author: LAWSON, J.

text:
    Carl Bradley MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2409.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2007.

      Paul D. Johnson, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Carl Bradley Moore raises three issues challenging his convictions and sentences imposed after he entered open pleas to the bench to charges of false imprisonment of a child under age thirteen, lewd or lascivious molestation, and battery. First, Moore argues that his convictions for both false imprisonment and molestation violate double jeopardy under the facts of this case. Second, he argues that his written sentences are inconsistent with the oral pronouncement, and are, therefore, invalid. Finally, he argues that his convictions must be set aside because the trial court did not have a sufficient factual basis to accept his pleas. We affirm the judgments and sentences, addressing each argument in turn.

Issue I — Double Jeopardy

1. Relationship between false imprisonment and molestation charges.

Section 787.02(l)(a), Florida Statutes (2005), defines “false imprisonment” to mean “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without authority and against her or his will.” Simple false imprisonment is a third degree felony. See § 787.02(2) Fla. Stat. None of the basic elements of false imprisonment are repeated in section 800.04(5)(c)2, which defines lewd and lascivious molestation. However, subsection (3)(a) of the false imprisonment statute provides that a person who falsely imprisons a child under the age of thirteen, and who, during the course of committing the false imprisonment, also commits any of a number of enumerated crimes on the child, commits a first degree felony punishable by life. Molestation is one of the crimes enumerated in subsection (3)(a).

In this case, Moore pled to both the lewd and lascivious molestation of his twelve-year-old victim, and to a false imprisonment during which he committed one of the enumerated felonies — the molestation. Moore is correct in his assertion that each element of the crime of molestation, to which he pled, is also included within the false imprisonment charge to which he pled. However, Moore’s assertion that his two convictions violate double jeopardy is incorrect in light of an express statement of intent by the Legislature, in section 787.02(3)(b), Florida Statutes, that “separate judgments and sentences” be permitted for the first degree offense of false imprisonment of a child under age thirteen, and for any enumerated offense that the state must prove to establish a first degree false imprisonment.

2. Double Jeopardy Analysis.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits “any person” from being “twice put in jeopardy of life or limb” for the same offense. U.S. Const. Amend. V. Florida’s constitution contains a similar prohibition. See Art. I, § 9, Fla. Const. The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other groitnds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). With respect to multiple punishments imposed for the same conduct in a single prosecution, “the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 5.Ct. 673, 74 L.Ed.2d 535 (1983). Consequently, “[t]he prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” State v. Paul, 934 So.2d 1167, 1171-1172 (Fla.2006) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). “Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ] a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” State v. Barritt, 531 So.2d 338, 341 (Fla.1988) (citations omitted).

Based upon our conclusion that section 787.02(3)(b), Florida Statutes, is an explicit statement of legislative intent to authorize separate punishments for both false imprisonment of a child under age thirteen and for lewd and lascivious molestation, arising from the same criminal episode, we find no double jeopardy violation.

Issue II — Oral Pronouncement Of Sentences

In accepting Moore’s open pleas to the bench, the trial judge reiterated to Moore that he faced up to life in prison on the false imprisonment count, which Moore acknowledged that he understood. The court also accurately and separately described the penalties for each of the other crimes charged. After hearing testimony and argument from both sides at a separate sentencing hearing, the trial judge sentenced Moore “to spend the rest of your life in prison.” The judge did not orally pronounce any sentence except the life sentence. He then entered written sentences of life on the false imprisonment count, fifteen years on the molestation count, and time served on the misdemean- or count. The written sentencing documents order that all sentences run concurrently.

Moore did not object to the trial court’s failure to orally pronounce any sentence other than the life sentence, but did file a motion requesting that the judge reduce his sentence. The court granted a hearing on the motion, and heard from Moore again, giving him an unlimited amount of time to present additional evidence and argument in support of a reduced sentence. In what can only be described as a thorough, kind and patient manner, the trial judge then explained to Moore why he had imposed a life sentence. The judge concluded his remarks, directed to Moore, as follows: “[Tjhose are all matters that I’ve considered, and I cannot in good conscience reduce the originally imposed sentence. I’m sorry.”

Again, Moore did not object to the court’s failure to orally pronounce the fifteen-year or misdemeanor sentences, either at the hearing on Moore’s motion for sentence reduction or in a motion to correct sentencing .error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

As a general rule, a trial judge must both orally pronounce sentence and then enter a written sentence that conforms to the oral pronouncement. See generally, 15 Fla. Jur.2d. Criminal Law § 2235 (2007). We find no violation of either requirement with respect to the life sentence imposed here. It is abundantly clear from the record that all parties accurately understood the potential penalties for each of the crimes to which Moore pled. The trial court orally pronounced a life sentence, which could only apply to the false imprisonment count. And, the written sentencing documents accurately reflect the life sentence with respect to this charge. Therefore, Moore is entitled to no relief as to this issue, at least with respect to his life sentence for false imprisonment.

With respect to the other charges, we believe that Moore would be entitled to relief if he had preserved the issue below. However, a defendant who pleads guilty or nolo contendere is barfed from challenging an unpreserved sentencing error on direct appeal. See, e.g., Parris v. State, 32 Fla. L. Weekly D1742, - So.2d -, 2007 WL 2065889 (Fla. 5th DCA July 20, 2007); Fla. R.App. Proc. 9.140(2)(A)(ii)d. Because Moore did not object to the trial judge’s failure to orally pronounce anything but a life sentence below, or preserve this issue for review by filing a motion to correct sentencing error, he is not entitled to relief on direct appeal with respect to the molestation or battery charges. Id.

Issue III — Factual Basis For Plea

At the plea hearing, the trial judge took judicial notice of “the facts and matters that came and were placed before the Court at the bond hearing,” and stated that he believed these facts would provide “a factual basis for the acceptance of a plea here today.” Moore never objected to the factual basis relied upon by the court during the plea or sentencing hearing, or moved to withdraw his plea. A defendant who does not object to the adequacy of the factual basis relied upon in accepting a plea waives the issue on appeal. E.g., Binder v. State, 853 So.2d 537 (Fla. 5th DCA 2003). Therefore, Moore is not entitled to relief with respect to his third and final claim either.

For the reasons set forth above, we AFFIRM the judgments and sentences in all respects.

PALMER, C.J., and PLEUS, J., concur.

      . § 787.02(3)(a), Fla. Stat. (2005).

      . § 800.04(5)(c)2, Fla. Stat. (2005).

      .§ 784.03, Fla. Stat. (2005).

      . Moore trapped the victim in a hotel elevator, where he molested her.

      . The exact wording of section 787.02(3)(b), Florida Statutes, is as follows: "Pursuant to § 775.021(4), nothing contained herein shall be construed to prohibit the imposition of separate judgments and sentences for the first degree offense described in paragraph (a) and for each separate offense enumerated in sub-paragraphs (a) 1.-5.” We believe that the Legislature intended to state that nothing contained in section 775.021(4) shall be construed to prohibit the imposition of separate judgments and sentences for first degree false imprisonment and for each offense enumerated in subparagraphs (a) 1.-5. We also acknowledge that this expression of legislative intent would have been clearer if written in positive language, slating that separate judgments and sentences "shall” or "may” be imposed for first degree false imprisonment and for each enumerated offense. Despite the poor drafting, however, we can discern no reason for the Legislature to have included this language except as an expression of legislative intent that separate judgments and sentences be permitted for these crimes. And, we see no other rational way to read subsection (3)(b).

      . In Blockburger, the United States Supreme Court created a test for use in determining whether multiple punishments for the same conduct violate double jeopardy ("absent an explicit statement of legislative intent to authorize separate punishments for two crimes)....” Paul, 934 So.2d at 1172 (quoting Gaber v. State, 684 So.2d 189, 192 (Fla.1996)). In Florida, the Blockburger test has been codified in section 775.021, Florida Statutes.

      . We note that even if a timely objection had been made, any defect in the factual basis could have been readily cured by reference to the facts alleged in the sworn charging affidavit contained within the court file. The charging affidavit provides a sufficient factual basis to support each of Moore's pleas.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Hugo J. FIORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1346.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges his convictions for lewd or lascivious conduct and two counts of capital sexual battery. Concluding that the trial court erroneously admitted similar fact evidence, we reverse the judgment and sentence and remand this cause for a new trial.

The State filed a three-count information charging Appellant with lewd or lascivious conduct by a person eighteen or older and two counts of sexual battery upon a person under twelve. The information alleged that, between March 1, 1997, and September 30, 1997, Appellant fondled A.C.’s vagina, digitally penetrated her vagina and caused his mouth/tongue to unite with or penetrate her vagina.

At the time of trial, A.C. was seventeen years old. She testified that when she was eight years old, her family lived next door to Appellant and his family. A.C. and her brother, Michael, became friends with Appellant’s son. A.C.’s mother and Appellant’s wife became friends also. It was not uncommon for A.C. and her brother to spend the night at Appellant’s house. Sometimes A.C. would sleep in Appellant’s son’s room, other times she would sleep in the living room. A.C. testified that in the spring or summer when she was eight years old, she was asleep in Appellant’s son’s room when she awoke to discover Appellant rubbing her vagina on top of her underwear. On a second occasion, she was again sleeping in the son’s room when she awoke to discover Appellant digitally penetrating her vagina. She told him to stop and he did. On a third occasion, when she was sleeping in the son’s room, she awoke to discover her underwear down and Appellant touching her vagina with his hands and mouth. She started to cry. Appellant pulled her underwear up, turned on the light and started reading her a book. Appellant’s wife came into the room and asked what was wrong. Appellant told her that A.C. had had a nightmare.

The similar fact evidence involved two other victims, K.C. and K.D. K.C. was ten years old at the time of trial, and eight or nine years old at the time of the incident involving Appellant. Appellant was a friend of K.C.’s mother’s boyfriend. Appellant was at KC.’s house late one night after going out with K.C.’s mother, her boyfriend and others. According to K.C., while others in the house were asleep, Appellant touched her on or near her “private part,” under her skirt, while she was sitting on the living room couch. K.C. said that Appellant told her that he was going to make a woman out of her. When K.C. got away from Appellant, she went upstairs and told her mother what had happened. Her mother confronted Appellant, who initially admitted the offense. Later in the morning, her mother reported the incident to the police.

K.D., Appellant’s niece, was twenty-four years old at the time of trial. She testified that when she was about sixteen, she went to stay with Appellant and his wife for half a summer. While home with Appellant and his toddler, K.D. was laying on the couch wearing silk pajama pants and a t-shirt. Appellant went over to talk to K.D., told her “I have to do it,” and pulled her pants down. While trying to pull her pants up, K.D. was crying and telling Appellant to stop. Appellant stopped and K.D. went to the bathroom. When she came out, Appellant took her to his bedroom, threw her on the bed, pulled her pants down and had intercourse with her. He ejaculated on her stomach. When Appellant’s wife came home, she heard K.D. crying in the bedroom. She walked into the bedroom and saw Appellant holding K.D. on his lap. She told Appellant to let K.D. go and he complied.

At a pretrial hearing, the trial court heard the witnesses’ testimony. The court also heard legal argument on Appellant’s motion to exclude the similar fact evidence and the State’s motion to permit the evidence. In denying Appellant’s motion and granting the State’s motion, the lower court relied on the legislature’s expansion of the evidence admissible under section 90.404, Florida Statutes, in child molestation cases.

During the jury trial, the State offered the testimony of K.C. and K.D. The State also offered testimony of KC.’s mother, who corroborated, in part, KC.’s testimony and Appellant’s wife, who corroborated, in part, the testimony of K.D. and A.C. In the State’s closing argument, the prosecutor highlighted the testimony of the similar fact witnesses and argued that the allegations in those cases demonstrated Appellant’s guilt by showing a pattern of conduct. The jury returned verdicts finding Appellant guilty of all three counts as charged in the information. The court designated Appellant a sexual predator and sentenced him to fifteen years on the lewd or lascivious count and life on the two sexual batteries with all sentences to run concurrently.

Generally, similar fact evidence of other crimes, wrongs or acts, is admissible when relevant to prove a material fact in issue, “including,, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” § 90.404(2)(a), Fla. Stat. (2006). It is, however, inadmissible when the evidence is relevant solely to prove bad character or propensity. Id. When child molestation is involved, section 90.404(2)(b)(l), Florida Statutes (2006), broadens the admissibility of similar fact evidence, and provides that “evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.”

As we recently explained, even in child molestation cases, however, relevancy remains the threshold consideration for the admission of the evidence:

Even though section 90.404(2)(b), Florida Statutes allows evidence of other acts of child molestation to be admitted for any matter to which it is relevant, relevancy remains the threshold question to be considered. Thus, the more dissimilar the prior acts, the less relevant they are to the crime charged and the less likely they are to be admissible. In addition, even relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. In the case now before us the similarity between the collateral act of molestation perpetrated by Mr. Triplett with respect to another young woman and the charged molestation was a critical consideration for the trial court in conducting an appropriate weighing of the evidence required by section 90.403. See McLean v. State, 934 So.2d 1248, 1258 (Fla.2006). We think he got it right.

Triplett v. State, 947 So.2d 702, 703-04 (Fla. 5th DCA 2007).

In McLean v. State, 934 So.2d 1248 (Fla.2006), the Florida Supreme Court upheld the constitutionality of section 90.404(2)(b) from a due process challenge. The court held that section 90.404(2)(b) does not violate due process when applied in a case in which identity is not an issue and the collateral evidence is used solely to corroborate the victim’s testimony, provided that the trial court properly performs its critical function as gatekeeper, the similar fact evidence does not become a central feature of the trial, and the trial court gives a proper cautionary instruction on request. The court reasoned:

[T]he similarity of the prior act and the charged offense remains part of a court’s analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading a jury, or needless presentation of cumulative evidence.” § 90.403.
The similarity of the collateral act of molestation and charged offense is a critical consideration for the trial court in conducting an appropriate weighing under section 90.403. The trial courts are gatekeepers in ensuring that evidence of prior acts of child molestation is not so prejudicial that the defendant is convicted based on the prior sexual misconduct....
The trial court’s gatekeeping function is critical. In every case, the trial court must conduct the weighing required by section 90.403....
To guide the trial courts in deciding whether to admit evidence of prior acts of child molestation when it is offered to corroborate the victim’s testimony, we discuss the steps that the trial courts should take. Of course, before even considering whether to allow evidence of prior acts to be presented to the jury, the trial court must find that the prior acts were proved by clear and convincing evidence.
In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.

McLean, 934 So.2d at 1259-62 (footnotes omitted).

Appellant argues that the trial court failed to recognize its gatekeeping function, as outlined in McLean. Instead, he argues, the court allowed any and all testimony concerning allegations of prior incidences of molestation without regard to relevancy and without weighing whether that evidence would unfairly prejudice him. Appellant argues that the evidence of other acts of molestation concerning both K.C. and K.D. were improperly admitted because the crimes were not sufficiently similar. He also argues that the probative value of the similar fact evidence of previous molestations was substantially outweighed by the danger of unfair prejudice.

In fairness to the trial judge, this case was tried before the supreme court decided McLean. We are, nevertheless, constrained to agree with Appellant that a new trial is warranted. The trial court did not perform the critical gatekeeping function mandated by McLean and, apparently, thought that he did not have discretion to exclude the evidence under the statute as worded. Contrary to the State’s argument, we are unable to conclude that this omission did not prejudice Appellant. There is a significant lack of similarity between the charged offense and KD.’s allegations, and it is difficult to envision that this evidence can satisfy the McLean standard. Although the allegations relating to K.C. are more similar, and perhaps, admissible, the trial judge is in the best position to determine whether this testimony is properly admitted in light of McLean and its progeny. We are also of the view that the similar fact evidence became a central feature of the trial necessitating a new trial. Greater emphasis was placed on the offenses involving K.C. and K.D. than was placed on the charged offense involving A.C. A majority of the testimony related to these collateral crimes. A.C.’s testimony was sandwiched between the testimony of K.C. and K.D., and, in closing, the prosecutor continually addressed all three offenses.

REVERSED AND REMANDED.

SAWAYA, ORFINGER and TORPY, JJ., concur.

      . We have not overlooked Appellant's argument that the trial court made an improper comment on the evidence during closing argument. We conclude that this issue was not preserved for review. See Foster v. State, 778 So.2d 906 (Fla.2000) (finding claim procedurally barred because defendant failed to make contemporaneous objections to trial judge’s comments or seek disqualification); Jones v. Stale, 612 So.2d 1370, 1373 (Fla.1992) ("It is error for a judge to comment on the evidence in the jury's presence .. . The contemporaneous objection rules applies [sic] to such comments, however, and an appellate court will not reverse in the absence of an objection unless the comment is so prejudicial as to be fundamental error.''); Mathew v. State, 837 So.2d 1167 (Fla. 4th DCA 2003) (holding because record devoid of contemporaneous objection, actions of trial court warrant reversal only if fundamental error). No fundamental error occurred on this point.


text:
    Willie BOONE, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D06-4213, 5D07-1169.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2007.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Willie James Boone appeals from an order revoking his probation and sentencing him to thirty years in prison. He challenges both the basis for the revocation and the sentence imposed. We find no merit in Boone’s challenge to the finding that he violated his probation by committing new crimes. However, we agree with Boone that the trial judge imposed a sentence longer than allowed by law. Therefore, we reverse the sentence and remand for resentencing.

Boone was originally charged with attempted first degree murder. In 2000, he entered a plea bargain with the State pursuant to which he pled to a single count of aggravated battery, as a habitual violent felony offender, (“HVFO”), in exchange for a prison sentence of ten years, with four and a half years suspended. The State also waived Boone’s prison releasee reof-fender status, a firearm minimum mandatory, and the minimum mandatory sentence set forth in the HVFO statute. The imposed sentence was a “true split sentence,” providing that after Boone served five and a half years the balance of his ten-year sentence would be suspended and Boone would be placed on probation for the remaining four and a half years.

Boone was released to probation after five and a half years, and violated his probation by breaking into a home and sexually battering the occupant. At Boone’s violation of probation proceeding in this case, the State relied solely on certified copies of judgments of conviction on charges of burglary of a dwelling (with an assault) and sexual battery, which bear the seal of the clerk of court from Jefferson County, Florida. Contrary to Boone’s argument, the certified judgments provide a sufficient evidentiary basis to support the trial courts’ finding that Boone committed these subsequent crimes while on probation. E.g., Stevens v. State, 397 So.2d 398 (Fla. 5th DCA 1981), approved 409 So.2d 1051 (Fla.1982); see also, Tompkins v. State, 502 So.2d 415, 420 (Fla.1986) (recognizing certified copies of judgment and sentence are sufficient to support a jury finding, at penalty phase of capital case, of aggravating circumstance that defendant committed prior felony involving use of threat or violence). The trial judge then revoked Boone’s probation and sentenced him to thirty years in prison as a habitual violent felony offender.

Because Boone was initially given a “true split sentence,” he could not be sentenced upon revocation of his probation to a period that exceeded the original ten-year sentence, with credit for time served. Mack v. State, 823 So.2d 746 (Fla.2002). As explained in Mack:

[W]hen a sentencing court imposes a true split sentence, the judge has effectively sentenced the defendant in advance for a probation violation and is not later permitted to change his or her mind. Upon revocation of probation, the court may not order the defendant incarcerated for a period exceeding the suspended portion because to do so would be a violation of the double jeopardy clause.

Id. at 748 n. 3 (citing Poore v. State, 531 So.2d 161, 164 (Fla.1988)).

Therefore, we affirm the revocation of Boone’s probation, reverse the sentence, and remand for resentencing consistent with this opinion. Because Boone was originally designated as a habitual violent felony offender, this designation is also appropriate upon resentencing.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

PALMER, C.J., and PLEUS, J, concur.

      . Boone is serving concurrent sentences of life and thirty years on the Jefferson County charges.

      . On appeal, Boone also argues that the trial court’s reliance on the certified judgments violated his rights under the confrontation clause of the Sixth Amendment, citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Because trial counsel did not make this objection below, however, we find that the issue was not preserved for appellate review. E.g., Castor v. State, 365 So.2d 701, 703 (Fla.1978).


author: RAINWATER, T., Associate Judge.

text:
    Yesenia CRUZ, etc., Appellant, v. John COUGHLIN and Carmen Rodriguez, Appellee.
    No. 5D06-4013.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2007.
    Sylvia A. Grunor of Weiss, Grunor & Weiss, P.A., Maitland, and Amy M. Romaine of A.M. Romaine, P.A., for Appellant.
    David O. Doyle, Jr., and Grant A. Kuvin of GrayRobinson, P.A. Orlando, for Appel-lee John Coughlin.
    No appearance for Appellee Carmen Rodriguez.
   RAINWATER, T., Associate Judge.

The trial court granted summary judgment in favor of the defendant landlord on the issue of his knowledge of a supposedly vicious dog’s presence on the premises. Since the landlord established that there are no disputed issues of material fact and that he is entitled to judgment as a matter of law, the trial court was correct in granting the landlord’s motion for summary judgment.

AFFIRMED.

PLEUS and LAWSON, JJ., concur.


text:
    Gary SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-479.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2007.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Appellant challenges the revocation of his probation for walking across the county line for help when his car broke down. Because the record does not support the trial court’s finding that Appellant willfully and substantially violated his probation, we reverse.

REVERSED.

ORFINGER and MONACO, JJ., concur.


text:
    Mark SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1168.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   LAWSON, J.

In this appeal conducted pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm appellant’s convictions and sentences. However, we remand with directions that the trial court enter a written order finding defendant competent to proceed, nunc pro tunc to the date that the trial court made its oral finding of competency. See Molina v. State, 946 So.2d 1103, 1105 n. 1 (Fla. 5th DCA 2006).

AFFIRMED AND REMANDED WITH DIRECTIONS.

GRIFFIN and THOMPSON, JJ., concur.


author: THOMAS, J.

text:
    Robert COOK, By Next Friend Eldalee COOK, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES DISTRICT: 02 GADSDEN UNIT: APD, Appellee.
    No. 1D06-4657.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2007.

      Mizell Campbell, Jr., and Martha F. Barrera of The Advocacy Center for Persons With Disabilities, Inc., Hollywood, for Appellant.
    Gail Scott Hill of the Agency for Persons With Disabilities, Tallahassee, for Ap-pellee.
   THOMAS, J.

Appellant appeals the hearing officer’s final order upholding Appellee’s (“the Agency”) action approving 6 hours of personal care assistance rather than the requested 9.173 hours. Appellant raises three arguments on appeal: (1) the hearing, officer erred by applying a more restrictive definition of medical necessity, (2) the order is not supported by competent, substantial evidence, and (3) the Agency failed to meet its burden of proof that the reduction of hours was warranted.

As a minor child receiving Medicaid services, Appellant qualifies for Early and Periodic Screening, Diagnosis, and Treatment Services (EPSDT), a mandatory Medicaid service. § 409.905(2), Fla. Stat. (2005). The Agency must provide all services which it determines are medically necessary for the treatment, correction, or amelioration of Appellant’s condition, including personal care. Id. Medically necessary, or medical necessity, is defined in rule 59G-1.010, Florida Administrative Code (2005).

Appellant argues that this definition is more restrictive than the federal definition because it does not include providing the services necessary to sustain or support a disabled child’s care, but only covers those services necessary to treat or correct a child’s disability. While the Agency agrees that a more restrictive definition is impermissible when applied to EPSDT, a mandatory Medicaid service, it argues that a more restrictive definition may apply to optional Medicaid services, such as Appellant’s waiver services. See § 409.906, Fla. Stat. (2005). We find the Agency’s argument is without merit. See Tallahassee Mem’l Reg’l Med. Ctr. v. Cook, 109 F.3d 693, 698 (11th Cir.1997) (explaining that even when federal law does not require in-patient psychiatric treatment in their EPSDT program, when a state elects to provide an optional service, that service becomes part of the state Medicaid plan). We affirm the order on appeal, however, because we find the hearing officer’s findings are supported by competent, substantial evidence.

We find the situation here distinguishable from C.F. v. Department of Children and Families, where the Third District reversed a hearing officer’s final order, reasoning the hearing officer erred by applying a more restrictive definition of medical necessity to deny personal care assistance hours. 934 So.2d 1, 5 (Fla. 3d DCA 2005). As in C.F., Appellant receives his personal care assistance services through a Medicaid-funded Home and Community Based Developmental Services waiver program, an optional Medicaid program under section 409.906, Florida Statutes. Id. at 6. In C.F., the Agency denied certain personal care assistance hours because the personal care assistant helped in taking care of the disabled child, but nothing the assistant did during the disapproved hours treated his disability; thus, the hours were denied based on an impermissible definition. Id. Here, the hearing officer denied 3.173 hours of personal care assistance, finding these hours to be unnecessary, because Appellant was asleep during some of this time, and duplicative. We find that the hearing officer did not apply an impermissible definition of medical necessity in denying these hours, but instead relied on established facts to justify the reduction in personal care hours.

We find the hearing officer’s final order is supported by competent, substantial evidence and therefore affirm. Appellant’s third issue raised on appeal is affirmed without comment.

AFFIRMED.

BENTON and HAWKES, JJ., concur.

      .Rule 59G-1.010, Florida Administrative Code (2005), states:
      (166) ‘‘Medically necessary” or ‘‘medical necessity” means that the medical or allied care, goods, or services furnished or ordered must: .
      (a)Meet the following conditions:
      1. Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;
      2. Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs;
      3. Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational;
      4. Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available; statewide; and
      5. Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.
      (b) “Medically necessary” or "medical necessity” for inpatient hospital services requires that those services furnished in a hospital on an inpatient basis could not, consistent with the provisions of appropriate medical care, be effectively furnished more economically on an outpatient basis or in an inpatient facility of a different type.
      (c) The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a medical necessity or a covered service.


text:
    Raynard WILDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0963.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2007.

      Raynard Wilder, pro se, Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

The appellant asserts that his written habitual felony offender (HFO) sentence fails to comport with the oral pronouncement of sentence, which omitted the HFO designation. The trial court denied the motion as untimely because it was filed pursuant to rule 3.850. However, a claim that the written sentence does not conform to the oral pronouncement of sentence is cognizable in a rule 3.800(a) motion. Byers v. State, 916 So.2d 923 (Fla. 1st DCA 2005). The trial court should have treated the appellant’s motion as one filed pursuant to rule 3.800(a). See Valdes v. State, 765 So.2d 774 (Fla. 1st DCA 2000); Richardson v. State, 719 So.2d 39 (Fla. 2d DCA 1998).

Accordingly, the order denying the appellant’s motion is reversed and the cause remanded for the trial court to resentenee the appellant or attach portions of the record refuting his claim.

REVERSED and REMANDED.

BROWNING, C.J., BARFIELD and BENTON, JJ., concur.


text:
    Alander CRAPPS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D06-2269 to 1D06-2274.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2007.
    James C. Banks of the Law Office of Banks & Morris, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In these cases, filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), appellant appeals the revocation of his probation. We consolidate the cases for purposes of this opinion. Finding no reversible error, we AFFIRM.

ALLEN, DAVIS, and BENTON, JJ., concur.


text:
    Chad Everett BLUNT, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3006.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2007.
    Chad Everett Blunt, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110(b). The appellant’s motion for an enlargement of time in which to file the initial brief is denied as moot.

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


author: ALLEN, J.

text:
    McWANE, INC., Appellant, v. WATER MANAGEMENT SERVICES, INC., a Florida Corporation, Consolidated Pipe & Supply Company, Inc., a Foreign Corporation, Boh Bros. Construction Co., LLC, a Foreign Limited Liability Company, and Blankenship Contracting, Inc., a Foreign Corporation, Appellees.
    No. 1D07-1571.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2007.

      Lannie D. Hough, Jr. of Carlton Fields, P.A., Tampa; Robert W. Pass and Christine R. Davis of Carlton Fields, P.A., Tallahassee, for Appellant.
    Michael F. Coppins of Coppins Monroe Adkins Dincman & Spellman, P.A., Talla-hasssee, and Nicholas Yonclas of Nicholas Yonclas, P.A., Eastpoint, for Appellee Water Management Services; Steven M. Pur-itz, Brandiee D. Dickson, and Cynthia S. Tunnieliff of Pennington Moore Wilkinson Bell & Dunbar, P.A., Tallahassee, for Ap-pellee Blankenship Contracting, Inc.
   ALLEN, J.

The appellant challenges a nonfinal order by which the trial court declined to enforce a mandatory forum selection provision in a contract. Because the circumstances presented in this case warrant the trial court’s ruling, we affirm.

This appeal arises from a civil suit for breach of contract and warranty against multiple defendants from multiple states for damages resulting from the structural failure of a line of pipe carrying potable water to St. George Island. Each named defendant was responsible for a particular stage in the manufacture, preparation, transportation, and installation of the pipe. Affirmative defenses were raised and cross-claims were presented. Two defendants, including the appellant, moved for a dismissal of the' suit (the appellant also sought dismissal of a cross-claim), seeking enforcement of forum selection provisions in their contracts with the plaintiff wherein it was agreed that legal disputes such as this would be resolved in states other than Florida. The plaintiff argued, and the trial court agreed, that enforcement of the provisions would be unreasonable and unjust.

A party seeking to avoid the enforcement of a mandatory contractual forum selection provision as unreasonable or unjust must demonstrate that trial in the agreed-upon forum “will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” Manrique v. Fubbri, 493 So.2d 437, 440 n. 4 (Fla.1986) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). Although mere inconvenience or additional expense will not suffice, a venue provision may be avoided when it appears that enforcement of the provision will lead to multiple lawsuits, a splitting of the causes of action, and the potential for conflicting results in different courts. Dore v. Roten, 911 So.2d 218 (Fla. 2d DCA 2005); see also Carlson-Southeast Corp. v. Geolithic, Inc., 530 So.2d 1069 (Fla. 1st DCA 1988). The circumstances involved in this case, legally and factually interrelated claims and cross-claims alleging structural damage to a single line of pipe by multiple defendants from multiple states, demonstrate that enforcement of the forum selection provisions would be unjust and unreasonable. We accordingly affirm the order under review.

VAN NORTWICK and PADOVANO, JJ., concur.


text:
    James E. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3535.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2007.
    James E. Smith, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered appellant’s response to this Court’s order dated September 18, 2007, we dismiss this appeal for lack of jurisdiction.

On November 11, 2005, appellant filed a motion to correct illegal sentence. The trial court denied the motion on September 25, 2006, and appellant filed a motion for rehearing on October 6, 2006. The trial court denied appellant’s motion for rehearing on April 4, 2007. On June 7, 2007, appellant filed a “Motion for Reconsideration of Defendants Motion for Rehearing.” The trial court denied the motion on June 7, 2007, and, on July 3, 2007, the appellant filed a notice of appeal. The notice of appeal is untimely. Appellant’s “Motion For Reconsideration Of Defendant’s Motion For Rehearing,” is an unauthorized motion for rehearing and does not delay rendition of the trial court’s order of September 27, 2006. See Fla. R.App. P. 9.020(h); Morris v. State, 630 So.2d 232 (Fla. 3d DCA 1994). As such, appellant’s notice of appeal should have been filed within thirty days of the trial court’s denial of appellant’s timely motion for rehearing, filed on October 6, 2006. Fla. R.App. P. 9.140. Because the notice of appeal was filed more than 30 days after rendition of the order and the unauthorized motion for reconsideration did not delay rendition, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). Any remedy for the trial court’s failure to inform appellant of his appellate rights with regard to the denial of his rule 3.800(a) motion should be sought by way of petition for belated appeal.

DISMISSED.

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


author: FARMER, J.

text:
    Jeffery Thomas DRESSLER, Petitioner, v. Rhonda Lynn DRESSLER, Respondent.
    No. 4D07-4196.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2007.
    Ryan D. Doherty of Sasser Cestero & Sasser, West Palm Beach, for petitioner.
    Ronald L. Bornstein, Jupiter, for respondent.
   FARMER, J.

This is a petition for prohibition from a pending dissolution of marriage case scheduled to begin trial in two days. The husband argues that the trial court lacks subject matter jurisdiction because — • as he puts it — “the parties were never legally married.” He claims the only evidence of a marriage is an “unnotarized, unexecuted, unrecorded, unsealed, and unauthorized photocopy of a purported marriage record.”

Actually, at a hearing on his motion to dismiss the case, the court received several documents in evidence. Petitioner offered records from the Martin County Clerk of the Court and the Florida Department of Health, Office of Vital Statistics, stating that there is no marriage license on record between petitioner and respondent at or-near the date of the alleged marriage. Respondent offered a document entitled “Marriage Record Florida” over petitioner’s hearsay and authentication objections. She also offered an affidavit from the minister who allegedly officiated at a marriage ceremony on December 10, 1983, along with an affidavit from a witness, both of which were to the effect that the parties were in fact married on that date and that the minister mailed the completed license to the Clerk of Court. She argued that, the original instrument being lost, she was entitled to follow the procedure established by section 741.10, Florida Statutes. The trial court denied the motion without prejudice to the parties to offer testimony on the subject of the lost certificate at trial. Thence this petition for prohibition.

Petitioner is mistaken in an essential respect. Although he characterizes his challenge as involving subject matter jurisdiction, he is mistaken. There can be no dispute that the circuit court has subject matter jurisdiction over cases involving dissolution of marriage. See § 26.012(2)(a), Fla. Stat. (2006) (circuit courts have original jurisdiction in all actions at law not cognizable in the county courts). The fact that petitioner wishes to dispute in the pending dissolution action is whether there was any marriage at all to dissolve. An attack on the validity of an alleged marriage has nothing to do with subject matter jurisdiction but is simply an issue to be determined in the dissolution action. See Marden v. Marden, 276 So.2d 493 (Fla. 4th DCA 1973) (holding that in an action brought by alleged wife for permanent alimony, suit money, attorneys’ fees and restraining order, an issue of fact existed concerning whether a common-law marriage existed, thus precluding summary judgment).

It is true that a petition for a writ of prohibition may properly be used to challenge a trial court’s rejection of a challenge to its subject matter jurisdiction. See English v. McCrary, 348 So.2d 293, 296 (Fla.1977) (“Prohibition is an extraordinary writ, a prerogative writ, extremely narrow in scope and operation, by which a superior court, having appellate and supervisory jurisdiction over an inferior court or tribunal possessing judicial or quasi-judicial power, may prevent such inferior court or tribunal from exceeding jurisdiction or usurping jurisdiction over matters not within its jurisdiction.”). But as the court explained in Mandico v. Taos Construction Inc., 605 So.2d 850 (Fla.1992):

“prohibition may not be used to divest a lower tribunal of jurisdiction to hear and determine the question of its own jurisdiction; nor may it be used to test the correctness of a lower tribunal’s ruling on jurisdiction where the existence of jurisdiction depends on controverted facts that the inferior tribunal has jurisdiction to determine.”

605 So.2d at 854. That is precisely what petitioner is attempting by this petition. The extraordinary writ of prohibition is not available for that purpose.

Because his attack on the validity of the alleged marriage does not present any cognizable defect in the subject matter jurisdiction of the trial court, petitioner has not properly implicated our extraordinary writ jurisdiction. The petition must be, and hereby is

Dismissed.

SHAHOOD, C.J. and WARNER, J., concur.


text:
    Jason FRONCZEK, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3240.
    District Court of Appeal of Florida, Fifth District.
    Oct. 30, 2007.

      Bart Schneider of Bart Schneider, P.A., Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Battle v. State, 911 So.2d 85 (Fla.2005); Morton v. State, 459 So.2d 322 (Fla. 3d DCA 1984).

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    Gerald Robert SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-862.
    District Court of Appeal of Florida, Fifth District.
    Oct. 30, 2007.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See McKinnon v. State, 712 So.2d 1259 (Fla. 1st DCA 1998).

SAWAYA, TORPY and EVANDER, JJ., concur.


author: POLSTON, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Dottie L. SHAW as Personal Representative of the Estate of Stephanie D. Ditmore, a/k/a Stephanie D. Shaw, Cecil Ditmore as Personal Representative of the Estate of Sean Ditmore, Appellees.
    No. 1D06-6674.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.

      Frances F. Guasch and Rodolfo Soron-do, Jr., of Holland & Knight LLP, Miami, for Appellant.
    Stephen C. Bullock, of Brannon, Brown Haley & Bullock, P.A., Lake City, for Ap-pellees.
   POLSTON, J.

This is an appeal from the trial court’s final judgment arising from the parties’ cross-motions for summary judgment, declaring that each of the appellee estates of Sean Ditmore and Stephanie Ditmore are entitled to uninsured motorist coverage (“UM”) policy limits of $100,000. Because we hold that Sean Ditmore replaced his automobile policy with the same bodily injury liability limits after his former wife elected lower limits of $50,000 per person, pursuant to section 627.727(1), Florida Statutes (2004), we reverse the amount of the trial court’s declaratory final judgment.

I. BACKGROUND

Prior to his marriage with Stephanie, Sean was married to his first wife, Lori Ditmore, and both were insured with State Farm from 1996 until their divorce in 2000. Lori and Sean’s policy included liability coverage of $100,000 for each person, limited by $300,000 for each accident. In June of 1996, Lori elected lower limits for UM coverage, consisting of $50,000 for each person, limited by $100,000 for each accident, non-stacking. Lori and Sean renewed their policy from 1996-2000. During this time, changes were made to them policy, including adding and replacing vehicles, changes to the policy number, and the addition of their daughter as an insured. However, Lori and Sean never changed the liability limits or requested a change to their UM coverage.

In 2000, Lori and Sean were divorced. After the divorce, State Farm issued another insurance policy exclusively in Sean’s name, which covered a new vehicle located at a new address. The policy had the identical liability limits of $100,000/$300, 000 and UM benefits of $50,000/$100,000, but added comprehensive collision coverage, as well as coverage for car rental and travel expenses. The policy was issued under a new policy number and a different premium was charged. In 2003, Sean substituted a new ear, a 2003 Ford F-250 truck, but kept the same liability policy limits and UM coverage.

On April 22, 2004, Sean and Stephanie were married, but were tragically killed the next day when an underinsured motorist struck them car head on. The accident occurred while they were traveling in Stephanie’s 1997 Ford truck, which was insured by a carrier other than State Farm. Stephanie’s policy on the truck did not have UM coverage. The insurance policy for the tortfeasor tendered its policy limits to Sean and Stephanie’s estates. The policy limits were not enough to cover the loss and the estates filed a claim seeking UM benefits under Sean’s State Farm policy.

State Farm denied the claim on the basis of the following exclusionary language for UM coverage found in the policy:

There is no coverage ... for bodily injury to an insured while occupying any vehicle owned by you, your spouse, or any relative if it is not insured for this coverage under this policy. This does not apply to an insured occupying a newly acquired car which has no uninsured motor vehicle coverage applicable to it.

This restriction for UM coverage arose from section 627.727(9)(d), Florida Statutes (2004), which states that policies may provide that “[t]he uninsured motorist coverage provided by the policy does not apply to the named insured or family members residing in her or his household who are injured while occupying any vehicle owned by such insureds for which uninsured motorist coverage was not purchased.”

The estates sued State Farm in separate proceedings, later consolidated by the trial court, seeking UM limits of $50,000 each, pre-judgment interest, costs, and attorney’s fees. State Farm answered in its Third Affirmative Defense that it owed no UM benefits, stating “[ajlthough Stephanie Shaw met the definition of ‘insured’ and the definition of ‘spouse,’ the vehicle occupied by her was owned by her (and not Sean Ditmore) and was not insured for uninsured or underinsured motorist coverage under the above-referenced policy issued by Defendant.” State Farm counterclaimed for a declaratory judgment that there is no UM coverage.

The parties filed cross-motions for summary judgment. State Farm argued that its policy language pursuant to 627.727(9)(d) entitled it to summary judgment without paying any UM benefits. The estates argued that the policy exclusion arising from 627.727(9)(d) did not apply because Stephanie’s truck was a “newly acquired car,” an exception to the restrictive language’s application. The trial court held that the marriage did not render Stephanie’s car a newly acquired vehicle under the policy, and that ruling is not contested on appeal. However, the trial court held that Stephanie was an insured under Sean’s State Farm policy, and therefore, “coverage would initially exist,” subject to any further argument regarding the application of any UM coverage exclusions.

Thereafter, the estates moved for amended summary judgment on the basis that the UM exclusion signed by Lori was not effective against Sean and Stephanie. The trial court agreed with the estates and held that State Farm failed to obtain a valid UM exclusion under section 627.727(9)(d).

The trial court also found Lori’s election of lower limits, although binding on all insureds at that time pursuant to section 627.727(1), was not binding on Sean or Stephanie because a new policy was issued solely to Sean, after his divorce from Lori in 2000, on a new vehicle, at a new address, and with new coverages. The court ruled:

The Court further finds that the new policy issued exclusively to Sean Dit-more by State Farm was not merely a renewal, extension, changing, superseding, or replacement of an existing policy with the same bodily injury limits. This policy represented a newly issued policy, or at the very least amounted to such a material change to the policy as to require State Farm to obtain a new UM coverage rejection form signed by the actual insured, Sean Ditmore. See Allstate Ins. Co. v. Kaneshiro, 93 Hawai’i 210, 998 P.2d 490, 500-01 (2000).

Accordingly, the trial court ruled that UM benefits were the same as the $100,000/ $300,000 liability limits, so that UM benefits of $100,000 was available to the estate of Sean Ditmore, and $100,000 available to the estate of Stephanie Ditmore. State Farm appealed the trial court’s ruling that Lori’s election of the lower UM benefits of $50,000 was not effective.

Although State Farm denied the claims and defended in the trial court on the basis that no UM benefits were due. because of the policy’s exclusionary language pursuant to 627.727(9)(d), it makes no argument in its initial brief that no benefits are due because of this language in the policy. At oral argument, State Farm reiterated that it was only seeking a ruling that the reduced UM limits of $50,000 were available, and that it was not taking a position that no benefits were due. Accordingly, we do not address the trial court’s ruling that State Farm failed to obtain a valid UM exclusion under section 627.727(9)(d), because it is not at issue.

II. ANALYSIS

State Farm argues on appeal that the trial court erred by ruling Lori’s election of reduced UM coverage was ineffective against the claims by the estates. We agree with State Farm that Lori’s election of reduced UM coverage remained in effect because the policy was replaced with the same bodily injury liability limits, pursuant to section 627.727(1), Florida Statutes (2004). Section 627.727(1) states in pertinent part:

When an insured or lessee has initially selected limits of uninsured motorist coverage lower than her or his bodily injury liability limits, higher limits of 'uninsured motorist coverage need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces an existing policy with the same bodily injury liability limits unless an insured requests higher uninsured motorist coverage in writing. The rejection or selection of lower limits shall be made on a form approved by the office.... If this form is signed by a named insured, it will be conclusively presumed that there was an informed, knowing rejection of coverage or election of lower limits on behalf of all insureds.'

§ 627.727(1), Florida Statutes (2004) (emphasis added). See Bell v. Progressive Specialty Ins. Co., 744 So.2d 1165, 1166 (Fla. 1st DCA 1999) (holding that “[b]e-cause the policy Ms. Bell purchased from Bayside replaced the policy previously issued by Progressive Specialty at the same bodily injury liability limits, Bayside was entitled to rely on Ms. Bell’s previous written rejection of uninsured motorist coverage.”).

Contrary to the trial court’s ruling, Sean’s divorce from Lori did not require a new UM coverage offer by State Farm. In Atlanta Casualty Co. v. Evans, 668 So.2d 287 (Fla. 1st DCA 1996), this court reversed the trial court’s determination that there was not a valid written rejection of UM coverage because it was previously rejected by an ex-spouse. During the marriage between Ms. Evans and Mr. Brinson, Mr. Brinson signed a form rejecting UM coverage. After their divorce, Ms. Evans renewed the policy, and deleted Mr. Brinson as a named insured, and made a name change. Id. at 288. The insurance company did not offer Ms. Evans UM coverage or obtain a written rejection of the coverage from her. Thereafter, Ms. Evans and her minor children were injured in an automobile accident in which an uninsured motorist was at fault. Id. The court noted that Mr. Brinson rejected the UM coverage on behalf of all insureds, and that the policy was renewed with “the same bodily injury liability limits” as the previous policy. Id. at 289. Therefore, based on the plain language of the policy, the court determined that judgement should have been entered in favor of the insurance company. Id.

As in Atlanta Cas'ualty, Lori Ditmore elected reduced UM coverage on behalf of all insureds, and that policy was replaced with “the same bodily injury liability limits” as the previous policy. The divorce between Lori and Sean makes no difference in applying section 627.727(1).

The court in Atlanta Casualty also quoted from the Florida Supreme Court’s decision of American Fire & Indemnity Co. v. Spaulding, 442 So.2d 206, 208 n. 4 (Fla.1983), indicating the current statute eliminates “any possibility that this section will again be interpreted as requiring an offer of uninsured motorist coverage with every ‘material’ policy change.” Id. at 289. Therefore, the trial court’s ruling that the policy changes, “at the least amounted to such a material change to the policy as to require State Farm to obtain a new UM coverage rejection form signed by the actual insured, Sean Ditmore,” citing the Hawaii case of Allstate Insurance Co. v. Kaneshiro, is contrary to Florida law.

Changes to policies, or them replacement, that do not affect bodily injury liability limits do not require a new UM election. See Gasch v. Harris, 808 So.2d 1260 (Fla. 4th DCA 2002) (noting that substituting automobiles is a renewal of an existing policy), Gov’t Employees Ins. Co. v. Stafstrom, 668 So.2d 631 (Fla. 5th DCA 1996) (same); Coney v. Gen. Ins. Co., 445 So.2d 671 (Fla. 3d DCA 1984) (adding collision coverage does not require a new UM election); Nationwide Mut. Fire Ins. Co. v. Hild, 818 So.2d 714 (Fla. 2d DCA 2002) (adding new car to policy does not require UM election), and Graham v. United Servs. Auto. Ass’n, 459 So.2d 484 (Fla. 1st DCA 1984) (adding minor child to policy does not require new UM election). Compare Belmont v. Allstate Ins. Co., 721 So.2d 436 (Fla. 5th DCA 1998) (ruling that a new UM election was required after liability limits were increased); Nat’l Am. Ins. Co. v. Baxley, 578 So.2d 441 (Fla. 1st DCA 1991) (ruling that because there was a gap in coverage, there was no 627.727(1) replacement policy).

The estates acknowledge that Sean’s divorce and the various changes to the policy do not individually require a new UM election. However, they argue that it is the cumulative effect of the various changes to the policy that causes it to be a “new” policy instead of a replacement policy as argued by State Farm. We find no basis in their “cumulative effect” argument in any statutory language, or in any case construing 627.727(1).

The Florida Legislature stated, in section 627.727(1), that when lower UM limits have been selected, “higher limits of uninsured motorist coverage need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces an existing policy with the same bodily injury limits unless an insured requests higher uninsured motorist coverage in writing.” (Emphasis added). The language used within the statute specifically provides for changes to be made to the policy without a required new offering of UM coverages. The statute uses broad terms, including “replacement,” so that numerous changes to the policy may be effected without requiring a new election for UM coverage. Cf. St. Paul Fire and Marine Ins. Co. v. Valdivia, 771 So.2d 1229 (Fla. 3d DCA 2000) (holding that a replacement policy is not required to have exactly the same coverages as the predecessor policy).

As in Bell v. Progressive Specialty Ins. Co., 744 So.2d 1165 (Fla. 1st DCA 1999), because the policy Sean purchased from State Farm replaced the policy previously issued to him, during his marriage to Lori, at the same bodily injury liability limits, State Farm was entitled to rely on Lori’s previous written election of reduced uninsured motorist coverage.

Conclusion

Because we hold that Sean Ditmore replaced his automobile policy with the same bodily injury liability limits after his former wife elected lower limits of $50,000 per person, pursuant to section 627.727(1), Florida Statutes (2004), we reverse the amount of the trial court’s final judgment. The estates are entitled to UM benefits of $50,000 each, rather than $100,000 each as declared by the trial court.

REVERSED.

THOMAS and ROBERTS, JJ., concur.

      . See Dep't of Highway Safety and Motor Vehicles v. Brandenburg, 891 So.2d 1071, 1072 & n. 1 (Fla. 5th DCA 2004) (declining to address issues not raised on appeal); Mapp v. Armco Specialty Steel Div., 543 So.2d 1296 (Fla. 1st DCA 1989) (same).

      . Our standard of review is de novo. See State Farm Mut. Auto. Ins. Co. v. Parrish, 873 So.2d 547, 549 (Fla. 5th DCA 2004) (ruling that the court's interpretation of the insurance policy for UM coverage was subject to de novo standard of review).


author: WARNER, J.

text:
    S.D., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D07-2617.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.
    Kenneth B. Williams, Coral Springs, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   WARNER, J.

In challenging the order terminating his parental rights as to his son, appellant claims that the trial court erred because no petition for termination was filed. Appellant is correct in that no petition appears in the record. To make sure that no petition was filed, we entered an order requiring the clerk to supplement the record with the petition, if one was filed. The clerk filed a response stating that no petition had been filed. Although the department contends that a petition must have been filed, it has not brought anything to our attention which would establish that it prepared and filed a petition which has simply been lost.

The jurisdiction of the court over a parent in a termination proceeding is invoked by the filing of a petition. See § 39.802(1), Fla. Stat. (“[a]ll proceedings seeking an adjudication to terminate parental rights pursuant to this chapter must be initiated by the filing of an original petition”); Fla. R. Juv. Pro. 8.500(a)(1) (“All proceedings seeking the termination of parental rights to a child shall be initiated by the filing of an original petition in the pending dependency action, if any.”) (emphasis supplied). Because the trial court’s jurisdiction was not properly invoked, we reverse. Our reversal is without prejudice to the department filing a new petition for termination of parental rights, properly invoking the jurisdiction of the court.

HAZOURI, J., and CHUMBLEY, DOUGLAS J., Associate Judge, concur.


text:
    Carl POITIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3305.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.
    Carl Poitier, Blountstown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant filed a motion to correct illegal sentence claiming he did not qualify for a habitual felony offender enhancement due to a lack of sequential convictions. The lower court denied appellant’s motion, citing to records that conclusively refuted the allegation. However, the records were merely cited and not attached. As such, we are compelled to reverse and remand for attachment of those records. See Bennett v. State, 946 So.2d 84 (Fla. 4th DCA 2006) (reversing the denial of a rule 3.800(a) motion because the order on appeal did not include record attachments that refuted the allegations of the motion).

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


text:
    In re Jane DOE, Appellant.
    No. 4D07-4232.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2007.

      Melissa Duncan and Jill A. Mahler of the Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellant.
   PER CURIAM.

Jane Doe appeals an order dismissing her petition for judicial waiver of parental notification of her decision to terminate her pregnancy, pursuant to section 390.01114(4), Florida Statutes (2006). Because the reasons cited by the trial court do not support the conclusion that the petitioner was not sufficiently mature to decide whether to terminate her pregnancy, and the petitioner’s undisputed evidence established sufficient maturity under the appropriate statutory criteria, we conclude that the trial court abused its discretion in dismissing the petition.

Under section 390.01114(4)(c), a trial court should grant a minor’s petition to waive parental notification if clear and convincing evidence shows that “the minor is sufficiently mature to decide whether to terminate her pregnancy.” The statute requires the court to “hear evidence relating to the emotional development, maturity, intellect, and understanding of the minor, and all other relevant evidence.” § 390.01114(e), Fla. Stat. (2006). After hearing the evidence, the court must issue written and specific factual findings and legal conclusions supporting its decision.

The petitioner need not show that she has the maturity of an adult to satisfy the statute. In re Jane Doe 06-A, 932 So.2d 499, 500 (Fla. 1st DCA 2006); In re Doe, 924 So.2d 935, 939 (Fla. 1st DCA 2006); In re Doe, 932 So.2d 278, 284 (Fla. 2d DCA 2005). Instead, she need only show that she has the necessary emotional development, intellect and understanding to make an informed decision regarding the termination of her pregnancy. Jane Doe 06-A, 932 So.2d at 500.

Included among the factors courts have considered in assessing whether a minor has sufficient maturity to make the decision are her physical age, demeanor, academic performance, work experience, future educational and life plans, inclination to seek counsel and emotional support from a trusted adult, appreciation of the medical and emotional risks of abortion, awareness of her options other than abortion, and knowledge of the demands of caring for a child. Jane Doe 06-A, 932 So.2d at 499; Doe, 924 So.2d at 939; Doe, 932 So.2d at 284.

At the hearing on the petition filed in this case, Doe testified that she is 17 years old, enrolled in school and making A’s, and employed at a full-time job. She is four months pregnant by her fiancé. She lives with her parents but fears divulging her decision to them because of their religious views and church standing. She has a very close relationship with her fiancé’s parents and has discussed her pregnancy with them. They suggested the abortion. Because of her moral qualms regarding abortion, she would not have sought an abortion if they had not made the suggestion. However, after thinking more about her situation, she realized that it would be difficult to go to school and take care of a baby. She also realized that she cannot raise a baby by herself and that she lacks sufficient financial means to support a baby.

In dismissing Doe’s petition for waiver of parental notification, the trial court stated the following in its written order:

Petitioner is 4 months pregnant. She has not spoken to any medical experts. She has not taken it upon herself to educate herself about the medical risks. She fears disdain from her parents. The evidence was crystal clear that the only reason the petitioner filed this case is because the parents of the man with whom she conceived the child told her to do so. The testimony demonstrates that the petitioner is not of sufficient maturity to make this decision; and if she were to make decision without influence from boyfriend’s parents, she would not have filed the petition.

Although a minor’s consultation with experts concerning the risks and ramifications of an abortion is a positive indication of maturity, it is only one factor among many in the statutorily-mandated analysis. Jane Doe 06-A, 932 So.2d at 500; Doe, 924 So.2d at 939. With respect to that single factor, the first district made the following comments concerning a young woman who petitioned for judicial waiver:

That she had not yet at the time of the hearing personally discussed the ramifications of a termination of pregnancy with medical professionals does not distinguish her from many other similarly situated women, both minors and adults, and any suggestion by the trial court that she is unable to determine or understand the potential risks and ramifications is without support in the record.

In re Doe, 921 So.2d 753, 756 (Fla. 1st DCA 2006).

Further, the fact that Doe’s decision to seek an abortion was strongly influenced by her fíancé’s parents is not indicative of immaturity. To the contrary, other courts have considered it a positive factor that the young woman sought out counsel and support from a trusted adult. Jane Doe 06-A, 932 So.2d at 499; Doe, 924 So.2d at 939. In one case, the first district stated that “the fact that she had consulted with others in whom she places trust and has given some consideration to them views is not indicative of an immature thought process .... ” Doe, 921 So.2d at 756. Here, the petitioner testified that, although she had not considered abortion before speaking to her fiancé’s parents, upon further reflection she realized how difficult it would be to raise a child while going to school. She also understood how financially strapped she would be during that time. This demonstrates the petitioner’s awareness of the realities of her situation and shows maturity and understanding of long-term responsibilities.

The record of the hearing below contains ample unrefuted testimony of the statutory factors supporting a finding of sufficient maturity in this case. Virtually every other factor identified by Florida case law for waiver of parental notification is present here. See generally Jane Doe 06-A, 932 So.2d at 500; Doe, 924 So.2d at 939; Doe, 921 So.2d at 756; Doe, 932 So.2d at 284. Doe is 17, less than a year shy of being outside the statutory requirement for parental notification. She is in school and making good grades. She has a full-time job. She is in a committed relationship with a man she intends to marry. She appreciates the moral and religious dilemma presented by her decision. Finally, she expressed concern for the impact on her family should her pregnancy become known. These factors, which were not addressed in the trial court’s order, all tend to show a level of maturity contemplated by the statute authorizing waiver of parental notification. The two factors cited by the trial court in its written order denying Doe’s petition do not reasonably support the conclusion that Doe was not sufficiently mature to decide whether to terminate her pregnancy. See Doe, 921 So.2d at 757 (stating that where a waiver-petition is denied, the trial court’s order must confine itself to the appropriate factors set forth in the statute and articulate specific findings of fact that reasonably and rationally support the conclusion reached).

The trial court thus abused its discretion in dismissing the petition. See Doe, 921 So.2d at 755 (commenting on the presumption of correctness that attaches to a trial court’s order and the deference accorded a trial court’s determinations that are supported by competent substantial evidence, but noting that “these principles are less compelling when the evidence is undisputed and is presented to a judge sitting without a jury, and an appellate court is not required to disregard record evidence that disproves the lower court’s findings or reveals its ruling to be an abuse of discretion”).

For the above-stated reasons, we reverse the trial court’s order and remand to the trial court with directions to grant the petition for waiver of. parental notice of termination of pregnancy.

Reversed and remanded.

KLEIN, STEVENSON and TAYLOR, JJ., concur.


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    Amelia Gallo ARZOUMANIAN and Mark Puzant Arzoumanian, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee Under the Pooling and Servicing Agreement, Dated as of October 1, 2002, Among Credit-Based Asset Servicing and Securitization LLC, PPT ABS LLC, Litton Loan Servicing LP and U.S. Bank National Association, PPT Asset-Backed Certificates, Series 2002-1, Without Recourse, Appellee.
    No. 4D06-4561.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 2007.

      Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for appellants.
    No appearance for appellee.
   Order on Motion To Relinquish Jurisdiction

PER CURIAM.

Counsel for appellants, who has been recently retained, has filed a motion to relinquish jurisdiction to the trial court in order for appellants to file a motion for relief from judgment under rule 1.540. Because relinquishment of jurisdiction for consideration of a rule 1.540 motion results in delay, we do not routinely grant motions to relinquish for this purpose unless we have been furnished a copy of the rule 1.540 motion. We accordingly deny this motion without prejudice to appellants filing their rule 1.540 motion in the trial court, and then filing a motion for relinquishment in this court, with a copy of the rule 1.540 motion attached.

KLEIN, STEVENSON and HAZOURI, JJ., concur.