author: THOMPSON, J.

text:
    Joan C. DORSEY, as Personal Representative, etc., et al., Appellant, v. Karan Gaddam REDDY, M.D., et al., Appellees.
    No. 5D04-3521.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.

      Nolan Carter and Michelle L. Kelson of the Law Offices of Nolan Carter, P.A., Orlando, for Appellant.
    Paul A. Nugent and Kevin T. O’Hara, Sanford, for Appellee.
   THOMPSON, J.

Joan C. Dorsey (“Dorsey”), the surviving spouse of Benny Dorsey, timely appeals a judgment in favor of Benny Dorsey’s cardiologist, Dr. Karan Gaddam Reddy. The jury decided there was no negligence by Dr. Reddy that was the legal cause of Benny Dorsey’s death, and the court entered final judgment and denied Dorsey’s motion for new trial. On appeal, Dorsey contends that the court erred by: (1) admitting Dr. Reddy’s testimony regarding Benny Dorsey’s care that, Dorsey alleged, constituted inadmissible hearsay; (2) denying her request for an additional preemptory challenge because a juror should have been excused for cause; and (3) denying her motion for mistrial after Dr. Reddy testified he had been named the top cardiologist in Orlando by Money Magazine. We affirm.

FACTS

Dr. Joseph Boyer performed double coronary bypass surgery on Benny Dorsey on 12 March 1997. A CT scan on 17 March 1997 revealed that he had a Type I dissection. Dr. Reddy conducted a test called a transesophageal echocardiogram (“TEE”) on the morning of 18 March 1997, and performed an arteriogram under Dr. Boyer’s order. Benny Dorsey died during or immediately after the arteriogram.

Dorsey alleged that Dr. Reddy was negligent because he: (1) failed to timely notify surgeons of the Type I dissection; (2) followed alleged orders to conduct the TEE and .arteriogram on the following day; and (3) failed to discharge the surgeons on 17 March 1997 and find a surgeon to operate immediately.

Tests

Dorsey contested the need for the TEE or the arteriogram. Dorsey called Dr. Cary Stowe, a cardiac surgeon in Dr. Boyer’s group, who testified that each dissection was different; some patients need only replacement of sections of their aortas, some require coronary artery bypasses, and some require replacement of their aortic valves. Thus, in a situation like Benny Dorsey’s, where there are two grafts from bypass surgery, it is best to acquire as much information as possible, because repairing the dissection may not be as simple as patching the aorta.

Dr. Stowe testified that his group relied on the TEE because it could show whether the dissection involves the aortic valve and provides more specific information than the CT scan. Dr. Boyer, the surgeon scheduled to repair the dissection and primarily responsible for Benny Dorsey until discharge, testified that he “[a]bsolutely” would have ordered the TEE because it would allow him to plan the “very complex, very difficult-risk operation”; a CT scan did not provide enough information for an operation on a patient after bypass surgery.

Dr. Stowe testified that it would be reasonable for Dr. Boyer to order an arterio-gram; he did not fault the test’s order or performance. Dr. Boyer testified that he ordered the arteriogram, the “gold standard” of tests, because it provided the best picture of the condition of the aorta and arch. Dr. Boyer would not have operated without one because that would have been negligent. He ordered it despite the risk that an arteriogram could perforate an artery, and could not criticize Dr. Reddy’s actions.

Dr. Sandeep Bajaj, a cardiologist and Dr. Reddy’s partner, emphasized the ar-teriogram’s necessity because a surgeon must know the locations of aortic tears. Without one, a surgeon securing any obvious tears could not determine what else was wrong with the aorta and arch. Similarly, Dr. Reddy testified that, if the surgeon repairing the dissection does not know to repair, for example, the aortic arch bypass grafts or carotid arteries, the patient would not survive. The arterio-gram was also needed because the CT and TEE can lead to false positives, which create the risk of dangerous but unnecessary operations. Accordingly, Dr. Reddy agreed with the decision to run further tests before surgery.

Dr. Philip Totonelly, Dorsey’s medical expert and a cardiologist practicing in New York, offered the only testimony against the tests’ desirability. He would have refused to perform an arteriogram and “would say, look, we’re talking about salvaging this individual’s life, we’re not talking about fancy surgery here”; an arterio-gram would be “absolutely crazy.” There would be no reason to get a TEE. Dr. Totonelly testified that Dr. Reddy should have moved Benny Dorsey to an operating room immediately; if a surgeon would not perform without further tests, Dr. Reddy should have fired him and acquired another. Dr. Totonelly would have fired both surgeons for not operating immediately.

Drs. Boyer and Reddy agreed that Dr. Reddy could not have fired Dr. Boyer because Dr. Boyer was the surgeon with primary responsibility for Benny Dorsey. Both testified that, if Dr. Reddy had refused to perform the arteriogram, Dr. Boyer would have overridden him and selected another cardiologist to conduct the test.

Cause of death

The death certificate indicated that the dissection was the cause of death. Dorsey alleged that Dr. Reddy caused a tear in the aorta that caused blood to accumulate around Benny Dorsey’s heart, causing a condition called cardiac tamponade. The doctor who conducted the autopsy found evidence of two tears in the ascending aorta. He testified that one of the tears was the dissection, and he believed the other one occurred during the arteriogram and caused the tamponade. The other doctors involved directly in the case testified that tamponade was either extremely unlikely or impossible. Drs. Stowe and Bajaj testified that the surgeon conducting bypass surgery opens the pericardium to allow blood to leak out so the heart cannot be compressed. Dr. Boyer confirmed he left the pericardium open to prevent tam-ponade, and the doctor who conducted the autopsy conceded the pericardium had been opened. Dr. Reddy testified that, when Benny Dorsey’s blood pressure dropped almost to zero during the arterio-gram, a catheter inserted into the heart showed no pressure; therefore, there was no tamponade.

Drs. Bajaj and Reddy testified that the cause of death was massive blood loss after the aorta ruptured. Dr. Boyer testified that Benny Dorsey died from an “acute ascending aortic dissection caused as a postoperative complication of his coronary bypass surgery,” and that his death resulted from the bypass. The most likely cause of the dissection was the manipulation of his aorta during or after the bypass surgery. Significantly, Dr. Boyer testified, without objection, that he was sorry the surgery was unsuccessful: “It did not go the way — the system broke down. That’s not Dr. Reddy’s fault. That’s our team’s fault.”

The doctors personally involved in the case emphasized that dissections created great risk; Dr. Stowe testified that, on a ten-point scale, an operation on an acute aortic dissection ranges between 9.5 and 10. In Dr. Stowe’s experience, approximately 40% of patients undergoing surgery for a Type I dissection die. Dr. Boyer had only one other patient who experienced a dissection during or after surgery, and that patient did not survive. Dr. Bajaj had seen two other cases where a Type I dissection was diagnosed by cardiogram, and both patients died within one day of surgery. Dr. Reddy had one other patient experience a post-operation dissection, and that patient died. Only Dr. Toto-nelly disagreed about the risk: “I mean, the vast majority, overwhelming majority, from what I’ve seen in the literature and my experience, is they survive. They walk out of the hospital.”

Alleged hearsay

Dorsey moved in limine to exclude any testimony regarding several conversations indicating that Dr. Reddy followed the orders of Drs. Stowe and Boyer by conducting the TEE and arteriogram. Specifically, she sought to exclude testimony that: 1) Dr. Reddy received a phone call on the morning of 17 March 1997 from a radiologist, advising him that the chest CT scan showed a Type I dissection; 2) Dr. Stowe ordered a TEE for the following morning and said he would have someone check on Benny Dorsey that day; and 3) Dr. Boyer ordered the TEE and arteriogram on the morning of 18 March 1997. Dorsey alleged there were no orders and that any testimony about these conversations would be offered to establish their truth, thus rendering the statements self-serving, inadmissible hearsay. Dr. Reddy responded that Dr. Boyer’s statements were admissible as a hearsay exception under section 90.803(3) because the plans of Dr. Boyer, Dr. Stowe, and the radiologist related to an issue in the case, i.e., Benny Dorsey’s treatment. The court agreed and denied Dorsey’s motions.

Radiologist conversation

Dr. Reddy testified that, between 11:00 a.m. and 1:00 p.m. on 17 March 1997, a radiologist telephoned him and said that a CT scan indicated Benny Dorsey had a Type I dissection extending from the aortic valve to the descending aorta.

Dr. Stowe conversation

Dr. Reddy testified about the conversation with Dr. Stowe:

So I called up Florida Hospital and located Dr. Stowe in the operating room. And I, in fact, interrupted him while he was doing surgery and talked to him, that his patient has a type one aortic dissection.
Normally, if it’s not urgent, we don’t want to interrupt surgery ... but I felt that this was significant enough to let him know that the patient did have a type one aortic dissection....
* * *
Dr. Stowe told me that this is a very complicated problem and this is not an easy problem to fix and this is not the kind of problem you jump into.
And since Dr. Boyer is the one who did the surgery, since he is the one who is most familiar with what happened during the surgery, he felt that we don’t need to jump into surgery right away, that he’s going to let Dr. Boyer know, or he would himself or one of his partners will come by and evaluate him.
But he suggested that I should get a[TEE] in AM to further evaluate aortic dissection. I think my understanding was that he didn’t necessarily want to take him to surgery right away.
My take on that was that maybe he wants to, either himself or somebody from surgery, wants to evaluate him.... [T]he instruction to me was to arrange for a[TEE] in AM.

Dr. Stowe testified that he did not recall this conversation, which did not sound like something he would have said. He ordinarily would not order a TEE unless there was a question of the diagnosis, and the patient probably would have needed emergency surgery. If he was in surgery with another patient, he probably would have ordered someone to prepare Benny Dorsey for emergency surgery. However, Dr. Stowe did not deny the conversation occurred; rather, if it did, he did not remember. He agreed that, if there was a complication, Dr. Boyer, as Benny Dorsey’s surgeon, would need to address it. If Dr. Stowe would have received a call from Dr. Reddy during surgery, Dr. Stowe would have directed him to call Dr. Boyer’s group to find Dr. Boyer or someone else. However, if Dr. Reddy could not reach Dr. Boyer, it would have been reasonable to contact him.

Drs. Reddy and Bajaj testified that Dr. Reddy told Dr. Bajaj about the Type I dissection and instructed him to check on Dorsey. Dr. Bajaj encountered Dr. Boyer’s physician’s assistant, who was also checking Dorsey; Dr. Reddy believed the assistant did so under orders from Dr. Stowe or Dr. Boyer’s office.

Dr. Boyer conversations

Dr. Reddy testified that he could not reach Dr. Boyer on 17 March 1997, but left him a message to call back. When he spoke with Dr. Boyer on the morning on 18 March 1997, Dr. Boyer told him to do the TEE and call him back, but that he probably wanted Dr. Reddy to proceed with the arteriogram. They spoke again after the TEE, and Dr. Boyer said he needed the arteriogram before he could proceed with surgery. Dr. Boyer knew the TEE had been directed from his group.

Dr. Boyer testified that Dr. Reddy tried to reach him on 17 March 1997. He did not recall ordering a TEE; he believed Dr. Stowe ordered it. Dr. Boyer spoke with Dr. Reddy “pretty early” in the morning on March 18th. He did not recall talking with Dr. Reddy before the TEE, but he “may very well have.” He “[ajbsolutely” would have ordered the TEE, because the CT scan would not provide enough information.

. ANALYSIS

We briefly address Dorsey’s claims of error regarding the denial of her request for an additional preemptory challenge and her motion for mistrial before turning to the question of alleged hearsay.

A. Preemptory Challenge

Dorsey argued that one of the jurors should have been excused for cause. We find no error in the court’s denial of her request for an additional preemptory challenge. The trial court enjoys great discretion in ruling on challenges of jurors for cause. Ivey v. State, 855 So.2d 1169, 1171 (Fla. 5th DCA 2003) (citing Gore v. State, 706 So.2d 1328, 1332 (Fla.1997)). “The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court.” Smith v. State, 907 So.2d 582, 585 (Fla. 5th DCA 2005) (citing Busby v. State, 894 So.2d 88, 95 (Fla.2004)); Ivey, 855 So.2d at 1171. If the juror declares and the court determines that the juror “can render an impartial verdict according to the evidence,” a challenge for cause should not be granted. Guzman v. State, 934 So.2d 11, 2006 WL 335479 (Fla. 3d DCA Feb. 15, 2006) (citing § 913.03(10), Fla. Stat. (2003)). The trial court’s decision will not be disturbed on appeal without a showing of manifest error. Ivey, 855 So.2d at 1171. Its decision must be upheld if there is competent record support for that decision. Id. We find ample record support for the trial court’s decision. None of the juror’s testimony suggested the existence of impermissible prejudice or bias. Cf. Somerville v. Ahuja, 902 So.2d 930, 936 (Fla. 5th DCA 2005).

B. Motion for Mistrial

The court did not err in denying Dorsey’s motion for mistrial, which was made one day after Dr. Reddy testified, without objection, that a Money Magazine survey had named him the top cardiologist in Orlando. The trial court enjoys broad discretion in deciding whether to grant a mistrial, but it should not grant a mistrial “unless an absolute legal necessity to do so exists.” Gonzalez v. Largen, 790 So.2d 497, 500 (Fla. 5th DCA 2001) (citing White v. Consol. Freightways Corp. of Delaware, 766 So.2d 1228, 1232 (Fla. 1st DCA 2000)). Dorsey cites two cases that note in passing that it is error to permit a doctor to testify that he was named a top doctor in a survey or magazine. See Liberatore v. Kaufman, 835 So.2d 404, 407 (Fla. 4th DCA 2003); Tomlian v. Grenitz, 782 So.2d 905, 907 (Fla. 4th DCA 2001), rev’d on other grounds, Grenitz v. Tomlian, 858 So.2d 999 (Fla.2003). Neither case suggests that such a statement is per se reversible or fundamental error.

“To provide a trial court with the opportunity to correct errors, a timely objection is necessary.” Millar Elevator Serv. Co. v. McGowan, 819 So.2d 145, 153 (Fla. 2d DCA 2002) (quoting City of Orlando v. Birmingham, 539 So.2d 1133 (Fla.1989)); see also Ed Ricke & Sons, Inc. v. Green, 468 So.2d 908, 910 (Fla.1985) (reiterating that, “[u]nless the improper argument constitutes a fundamental error, a motion for mistrial must be made ‘at the time the improper comment was made’ ”). The court in McGowan applied this rule in a situation similar to that here. It concluded plaintiffs had not timely moved for mistrial because they failed to make a contemporaneous objection to testimony during the defense’s case-in-chief; rather, they moved for mistrial on the day after the objectionable comments were made. Id. at 152-53. The motion for mistrial here was similarly untimely. Moreover, Dr. Reddy’s statement regarding one survey “did not rise to an error of fundamental dimension.” Id. at 153 (citing Murphy v. Int'l Robotic Sys., Inc., 766 So.2d 1010 (Fla.2000)); see also Hargrove v. Howell, 884 So.2d 960, 962 (Fla. 1st DCA 2004).

C. Alleged Hearsay

We affirm the trial court’s denial of Dorsey’s motions in limine, which challenged alleged hearsay, though the trial court admitted much of the alleged hearsay for the wrong reason. The trial court’s decision regarding the admission of testimony is reviewed for abuse of discretion. See, e.g., Shultheis v. Gotlin, 919 So.2d 546, 549 (Fla. 5th DCA 2005). The court’s ruling on an evidentiary matter will be affirmed even if the court ruled for the wrong reasons, as long as the evidence or an alternative theory supports the ruling. See, e.g., Muhammad v. State, 782 So.2d 343, 359 (Fla.2001) (considering the argument, not presented below, that the testimony at issue was nonhearsay rather than hearsay admissible under. section 90.803(3)(a)2).

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (1999); see also Diaz v. State, 890 So.2d 556, 558 (Fla. 5th DCA 2005). Hearsay is generally inadmissible because the declarant does not testify under oath, the factfinder cannot observe the declarant’s demeanor, and the declarant cannot be cross-examined. Breedlove v. State, 413 So.2d 1, 6 (Fla.1982); Diaz, 890 So.2d at 558. “The hearsay rule does not prevent a witness from testifying as to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements.” Breed-love, 413 So.2d at 6 (quoting Dutton v. Evans, 400 U.S. 74, 88, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970)); Diaz, 890 So.2d at 558. Out-of-court statements are hearsay only if offered to prove the truth of the matter asserted. Breedlove, 413 So.2d at 6; Diaz, 890 So.2d at 558; Buchanan v. State, 743 So.2d 59, 61 (Fla. 2d DCA 1999). “The hearsay objection is unavailing when the inquiry is not directed to the truth of the words spoken, but, rather, to whether they were in fact spoken.” Breedlove, 413 So.2d at 6 (citation omitted); Buchanan, 743 So.2d at 61.

The court admitted the testimony regarding out-of-court statements by the radiologist, Dr. Stowe, and Dr. Boyer under section 90.803(3)(a)2, which provides that testimony is admissible if it is “[a] statement of the declarant’s then-existing state of mind, ... including a statement of intent, plan, motive, [or] design, ... when such evidence is offered to ... [p]rove or explain acts of subsequent conduct of the declarant.” A statement may be admitted under this exception only if there is evidence demonstrating that the declarant acted in accord with the statement of intent. Ibar v. State, 31 Fla. L. Weekly S149, - So.2d -, 2006 WL 560586 (Fla. Mar. 9, 2006). “[A] declarant’s statement of intent under section 90.803(3) is only admissible to infer the future act of the declarant, not the future act of another person.” Brooks v. State, 787 So.2d 765, 770-71 (Fla.2001).

The court below did not determine the relationship between the alleged hearsay statements and the future acts of each declarant. On appeal, Dr. Reddy asserts that he was the declarant of the statements made by the radiologist, Dr. Stowe, and Dr. Boyer. Dorsey correctly notes that the declarants, rather, were the radiologist, Dr. Stowe, and Dr. Boyer. Of the testimony challenged on appeal, the only statement arguably admissible under section 90.803(3) was Dr. Stowe’s statement that he would have one of the doctors evaluate Benny Dorsey. That statement would permit the inference that Dr. Stowe informed one of the doctors in his group, which, according to Drs. Reddy and Bajaj, sent Dr. Boyer’s physician assistant to evaluate Benny Dorsey.

Nevertheless, we conclude that the challenged testimony was admissible. Dr. Reddy testified that the radiologist informed him of a Type I dissection on 17 March 1997. This statement was not hearsay because it was not offered to show the truth of the matter asserted- — that Benny Dorsey had the dissection — but to show that Dr. Reddy had notice of the dissection. See Sibley v. State, 636 So.2d 893, 893-94 (Fla. 5th DCA 1994); see also Charles W. Ehrhardt, Florida Evidence § 801.4 (2001).

Dorsey cannot demonstrate reversible error with respect to the conversations with Drs. Stowe and Boyer, though the court admitted them on the wrong basis. Dr. Reddy’s testimony regarding his conversation with Dr. Stowe contained some statements that were conceivably hearsay, i.e., the fact that Dr. Stowe was conducting surgery or Dr. Stowe’s description of surgical risk. Nevertheless, we do not reverse the judgment because an examination of the entire case shows that any error resulting in admitting these tangential statements was harmless and did not cause a miscarriage of justice. See § 59.041, Fla. Stat. (1999).

The thrust of Dorsey’s objection was that the alleged hearsay statements were inadmissible because they concerned orders from Drs. Stowe and Boyer; the admission of the statements would allow Dr. Reddy to “shift the blame” unfairly. Thus, Dorsey objected not “to the truth of the words spoken, but, rather, to whether they were in fact spoken.” See Breedlove, 413 So.2d at 6; Buchanan, 743 So.2d at 61. Dr. Stowe’s order to conduct a TEE and Dr. Boyer’s order to conduct a TEE and cardiogram did not constitute hearsay, because the orders did not make an assertion. In a similar situation, we held that testimony regarding instructions given to an employee was admissible because the instructions did not make an assertion. See Vucinich v. Ross, 893 So.2d 690, 695 (Fla. 5th DCA 2005); see also United States v. Shepherd, 739 F.2d 510, 514 (10th Cir.1984) (holding that orders or instructions were neither true nor false, but “were offered to show that they occurred rather than to prove the truth of something asserted”); United States v. Cuttino, 106 Fed.Appx. 156, 158-59 (4th Cir.2004) (unpublished opinion) (observing that “[a]n order or instruction ... is ‘neither true nor false and thus cannot be offered for its truth [ ]’ ” and therefore is not hearsay); United States v. Taylor, 812 F.2d 1409 (6th Cir.1987) (unpublished opinion) (stating that “[t]he testimony concerning the instructions was offered to show that they were made, not to prove the truth of any assertion which one might imagine is contained in the instructions”). Admitting testimony regarding the alleged orders did not implicate the traditional concerns raised by hearsay; here, Drs. Reddy, Stowe, and Boyer all testified under oath about the alleged orders and were subject to cross-examination, and the jury was able to observe each doctor’s demeanor. Accordingly, we affirm the court’s denial of Dorsey’s motions in limine and its admission of the alleged hearsay because the ruling, though made for the wrong reason, was supported by the evidence or any alternative theory. See, e.g., Muhammad, 782 So.2d at 359.

AFFIRMED.

GRIFFIN and MONACO, JJ., concur.

      . A dissection is a split in the aortic wall. A Type I dissection usually starts in the ascending aorta, and generally requires surgery. A Type III dissection usually begins past the transverse origin arch and involves the descending aorta; in this case, surgery is avoided when possible.

      . Cardiac tamponade occurs when blood collects around the heart but within the pericardium, compressing the heart.

      . It was undisputed that Dr. Boyer ordered the arteriogram; Dorsey learned this during discovery, but nevertheless argued that the testimony regarding the order should be excluded as hearsay.


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    Joseph MEYER and Anthony Meyer, Appellants, v. Laurie G. MEYER, et al., Appellees.
    No. 5D05-1911.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.
    Joseph Meyer and Anthony Meyer, Astoria, NY, pro se.
    No Appearance for Appellees.
   SAWAYA, J.

Joseph and Anthony Meyer, brothers, appeal a non-final order denying their motion to dismiss a complaint filed by their former stepmother, Laurie Meyer, against Donald Meyer, the successor trustee of their father’s trust. In their motion, Joseph and Anthony allege that venue is inappropriate in Florida because the trust is administered in New York, where the settlor resided at death and where the trustee still resides, and because all parties interested in the trust and its proceeds live in other states.

The trust instrument provided that upon the death of Richard T. Meyer, Jr., the father of Joseph and Anthony, the trust would terminate and half of the trust assets would be distributed to Laurie and the other half would be divided equally between Joseph and Anthony. The trust also provided that “[a]ll questions concerning the validity, construction and administration of this Agreement and any trust created hereunder shall be judged and resolved in accordance with the laws of the State of Florida” and allowed the trustee to relocate any and all trusts created therein “when in the sole judgment of the Trustee the relocation of said Trust or Trusts from the current jurisdiction controlling its interpretation to another jurisdiction is desired.”

Richard, Jr.’s ex-wife, Laurie, filed a petition in the Citrus County Circuit Court after Richard, Jr.’s death seeking to compel distribution of the money she believes she is owed by the trust. Because the petition only named the trustee, Donald Meyer, as a defendant, Joseph and Anthony moved to intervene and sought to have Laurie’s petition^dismissed on the ground that venue in Florida was improper. They argued that pursuant to section 737.203, the Florida courts should not entertain the trust proceedings because the principal place of business of the trust is in New York, where it is administered and where the trustee lives, pointing out, too, that none of the parties had any connection with Florida. The trial court rendered an order allowing Joseph and Anthony to intervene, but denied their motion to dismiss without explanation. Contending that the trial court failed to properly apply section 737.203, Joseph and Anthony appeal. We have jurisdiction to review this non-final order pursuant to rule 9.130(a)(3)(A), Florida Rules of Appellate Procedure.

The standard of review of a denial of a motion to dismiss pursuant to section 737.203 is abuse of discretion. See Levine v. Steiger, 765 So.2d 249 (Fla. 4th DCA 2000). Section 737.203 provides:

Over the objection of a party, the court shall not entertain proceedings under s. 737.201 for a trust registered, or having its principal place of administration, in another state unless all interested parties could not be bound by litigation in the courts of the state where the trust is registered or has its principal place of administration. The court may condition a stay or dismissal of a proceeding under this section on the consent of any party to jurisdiction of the state where the trust is registered or has its principal place of business, or the court may grant a continuance or enter any other appropriate order.

The nature and purpose of thig, statute was explained by the court in In re Estate of McMillian, 603 So.2d 685 (Fla. 1st DCA 1992), as follows:

This statute is not a jurisdictional bar. It is more in the nature of a venue statute, and speaks in terms of whether a Florida court will “entertain” trust proceedings. The statute further does not seem to require the judge to dismiss a case, even after the statutory provision is invoked, as evidenced by the final sentence of the statute which provides that the judge may enter orders of continuance, or other appropriate orders. The comments of the drafters of the Uniform Probate Code, accompanying section 7-203, which is materially similar to our section 737.203, indicate:
It is assumed that under this section a court would refuse to entertain litigation involving the foreign registered trust unless for jurisdictional or other reasons, such as the nature and location of the property or unusual interests of the parties, it is manifest that substantial injustice would result if the parties were referred to the court of registration.... [T]he issue is essentially only one of forum non conve-niens in having litigation proceed in the most appropriate forum. This is the function of this section.

Id. at 688; see also Perry v. Agnew, 903 So.2d 376, 377 (Fla. 2d DCA 2005); Levine. Hence, when there is a possibility of litigating in more than one forum, section 737.203 recognizes that trust litigation should proceed in the most appropriate forum. See Levine; In re Estate of McMillian. This is the interpretation given similar statutory provisions adopted in other states. See Macaulay v. Wachovia Bank of S.C., N.A., 333 S.C. 201, 508 S.E.2d 46, 48 (1998) (stating that South Carolina’s version of U.P.C. § 7-203 “does not deny or confer jurisdiction upon South Carolina courts”).

Here, the trust is being administered in New York where the trustee resides. None of the parties has any connection with the state of Florida, and we note that the petition filed by Laurie does not contain any factual allegations showing that venue properly lies in this .state. Because a proper objection has been filed by parties who are beneficiaries of the trust protesting the proceedings by the Florida court concerning a trust registered or having its principal place of administration in New York, the trial court should have properly applied the dictates of section 737.203. We are unable to determine whether this is what the trial court did because it simply denied the motion to dismiss without revealing the basis for its denial. Accordingly, we reverse the order denying the motion to dismiss and remand for the purpose of allowing the trial court to determine whether all interested parties could be bound by litigation in New York. Perry. If the trial court finds the parties may be bound by New York litigation, “the court shall continue, stay, or dismiss the suit” filed by Laurie. Perry, 903 So.2d at 377. If the parties are not bound, the court may deny the motion to dismiss.

We note, parenthetically, that although the trust agreement contains a choice of law provision, it does not designate Florida as the principal place for administration of the trust. Unless specified in the trust agreement, the “principal place of administration of a trust” is “the trustee’s usual place of business where the records pertaining to the trust are kept or, if he or she has no place of business, the trustee’s residence.” § 737.101(1), Fla. Stat. (2005). Accordingly, New York is the principal place for administration of the trust because the trustee is a resident of that state and the trustee’s attorney for legal matters pertaining to the trust is also in New York. In any event, the trust agreement provides the trustee discretion to remove the principal place of the trust from Florida to another state if he or she desires. Since the trustee has chosen New York, the choice of law provision in the trust agreement does not present a sufficient legal basis for affirmance.

REVERSED and REMANDED for further proceedings consistent with this opinion.

PLEUS, C.J., and ORFINGER, J. concur.

      . The issue whether Laurie's divorce from Richard T. Meyer, Jr. vitiates her claim to any part of the trust proceeds is not an issue raised in the trial court and one that we will not address.


author: SHARP, W., J.

text:
    Ronald S. SCHUMAKER, Appellant/Cross-Appellee, v. Theresa L. SCHUMAKER, Appellee/Cross-Appellant.
    No. 5D05-2073.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.

      Cindy L. Lasky, of The Lasky Law Firm, Jacksonville, for Appellant/Cross-Appellee.
    Regina W. Sargeant and Patrick T. Can-an of Canan Law, P.A., St. Augustine, for Appellee/Cross-Appellant.
   SHARP, W., J.

The former husband, Ronald Schumaker, appeals and the former wife, Theresa Schumaker, cross appeals from a dissolution of marriage judgment. We affirm in part, and reverse and remand in part, for further clarification or consideration.

The parties married in 1990 and Theresa filed a petition for dissolution of marriage in January of 2004. Three minor children were born to their marriage. Pending rendition of a final judgment, the trial court granted Theresa’s motion for temporary support, temporary custody of the children, and exclusive use of the marital residence. Ronald was ordered to pay child support as well.

With respect to visitation, the court fashioned an unusual scheme: Ronald was granted the right of first refusal in lieu of the children being placed in day care or with other family members while Theresa was at work. The temporary order dated May 24, 2004, provided:

The Husband shall be granted the right of first refusal in lieu of any day care or other extended family members watching the children while the Wife is at work. The Wife has indicated that she will alter her work schedule to a daytime schedule if awarded exclusive use and occupancy of the marital home and that currently, she works at night to avoid any contact with the Husband. The Wife shall provide the Husband, to the extent practicable, a schedule at least ten days in advance of her work schedule so that each party can make the appropriate plans to watch the minor children, especially when the Wife is at work. Otherwise, the Husband shall have visitation every other weekend beginning Friday at 6:00 pm until Sunday at 6:00 pm.

The final hearing was held on January 27, 2005 and February 18, 2005. The court rendered its Final Judgment on March 23, 2005. The court granted Theresa residential custody of the children, with shared parental responsibility. It made detailed fact findings in support of this award. The Final Judgment stated, after “ORDERED AND ADJUDGED:”

[A]nd the HUSBAND shall have reasonable visitation as ordered by this court on May 24, 2004.

The trial court found the parties had experienced a moderate to low standard of living during their marriage. They lived in a manufactured home valued at $140,000. Ronald had been “sporadically employed” during the marriage and they had an enormous credit card debt.

The court denied Theresa’s requests for alimony and additional attorney’s fees. It noted she was employed full time, 37.5 hours per week and earned $9.00 per hour. It found Ronald earned between $40,000 and $42,000 per year and that he did not have the ability to pay alimony. It denied Theresa any attorney’s fees, not because of lack of need on her part, but because of Ronald’s inability to pay, and the fact that he had paid $7,500 in temporary fees.

With regard to equitable distribution of assets and liabilities, the court assigned Ronald $32,774.68 in credit card debt and Theresa $23,667.97. It found the parties’ retirement and deferred compensation plans were marital and assigned each party their own funds. It roughly equalized distribution of the parties’ personal property.

The parties’ major asset, the marital home, was intended to be equally divided, but the provision dealing with its disposition is complicated. The court found the home has an equity of $55,000 and is in need of remodeling. The court set aside $10,000 for remodeling, if the home is placed for sale. It awarded the home to Theresa and found each party has an interest in the home of $75,000, and at least a net of $37,000. It ruled that Theresa could sell the home at a reasonable price of 90% of the stipulated value and equally divide the proceeds. The costs for remodeling shall be held in escrow and if not used, should be distributed on a 50/50 basis. It gave Theresa six months to sell or refinance the home. After six months, Ronald was to have the opportunity to relocate into the home and sell or refinance it under the same terms. However, the court concluded that it would not order an involuntary sale of the home while the parties had minor children.

The parties filed motions for rehearing on April 1, 2005 and March 30, 2005, which the trial court denied. The trial court granted Theresa’s motion for further consideration and set a hearing date of July 18, 2005. The hearing was held October 26, 2005 and an order rendered November 2, 2005. Theresa presented evidence that she was unable to refinance the marital home within the six months set out in the judgment because Ronald failed to pay off his assigned credit card debts, which affected her credit rating.

However, Ronald had filed his notice of appeal June 22, 2005 and Theresa filed her cross appeal July 6, 2005. Because the trial court had lost jurisdiction to deal with the issues, it did not rule on the merits other than to suspend enforcement of the provisions dealing with Theresa’s obligation to refinance or sell the marital home within six months.

I. Visitation

Ronald’s point, on appeal deals solely with visitation. He argues that the trial court abused its discretion by failing to integrate the visitation language into the final judgment rather than referencing it. Once a final judgment of dissolution is rendered, the final judgment supersedes any prior temporary orders., Bell v. Bell, 664 So.2d 1075 (Fla. 4th DCA 1995). See also Sims v. Sims, 846 So.2d 1188, 1189 (Fla. 4th DCA 2003); Roth v. Roth, 658 So.2d 1225, 1226. (Fla. 4th DCA 1995).

In this' case, it appears any defect, if there is one, is purely a scrivener’s error. The trial court clearly referenced the provisions of the temporary order and intended to incorporate them into the final judgment. Upon remand, the trial court may expressly incorporate' them by reference, or repeat them in the final judgment.

Ronald also argues that the provisions of the temporary order are incomplete because they do not address visitation during holidays and other special occasions and extended school breaks such as the summer. It is inappropriate to leave such issues unresolved for future adjudication. Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315, 318-319 (Fla. 3d DCA 1987). See also Hansen v. Hansen, 911 So.2d 159, 160 (Fla. 3d DCA 2005).

The granting of such a limited visitation to Ronald is problematic. However, trial courts have discretion to order visitation based on the facts and circumstances of each case. Keesee v. Keesee, 675 So.2d 655 (Fla. 5th DCA 1996). In this case, the evidence presented below and as expressly found by the trial court, justifies such a limitation. See Williams v. Williams, 923 So.2d 606 (Fla. 2d DCA 2006); Vaughn v. Vaughn, 714 So.2d 632 (Fla. 1st DCA 1998). For example, in the final judgment the court expressed its concern about Ronald’s influence on the children:

The Father has throughout these proceedings attempted to parentally alienate the minor children and the Court has grave concerns about the children having primary residence ever with the Father. The Father has consistently made degrading and obscene comments about the Mother. The Mother had a previous child out of wedlock prior to this marriage and 'the Father has made sure the minor children of this marriage know the circumstances of their half-sister’s ... out of wedlock birth and routinely refers to the Mother in derogatory terms.' The Father has told the minor son ... that he does not have to listen to his mother and made derogatory statements about ... half sister.

In other paragraphs of the Final Judgment, the trial court noted additional degrading comments Ronald has made about Theresa in front of the children which do not need to be repeated. It noted, “[t]he Court has serious concerns about the moral fitness of the Father in consideration of his actions in alienating the children from the Mother.” It found that Ronald made promises to the children that they could attend an expensive private school, which he has no reasonable ability to pay for, and blamed Theresa because she cannot afford to pay for or carryout such a promise. It found that Ronald further alienated Theresa by having the children count out money for temporary attorney’s fees the court awarded her and he told the children the money could have been used to pay for the private school. It concluded that Ronald is in need of in-depth parental alienation counseling. “Further, his actions toward the Mother will cause this family to need long, intense family counseling.”

In addition, the court found Ronald filed false and misleading domestic violence allegations against Theresa during this litigation.

The Father has misled this Court in an attempt to gain custody over the Mother. One of the minor children referred to the Father as faking an injury of domestic violence.... The Husband made allegations that were misleading and false and refuted by neutral witnesses.

Rather, the court found that some child abuse and domestic violence in the case has been committed by the Father on the family and against the Mother.

Based on these findings, the court made the following determination that it has:

[Gjrave concerns as to whether shared parental responsibility would be detrimental to the children in light of the Father’s parental alienation, but the court wants to give the Father a chance to ‘clean up his act,’ cease parental alienation and promote the Mother in the eyes of the children. The family is in need of counseling and the court appoints and requests the children’s current counselor, Larry Wagner, along with Dr. Risch, the child custody evaluator, to recommend a third party for immediate family counseling and any necessary parental alienation counseling for the Father. The counselor shall use this Final Judgment as a historical guide to the extent of counseling deemed necessary. Clearly, this family is -in crisis and in need of immediate therapeutic intervention.

We cannot find the trial court breached its discretion in granting Ronald limited visitation rights under these circumstances. The inference is clear, that should through counseling or the passage of time, Ronald’s behavior ameliorate, the court would consider expanding his visitation privileges.

II. Cross Appeal — Award of Marital Home; Alimony.

Theresa argues on appeal that she should have been awarded alimony and that it should have been in the form of the marital residence. Alternatively, she argues exclusive possession of the marital residence should have been made to her as an incident of child support. McMaster v. McMaster, 379 So.2d 189 (Fla. 4th DCA 1980). Further, the provision dealing with the marital residence is unclear and unworkable.

We find no breach of discretion in the court’s refusal to award alimony. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). This was not a long-term marriage. Both parties are healthy, young, and able to be self-supporting and the marital standing of living was a “financial struggle made worse by the Husband’s lack of consistent work, long periods of unemployment and massive credit card debt.”

However, we agree that there are many unanswered questions regarding the disposition of the marital residence. What happens if Ronald also fails or refuses to refinance or sell the marital home? Where do the children and Theresa live in the interim? Which party is responsible for the mortgage, insurance and upkeep on the home? Should Theresa be reimbursed for the mortgage payments, insurance, taxes and expenses of upkeep she incurred during and since the dissolution? The court has said it will not force a sale of the home as long as the children are minors. What other remedy is there if neither is willing or able to comply with the final judgment?

One solution would be to grant Theresa exclusive possession of the marital residence until the children reach the age of majority or she remarries. See Cooper v. Cooper, 760 So.2d 1048 (Fla. 2d DCA 2000); Cabrera v. Cabrera, 484 So.2d 1338 (Fla. 3d DCA 1986); section 61.075(l)(h), Fla. Stat. (2005). As Theresa points out, the children need the continuity and stability of their home during this time of crisis. She is able to afford the mortgage payment ($700.00 per month), but would not be financially able to purchase a comparable residence, if it is sold. Absent compelling financial reasons, the custodial parent should be awarded exclusive use and possession of the marital residence until the children reach majority or become emancipated or the custodial parent remarries. Dehler v. Dehler, 648 So.2d 819 (Fla. 4th DCA 1995). The cost of the indirect support must be added to the amount of direct support awarded in calculating child support, although that could be balanced by giving the custodial parent credit against carrying charges on the property, such as mortgages, taxes, or insurance.

Accordingly, we remand this case to the trial court for correction of the scriveners error regarding visitation and for clarification of the disposition of the marital residence or an award of exclusive possession to Theresa as an incident of child support.

AFFIRMED in part; REVERSED and REMANDED.

GRIFFIN and PALMER, JJ., concur.

      . See Bank One, N.A. v. Batronie, 884 So.2d 346, 348 (Fla. 2d DCA -2004); General Capital Corp. v. Tel Service Co., Inc., 212 So.2d 369 (Fla. 2d DCA 1968).

      . Fullerton v. Fullerton, 709 So.2d 162 (Fla. 5th DCA 1998).


author: PALMER, J. MONACO, J.,

text:
    J.E.S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2831.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.

      James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

J.E.S. appeals the final order entered by the trial court adjudicating him delinquent. Finding no reversible error, we affirm.

J.E.S. was charged with committing the offense of carrying a concealed firearm, possession of a firearm by a convicted delinquent, and possession of a firearm by a minor. The evidence presented during the adjudicatory hearing disclosed the following relevant facts.

Deputy Nick Blazina of the Orange County Sheriffs Department was on patrol, riding with another deputy in an unmarked police car, when a vehicle began tailgating his car. When Blazina reached a red traffic light, he and the other deputy exited their car and approached the vehicle that had been tailgating them. Blazina immediately noticed the strong aroma of burning cannabis emanating from inside the vehicle. Three people were inside the car. J.E.S. was seated in the back seat. The other two individuals were in the driver’s seat and in the front passenger seat. Blazina took each of the individuals out of the car, one at a time, searched each of them, and then had them sit on the curb. Blazina found leafy pieces of marijuana and seeds throughout the vehicle. While he was searching the vehicle Blazina also found a handgun under the front passenger seat. When he put the handgun on the roof of the car, J.E.S. made a spontaneous statement that the handgun belonged to him. J.E.S. told Blazina that he found the handgun in a ditch earlier that day.

At the conclusion of the adjudicatory hearing, the trial court granted a motion for judgment of acquittal on the possession of a firearm by a minor charge, based upon the State’s failure to prove that J.E.S. was under the age of 18 at the time the crime was committed. The trial court adjudicated J.E.S. guilty on the remaining counts.

J.E.S. filed a motion for reconsideration of the verdict, arguing that he was not guilty of committing the crime of carrying a concealed weapon because the weapon was found in the car after he was removed from the vehicle and, therefore, he did not have actual or constructive possession of the firearm. The trial court denied the motion. J.E.S. was adjudicated delinquent and committed to a Level VI program until his nineteenth birthday. This appeal timely followed.

J.E.S. challenges his adjudication of delinquency, claiming the trial court erred in denying his motion for judgment of acquittal on the other two charges. J.E.S. first argues that the State failed to prove that he was under 24 years of age, which is an element of the offense of possession of a firearm by a convicted delinquent. This argument is without merit because the trial court took judicial notice of a prior disposition order which demonstrated J.E.S. was under 24 years of age.

J.E.S. also contends that the State failed to prove that he was carrying a concealed firearm on or about his person, or that he had ready access to the firearm. He argues that when a gun is found in an empty vehicle, an accused cannot be convicted of carrying a concealed firearm even if he admits to ownership of the firearm. This argument is also without merit.

Section 790.01(2) of the Florida Statutes provides:

790.01. Carrying concealed weapons
* * *
(2) A person who carries a concealed firearm on or about his or her person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.

§ 790.01(2), Fla. Stat. (2004).

J.E.S. argues that, based on White v. State, 902 So.2d 887 (Fla. 1st DCA 2005), the evidence presented by the State was insufficient to support a conviction for carrying a concealed firearm. The entire opinion in White sets forth as follows:

This is an appeal from a conviction of carrying a concealed firearm. We agree with appellant that the trial court erred in denying his motion for judgment of acquittal because, accepting the evidence in the light most favorable to the state, Johnston v. State, 863 So.2d 271, 283 (Fla.2003), under no view of the undisputed evidence is the conclusion supported that appellant “carrie[d] a concealed firearm on or about his ... person,” as required by section 790.01(2), Florida Statutes (2003). We therefore reverse the conviction and set aside the judgment and sentence.
As explained in Ensor v. State, 403 So.2d 349, 354 (Fla.1981), the “[tjerm ‘on or about the person’ means physically on the person or readily accessible to him.” In the present case, the firearm that appellant was accused of possessing complied with neither requisite. Instead, the undisputed evidence discloses that although appellant had previously occupied the vehicle in which the firearm was found, and which he admitted was his, he was standing outside the automobile at the time the searching officer recovered the weapon within it. Only after the revolver was seized was appellant arrested for its possession. Under the circumstances, we consider the essential facts practically identical to those in Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996), where an officer, responding to a BOLO, followed Lamb to his home and took him into custody outside his parked automobile. The firearm was later found, as the defendant told them it would be, beneath' the driver’s seat. The court concluded, “At the time of his arrest, ... the appellant’s firearm was not readily accessible to him[;]” therefore, it could not be said that “he carried a concealed firearm ‘on or about his person.’” Id. at 668. We reach the same conclusion.

Id. at 888. While the actual factual scenario in White is not clear, the First District did state that the facts were practically identical to those in Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996). The facts in Lamb were as follows:

At the jury trial, the appellant testified that he was driving to his niece’s home when some young men approached his car and offered to sell him cocaine. He declined and drove around the block, still looking for his niece’s residence. He was again approached by the young men and they argued. One man punched him, cutting him on his nose and above his right eye. Blinded by the blood in his right eye and legally blind in his left eye, he backed his car down the road and came to a stop as his wheels hit the curb. He saw people approaching his car in the mirror and withdrew his gun from the glove compartment, loaded it and fired the gun in the air. The young men ran away. As he started the car and drove up the road, a person ran up, yelled something, and then fired two shots at him. The appellant testified that he did not shoot at this person and did not know he was a policeman. The appellant was shot in his right arm.
Officer Hill was cruising the area when he received a BOLO that provided him with a vague vehicle description and an occupant description. When he noticed the appellant’s vehicle, he .was without backup and merely followed him. His observations confirmed that the appellant was the suspect. He followed him at routine speed and radioed other units, but did not activate his overhead lights. The appellant eventually drove to his home. When he arrived, he removed the firearm from the front seat and placed it beneath the vehicle’s driver’s seat. Earlier, the unloaded firearm had been in his glove compartment. He then exited and locked the automobile and walked toward his home. The officer pulled up nearby and continued to observe him. However, because the appellant had earlier loaned his house key to his uncle, he was unable to enter. The officer lost sight of him for about thirty seconds, and when the appellant reappeared, he was nonchalantly walking out of his carport. No other units had yet arrived, and Officer Hill, concerned that he might be armed, ordered him to raise his hands and handcuffed him. Shortly thereafter, other officers arrived, took him into custody and transported him to the hospital for medical treatment. Later that evening, sheriffs deputies returned with the appellant to his home and inquired about the location of his firearm. He told them it was under the driver’s seat of his automobile. A crime scene technician then examined the vehicle and seized the firearm.
* ⅜ ⅝
Section 790.01(2) prohibits any unlicensed individual from carrying “a concealed firearm on or about [his] person .... ” “The term ‘on or about the person’ means physically on the person or readily accessible to him.” Ensor v. State, 403 So.2d 349, 354 (Fla.1981); Bailey v. State, 442 So.2d 385 (Fla. 2d DCA 1983); State v. Molins, 424 So.2d 29, 30 (Fla. 3d DCA 1982); Sutton v. State, 327 So.2d 234 (Fla. 1st DCA), cert. denied, 334 So.2d 608 (Fla.1976).
The trial court had to decide whether as a matter of law the firearm was “readily accessible.” At the time of his arrest, we conclude as a matter of law that the appellant’s firearm was not readily accessible to him. We agree with the appellant that no view of the undisputed evidence supports the conclusion that he carried a concealed firearm “on or about his person” in this instance. We, therefore, hold that the trial court erred in its denial of the appellant’s motion for judgment of acquittal as to the charge of carrying a concealed firearm and reverse said conviction and set aside the judgment and sentence therefor.

Id. at 667-668 (emphasis added).

The instant case is factually distinguishable from Lamb. Unlike Lamb, J.E.S. was sitting in the back seat of the car when he was approached by Deputy Blazina. Bla-zina ordered J.E.S. out of the car to be searched. Immediately after searching the persons of J.E.S. and his co-passengers, Blazina searched the car and found the gun under the front seat. Unlike Lamb, J.E.S. had not been outside of the car for hours before Blazina found the gun. At the time Blazina approached the automobile, J.E.S. was seated in the backseat of the car and the gun was on or about his person and readily accessible to him under the front seat. See Mense v. State, 570 So.2d 1390 (Fla. 3d DCA 1990) (holding shotgun on floorboard of pickup truck was “on or about the person” for purposes of statutory prohibition against carrying concealed weapon); Bailey v. State, 442 So.2d 385 (Fla. 2d DCA 1983) (holding firearm is “on or about one’s person” if it is in close proximity to him within his easy reach).

AFFIRMED.

ORFINGER, J., concurs.

MONACO, J., dissents with an opinion.

MONACO, J.,

dissenting.

I respectfully dissent. I conclude that White v. State, 902 So.2d 887 (Fla. 1st DCA 2005), and Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996), are factually indistinguishable from the present case, and that the reasoning employed there should control the disposition of the case before us. If anything, this case presents facts more favorable to the charged juvenile than either White or Lamb. The testimony of the officer was that he found the firearm under the front seat “about in the middle, between the front floorboard and the rear — rear board, in probably about the middle.” Moreover, I do not believe that a gun found under a front seat of a car can be said to be readily accessible to a person who had earlier sat in a back seat, but who was arrested outside of the vehicle, particularly where there is no specific evidence reflecting that the weapon was within easy reach. I would reverse.

      . § 790.01(2), Fla. Stat. (2004).

      . § 790.23(l)(b), Fla. Stat. (2004)

      .§ 790.22(3), Fla. Stat. (2004).


author: PER CURIAM.

text:
    M.M. Father of N.M., T.M., C.M., and B.M., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D05-4110.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.
    Diana Kilpatrick Simpson of Diana Kil-patrick Simpson, P.A., Ocala, for Appellant.
    Ralph J. McMurphy, of Department of Children & Families, Wildwood, for Appel-lee.
    Patricia M. Propheter, Orlando, for Guardian Ad Litem.
   PER CURIAM.

AFFIRMED. K.B. v. Dep’t of Children & Families, 834 So.2d 368, 369 (Fla. 5th DCA 2003) (observing that “the ‘least restrictive means’ test set out in Padgett v. Department of Health and Rehabilitative Services, 577 So.2d 565, 571 (Fla.1991), is not intended to preserve the parental bonds at the cost of a child’s future.... The ‘least restrictive means’ test simply requires that measures short of termination be utilized if such measures would permit the safe re-establishment of the parent-child bond.”) (citation omitted).

SHARP, W., THOMPSON, and MONACO, JJ., concur.


text:
    Shorn K. CALLWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-411.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.
    Shorn K. Callwood, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Callwood appeals from a summary denial of his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court based its summary denial on the ground that the motion is successive, after reviewing a pri- or motion for post conviction relief filed on September 14, 2004, and the order denying it dated ‘November 24, 2004. However, the trial court failed to attach the previous motion or order. Pursuant to Florida Rule of Criminal Procedure 3.850(d), a summary denial is permitted only if the motion, files and records in the case conclusively show the movant is entitled to no relief. Accordingly, we remand this cause to the trial court so that it can attach the necessary documents to establish the motion is successive, or to take other appropriate action on the merits.

REVERSED and REMANDED.

GRIFFIN and LAWSON, JJ., concur.


text:
    Carl D. WRIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1660.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.
    Carl Wright, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

Wright petitions this court for a writ of habeas corpus seeking a belated appeal, pursuant to Florida Rule of Appellate Procedure 9.141(c). We deny the petition without prejudice to refile a petition that is legally sufficient. Wright’s petition is notarized, but it does not contain a proper oath that the facts contained in the petition are true and correct. See Moore v. State, 910 So.2d 947 (Fla. 5th DCA 2005).

Petition for Belated Appeal DENIED.

PLEUS, C.J., SHARP, W., and THOMPSON, JJ., concur.


author: SAWAYA, J..

text:
    Brenda F. BENDER, Appellant, v. Robert J. BENDER, Appellee.
    No. 5D05-1437.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.
    Dennis F. Fairbanks, Melbourne, for Appellant.
    John J. Camerota of Law Office of Caruso & Swerbilow, P.A., Merritt Island, for Appellee.
   SAWAYA, J..

We dismiss this appeal for lack of jurisdiction because the final judgment for dissolution of marriage is a non-final judgment that reserves jurisdiction in the trial court for one year “in regard to the propriety of an award of alimony.” See St. Johns River Water Mgmt. Dist. v. Koontz, 861 So.2d 1267, 1268 (Fla. 5th DCA 2003) (“Although the order entered below was labeled a “Final Judgment,” it was not a final order. A final order is one which does not contemplate further judicial labor.”) (citing McGurn v. Scott, 596 So.2d 1042, 1044 (Fla.1992) (“It is well settled that a judgment attains the degree of finality necessary to support an appeal when it adjudicates the merits of the cause and disposes of the action between the parties, leaving no judicial labor to be done except the execution of the judgment.”)).

APPEAL DISMISSED.

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


text:
    Reginald A. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4045.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.

      Reginald A. Jones, Century, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Reginald Jones [“Jones”] appeals an order denying his motion to enforce his plea agreement.

Jones alleged that, as part of his negotiated plea, he was to be given 264 days of “jail credits.” The motion complained that, in violation of his plea, he received only thirty-seven days of jail credit from the Florida Department of Corrections [“DOC”]. Because of the DOC’s failure to honor the plea, he asked the trial court to reduce his sentence to give him the benefit of his plea bargain, which allegedly contemplated that he would serve a “specific sentencing punishment minus credit for two hundred and sixty four (264) days of jail credit.”

On October 4, 2005, the trial court entered an “Order on Motion for Reduction or Modification [of Sentence],” which denied Jones’ motion insofar as it asked the court to reduce his sentence. The court characterized the motion as a motion for reduction of sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). The order stated in relevant part:

The Defendant contends that he was given 264 days of jail credit at sentencing, but that the Department of Corrections is only allowing him 37 days. This Court reaffirms the fact that it ordered a total of 264 days of jail credit for the Defendant, and notes that it has entered no order reducing that amount of time.
As to the Defendant’s request to reduce or modify his sentence, the request is without merit.

In addition, on November 2, 2005, the trial court entered an “Order on Motion for Judicial Enforcement of Plea Agreement.” In denying that portion of Jones’ motion which asked to enforce his plea, the court explained that the plea did not expressly provide for 267 days credit for time served:

The Court notes that the terms of the plea were simply that Defendant receive a sentence of 30 months incarceration in exchange for an admission of violation of probation. While the Defendant is entitled to credit for every day which he served prior to sentencing, the grant of jail credit was not a term of the plea. Accordingly, the terms of the plea have not been breached.

Given the circumstances of the case, the court also indicated that Jones was required to pursue his administrative remedies before seeking judicial relief, stating:

If the Defendant is convinced that the Department is not allowing him all of the credit which this Court has granted him (an amount equal to 264 days), the Defendant may pursue the action by way of a writ of mandamus in the appropriate forum.

At the outset, we note that Jones’ motion is in substance a motion for relief under Florida Rule of Criminal Procedure 3.850. Cowart v. State, 749 So.2d 506 (Fla. 2d DCA 1999) (claim that defendant was promised more prison credit by trial court than DOC is now providing should be raised pursuant to rule 3.850 as motion either to enforce or withdraw his plea). See also Rogers v. State, 864 So.2d 521 (Fla. 5th DCA 2004). To uphold a trial court’s summary denial of claims raised in a rule 3.850 proceeding, the claims must either be facially invalid or conclusively refuted by the record. Fla. R.Crim. • P. 3.850(d). See Robinson v. State, 909 So.2d 497, 499 (Fla. 5th DCA 2005).

Here, Jones alleged that pursuant to his plea agreement, he was to receive 264 days credit for time served, a facially valid claim, and this claim must be accepted as true as the record contains no copy of Jones’ plea. Robinson, supra. We therefore reverse the denial of his motion and remand for an evidentiary hearing on the claim or attachment of that portion of the trial court’s record which shows that Jones is entitled to no relief. Hunt v. State, 922 So.2d 452, 453 (Fla. 4th DCA 2006). If the record supports the trial court’s order, the trial court correctly held that Jones must first exhaust his administrative remedies before filing a petition for writ of mandamus as a means of obtaining proper credit for time previously served in prison. See Canty v. State, 884 So.2d 123 (Fla. 2d DCA 2004); Armstrong v. State, 846 So.2d 1227 (Fla. 2d DCA 2003); cf. Newman v. State, 866 So.2d 751, 752 (Fla. 5th DCA 2004).

REVERSED and REMANDED.

GRIFFIN, PALMER and LAWSON, JJ., concur.


text:
    D.L.W., A Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2160.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2006.
    Robert Wesley, Public Defender, Orlando and Juliette Koves, Assistant Public Defender, Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, D.L.W., a juvenile in four delinquency cases before the circuit court, seeks a writ of habeas corpus to obtain his immediate release from secure detention. On May 15, 2006 petitioner was adjudicated delinquent and placed on home detention while awaiting commitment to a moderate risk facility. On June 9, 2006, petitioner violated home detention and was detained on June 11, 2006. ■ On June 16, 2006, the circuit court heard a motion to release child, and ordered that petitioner remain in secure detention for twenty days with credit for time served.

Under section 985.215(10)(b), Florida Statutes (2005), five days in secure detention are authorized for a violation of the conditions of home detention while a juvenile is awaiting placement with the Department in a minimum risk, low risk, or moderate risk program. For any subsequent violation, the court may impose an additional five days in secure detention. ■

The circuit court imposed consecutive five-day terms of secure detention' on each delinquency case that was before the court, for a total of twenty days. As there was only one violation of home detention, it was improper under section 985.215(10)(b), Florida Statutes, to impose any term of secure detention which exceeded five days. See T.C.F. v. State, 929 So.2d 692 (Fla. 5th DCA 2006); T.W. v. Edwards-Ellis, 903 So.2d 1050 (Fla. 1st DCA 2005); J.B. v. Rayford, 707 So.2d 434 (Fla. 3d DCA 1998). We therefore grant the petition and order that the child be immediately released from secure detention, as he has served more than five days in secure detention at this point.

PETITION GRANTED.

ORFINGER, MONACO and TORPY,' JJ., concur.