author: LEWIS, J.

text:
    C.D., the Mother of B.G., C.D. and A.D., each a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D06-6397.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2008.

      Patricia L. Parker of Parker & Du-Fresne, P.A., Jacksonville, for Appellant.
    Anthony C. Musto, Hallandale Beach, for Appellee.
   ON MOTION FOR REHEARING OR CLARIFICATION

LEWIS, J.

We deny the Department’s motion for rehearing or clarification. On our own motion, we withdraw our previous opinion and substitute the following.

C.D., the mother of B.G., C.D., and A.D., seeks review of the trial court’s Order on Judicial Review Permanency Hearing and Termination of Supervision. This order placed the children in permanent guardianship and denied the mother’s then pending Petition for Reunification, stating that although the mother had substantially complied with her case plan, reunification was not in the children’s best interests. The mother argues the trial court failed to list adequate factual findings and that there was not competent substantial evidence to justify denying her request for reunification. We agree with both contentions, and accordingly, we reverse.

The mother has an extensive history of alcohol and drug abuse, psychological problems, and experiences involving domestic violence. In 2002, when the mother was Baker Acted in the State of Ohio, B.G. and C.D. were removed from her care. Later, the mother underwent a psychological evaluation, which revealed she had experienced a “substance-induced psychotic disorder” but that her alcohol and cannabis dependence was in “early full remission.” The evaluation ruled out “schizoaffective disorder/bipolar type” as a diagnosis. After the mother successfully completed her case plan in Ohio, B.G. and C.D. were returned to her care.

Approximately one year and four months later, the Florida Department of Children and Families (the Department) removed the children again, along with their younger sibling, A.D. At that time, B.G. was twelve years old, C.D. was four years old, and A.D. was twenty months old. The Department filed shelter petitions, alleging the mother had been Baker-Acted again, that her home was in “deplorable conditions” with unsanitary sleeping arrangements, “what could be found” of the children’s clothing was “filthy,” and there were several animals in the home and animal food “all over the floor.” The children were sheltered, and the Department filed a Petition for Dependency. The dependency petition contained the same allegations as the shelter petitions, as well as details of a domestic violence situation between the mother and her paramour. The trial court adjudicated the children dependent and approved a case plan that had a goal of reunification. The goal was later changed to long-term relative care, although in every relevant order, the trial court found the mother was either partially or substantially compliant with her case plan.

Throughout the case, the Department and the guardian ad litem expressed concerns about the mother’s mental health. The Department maintained that the mother had been diagnosed with “bipolar disorder, schizophrenia, and psychosis,” although the record contains no documentation of these diagnoses from any licensed mental health professional. Early in the case, the mother underwent a Parental Fitness Evaluation by Dr. Philip Yates, a psychologist. At that time, Dr. Yates expressed an unfavorable opinion about the mother’s fitness as a parent. He recommended long-term psychotherapy as well as a psychiatric consultation for medication. Dr. Yates questioned whether the mother would be willing to participate in therapy, but he believed she could benefit from it. He recommended against unsupervised visitation with the children and suggested that the mother be re-evaluated after undergoing therapeutic treatment. Approximately one year after Dr. Yates’ initial evaluation of the mother, the Department quoted him as saying the mother was “doing extremely well” in therapy.

After living apart from her mother for almost a year, B.G. wrote a letter to the caseworker, expressing her feelings about the situation. The letter revealed that B.G. did not want to live with her mother because she remembered having to “move around” and change schools often when she was in her mother’s care. She recalled that “[tjhere were times when there was no food in the house,” and stated that she wanted “to live with a family who doesn’t spend all their money on drugs and alcohol.” She was troubled by her mother’s past.relationships with men because she remembered “a lot of fighting” and observed that her mother had often “mov[ed] from one relationship to the next.” B.G. also resented that her mother had broken promises to her.

Due to their ages, C.D. and A.D. did not express opinions regarding the desirability of reunification. However, the staff at the family visitation center in Ohio, where the mother had been visiting C.D. and A.D., made positive observations regarding the mother’s interaction with them. At the same time, notes from the family visitation center indicated that while the children were happy to see their mother when she arrived, they were not upset when she departed.

In the guardian ad litem’s final report to the court, she indicated that the fact that the children were not emotionally distressed when visits with the mother ended was significant. Additionally, she maintained her position that the mother’s mental health problems made reunification inappropriate, identifying three facts to support this position: (1) that the mother had bought an excessive amount of furniture and clothing for her children in anticipation of their return; (2) that the mother had two dogs in the house, one that belonged to her and one that she was keeping for a friend; and (3) that the mother had made excuses for her several hospitalizations. The guardian ad litem opined that the mother’s excessive spending indicated she may have been experiencing a manic state of bipolar disorder. The presence of the dogs reminded the guardian ad litem of the fact that the mother had spent too much money on dogs and birds when the children came into state custody. She felt that the dogs’ presence indicated that the mother had difficulty prioritizing. The guardian ad li-tem stated that the mother’s excuses for her hospitalization indicated that she had an “inability to deal with reality.”

Nonetheless, the therapist and psychologist who had remained involved in the case had begun to express more confidence in the mother’s ability to maintain stable mental health. Dr. Yates specifically disapproved of the guardian ad litem’s characterization of the mother’s behavior as a continuation of a manic state. He identified positive aspects of the mother’s decisions to purchase furniture and clothing for her children and to care for a friend’s dog while the friend was on vacation. Dr. Yates believed that the younger children’s failure to show distress when visits with the mother ended could indicate that they had accepted the situation, and not that they had “some pathological lack of attachment” to her. Regarding the allegations that Appellant had bipolar disorder, Dr. Yates said,

[M]y testing has failed to indicate the presence of a Bipolar Disorder. I have been assessing [Appellant] on this specific dimension for over a year ... and still have not found the presence of that disorder. While it is true that bipolar episodes can occur with a frequency of once every four to ten years, it is also a commonly accepted practice among trained mental health professionals ... to take a year of continuing observation assessment of an individual before a full diagnosis of a Bipolar Disorder is made.

Dr. Yates further opined that the guardian ad litem’s conclusions were “over defined” and did not reflect a “proper and realistic appreciation” of the mother’s efforts. He concluded the mother was “functioning at a stable emotional state,” and he did not believe she posed a danger to the children. He further stated that “[t]here [were] absolutely no indications that she is prone to destabilize” and that tests he had administered revealed no signs of “vulnerability for acts of child physical abuse.” Likewise, Lisa Angel, a therapist from the Child Guidance Center, indicated that the mother had “reached all of her goals in therapy,” and further stated, “I see no reason for [the mother] to not be able to have at a minimum visitation with her children.” She noted that the mother had matured and learned to accept the circumstances involving B.G.’s desire not to see her.

Still, at the final permanency hearing, the caseworker and the guardian ad litem maintained their previous positions. Both opined that reunification was not in the children’s best interests. They felt strongly that the mother’s troubled history, combined with the fact that she had previously been reunified with her children, only to have them removed again, established a pattern that would be repeated in this case if the trial court ordered reunification. The guardian ad litem further testified that the mother resorted to drugs and alcohol to deal with stress. It is not clear from the transcript whether she was referring to recent events or problems the mother experienced prior to the initiation of the Florida dependency case, but there is no suggestion in the record of any such events that post-dated the Florida removal. The caseworker testified that B.G.’s therapist did not recommend contact with the mother. Ultimately, the children were placed in permanent guardianship, and the Department’s protective supervision was terminated, on the basis of the magistrate’s finding that although the mother had substantially complied with her case plan, reunification was not in the children’s best interests.

Initially, we note that the primary purpose of Florida’s dependency system is to protect the health and safety of children. See § 39.001(l)(b)l, Fla. Stat. (2006). When setting up procedures for accomplishing this purpose, the Legislature officially recognized “that most families desire to be competent caregivers and providers for their children and that children achieve their greatest potential when families are able to support and nurture the growth and development of their children.” § 39.001(l)(b). As such, a basic principle of the dependency system is that the Department should, whenever possible, help families remedy their problems and be reunited. See, e.g., § 39.001(l)(b)3. In some cases, the circumstances giving rise to a child’s dependency are so egregious that the Department is not required to offer services before seeking termination of parental rights. See § 39.806(2), Fla. Stat. (2006). In all other cases, the Department must develop case plans tailored to address the needs of the family through the provision of services and requirements that the parents accomplish specified tasks. See § 39.6011-.6012, Fla. Stat. (2006).

As this Court explained in T.F. v. Department of Children & Family Services, 881 So.2d 702, 702 (Fla. 1st DCA 2004), “[w]here, as here, a parent seeks reunification with a child, the child must be returned to his or her parent if the parent has substantially complied with the case plan and ‘if the court is satisfied that reunification will not be detrimental to the child’s safety, well-being, and physical, mental, and emotional health.’ ” (quoting B.D.E. v. Dep’t of Children & Family Services, 829 So.2d 359, 360 (Fla. 1st DCA 2002)). Similarly, section 39.522(2), Florida Statutes (2006), requires the trial court to “determine whether the parent has substantially complied with the ... case plan to the extent that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the return of the child to the home.” Thus, under these authorities, there are at least two factors that a trial court must consider when ruling on a motion for reunification: the parent’s compliance with the case plan and whether reunification would be detrimental to the children. As the statute suggests, when a parent has requested reunification and substantially complied with her case plan, there is a presumption that the children should be returned. This presumption may be overcome by a finding that returning the children would endanger them.

When a trial court rules on a motion for reunification, it must demonstrate thorough consideration of the two factors required under section 39.522(2) by specifically addressing six sub-factors:

(a) The compliance or noncompliance of the parent with the case plan;
(b) The circumstances which caused the child’s dependency and whether those circumstances have been resolved;
(c) The stability and longevity of the child’s placement;
(d) The preferences of the child, if the child is of sufficient age and understanding to express a preference;
(e) The recommendation of the current custodian; and
(f) The recommendation of the guardian ad litem....

§ 39.621(10), Fla. Stat. (2006). A finding regarding each of these factors is mandatory and vital to a proper order denying reunification. In particular, the requirement to address “[t]he circumstances which caused the child’s dependency and whether those circumstances have been resolved” indicates that a denial based solely on issues existing at the time a dependency case was initiated, without regard to the parent’s progress as overcoming those issues, is improper.

If a trial court could properly base its decision concerning reunification solely on issues existing at the time the dependency case was initiated, section 39.621(10)(b) and all of the provisions regarding case plan development and compliance would be meaningless. If the trial court affords the parent an opportunity to follow a case plan, it stands to reason that it must consider whether the parent has benefited from those services such that the family can be safely reunited before denying a request for reunification. Such consideration is necessary if the trial court is to give effect to the legislatively mandated goal of remedying families’ problems to achieve safe reunification.

In this case, the trial court failed to follow the mandatory language of section 39.621(10). Instead of documenting detailed factual findings with regard to each of the six factors, the trial court made the conclusory finding that reunification was not in the children’s best interests. In In re H.H., 865 So.2d 684, 685-36 (Fla. 2d DCA 2004), the Second District rejected similarly conclusory findings. There, the trial court’s findings were not sufficient to show that reunification would endanger the children’s safety, well-being, and health, where the order stated that “reunification was ‘contrary to the welfare of the children because the home situation presents a substantial and immediate danger to the children’ and that ‘there is continued need for out-of-home placement to ensure the child[ren]’s health, safety and well-being.’” The trial court’s finding in the instant case is even less specific, and like the findings in H.H., fails to reflect the level of consideration required making the complex and sensitive determination of whether children should be reunited with a parent.

If the failure to apply the correct law and enter particularized factual findings were the trial court’s only error, we would reverse the order and remand for application of the correct law and entry of appropriate factual findings. See T.S. v. Dep’t of Health & Rehabilitative Servs., 471 So.2d 543, 544 (Fla. 1st DCA 1985). However, in this case, the mother has correctly argued that the denial of her motion for reunification was not supported by competent substantial evidence. In other words, the order in this case is not merely procedurally flawed, as in Fitzpatrick v. State, Department of Health & Rehabilitative Senices, 515 So.2d 319 (Fla. 3d DCA 1987) (remanding for entry of factual findings where the evidence presented to the trial court was conflicting), but it is also substantively flawed, as in In re G.D.H. and A.J.S., 498 So.2d 676 (Fla. 1st DCA 1986) (reversing an adjudication of dependency where the trial court failed to list adequate factual findings and the record did not support a finding of dependency). See also In re C.S., 503 So.2d 417, 419 (Fla. 1st DCA 1987) (reversing an adjudication of dependency where “[e]ven if the order was not facially deficient, the adjudication ... could not stand because the allegations of the petition are insufficient and the evidence adduced in support thereof’ was legally insufficient). We emphasize that ordinarily a trial court’s failure to list adequate factual findings can be remedied by instructions to the trial court to enter those findings. But it is clear from the record in this case that even if the trial court had addressed the required factors, a denial of the mother’s request for reunification would still constitute reversible error.

Specifically, there is no competent substantial evidence in the record to support a determination that, at the time of the permanency hearing, reunification would have endangered the children’s safety, well-being, and health. See T.F. v. Dep’t of Children & Family Servs., 881 So.2d 702, 703 (Fla. 1st DCA 2004) (setting forth the standard of review). Competent substantial evidence has been defined as follows:

Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.... We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the “substantial” evidence should also be “competent.”

Perdue v. TJ Palm Assocs., Ltd., 755 So.2d 660, 665 (Fla. 4th DCA 1999) (quoting DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957)) (citations omitted). It has also been observed that competent substantial evidence is “tantamount to legally sufficient evidence.” In re M.F., 770 So.2d 1189, 1192 (Fla.2000). Thus, whether evidence in a particular case is competent and substantial depends both on the nature of the evidence and its relationship to the applicable legal standards. With regard to the nature of the evidence, the standard of review is low: the nature has to be such that a “reasonable mind would accept [it] as adequate to support a conclusion.” See Perdue, 755 So.2d at 665 (citations omitted). In the instant case, the evidence was insufficient to support the trial court’s ultimate determination. Any evidence that established a substantial basis for an inference that the mother posed a detriment to the children was not material to the legally relevant time period.

The evidence presented at the permanency hearing in opposition to reunification with A.D. and C.D. consisted of the following: the caseworker’s opinion; the guardian ad litem’s opinion; an observation that, while the children were happy when their mother visited, they were not upset when she departed; the fact that the children were removed after reunification once before; and the fact that the mother had a history of drug and alcohol abuse and psychological problems. Additional evidence presented in opposition to reunification with B.G. consisted of reports that she did not want to see her mother and that her therapist recommended against contact with her mother. The vast majority of this evidence is focused on problems that existed prior to the initiation of the Florida dependency case, and the remainder of the evidence cannot be reasonably linked to any danger to the children’s safety, well-being, or physical, mental, or emotional health.

The opinions expressed by the caseworker and the guardian ad litem were based largely on concerns that the mother would repeat the mistakes she made after regaining custody of her children in Ohio. They recognized that the mother was stable when the children were not in her custody, but predicted that she would mentally deteriorate if the children were returned. Because the children had not been returned to the mother since the initiation of this case, these predictions were untested assertions based on one previous occurrence. As such, there was no factual basis to support the opinions that the mother had established a pattern of mental deterioration after regaining stability through the dependency system. While the trial court is permitted, and indeed required, to consider the opinions of the caseworker and guardian ad litem, it cannot base its decision on unsupported assertions. See Norris v. Norris, 926 So.2d 485, 488 (Fla. 2d DCA 2006) (holding that a “conclusory opinion unsupported by a factual basis” was not competent substantial evidence). Such hollow assertions do not establish a reasonable basis for a conclusion that the mother posed a detriment to the children. To the extent the opinions were supported by identifiable facts, the facts related only to conditions existing at the initiation of the case, and which the case plan was designed to remedy.

Notably, even the concerns expressed by B.G. relate only to her experience prior to the initiation of the Florida dependency case. B.G. had not seen her mother since that time. While it is possible that B.G. was still suffering mental or emotional difficulties resulting from her past experiences with her mother, the Department produced no evidence of any such difficulties beyond the conclusory report regarding the opinion of B.G.’s therapist. The report that, at some point, B.G.’s therapist stated that it was not in her best interests to see her mother does not provide a substantial basis for a conclusion that on the date of the hearing, the mother posed a detriment to B.G.

If the trial court based its decision on Dr. Yates’ initial evaluation, as discussed in the reports leading to the final permanency hearing, this basis was insufficient. Dr. Yates’ initial evaluation of the mother took place in the very early stages of her case. His opinion, as of the date of the hearing, indicated that the mother had benefited from her experience in the dependency system and stated that she had responded well to therapy. Dr. Yates essentially explained that his prior evaluation did not carry the significance the Department had attached to it. Thus, standing alone, Dr. Yates’ opinion does not form competent substantial evidence to support a denial of reunification. Cf. In re B.C., 936 So.2d 764, 767 (Fla. 2d DCA 2006)(finding a lack of competent substantial evidence to support the trial court’s conclusion that a father was likely to sexually abuse his son where the trial court relied entirely on testimony from an expert who discussed recidivism in pedophiles but further opined that the father was not likely to abuse his son).

Finally, we cannot discern how the suggestion that A.D. and C.D. were not sad when they departed from their mother led the trial court to conclude that reunification would endanger the children’s health, safety, and well-being. Although this suggestion represents one of the few concrete facts relating to the time period leading up to the permanency hearing, it reveals little or nothing about whether the children would have been harmed by reunification.

Neither the evidence discussed at the permanency hearing, nor any other evidence in the record, indicates that reunification would have endangered the children. Thus, the trial court’s denial of the mother’s petition for reunification was not supported by competent substantial evidence. Specifically, we hold that a trial court may not refuse to reunify children with a parent without finding, based on factors existing at the time of the request, that doing so would endanger their safety, well-being, and physical, mental and emotional health. See § 39.522(2). The Department was aware that the mother’s petition was under consideration at the time of the permanency hearing, and it failed to produce legally sufficient evidence to prevent reunification. As discussed above, it would be unnecessary and inefficient to request the trial court to enter factual findings in support of a legal conclusion that is unsupported by the record. See In re A.T. & T.T., 490 So.2d 155, 156 (Fla. 1st DCA 1986) (noting the need for efficiency in child dependency cases “in order to provide a stable emotional environment for the children”).

Accordingly, we REVERSE and REMAND for reunification of the children with the mother and reinstatement of the Department’s supervision. See T.F., 881 So.2d at 703; Fla. R. Juv. P. 8.415(f)(5) (2006).

No further motions for rehearing will be entertained. The Clerk is directed to issue the mandate forthwith.

DAVIS and ROBERTS, JJ., concur.

      . This order adopted the magistrate’s report and recommendations following a permanency hearing. It was initially entered on August 9, 2006. In issuing this order on August 9, 2006, the trial court neglected to rule on the mother’s timely filed exceptions to the magistrate’s report and recommendations. Subsequently, the trial court held a hearing on the mother’s exceptions and, on November 7, 2006, issued an order overruling them. On December 6, 2006, the mother filed a notice of appeal as to the November 7th order, stating as a basis for appeal that the order affirmed the previous Order on Judicial Review Permanency Hearing and Termination of Supervision. On December 29, 2006, the trial court issued an Order Correcting Record, acknowledging that the August 9th order was entered in error, and re-entering the Order on Judicial Review Permanency Hearing and Termination of Supervision, nunc pro tunc to November 7, 2006. Based on the trial court’s correction of the record, the mother’s appeal is timely, and she seeks review of an appeal-able order.

      . Although the order did not explicitly state that the mother’s Petition for Reunification was denied, the statement that reunification was not in the children's best interests, along with the placement of the children into permanent guardianship and the termination of protective supervision, was a functional denial of the petition. The magistrate acknowledged the petition at the permanency hearing, and the issue was discussed at length.

      . A.D. was born in April 2003, after the Ohio case was initiated but before B.G. and C.D. were reunified with the mother in August 2003.

      . The mother was not permitted to visit B.G., apparently because B.G. did not want to see her and because of reports that B.G.'s therapist believed contact with the mother was not in B.G.’s best interests.

      . In this case, the goal of the case plan was long-term relative care. However, this goal does not affect the analysis for several reasons. First, section 39.522(2) does not differentiate between case plans with the goal of reunification and those for which the goal is long-term relative care. Presumably, the goal is less important when a parent has requested reunification than when the Department seeks to terminate protective supervision. Second, the tasks associated with the long-term relative placement goal in this case are no different from those that were associated with the goal of reunification. Third, the trial court is required to consider at each permanency hearing whether the goal of the case plan remains appropriate. See § 39.621(4)(a). Finally, the Department has not argued that section 39.522(2) should be evaluated by different standards according to the goal of the relevant case plan.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert T. WHITE, Sr., Appellant, v. Jane WHITE, Appellee.
    No. 1D07-1639.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2008.
    Robert T. White, Sr., pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant, the former husband, seeks review of a final order entered on the former wife’s supplemental petition to modify the final judgment dissolving the parties’ marriage. That order awarded the former wife $76,972.27 in lump sum alimony. Because we agree with the former husband’s arguments that the trial court failed to consider the factors listed in section 61.08(2), Florida Statutes (2006), and failed to make findings of fact as required by section 61.08(1), we reverse the award of lump sum alimony.

REVERSED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Dawn CASTLEBERRY, former wife, In re The Marriage of Dawn Nichols Morgan, n/k/a Dawn Castleberry, Appellant, v. William Andrew MORGAN, Appellee.
    No. 1D07-2449.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2008.
    Nina R. Price and Janet E. Johnson of Price & Johnson, P.A., Jacksonville, for Appellant.
    Lester Makofka, Jacksonville, for Appel-lee.
   PER CURIAM.

The appellant/former wife in this post-dissolution-of-marriage action challenges an order by which the trial court reduced the appellee/former husband’s monthly child support obligation. Although we affirm the order under review, we write to address the former wife’s assertion that the court erred by applying the reduction in support retroactively to the date that the former husband filed his petition for modification in 2006. The record demonstrates that, despite a salary reduction due to a mid-year change in employment, the former husband’s income in 2006 was the same or greater than his income the prior year. Consequently, we reverse the order insofar as it awards a modification of child support prior to 2007. The order is otherwise affirmed.

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


text:
    Michael A. ANDERSON, Petitioner, v. FLORIDA PAROLE COMMISSION and Florida Department of Corrections, Respondents.
    No. 1D07-4893.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2008.
    Michael A. Anderson, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission; Kathleen Von Hoene, General Counsel; Beverly Brewster, Assistant General Counsel, and Monica Ryan, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondents.
   PER CURIAM.

The circuit court issued its order on petitioner’s petition for writ of mandamus without affording adequate time for petitioner to file a reply to the Department of Corrections’ response. The circuit court received petitioner’s reply after the final order disposing of the mandamus petition had been entered. Accordingly, the petition for writ of certiorari is granted, and the order of the circuit court is quashed. Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996). The cause is remanded to the circuit court to dispose of the mandamus petition after review of that petition, the responses, and the timely replies.

PETITION GRANTED.

WEBSTER, BENTON, and POLSTON, JJ., concur.


author: ORFINGER, J.

text:
    Wendall MAXWELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2085.
    District Court of Appeal of Florida, Fifth District.
    Feb. 1, 2008.

      James S. Purdy, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   ORFINGER, J.

Wendall Maxwell appeals his convictions of leaving the scene of an accident with death and felony driving while license suspended or revoked. He contends that because reasonable grounds existed to suggest that he was incompetent to proceed at sentencing, the trial court was required to determine his competency pursuant to Florida Rule of Criminal Procedure 3.210-.215. We agree and remand for further proceedings.

In 2003, in the course of an unrelated criminal proceeding, Maxwell was found to be incompetent due to schizophrenia and committed to a state mental hospital. Following treatment and the administration of antipsychotic drugs, his competency was restored. In December 2005, Maxwell was charged with leaving the scene of an accident with death, in violation of section 316.027(l)(b), Florida Statutes (2006), and felony driving while license suspended or revoked, in violation of section 322.34(2)(c), Florida Statutes (2006). He was examined by psychiatrist Stephen Young, M.D., and psychologist Elek Ludvigh, Ph.D., who both opined that Maxwell was competent to stand trial, despite some unexplained, serious physical problems. Maxwell then entered an open no contest plea to the charges, and the State filed a notice of intent to seek habitual offender punishment. The court continued the matter in order to obtain a pre-sentence investigation (PSI) report as required by section 775.084(3)(a)l., Florida Statutes (2006).

Between the time he entered his plea and the scheduled sentencing date, Maxwell’s physical and mental condition deteriorated rapidly. He was transferred from the jail to a hospital in a near-comatose state, where an MRI and other tests revealed that he had a rare and severe form of progressive multiple sclerosis. This condition had caused lesions on his brain, affecting his mental condition. Aggressive medical treatments were attempted to reverse the effects of the disease, but proved futile; one treatment apparently caused his condition to worsen. With this knowledge at hand, the court ordered Dr. Young to perform another mental evaluation on Maxwell prior to sentencing.

At the next hearing, Dr. Young confirmed that Maxwell’s multiple sclerosis had caused lesions on his brain, resulting in a significant, adverse effect on his mental competency. He concluded that Maxwell lacked the mental competency to appreciate his circumstances and to assist his counsel for sentencing. As a result, he believed that Maxwell was not competent to be sentenced. Dr. Young testified that the disease had permanently affected Maxwell’s mental competency, it was unlikely to be restored by any treatment, and that Maxwell was terminally ill. Dr. Young recommended that Maxwell, who now required 24-hour a day care, be placed in a Medicaid-funded nursing home. A representative of the Department of Children and Families (DCF) advised the Court that DCF did not have the facilities to hospitalize or treat Maxwell’s neurological condition, which was the cause of the mental incompetence. Further, Maxwell did not qualify for commitment to a state mental facility since he suffered from a physical disease and not a mental illness, and he was not a danger to himself or others in his condition. After hearing the victim’s mother express her displeasure over Maxwell’s possible release to a nursing home, the trial court recessed the hearing in anticipation of Dr. Young’s written report and set another hearing on Maxwell’s mental status.

Shortly thereafter, Dr. Young filed his written report. At the subsequent hearing, there was again testimony that Maxwell’s disease was terminal and that his mental incompetence was most likely permanent. It was again suggested that as Maxwell was permanently unable to feed, bathe, or perform other routine activities of daily life, he should be placed in a skilled nursing home. The victim’s family again expressed their displeasure with Maxwell’s release to a nursing home. Despite the evidence, the trial court concluded that although Maxwell had “reached a status of incompetence,” it would not follow Dr. Young’s recommendation of conditional release to a nursing facility, concluding that Maxwell would remain in the jail indefinitely until his competence was restored:

THE COURT: I’m glad we had this hearing today. I think we spent an awful lot of time on behalf of Mr. Maxwell’s case trying to figure out what to do. And while I’m sitting thinking about it — and I certainly have the most — please, please let me stress that I’m not without sympathy to [Maxwell’s mother] and her family.
I’m a parent. But it dawned on me while we’re sitting here, if I granted the request that the Defense is seeking, he would never be incarcerated; he’d go to a nursing home and that’s — I guess we’re all — I’ll say it out loud — he’d go to a nursing home to go die. Isn’t that right?
THE COURT: Dr. Young’s shaking his head yes.
The chance of him getting back to normal are slim to none.
All right, so nothing further. We’re done.
THE COURT:.... And I’m not going to make a decision based on the financial convenience of the jail. I’ve decided that I’ve been on the wrong track here. He’s not leaving this jail until he’s competent. He’s staying right here. That’s the one thing we can do, is we can incarcerate him for a crime that he committed, he knows he committed. He was competent when he entered his plea. He won’t have any TV in the infirmary. That’s not my problem. And he will be stuck, just like he would be in a prison, not being able to visit his family. I’m not going to let him have the luxury of being in a nursing home like anybody and everybody else when he’s — he’s looking at 40 years in prison.
So — I apologize to everybody for dragging this thing on. I think I tried to do the right thing. And then it dawned on me while I’m sitting here, I sympathize with the people out here at the jail, but I’m not so sure the financial inconvenience of the jail should be entered into my decision when I — when I decide what happens.
So we’re done. He stays here until— we’re not going to have any more hearings. If you-all can come up with a plan to get him competent, I’ll be glad to re-entertain any motions, or if you-all can come up with a stipulation where he’s competent to proceed and you want to put him in a state penitentiary, that’s fine. Nursing home is not an option.

Two months later, although Maxwell’s condition had not improved, the trial court scheduled Maxwell’s sentencing. Maxwell then filed a petition for a writ of habeas corpus, mandamus, and/or prohibition with this Court, contending that he was being illegally committed in the county jail. In its response to Maxwell’s petition, the State admitted that Maxwell’s “competency to proceed with sentencing has not been established and, in fact, his competency is in question.” “This,” the State conceded, “precludes him presently from being sentenced.” Notwithstanding, the State contended that the writ was premature since Maxwell had only been examined by one expert, whereas, the rule requires examination by at least two experts before a finding of competency. Treating the petition as one seeking prohibition, this Court dismissed the petition, rejecting Maxwell’s request for conditional release. Maxwell v. State, No. 5D07-1482 (Fla. 5th DCA May 18, 2007).

Maxwell’s counsel moved to continue the sentencing and requested that a second expert be appointed to evaluate Maxwell’s competency to proceed to sentencing. The court denied the motion without explanation, but later ruled that Maxwell was competent to proceed to sentencing. Maxwell was then sentenced as an habitual offender to fifteen years imprisonment on the charge of leaving the scene of an accident with death and a concurrent five-year sentence on the charge of felony driving while license suspended or revoked. This appeal followed.

On appeal, Maxwell contends that the trial court had reasonable grounds to believe that he was incompetent to proceed with sentencing, and should have ordered at least two mental health evaluations and conducted a competency hearing prior to proceeding to sentencing. The State responds that the trial court did not abuse its discretion in determining that no competency examination was required. The State submits that Maxwell had the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and he had a rational, as well as a factual, understanding of the sentencing proceedings against him. Thus, the State concludes that Maxwell was lawfully sentenced.

When criminal proceedings are held against a mentally incompetent defendant, the defendant’s constitutional right of due process is denied. Hill v. State, 473 So.2d 1253, 1259 (Fla.1985); Molina v. State, 946 So.2d 1103, 1106 (Fla. 5th DCA 2006) (recognizing that defendant has due process right to determination of competency to proceed to trial whenever it appears reasonably necessary). The test used to determine the defendant’s competency is whether the defendant has a “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.” Id. at 1257 (emphasis omitted) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)).

Florida Rule of Criminal Procedure 3.214 sets forth the procedure that the trial court must follow when the issue of a defendant’s competency to proceed to sentencing is raised:

If a defendant is determined to be incompetent to proceed after being found guilty of an offense or violation of probation or community control or after voluntarily entering a plea to an offense or violation of probation or community control, but prior to sentencing, the court shall postpone the pronouncement of sentence and proceed pursuant to rule 3.210 (et seq.) and the following rules.

Florida Rule of Criminal Procedure 3.210(b) provides:

(b) Motion for Examination. If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and shall order the defendant to be examined by no more than 3, nor fewer than 2, experts prior to the date of the hearing. Attorneys for the state and the defendant may be present at the examination.

Once the issue of a defendant’s-competency is raised, the question the trial court must consider is “ ‘whether there is a reasonable ground to believe the defendant may be incompetent, not whether he is incompetent.’ ” Tingle v. State, 536 So.2d 202, 203 (Fla.1988) (quoting Scott v. State, 420 So.2d 595, 597 (Fla.1982)). “If the trial court is presented with reasonable grounds to believe that the defendant may not have the sufficient present ability to consult with his attorney and aid in the preparation and presentation of his defense, the trial court must order a hearing and examination.” Brockman v. State, 852 So.2d 330, 333 (Fla. 2d DCA 2003); see Carrion v. State, 859 So.2d 563, 565 (Fla. 5th DCA 2003) (“If the trial judge has reasonable grounds to believe that a criminal defendant is not competent to proceed, then the court must conduct a competency hearing.”); see also Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Dusky, 362 U.S. 402, 80 S.Ct. 788.

Even when a defendant has previously been found to be competent, the trial court must remain receptive to revisiting the issue if circumstances change. Hunter v. State, 660 So.2d 244, 248 (Fla.1995). “[A] prior determination of competency does not control when new evidence suggests the defendant is at the current time incompetent.” Nowitzke v. State, 572 So.2d 1346, 1349 (Fla.1990). This is a continuing obligation, which may require the trial court to revisit the issue after a defendant has been declared competent to proceed. Molina, 946 So.2d at 1106 (citing Nowitzke, 572 So.2d 1346; Culbreath v. State, 903 So.2d 338 (Fla. 2d DCA 2005)).

In this case, after Maxwell entered his plea, everyone, including the trial judge, had concerns about Maxwell’s mental health. As a result, the court ordered another mental evaluation prior to sentencing. After the results of that evaluation revealed that Maxwell’s multiple sclerosis had formed lesions on his brain, seriously affecting his competency to proceed to sentencing, the court acknowledged that Maxwell had “reached a status of incompetence.” Clearly, the trial court was presented with reasonable grounds to question Maxwell’s mental competence to be sentenced.

Having come to this conclusion, the court was required by rule 3.210(b) to have Maxwell evaluated by at least one more expert and hold a competency hearing. The trial court’s failure to do so was error. See Cochran v. State, 925 So.2d 370 (Fla. 5th DCA 2006) (reiterating that once trial court enters order appointing experts on reasonable belief defendant may be incompetent to stand trial, competency hearing must be held); Carrion, 859 So.2d 563 (holding that once trial court determined reasonable grounds existed to question defendant’s mental competency to stand trial for life felony, trial court required to conduct competency hearing, regardless of subsequent determination that defendant’s return to school indicated ability to function in community); Warren v. State, 543 So.2d 315, 315 (Fla. 5th DCA 1989) (holding that trial judge could not deny pretrial motion seeking competency hearing based on his own personal observation; such investigation insufficient to insure defendant not deprived of due process right of not being tried while mentally incompetent). Because a hearing to determine whether a criminal defendant was competent at the time of trial cannot be held retroactively, see, e.g., Tingle, 536 So.2d at 204; Scott v. State, 420 So.2d 595, 598 (Fla.1982), we must reverse Maxwell’s sentences and remand for a new sentencing hearing, contingent upon a determination that Maxwell is competent to proceed.

REVERSED AND REMANDED.

GRIFFIN and EVANDER, JJ, concur.


author: SALCINES, Judge.

text:
    Armando RIVERA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D07-246.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2008.
   SALCINES, Judge.

Armando Rivera challenges the trial court’s denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, raising five claims. We reverse the denial of Rivera’s claim that counsel was ineffective for failing to file a motion to dismiss or to suppress statements that were made during a warrantless probationary search. On the other claims, we affirm the denial of relief without further comment.

In ground five of his motion, Rivera claimed that statements made to law enforcement during the warrantless probationary search of his residence were obtained in violation of Miranda. Rivera alleged that during the search, he was placed in handcuffs and had no choice other than to submit to the officers’ will, but he was never advised of his Miranda rights. According to the officers’ various reports that are attached to the motion, Rivera made incriminating statements about his ownership of guns and drugs found during the search. One of the reports states that Rivera volunteered to assist officers in the recovery of drugs later discovered during the search. The three reports detail what took place during the search. Each report recounts a different version of the events, one of which never mentioned that Miranda warnings were given.

In its response, the State cited to the three reports and portions of the deposition testimony of one of the arresting officers. The State contended that each of the three reports served different purposes and thus, in spite of the fact that all of the reports did not contain the same information, none contradicted the others. Furthermore, the State cited the officer’s deposition testimony in which he stated that Miranda warnings were not given because Rivera was never questioned. However, we note that the officer later retracted that statement, claiming that the warnings were given at the beginning of the search upon Rivera’s arrest. The postconviction court denied Rivera’s motion as to each claim, agreed with the State, and incorporated the State’s response in the final order.

After reviewing Rivera’s motion, the State’s response, and the record before us, we conclude that Rivera “has stated a legally sufficient claim and that a factual dispute exists as to whether [Rivera] was in custody for purposes of Miranda, whether his rights were violated, and whether counsel was ineffective for failing to investigate and file a motion to suppress.” Chouquer v. State, 950 So.2d 1276, 1277 (Fla. 2d DCA 2007); see also Savage v. State, 832 So.2d 807, 809 (Fla. 2d DCA 2002); Cintron v. State, 508 So.2d 1315, 1316 (Fla. 2d DCA 1987). The attachments to the trial court’s order denying ground five fail to refute Rivera’s allegations. Therefore, we reverse and remand for an evidentiary hearing, unless the court is able to attach portions of the record that conclusively refute Rivera’s claim.

Affirmed in part, reversed in part, and remanded.

DAVIS and LaROSE, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . When a probationer makes unwarned, voluntary statements that lead to the discovery of physical evidence during a probationary search, the physical evidence need not be suppressed. See United U.S. v. Jackson, 506 F.3d 1358 (11th Cir.2007). For the purposes of our review in the postconviction context, we cannot conclude that Rivera's statements were voluntary. Furthermore, Rivera seeks to suppress his statements, not physical evidence. See id.., 506 F.3d at 1361.


author: VILLANTI, Judge.

text:
    Burman WINTHROP, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1782.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2008.
   VILLANTI, Judge.

Burman Winthrop appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Despite the motion’s lack of clarity, it raises a valid claim that Winthrop’s habitual felony offender sentence for possession of cocaine in case number 98-02747 is illegal. Thus we reverse and remand for resentencing on this conviction only. In all other respects, we affirm.

Winthrop was convicted of one count of sale of cocaine and one count of possession of cocaine under section 893.13, Florida Statutes (Supp.1998), in each of two separate cases. In case number 98-02747, he was sentenced as a habitual felony offender to twenty years in prison on the sale conviction and a concurrent ten years in prison on the possession conviction. In case number 98-02749, Winthrop was sentenced as a habitual violent felony offender to twenty years in prison on the sale conviction and ten years in prison on the possession conviction. The sentences in both cases were ordered to run concurrently.

In his rule 3.800(a) motion, Winthrop challenged the legality of his sentences as a habitual felony offender and habitual violent felony offender. We find no error in his sentences as they relate to his sale conviction in case number 98-02747 or his sale and possession convictions in case number 98-2749. However, Winthrop’s habitual felony offender sentence for his possession conviction in case number 98-02747 is illegal and must be reversed.

This court has held that “[p]ursuant to section 775.084(l)(a)(3), Florida Statutes (1995), a defendant cannot be sentenced as a habitual felony offender for violating section 893.13 relating to the purchase or the possession of a controlled substance.” Virgil v. State, 884 So.2d 373, 373 (Fla. 2d DCA 2004). While Virgil dealt with the 1995 version of section 775.084(l)(a), the 1998 version of that statute also prohibited habitual felony offender sentencing for possession of cocaine. See § 775.084(l)(a)(3), Fla. Stat. (Supp.1998); see also Carter v. State, 786 So.2d 1173, 1180 (Fla.2001) (holding that “a habitual offender sentence, which is solely a creature of statute, is illegal where the habitual offender statute in effect at the time of the offense prohibited the imposition of a habitual offender sentence”). No such exception for convictions under section 893.13 existed in the habitual violent felony offender statute in effect when Winthrop committed his crimes. See § 775.084(l)(b).

Because Winthrop was illegally sentenced as a habitual felony offender for possession of cocaine in case number 98-02747, we reverse his sentence on that conviction in that case only. On remand, the circuit court must strike the habitual felony offender designation on that conviction and resentence Winthrop pursuant to the guidelines in effect at the time that offense was committed. The remainder of Winthrop’s sentences are legal and are affirmed.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and LaROSE, JJ., Concur.


author: STRINGER, Judge.

text:
    Anthony FERRENTINO, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-2148.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2008.
   STRINGER, Judge.

Anthony Ferrentino appeals the post-conviction court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In claim two, Mr. Ferrentino argues that the imposition of the $50,000 fine on count sixty-eight is illegal. We agree and reverse and remand for the fine to be stricken. We affirm claim one without comment.

On counts one through sixty-seven, Mr. Ferrentino pleaded guilty to trafficking in hydromorphone pursuant to section 893.135(l)(c)(l)(a), Florida Statutes (1991). On count sixty-eight, he pleaded guilty to possession of a firearm by a convicted felon pursuant to section 790.23, Florida Statutes (1991). The trial court sentenced him as a habitual felony offender (HFO) to concurrent terms of twenty-five years’ prison on all counts with a three-year mandatory minimum on counts one through sixty-seven. In addition, his sentence reflects a fine of $50,000 on all sixty-eight counts pursuant to section 775.083, Florida Statutes (1991).

Mr. Ferrentino does not contest the fines imposed on counts one through sixty-seven, which are mandatory under section 893.135(l)(c)(l)(a). See Baker v. State, 941 So.2d 419, 420 (Fla. 2d DCA 2006). On the other hand, the trial court did err when it imposed the identical fine on count sixty-eight. Mr. Ferrentino was found guilty of possession of a firearm by a convicted felon pursuant to section 790.23, which does not authorize imposition of a fine. Furthermore, the discretionary fine provision of section 775.083 is not available as an additional sanction when the defendant has been sentenced as an HFO. See Webster v. State, 705 So.2d 970, 971 (Fla. 2d DCA 1998) (citing King v. State, 681 So.2d 1136 (Fla.1996)). Therefore, Mr. Ferrentino’s fine imposed on count sixty-eight is illegal. Accordingly, we reverse and remand for the postconviction court to strike the $50,000 fine imposed on count sixty-eight. We affirm in all other respects.

Affirmed in part, reversed in part, and remanded.

KELLY and WALLACE, JJ., Concur.


text:
    R.D., the Father of S.R.D-R., a minor child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 1D07-4402.
    District Court of Appeal of Florida, First District.
    Feb. 4, 2008.
    James R. Goff, Northwest FL Legal Services, Inc., Pensacola, for Appellant.
    Katie George, Chief Legal Counsel, and Eric D. Schurger, Assistant Circuit Legal Counsel, Department of Children and Families, Pensacola; Annette Lizardo, Florida Statewide Guardian Ad Litem Office, Orlando, for Appellee.
    Randall Werre, Milton, for Mother.
   PER CURIAM.

AFFIRMED. See In the Interest of S.J., 639 So.2d 183 (Fla. 4th DCA 1994).

WEBSTER, BENTON, and POLSTON, JJ., concur.


text:
    Fabian V. THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0307.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2008.
    Fabian V. Thompson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

POLSTON, HAWKES, and THOMAS, JJ., concur.


text:
    Robert B. TROTTMAN, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D07-6108.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2008.

      Robert B. Trottman, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

POLSTON, HAWKES, and THOMAS, JJ., concur.


author: KAHN, J.

text:
    WAL-MART STORES INC. and Sedgwick Claims Management Services Inc., Appellants, v. Beverly THOMPSON, Appellee.
    No. 1D07-2661.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2008.
    G. Dennis Lynn of James T. Earle, Jr., P.A., St. Petersburg, for Appellants.
    Jodi A. Zakaria and Alfred L. Deutsch-man of Deutschman <& Zakaria, Inverness, for Appellee.
   KAHN, J.

This case accentuates the Florida Legislature’s recent redefinition of the threshold for permanent total disability (PTD) benefits in a workers’ compensation case. We affirm the order of the Judge of Compensation Claims (JCC), awarding PTD benefits, because the judge properly applied the law and the judge’s conclusions are supported by competent substantial evidence.

From January 1, 1994, until October 1, 2003, the effective date of chapter 2003-412, section 18, Laws of Florida, a claimant seeking PTD was bound to demonstrate “a catastrophic injury as defined in s. 440.02.” § 440.15(l)(b), Fla. Stat. (1995); see ch. 2003-412, § 18, at 3917, Laws of Fla. Under the definition section referenced by the catastrophic injury requirement, claimant had to prove industrial causation and that the injury complained of was “of a nature and severity that would qualify an employee to receive disability income benefits under Title II ... of the federal Social Security Act.” § 440.02(34)(f), Fla. Stat. (1995); see also Home Depot v. Turner, 820 So.2d 1075 (Fla. 1st DCA 2002).

The date of injury here was October 7, 2005, and accordingly, the revised version of section 440.15 applies. Under that version, “in order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” § 440.15(l)(b), Fla. Stat. (2005). The claimant utilized expert vocational testimony to satisfy the requirements of the controlling statute. The JCC accepted this testimony, but also expressed frustration with the change in the statutory language, noting in the final order:

[I]t is nearly incomprehensible that claimant would be entitled to benefits for a disability that is both total and permanent. However, the facts before the undersigned support a finding that the claimant has sustained both a permanent impairment rating and permanent physical restrictions as a result of her industrial accident.

The claimant’s certified vocational rehabilitation expert, Gerri Pennachio, testified that the claimant was “ruled out on all jobs within a 50-mile radius of her home.”

Appellants, in their brief, echo the JCC’s frustration, and essentially ask us to reweigh the evidence presented to the JCC. This we are unable to do under well-established precedent. See, e.g., Wilcox v. Ag Mart Produce, 942 So.2d 959, 963 (Fla. 1st DCA 2006) (“It is not the proper role of this court to reweigh the evidence presented below.”); Cape Canaveral Hosp., Inc. v. Nickell, 668 So.2d 219, 220 (Fla. 1st DCA 1996) (“The JCC sits as the finder of fact where the testimony is conflicting, and this court will not reweigh the evidence so long as the JCC’s findings are supported by competent substantial evidence.”); Mt. Sinai Hosp. v. City of Miami Beach, 523 So.2d 722, 723 (Fla. 1st DCA 1988) (“This court will not reweigh the evidence and substitute its judgment for that of the deputy commissioner.”).

The E/C here stipulated the claimant’s injures were compensable, and the parties agreed the claimant reached maximum medical improvement with a five percent impairment. The claimant presented un-rebutted vocational evidence of unemploya-bility, which the JCC accepted. The appellants demonstrate no error of law.

AFFIRMED.

WEBSTER, and ROBERTS, JJ., concur.


text:
    Morris LOPEZ, III, and Yvette Lopez, Appellants, v. ERNIE HAIRE FORD, INC., Appellee.
    No. 2D06-1665.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2008.

      David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; and J. Daniel Clark of Clark & Martino, P.A., Tampa, for Appellants.
    Michael D. Siegel of Delcamp & Siegel, St. Petersburg, for Appellee.
   PER CURIAM.

Morris and Yvette Lopez challenge the trial court’s nonfinal order compelling them to arbitrate their dispute with Ernie Haire Ford, Inc. (Ernie Haire). They assert that the arbitration agreement is unconscionable. Additionally, the Lopezes argue that Ernie Haire waived its right to arbitrate, and that they did not knowingly, intelligently, and voluntarily waive their jury trial right. The trial court did not elaborate its reasoning on the last two issues and the Lopezes did not seek a more specific ruling. However, the trial court implicitly found no waiver by Ernie Haire and that the Lopezes waived their jury trial right. See Data Lease Financial Corp. v. Barad, 291 So.2d 608, 611 (Fla.1974). We have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(C)(iv). We address the trial court’s finding of the absence of unconscionability and affirm.

In early 1999, the parties entered into an automobile lease agreement. Allegedly, the parties agreed that the Lopezes would not be responsible for excess mileage charges. Four years later, upon expiration of the lease, Ernie Haire sought to collect such charges from the Lopezes. Ernie Haire’s copy of the lease provided for excessive wear charges of fifteen cents per mile over 15,000 miles per year. Believing that Ernie Haire altered the lease documents, the Lopezes sued under various theories. Ernie Haire moved to compel arbitration pursuant to an arbitration agreement in the lease. Finding no procedural unconscionability in the execution of the lease, the trial court granted the motion.

Arbitration is mandated when (1) there is a valid written agreement to arbitrate, (2) there is an arbitrable issue, and (3)the right to arbitrate was not waived. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); Bland v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 255 (Fla. 2d DCA 2006). We review the trial court’s factual findings under a competent, substantial evidence standard and its application of the law to the facts de novo. See Bland, 927 So.2d at 255.

Paragraph thirty of the lease provides, with limited exceptions inapplicable here, that any unresolved dispute between the parties shall be submitted to arbitration. Mr. Lopez initialed paragraph thirty, confirming that he read, understood, and agreed to the arbitration terms.

Procedural unconscionability relates to the manner in which a contract is made and involves consideration of issues such as the relative bargaining power of the parties and their ability to know and understand the disputed contract terms. Orkin Exterminating Co. v. Petsch, 872 So.2d 259, 265 (Fla. 2d DCA 2004). Our record demonstrates that the Lopezes successfully negotiated the mileage terms that they say were in the lease. We cannot say that they lacked bargaining power. Further, Mr. Lopez signed the lease and initialed the arbitration provision. Although he chose not to read some portions of the lease, he cannot defeat enforcement of a written contract on the ground that he signed it without reading it. See Kinko’s, Inc. v. Payne, 901 So.2d 354, 356 (Fla. 2d DCA 2005); Bill Heard Chevrolet Corp. v. Wilson, 877 So.2d 15, 18 (Fla. 5th DCA 2004); see also Sabin v. Lowe’s of Fla., Inc., 404 So.2d 772, 773 (Fla. 5th DCA 1981) (“A party has a duty , to learn and know the contents of a proposed contract before he signs and delivers it and is presumed to know and understand its contents, terms and conditions.”). Finding no procedural unconscionability, the trial court properly ended its inquiry about un-conscionability and compelled arbitration. See Petsch, 872 So.2d at 265; Bland, 927 So.2d at 257.

Affirmed.

NORTHCUTT, C.J., and KELLY and LaROSE, JJ., Concur.

      . We note that the parties stipulated to discovery as to the validity and enforcement of the arbitration agreement. Limited merits discovery was relevant to the Lopezes' ability to negotiate the arbitration provision. Also, Ernie Haire's merits discovery was relevant under the Florida supreme court’s subsequently withdrawn decision, which held that arbitration was not available where the underlying contract was void or illegal. See Cardegna v. Buckeye Check Cashing, Inc., 894 So.2d 860 (Fla.2005), withdrawn, 930 So.2d 610 (Fla.2006). See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (holding that claim that purportedly usurious contract con-taming arbitration provision was void for illegality was to be determined by arbitrator, not court).
      As for the jury trial waiver, a party may waive a jury trial by agreeing to arbitrate. See Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 280-82, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Here, the arbitration agreement is governed by the Federal Arbitration Act (FAA), 9 U.S.C.A. § 1 et seq. The FAA places arbitration agreements on the same footing as other contracts. It preempts any requirements placing extra burdens on arbitration agreements. See 9 U.S.C.A. § 2; Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996); Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). The FAA does not recognize the waiver standard urged by the Lopezes. See Kaplan v. Kimball Hill Homes Fla., Inc., 915 So.2d 755, 761 (Fla. 2d DCA 2005); Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1371-72 (11th Cir.2005).

      . The parties entered into an automobile lease. Essentially, the Lopezes allege that Ernie Haire committed fraud by subsequently altering a lease term. The facts before the trial court were significantly different than those presented in Operis Group, Corp. v. E.I. at Doral LLC, 973 So.2d 485 (Fla. 3d DCA 2007), where the making of the original contract was disputed.


text:
    T.S., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D07-3946 to 1D07-3949.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2008.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

These four appeals, filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), are hereby consolidated for purposes of this opinion. We affirm. See Fla. R. Juv. P. 8.160 (“Any action challenging the entry of a plea ... must be brought in the transferring court’s county.”).

AFFIRMED.

DAVIS, BENTON, and THOMAS, JJ., concur.


author: MAY, J.

text:
    Jason NOVAK, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3030.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.
    Steven H. Malone of Steven H. Malone, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   MAY, J.

The defendant challenges the former standard jury instruction on self defense in this appeal. He argues that fundamental error was created when the trial court instructed the jury on self defense. We agree and reverse.

The defendant’s conviction for aggravated battery with a firearm arose out of a neighborhood dispute. Not surprisingly, the defendant’s and victim’s versions of the facts conflicted. According to the defendant, he was speaking with a neighbor when the victim crossed the street to complain about the noise. The defendant testified that the victim punched him in the mouth, causing him to fall. When he got up, he saw the victim’s friends running towards him from across the street. The defendant then pulled out his gun to defend himself and his pregnant wife who was sitting on the porch. As he pointed the gun toward the victim, the victim rushed at him causing the gun to strike the victim’s forehead. The victim suffered a circular-shaped injury on his forehead.

The victim testified that he was having a civilized conversation with the defendant’s neighbor when the defendant suddenly appeared. The defendant disappeared momentarily then returned and hit the victim in the back of the head. The victim saw the defendant run away yelling that he was going to get his gun. The next thing he knew, the defendant shoved the gun into his forehead.

The trial court instructed the jury on the charge of aggravated battery with a firearm. The court then read the self-defense defense instructions on justifiable use of deadly and non-deadly force using the standard jury instruction. Next, the court instructed the jury that the defendant “would be justified in using non-deadly force against [the victim] if the following 2 facts are proved beyond a reasonable doubt.” Defense counsel did not object to the instructions. The jury found the defendant guilty of aggravated battery with a firearm.

The defendant now argues that fundamental error was created when the trial court instructed the jury on the justifiable use of non-deadly force requiring the defendant to prove the defense beyond a reasonable doubt. We agree. Our decision in Murray v. State, 937 So.2d 277 (Fla. 4th DCA 2006), is controlling.

In Murray, we held it was fundamental error for the court to instruct the jury that the defendant had the burden to prove the basis for self-defense beyond a reasonable doubt. Id. at 282. Indeed, in 2007, the Supreme Court of Florida amended the Standard Jury Instructions to delete the words “beyond a reasonable doubt” from the self defense instruction. See In re Standard Jury Instructions In Criminal Cases (2006-3), 947 So.2d 1159 (Fla.2007). Of course, both Murray and the amendment to the instruction occurred after the trial so neither the trial court nor defense counsel could have been aware of those future events.

Nevertheless, the State argues that Murray is distinguishable because it dealt with the instruction on the use of “deadly” force as opposed to “non-deadly force.” It also argues that the defendant invited the error by failing to object to the instructions. We find these arguments unpersuasive for two reasons. First, the analysis used in Murray is equally applicable to the non-deadly force instruction. And second, when the trial court gave the instruction, and defense counsel failed to object, it was an accepted standard jury instruction. It is unreasonable to equate a failure to object to a standard jury instruction to “invited error.” Neither the record evidence nor cases cited by the State support its argument that the alleged error was invited, waived, or otherwise not fundamental.

Defendant also argues that the jury instruction imposing a “duty to retreat” on a defendant who employs self-defense while “engaged in unlawful activity” was confusing under the circumstances because the defendant was not engaged in any unlawful activity other than the crimes for which he asserted the justification. Defendant’s argument is well-taken as a logical application of our holding in Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002). There, we held that an instruction on the “forcible felony” exception to self-defense is erroneous unless “the person claiming self-defense [was] engaged in another, independent ‘forcible felony.’ ” Id. at 1265. Like the “forcible felony” instruction in Giles, which erroneously implied that “the very act [the defendant] sought to justify itself precluded a finding of justification,” a jury charged with the “unlawful activity” instruction might confuse the charged crimes with “unlawful activity” that pre-eludes the justification of self-defense unless the defendant has retreated. Id. at 1266.

For these reasons, the conviction is reversed and the case remanded for a new trial.

Reversed and remanded for a new trial.

STONE J. and TUTER, JACK, Associate Judge, concur.

      . According to the defendant’s neighbor, the victim appeared to be reaching in his pocket for a gun, but didn't get a chance to pull it out. The neighbor had previously called the police when the victim had fired guns.

      . The two facts to be proved were: (1) the defendant "must have reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of lawful force against the [defendant] [another person]”; and (2) "The use of lawful force by (victim) must have appeared to (defendant) to be ready to take place.” In re Standard Jury Instructions In Criminal Cases (2006-3), 947 So.2d 1159, 1160 (Fla.2007).

      . “If the defendant was not engaged in an unlawful activity and was attacked in any place where [he][she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force. In re Standard Jury Instructions in Criminal Cases (2006-3), 947 So.2d 1159, 1161 (Fla.2007).


text:
    Robert LAWSON, Appellant, v. Jeffrey N. IVASHUK, Eric M. Turner, Alan A. Pascal, Donald M. Spangler and Ronna Young, Appellees.
    No. 4D07-2281.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.
    Robert Lawson, Avon Park, pro se.
    Barry Richard and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, for appellees Eric M. Turner, Alan A. Pascal, Donald M. Spangler and Ronna Young.
   PER CURIAM.

Affirmed. See Tyson v. Fla. Bar, 826 So.2d 265, 268 (Fla.2002) (“Disciplinary proceedings against attorneys are instituted in the public interest and to preserve the purity of the courts. No private rights except those of the accused attorney are involved.”); Cole v. Owens, 766 So.2d 287, 288 (Fla. 4th DCA 2000) (As an official arm of the supreme court, the Florida Bar and its employees enjoy absolute immunity for actions taken within the scope of their duties.).

WARNER, FARMER and GROSS, JJ., concur.


text:
    Steven L. BURNS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2896.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.
    Steven L. Burns, Madison, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

This is an appeal from the denial of a motion for rehearing on the defendant’s motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Defendant filed an initial motion raising two grounds of ineffective assistance of counsel, followed soon thereafter by a motion for leave to file an addendum to the initial motion raising a third claim of ineffective assistance of counsel. The grounds of the initial motion were denied on the merits, and the third ground, raised in the addendum, was denied as facially insufficient for lacking an oath pursuant to rule 3.850(c).

The defendant sought rehearing, arguing that his addendum should have been denied without prejudice to file a facially sufficient addendum, as his initial motion had not yet been ruled upon, and the addendum was timely filed within the two-year time limit provided in rule 3.850. The court again denied the grounds raised in his initial motion, but did not address the addendum.

A movant whose postconviction claim has been denied as facially insufficient is allowed an opportunity to remedy such through a facially sufficient motion without being deemed successive if it is done within the two-year limit provided in rule 3.850. See Spera v. State, 971 So.2d 754, 758-59 (Fla.2007) (citing McCrae v. State, 437 So.2d 1388, 1390 (Fla.1983)). The defendant argued in his motion for rehearing that his addendum should have been denied without prejudice to refile a facially sufficient amendment. The court did not address the issue of sufficiency in its order denying rehearing and erred in failing to initially deny the addendum without prejudice to file a facially sufficient amendment. As such, as to the addendum, the denial is reversed and remanded to permit the defendant to file a facially sufficient motion within thirty days from the rendition of this opinion. The portion of the order denying the two grounds raised in the initial motion is affirmed.

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


author: KLEIN, J. FARMER, J.,

text:
    Shaun McGHEE, Appellant, v. Angela BIGGS a/k/a Angela Ruff, Appellee.
    No. 4D06-4914.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2008.

      Melody Ridgley Fortunato of Fortunato & Associates, P.A., Ft. Lauderdale, for appellant.
    No brief filed for appellee.
   KLEIN, J.

The issue before us is whether the trial court, which entered an order modifying a North Carolina custody judgment, had subject matter jurisdiction. We conclude that the court did not, and vacate the order.

Under a 1997 North Carolina judgment, appellant was awarded custody, and after that he and the child moved to Florida. Years later the mother filed a petition for domestication of the North Carolina judgment and for modification in Florida, and the father defaulted. The trial court modified custody, and a pickup order was entered authorizing the mother to take the child. More than a year after that the father filed a rule 1.540 motion to vacate the modification judgment as void for lack of subject matter jurisdiction. He alleged that under the UCCJEA, North Carolina was the home state of the child and jurisdiction remained with the North' Carolina court. The mother is a resident of North Carolina.

Section 61.516, Fla. Stat. provides:

61.516. Jurisdiction to modify a determination. — Except as otherwise provided in s. 61.517, a court of this state may not modify a child custody determination made by the court of another state unless a court of this state has jurisdiction to make an initial determination under s. 61.514(l)(a) or (b) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under s. 61.515 or that a court of this state would be a more convenient forum under s. 61.520; or
(2) A court of this state or a court of the other state .determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

North Carolina has not determined that it no longer has jurisdiction, and accordingly section 61.516(1) does not apply. And, because the mother resides in North Carolina, section 61.516(2) is not applicable.

. Although section 61.516 also authorizes modification if Florida has initial jurisdiction under section 61.514(l)(a) or (b), they are not applicable either. They provide:

61.514 Initial child custody jurisdiction.-
(1) Except as otherwise provided in s. 61.517, a court of this state has jurisdiction to make an initial child custody determination only if:
(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(b) A court of another state does not have jurisdiction under paragraph (a), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under s. 61.520 or s. 61.521 and ...

Subsection (a) doesn’t apply because the child is not absent from Florida, and subsection (b) doesn’t apply because the North Carolina court has not declined to exercise jurisdiction.

It is thus apparent that the trial court did not, under the UCCJEA, have jurisdiction to modify the North Carolina judgment. The type of jurisdiction involved in this case under the UCCJEA is subject matter jurisdiction. Greene v. Greene, 432 So.2d 62 (Fla. 3d DCA 1983) (failure to meet residence requirements under UC-CJA deprived trial court of subject matter jurisdiction); McCabe v. McCabe, 600 So.2d 1181 (Fla. 5th DCA 1992); see also Campbell v. Campbell, 180 Ind.App. 351, 388 N.E.2d 607 (1979) (threshold requirements of UCCJA must be met for subject matter jurisdiction).

A judgment entered by a court which lacks subject matter jurisdiction is void and subject to collateral attack under rule 1.540 at any time. Strommen v. Strommen, 927 So.2d 176 (Fla. 2d DCA 2006). The trial court should accordingly have granted the father’s rule 1.540 motion. Reversed.

GROSS, J., concurs.

FARMER, J., specially concurs with opinion.

FARMER, J.,

concurring specially.

Appellant attacks an order modifying child custody in an interstate custody dispute. He contends that the order was void and could be attacked at any time — here more than a year later — because the Florida court lacked “subject matter jurisdiction.” The majority agrees that the issue involved subject matter jurisdiction. I disagree with this characterization and the consequent analysis. Because I do agree with the outcome, however, I concur in vacating the custody order.

In Partridge v. Partridge, 790 So.2d 1280, 1284 (Fla. 4th DCA 2001), we recognized that the term subject matter jurisdiction is limited to the general power of a court over a specified class of disputes to which the case belongs. The term is inapplicable to the court’s jurisdiction over a specific case because of a contention that a party has not complied with a legal requirement not involving the general power of the court over the case. To the extent that the real issues in this case involve jurisdiction at all, they concern case jurisdiction, not subject matter jurisdiction.

Moreover, as I shall presently show, Florida’s assertion of jurisdiction in this case violates federal law. If under the Supremacy Clause of the United States Constitution, Florida could not lawfully refuse to enforce and follow federal law on interstate custody of children, I do not believe that Florida can also rely on its own adjectival law relating to civil procedure to refuse to correct the violation of federal law either. Because case jurisdiction in interstate custody disputes involves important issues relating to the sovereign judicial powers of the States and touches the interests of children, I would read the relevant statutes — federal and state — to allow correction of improper assertions of case jurisdiction whenever the act of correction would not itself harm the best interests of the child. It does not appear that the improper assertion by Florida in this case is now so stale that correction would inflict more harm than Florida’s assertion has already wrought.

A Florida court should not have asserted case jurisdiction and proceeded to modify custody of the child unless Florida’s assertion of case jurisdiction would have complied with applicable laws governing interstate custody disputes. North Carolina was the court issuing the original custody order. Under federal law, the rendering court retains jurisdiction over the case so long as its laws provide. 28 U.S.C. § 1738A(d). Nothing in this case makes clear that North Carolina no longer had jurisdiction. We have been furnished nothing evidencing that the Florida judge made appropriate consultations with the North Carolina judge before determining whether to assert case jurisdiction.

We have been given to understand that the mother has changed her place of abode several times since the original custody order was entered by the North Carolina court, that she may not have actually been living in North Carolina when she sought custody. It is a significant thing for a court to change the custody of a young child who has been living for several years with a parent in another state. In an interstate custody case, consultation among competing courts is not a mere formality to be omitted without explanation and legal cause. It happens to be a very important prerequisite before interstate changes of child custody may be compelled. I would reverse because federal law was flouted in this case by a Florida court.

      . See also T.D. v. K.D., 747 So.2d 456 (Fla. 4th DCA 1999) (“We use the word 'jurisdiction' advisedly even though it has different meanings, each with different implications. Ordinarily we use this word to refer to ‘subject matter’ or ‘personal’ jurisdiction. There is a third meaning — more logically designated as 'case' jurisdiction — which involves the power of the court over a particular case that is within its subject matter jurisdiction. Usually when a final judgment is entered, or as here a final order dismissing a case, the court thereupon loses ‘jurisdiction’ over that particular case. It is in this latter sense that we have used the term ‘jurisdiction’ in our decision today.”); MCR Funding v. CMG Funding Corp., 771 So.2d 32, 35 (Fla. 4th DCA 2000) (" 'Case' jurisdiction is the 'power of the court over a particular case that is within its subject matter jurisdiction.’ ”).

      . Art. VI, U.S. Const.

      . By which I refer to both rule 1.540 and, as well, any time prescribed by rule 9.110 to appeal the order requiring a warrant to take the child into custody.

      . In the event, the trial court also erred under Florida law in referring to a general master the father's attempt under rule 1.540 to correct the improper assertion of case jurisdiction. The father had objected to any referral. Rule 12.490(b)(1) expressly bars any reference to a general master without the consent of the parties. The father did not consent to the reference. I would also make clear that the rule for referring cases to general masters was designed for evidentiary hearings. This kind of purely legal question should not be referred to masters.


author: CORTIÑAS, J.

text:
    B.J., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, and Guardian Ad Litem Program, Appellees.
    Nos. 3D07-2374, 3D07-2882.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 2008.

      David S. Molansky, for appellant.
    Karla Perkins; Hillary S. Kambour, for appellees.
    Before GERSTEN, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   CORTIÑAS, J.

B.J. (the “Mother”), appeals the portion of the circuit court’s order on modification of placement (the “Modification Order”) denying her motion for reunification with her younger daughter, T.W. (the “Younger Daughter”), a minor, and the custody release order granting temporary custody of the Younger Daughter to D.W., a paternal aunt.

Section 39.521 of the Florida Statutes, provides in pertinent part:

3) When any child is adjudicated by a court to be dependent, the court shall determine the appropriate placement for the child as follows:
(b) If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child. Any party with knowledge of the facts may present to the court evidence regarding whether the placement will endanger the safety, well-being, or physical, mental, or emotional health of the child.

§ 39.521, Fla. Stat. (2006). We find insufficient evidence on the record to warrant a determination that placement of the Younger Daughter with the Mother “would endanger the safety, well-being, or physical, mental, or emotional health of the child.” See Id.; Roberts v. Fla. Dep’t of Children & Families, 687 So.2d 51 (Fla. 3d DCA 1997). Accordingly, we reverse the portion of the Modification Order denying the Mother’s motion for reunification with her Younger Daughter and vacate the custody release order.


text:
    Jeffery Joseph CHIERA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6099.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2008.

      Jeffery Joseph Chiera, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, BENTON, and PADOVANO, JJ., concur.


text:
    Kevin John SHEPPARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2144.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2008.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Kevin Sheppard appeals the judgment and sentence imposed following the return of the jury verdict finding him guilty of two misdemeanor counts of violation of condition of pretrial release — domestic. He argues that because he was not arrested on the underlying misdemeanor domestic battery offense and released on conditions (he was given a summons with no conditions), the facts do not support the offenses charged and his motion for judgment of acquittal on the charges should have been granted.

The record reveals that the victim, Sheppard’s fiancée, did not initiate the underlying misdemeanor battery charge and, in fact, never sought a domestic violence injunction in the underlying case. Instead, the battery charge arose after DCF workers and a Melbourne police officer visited the victim on unrelated matters and observed bruises on her. The officer was unable to locate Sheppard, so the officer submitted the report as a non-arrest to the state attorney’s office. Law enforcement sent Sheppard a card asking him to come to the office to pick up his own summons, which Sheppard did. No conditions of release were placed on Sheppard; he never went through a pretrial release procedure.

The first time that Sheppard’s continued contact with the victim came into issue was when the State filed a motion for a no-contact order when the parties were in court October 17, 2005, on the underlying battery charge — some four months after the underlying battery allegedly occurred. After Sheppard announced he was ready for trial, the State asked for a continuance so it could have a Show Cause Order directed towards the victim to force her to come to court. The prosecutor advised the court that there had not been a no-contact order put in place because of the non-arrest. A no-contact motion had been prepared earlier, but not set for hearing because the victim was waffling about whether to pursue the case. The prosecutor was asking for the no-contact order at the pretrial conference simply because there was not one in place. The court orally granted the no-contact motion and advised Sheppard:

Okay. Here’s where we stand on this. Grant the motion for no contact. Direct you, sir, not to have any contact with the alleged victim in this case. Not to return to that residence, except for a onetime opportunity to go back there in the presence of a law enforcement officer to obtain your personal belongings. Do you understand?

Sheppard answered affirmatively.

The same date Sheppard had indicated he understood he was to have no further contact with the victim, Count III charges that he contacted the victim in violation of the pretrial release condition. Count IV charges Sheppard with the same offense committed the following day.

In a motion in limine filed prior to trial, Sheppard asserted that being given a summons to appear is not the equivalent of pretrial release; that he was never on pretrial release; and that the Information incorrectly charged that he “did willfully violate a condition of pretrial release.” Sheppard also unsuccessfully made these arguments in his Motion for Judgment of Acquittal at the close of the State’s case.

Section 741.29(6), Florida Statutes, defines the crime of violation of a condition of pretrial release. It provides: (Emphasis added). The conditions of pretrial release set out in section 903.047, referred to above, include the prohibition of contact by the defendant with the victim. § 903.047(l)(b), Fla. Stat. (2006) (“As a condition of pretrial release, whether such release is by surety bail bond or recognizance bond or in some other form, the defendant shall ... [rjefrain from any contact of any type with the victim, except through pretrial discovery pursuant to the Florida Rules of Criminal Procedure.”). The State has the burden of proving, by substantial, competent evidence, that the condition was imposed on a defendant charged with domestic violence. Pilorge v. State, 876 So.2d 591, 591 (Fla. 5th DCA 2004) (“As written, this statute requires the court to impose the no contact provision on a person charged with domestic violence. It does not create a presumption that the defendant knows that he or she is to have no contact”). Sheppard argues that because he was never arrested on the domestic battery charge and never released on pretrial release, he could not be charged with violating a condition of pretrial release under section 741.29(6).

(6) A person who willfully violates a condition of pretrial release provided in s. 903.047, when the original arrest was for an act of domestic violence as defined in s. 741.28, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, and shall be held in custody until his or her first appearance.

Section 741.29(6) confínes the offense to instances where the defendant was originally arrested for an act of domestic violence. § 741.29(6), Fla. Stat. (2006) (“A person who willfully violates a condition of pretrial release provided in s. 903.047, when the original arrest was for an act of domestic violence as defined in s. 741.28, commits a misdemeanor of the first degree ....”) (emphasis added). As even the State admits, Sheppard was never arrested on the underlying battery charge; he received only a summons to appear with no conditions attached to his continued freedom pending the outcome of that battery charge. Thus, Sheppard’s Motion for Judgment of Acquittal should have been granted because there was no evidence of an arrest for domestic violence. See L.R.W. v. State, 848 So.2d 1263, 1265 (Fla. 5th DCA 2003) (observing that in ruling on a motion for judgment of acquittal, “[i]t is the trial court’s obligation to determine whether the evidence reflects the presence or absence of competent evidence on each element of the offense from which a fact-finder could infer guilt to the exclusion of all other inferences.”). Accordingly, we reverse Sheppard’s convictions.

REVERSED.

PALMER, C.J. and THOMPSON, E„ Senior Judge, concur.

SAWAYA, J., concurs in result only, without opinion.

      . Defendant was also charged with aggravated stalking of the victim; grand theft of the victim’s vehicle; a third count of violation of condition of release-domestic; and criminal mischief. The jury found him not guilty of these offenses.

      . The victim testified that she had driven Sheppard to court the morning of October 17 and had gone on to work. He called her later in the day to tell her that a no-contact order had been issued and he was upset about it. He came by the restaurant where she worked and she asked him to leave. He came by later in the day with balloons and a flower and wanted her to leave with him. The next day, Sheppard rode by the restaurant on his bicycle three times and winked at her, which intimidated her.


author: THOMPSON, E., Senior Judge.

text:
    Bennie R. SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1672.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2008.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   THOMPSON, E., Senior Judge.

Bennie R. Simmons appeals from a restitution order entered pursuant to a plea. Simmons was charged by information with dealing in stolen property and ordered to pay restitution in the amount of $3400. We reverse and remand with directions that the restitution order be amended to $200.

Simmons was charged by information with dealing in two stolen ladders in violation of section 812.019(1), Florida Statutes (2006). He was appointed an attorney and entered a negotiated plea of guilty with a stipulation that restitution would be determined at a hearing. At the hearing, the victim testified that he had thirty-four ladders stolen, each valued at $100. The trial court entered a restitution order in the amount of $3400. Simmons’ attorney objected, arguing that Simmons should only be ordered to pay restitution for property charged in the information.

Previously, this court has held that restitution must be causally connected to the offense and bear a significant relationship to the crime. See Glaubius v. State, 688 So.2d 913, 915 (Fla.1997); Bernard v. State, 859 So.2d 560 (Fla. 5th DCA 2003). There must be a connection between the restitution and the damage to the victim as encompassed in the information. Id. In this case, Simmons entered a negotiated plea to the charge of dealing in two stolen ladders, not thirty-four stolen ladders. The State concedes that the proper restitution was $200.

Finding the trial court erred, we REVERSE and REMAND for entry of a corrected restitution order for $200.

TORPY and LAWSON, JJ., concur.