes, but is not limited to, the following, which may not be construed in pari materia with each other:
(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

The law is clear that excessive tardiness falls within this definition. See Mason v. Load King Mfg. Co., 758 So.2d 649 (Fla.2000)(excessive tardiness and absenteeism are grounds for denial of unemployment benefits); McCarty v. Fla. Unemployment Appeals Comm’n, 930 So.2d 846 (Fla. 3d DCA 2006); Martinson v. Breit’s Tower Serv. Inc., 680 So.2d 599, 600 (Fla. 3d DCA 1996).

Torre further challenges the appeals referee’s findings that she was excessively tardy. The credibility of a witness and the weight to be given to the evidence presented lies within the sound discretion of the fact finder — in this case the appeals referee. See Boucicaut v. Fla. Unemployment Appeals, 929 So.2d 619 (Fla. 3d DCA 2006). In his written decision, the appeals referee noted that conflicting testimony was presented but found the testimony of the employer to be more credible. The appeals referee did not abuse his discretion in making this finding.

Accordingly, we affirm the Unemployment Appeals Commission’s order denying benefits.

Affirmed.


author: STEVENSON, C.J.

text:
    Montejo Gaspar MONTEJO, as Guardian of the person of Luis Alberto Jimenez, Appellant, v. MARTIN MEMORIAL MEDICAL CENTER, INC., Appellee.
    No. 4D05-652.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 2006.
    See also 874 So.2d 654.

      Jack Scarola and Jack P. Hill of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, and Brenda J. Carter, Fort Lauderdale, for appellant.
    Scott H. Michaud and K. Calvin Asrani of Michaud, Mittelmark & Antonacci, P.A., Boca Raton, for appellee.
   STEVENSON, C.J.

Montejo Gaspar Montejo, the guardian of Luis Alberto Jimenez, appeals an order dismissing with prejudice his false imprisonment claim against Martin Memorial Medical Center, Inc. Because Martin Memorial was not cloaked with absolute immunity from civil liability when acting pursuant to a void court order, we reverse the judgment of the trial court and remand for further proceedings.

In February 2000, Luis Alberto Jimenez, an undocumented native of Guatemala who was living and working in Florida, sustained brain damage and severe -physical injuries as a consequence of a car crash. Jimenez was transported to Martin Memorial Medical Center and remained there until June 2000, when he was transferred to a skilled nursing facility. The injuries suffered by Jimenez rendered him incompetent and a circuit court judge appointed Montejo guardian of Jimenez’s person and property.

On January 26, 2001, Jimenez was readmitted to Martin Memorial on an emergency basis and, as of November 2001, was still incapacitated and still receiving medical care at Martin Memorial. Around this time, Montejo filed a guardianship plan, indicating Jimenez would require twenty-four hour care at a hospital or skilled care facility for the next twelve months. As the costs of Jimenez’s medical care were mounting, Jimenez was indigent, and Medicaid had refused to pay because he was an illegal alien, Martin Memorial intervened in the guardianship proceedings. In its petition, Martin Memorial claimed the guardian had failed to ensure Jimenez was in the best facility to meet his medical needs and the hospital was not the appropriate facility to provide the long-term rehabilitative care required. Martin Memorial sought permission to discharge Jimenez and have him transported to Guatemala for further care. Pursuant to federal law, in order to discharge Jimenez, Martin Memorial was required to demonstrate appropriate medical care was available. On June 27, 2003, following a hearing, the circuit court granted Martin Memorial’s petition, directing the guardian to refrain from frustrating the hospital’s plan to relocate Jimenez to Guatemala and authorizing the hospital to provide, at its own expense, “a suitable escort with the necessary medical support for the Ward’s trip back to Guatemala.”

On July 9, 2003, the same day that his motion for rehearing was denied, Montejo filed a notice of appeal directed to the circuit court’s order. At the same time that he filed the notice of appeal, Montejo filed a motion to stay the court’s June 27, 2003 order. According to Montejo, although the circuit court ordered Martin Memorial to file a response to the motion to stay by 10:00 a.m. the following day, sometime before 7:00 a.m., the hospital took Jimenez to the airport via ambulance and transported him by private plane to Guatemala.

In an opinion issued on May 5, 2004, this court reversed the order that had “authorized” Martin Memorial to transport Jimenez to Guatemala. See Montejo v. Martin Mem’l Med. Ctr., Inc., 874 So.2d 654 (Fla. 4th DCA 2004). In the opinion’s final paragraph, the panel wrote that it was reversing not only because there was insufficient evidence that Jimenez could receive adequate care in Guatemala, but also because “the trial court lacked subject matter jurisdiction to authorize the transportation (deportation) of Jimenez to Guatemala.” 874 So.2d at 658.

In September 2004, Montejo filed a lawsuit, alleging Martin Memorial’s confining Jimenez in the ambulance and on the airplane amounted to false imprisonment and seeking damages for the same. Martin Memorial filed a motion to dismiss or for judgment on the pleadings, arguing (1) that Montejo lacked standing and (2) that Montejo had not and could not state a cause of action because he had not and could not demonstrate the detention was unreasonable and unwarranted — a necessary element of a claim for false imprisonment. With regard to the latter argument, Martin Memorial insisted the detention could not be unreasonable and unwarranted because its transporting Jimenez to Guatemala was done pursuant to a then-valid court order and, as such, its actions were afforded immunity. Following a hearing, the trial court granted Martin Memorial’s motion and dismissed Montejo’s false imprisonment suit with prejudice. This appeal arises from that order of dismissal.

Montejo insists the dismissal of his false imprisonment claim cannot be sustained upon either the theory that he lacked standing or that he had not and could not state a cause of action because Martin Memorial’s actions were somehow cloaked with immunity. To begin, we find Montejo had standing to bring the false imprisonment claim and reject without further comment Martin Memorial’s arguments to the contrary.

This, then, brings us to the matter of whether Martin Memorial’s transporting Jimenez to Guatemala could provide the foundation for a false imprisonment claim despite the fact that such actions were taken in reliance upon the circuit court’s June 27, 2003 order. The question we must decide is whether a litigant is entitled to “immunity” from a false imprisonment claim for actions taken in reliance upon an order that is later determined to have been entered in the absence of subject matter jurisdiction. We conclude that, under existing Florida law, the answer is no and that the cause of action in the instant case may proceed.

The elements of a cause of action for false imprisonment have been stated in various ways by Florida courts, but, essentially, all have agreed that the elements include: 1) the unlawful detention and deprivation of liberty of a person 2) against that person’s will 3) without legal authority or “color of authority” and 4) which is unreasonable and unwarranted under the circumstances. See Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699, 700 (1944); Jackson v. Navarro, 665 So.2d 340, 341 (Fla. 4th DCA 1995); Everett v. Fla. Inst. of Tech., 503 So.2d 1382, 1383 (Fla. 5th DCA 1987); Kanner v. First Nat'l Bank of S. Miami, 287 So.2d 715, 717 (Fla. 3d DCA 1974). In Johnson, the Florida Supreme Court stated that the element of legal authority may be demonstrated by irregular or voidable process, but “ ‘[v]oid process will not constitute legal authority within this rule’ 19 So.2d at 700 (emphasis added) (quoting S.H. Kress & Co. v. Powell, 132 Fla. 471, 180 So. 757, 762 (1938)) (other citation omitted). It is equally clear that Florida law holds that an order entered in the absence of subject matter jurisdiction is void. See, e.g., Cesaire v. State, 811 So.2d 816, 817 (Fla. 4th DCA 2002). In the prior opinion in this case, this court held that the circuit court judge lacked subject matter jurisdiction to authorize the hospital to transport Jimenez to Guatemala. See 874 So.2d at 658.

Initially, Martin Memorial contends that Montejo cannot state a cause of action for false imprisonment because the alleged confinement in the ambulance and plane was performed in furtherance of a court order and “is protected by the absolute immunity related to judicial proceedings.” In support of this argument, Martin Memorial cites Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So.2d 606 (Fla.1994), and American National Title & Escrow of Florida, Inc. v. Guarantee Title & Trust Co., 748 So.2d 1054 (Fla. 4th DCA 1999). In Levin, the insurer represented to the court that one of the firm’s attorneys would be called as a witness in the bad faith litigation; as a result, the firm was disqualified from the representation. When the insurer failed to follow through, the firm filed a claim for tortious interference with a business relationship. The insurer insisted the claim was barred by the litigation privilege. The Florida Supreme Court agreed, writing that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding ... so long as the act has some relation to the proceeding.” 639 So.2d at 608.

In American National Title & Escrow, a law firm representing two title insurers obtained a temporary injunction and an order appointing a receiver and was sued for abuse of process related to the court-appointed receiver’s entry into the business offices and the president’s home to obtain records. This court affirmed the trial court’s entry of summary judgment in favor of the law firm because the misconduct alleged was done “pursuant to the receivership” and was therefore protected by the absolute immunity afforded conduct related to judicial proceedings. 748 So.2d at 1056. This court stated:

Appellants’ argument that Levin should be limited to publications or communications during litigation has no merit. Prior to Levin, the court had already decided that statements amounting to perjury, libel, slander, and defamation were not actionable. The essence of Levin was its extension of absolute immunity to acts taken during the proceeding, not just statements made therein. The acts taken here were all done pursuant to the receivership and the order of authority to the receiver.

Id. at 1055-56 (citation omitted).

In the instant case, we cannot agree that Martin Memorial’s alleged misconduct occurred “during the course of the judicial proceedings” such that the litigation privilege discussed in Levin and American National Title & Escrow would apply. In discussing the rationale for the litigation privilege, the court in Levin explained:

In balancing policy considerations, we find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding. The rationale behind the immunity afforded to defamatory statements is equally applicable to other misconduct occurring during the course of a judicial proceeding. Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.

639 So.2d at 608. Here, Martin Memorial’s actions were taken neither during the course of the judicial proceedings nor in an effort to prosecute or defend its lawsuit. Unlike American National Title & Escrow, where the court appointed a receiver to take control of the business for the purposes of obtaining records and conserving assets which were the subject of the litigation, the court in the instant case merely allowed Martin Memorial to proceed on its own chosen course of action, which was to be taken after the judicial proceedings were concluded. In our view, to afford Martin Memorial absolute immunity from potential tort liability under the circumstances of this case would be an unwarranted and improper extension of the litigation privilege.

Martin Memorial further suggests that because it acted in reliance on the court order, it should be cloaked with qualified or quasi-judicial immunity to the same extent as that afforded to state agents executing the order of a trial court. We disagree. Those authorities which suggest that the immunity to be afforded those who execute the judge’s order should be co-extensive with the immunity afforded the judge reason that those who execute court orders are “ ‘integral parts of the judicial process’ ” and. that “[t]he fearless and unhesitating execution of court orders is essential if the court’s authority and ability to function are to remain un-compromised,” see Coverdell v. Dep’t of Social & Health Servs., Wash., 834 F.2d 758, 765 (9th Cir.1987) (finding child protective services worker who took custody of child pursuant to court order, but without requisite notice to parent or her attorney, was immune from suit) (quoting Briscoe v. LaHue, 460 U.S. 325, 335, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983)), and thus hold that “ ‘officials] charged with the duty of executing a facially valid court order enjoy [ ] absolute immunity from liability for damages in a suit challenging conduct prescribed by that order,’ ” see Turney v. O’Toole, 898 F.2d 1470, 1472 (10th Cir.1990) (quoting Valdez v. City & County of Denver, 878 F.2d 1285, 1286 (10th Cir.1989)). See also Zamora v. City of Belen, 383 F.Supp.2d 1315, 1326 (D.N.M.2005) (“[I]t is irrelevant to the executing officer’s absolute immunity from suit under § 1983 if the court order violates a statute, or is erroneous or even unconstitutional, as long as it is ‘facially valid.’ ”) (quoting Turney, 898 F.2d at 1473). Florida law is consistent with the federal authorities on this issue. See Willingham v. City of Orlando, 929 So.2d 43, 49 (Fla. 5th DCA 2006) (citing a number of federal cases, including Valdez, and recognizing that “so long as a warrant is valid on its face, [a state agent] is entitled to an absolute grant of immunity springing from the judicial immunity of the judicial officer who issued the warrant”). In the instant case, Martin Memorial was not an agent of the government executing an order of the court.

In the present case, by procuring and obtaining the order allowing the deportation of Jimenez, Martin Memorial was seeking the vindication or enforcement of a purely private right. Cases in other jurisdictions have held that in instances where the object of the detention (i.e., false imprisonment) of an individual is for the protection or enforcement of a private right, the person procuring the detention has no immunity from a claim for money damages where the court issuing the order has exceeded its jurisdiction. The rationale for this rule was explained in Hamilton v. Pacific Drug Co., 78 Wash. 689, 139 P. 642, 644 (1914), a case in which the court allowed a false imprisonment suit to proceed where the defendant procured a warrant for the plaintiffs arrest as an “absconding debtor” and the lower court had no jurisdiction to authorize the arrest:

It is argued that, since the arrest was upon a warrant authorized by order of the superior court, the appellant is exonerated from liability, even though the law at the present time does not authorize the arrest. In support of this position a number of cases are cited, all but one of which appear to have been where the arrest was made in a criminal proceeding. There, the party complaining and setting the machinery of the law in motion, which results in the arrest of a person, is acting, not on his own account or for his own private benefit, but for the public, enforcing the public’s right to have the public law obeyed. A rule of law which would exonerate from liability a person causing an arrest in a criminal proceeding when acting without malice, and with probable cause, even though there be no law justifying the arrest, is not applicable where the arrest is caused for the purpose of enforcing a claim of private right. While there is some confusion in the authorities, and this distinction has not always been recognized, it would seem, nevertheless, that it is supported by reason. Where, in a civil ease, a party causes his adversary to be arrested unlawfully, a stricter rule of liability should obtain than where a citizen inspiring the arrest has been actuated by public interest solely. A person who causes the arrest of another in a civil proceeding must answer in damages, even though the arrest was in pursuance of an order of court, when the court issuing the order has exceeded its jurisdiction, or had no authority to do so.

Id. See also Yahola v. Whipple, 189 Okla. 583, 118 P.2d 395 (1941) (allowing a cause of action for false imprisonment to proceed where the plaintiffs detention was at the instance of a void court order procured by the defendant); Pomeranz v. Class, 82 Colo. 173, 257 P. 1086 (1927) (finding a receiver and his attorney liable for false imprisonment damages as a consequence of procuring a void order adjudging the plaintiff guilty of contempt notwithstanding the immunity of the judge and the officer serving the warrant of arrest). The results in the foregoing cases are consistent with Florida law, since a void judgment does not suffice as “legal authority” or “color of authority” within the elements of a cause of action for false imprisonment. See Johnson, 19 So.2d at 700; Jackson, 665 So.2d at 341; see also Jibory v. City of Jacksonville, 920 So.2d 666 (Fla. 1st DCA 2005) (holding that a false imprisonment claim would lie against the city where the warrant upon which the plaintiff was arrested was void), review dismissed, 926 So.2d 1269 (Fla.2006).

In conclusion, we note that in order for a plaintiff to recover on a false imprisonment claim, all of the elements must be proven. Here, while the issue of whether Martin Memorial acted with legal authority may be resolved as a matter of law, the trier of fact must determine as a matter of fact whether Martin Memorial’s actions were unwarranted and unreasonable under the circumstances. See Rivers v. Dillards Dep’t Store, Inc., 698 So.2d 1328 (Fla. 1st DCA 1997) (holding that even where some authority to restrain liberty exists, the reasonableness of the procedures followed may present a question of fact). Accordingly, we reverse the order dismissing Montejo’s false imprisonment suit and remand for further proceedings.

Reversed and Remanded.

GUNTHER and TAYLOR, JJ., concur.

      . Specifically, the court found the guardian had failed to act in Jimenez’s best interests "by allowing the Ward to remain in the inappropriate residential setting of an acute care hospital” and thus ordered that the guardian "shall consent to, fully cooperate in and refrain from frustrating the Hospital’s discharge plan to relocate the Ward back to Guatemala” and that the hospital "shall, at its own expense, provide a suitable escort with the necessary medical support for the Ward's trip back to Guatemala.”

      . Further, we do not believe that the litigation privilege discussed in Levin would apply to the instant case where the court entering the order lacked subject matter jurisdiction and the order acted upon was void.

      . As this court recognized in Berry v. State, 400 So.2d 80, 83 (Fla. 4th DCA 1981), “judicial immunity traces its roots to the earliest days of the common law and emerged in American jurisprudence with the landmark case of Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872).” Generally, “judges ... are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction.” Id. at 83 (quoting Bradley, 80 U.S. at 351). Nevertheless, even judicial immunity may be lost when the judge acts in the clear absence of all jurisdiction. See Farish v. Smoot, 58 So.2d 534 (Fla.1952); Waters v. Ray, 167 So.2d 326 (Fla. 1st DCA 1964).