text:
    Rickey L. SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1300.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.
    Rickey L. Sutton, pro se, Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the denial of ground one for the attachment of record portions refuting the appellant’s claim. We affirm the denial of the appellant’s remaining claims without discussion.

In ground one, the appellant raised a facially sufficient claim that his sentences for multiple convictions are illegal because the trial court imposed one general sentence of life imprisonment plus 27 years on all counts even though some of his convictions were for offenses that are no't punishable by life imprisonment. The trial court denied the claim, but failed to attach the written sentences, which would conclusively show whether the appellant is currently serving an illegal sentence. See Corp v. State, 698 So.2d 1349 (noting the well-established requirement that the trial court attach portions of the record conclusively refuting a claim of illegal sentence). The denial of ground one of appellant’s motion is therefore reversed and remanded for the trial court to attach record portions refuting the appellant’s claim.

AFFIRMED in part, REVERSED in part, and REMANDED.

HAWKES, and THOMAS, JJ., and ERVIN, III, RICHARD W., Senior Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Darrell W. JOHNSON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-6684.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.
    Darrell W. Johnson, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Black v. Rouse, 587 So.2d 1359 (Fla. 4th DCA 1991).

WEBSTER, POLSTON, and HAWKES, JJ., concur.


text:
    James STINE and Deborah Stine, Appellants, v. Lew CHURNICK and Patricia Allen, Appellees.
    No. 1D06-81.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.
    Melissa H. Andrade of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellants.
    James A. Cornelius, Bronson, for Appel-lees.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

BROWNING, C.J., WOLF and KAHN, JJ., concur.


text:
    Terry Donald BURTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0003.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2007.
    Terry Donald Burton, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, POLSTON, and HAWKES, JJ., concur.


text:
    Terry Lynn COOK, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1332.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the appellant’s judgment and sentence but remand for correction of a scrivener’s error contained in the written judgment and sentence. See Williams v. State, 930 So.2d 851 (Fla. 2d DCA 2006) (remanding for correction of scrivener’s error in the written sentence); Diaz v. State, 910 So.2d 894 (Fla. 1st DCA 2005) (remanding for correction of scrivener’s error in the judgment). In case number 04-1798, the appellant pled guilty to the lesser included offense of arson of a structure, a second-degree felony. However, the judgment lists the offense as arson of a dwelling, a first-degree felony. Thus, the appellant’s sentence must be corrected to specify that the appellant was convicted of second-degree arson in case number 04-1798. Because this is a ministerial act, appellant’s presence is not required.

Furthermore, we note that the appellant was sentenced to fifteen years’ imprisonment on a number of counts that are third-degree felonies. Although this is clearly an error, this Court is constrained to affirm because there was no contemporaneous objection and the appellant did not file a motion to correct illegal sentence. See Wilson v. State, 898 So.2d 191 (Fla. 1st DCA 2005).

Accordingly, we affirm the appellant’s judgment and sentence without prejudice to the appellant to seek the appropriate post-conviction relief. We also remand for the correction of the scrivener’s error in the judgment.

AFFIRMED and REMANDED with directions.

BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.


author: GRIFFIN, J.

text:
    Anthony JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4195.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2007.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Anthony Johnson [“Johnson”] appeals the order denying his pre-sentence motion to withdraw his no contest plea and the judgment and sentence that the trial court entered based on that plea. Because Johnson established good cause to withdraw the plea, we reverse.

On about April 19, 2003, Johnson allegedly entered' the home of another, without the owner’s permission. While inside, Johnson took a purse containing personal items and cash. As Johnson was leaving the home, he was confronted by an off-duty police officer. When this happened, Johnson dropped the purse and ran. Johnson was captured two days later. He subsequently confessed to the burglary and theft.

The State charged Johnson with burglary of a dwelling, a second-degree felony, and petit theft, a second-degree misdemeanor. He was initially represented by Attorney Michael Chauvin. A motion to suppress his confession in the burglary case was filed and was scheduled to be heard, but Johnson entered into a plea agreement with the State. At the time of the plea agreement, Johnson was also facing charges of capital murder and attempted robbery with a firearm in a separate case. Pursuant to the plea agreement, in exchange for Johnson’s plea of no contest to the burglary charge, the State agreed to a sixteen-month prison sentence that would run concurrently with any active sentence. Further, the State agreed not to use this conviction as an aggravating factor in the capital murder case. The trial court accepted Johnson’s plea of no contest and sentencing was scheduled for September 16, 2005.

Johnson subsequently retained private attorney, A. Michael Bross, to represent him in the capital murder ease. That lawyer also filed a notice of appearance in this case.

At the commencement of the September 16, 2005 hearing, before the trial court pronounced sentence, Johnson notified the trial court that he wanted to withdraw his no contest plea. On November 22, 2005, the trial court heard arguments and testimony on Johnson’s plea withdrawal motion. Johnson asserted that the plea was not entered voluntarily because Johnson was not advised by defense counsel of the direct consequences of this plea. Johnson further argued that Mr. Chauvin had not explained to him that a conviction in this case could be used to impeach him if he took the stand in the murder case. In response, the State argued that it would be speculation whether Johnson might wish to testify at some trial in the future.

The trial court heard testimony from both Johnson and Mr. Chauvin at the November 22, 2005, hearing. Johnson testified that his counsel had never explained to him that a conviction in this case could be used to impeach him if he were to testify in the pending murder case. Johnson also testified that he intended to take the stand in the murder case.

The State presented testimony from Mr. Chauvin that he discussed “all aspects” of this plea with Johnson, including potential penalties, but he never said he explained to Johnson that the State could use the felony conviction from the burglary plea to impeach him at his murder trial.

When a defendant files a motion to withdraw his plea prior to sentencing, pursuant to Florida Rule of Criminal Procedure 3.170(f), he is entitled to withdraw his plea as a matter of right when good cause is shown. Harrell v. State, 894 So.2d 935 (Fla.2005); Robinson v. State, 761 So.2d 269, 274 (Fla.1999). Further, under this rule, the trial court may, at its discretion, permit the defendant to withdraw a plea in the interest of justice upon a showing that falls below good cause. Id. The burden to establish good cause under the rule is on the defendant. Id. However, the rule should be liberally construed in favor of a defendant because the law inclines towards a trial on the merits and, where it appears the interests of justice would be served, a defendant should be permitted to withdraw the plea. Smith v. State, 840 So.2d 404, 406 (Fla. 4th DCA 2003); Robinson, 761 So.2d at 274. Good cause to withdraw a plea is said to be present when the plea is “infected by misapprehension, undue persuasion, ignorance, or was entered by one not competent to know its consequence or that it was otherwise involuntary, or that the ends of justice would be served by withdrawal of such plea.” Onnestad v. State, 404 So.2d 403, 405 (Fla. 5th DCA 1981).

The trial court should have allowed Johnson to withdraw his plea before sentencing, under the circumstances. His testimony that he was not informed prior to entering the plea that the conviction could be used to impeach him should he choose to testify in the pending capital murder case was unrefuted. There is no doubt that Johnson was concerned about the effect of a plea in this case on the pending murder case as the “aggravator” issue was specifically dealt with. Johnson’s subsequent discovery that his plea would significantly affect his ability to testify in his murder trial is enough to meet the test of Rule 3.170(f). Failure to inform him of this collateral consequence may not have rendered the plea involuntary, but his ignorance of it does meet the “good cause” test for a pre-sentence plea withdrawal.

REVERSED and REMANDED.

SAWAYA and TORPY, JJ., concur.

      . Q. What is it exactly about having pled to this case, which you feel is going to harm you when you take the witness stand?
      A. Once again, like I said; my lawyer told me that a convicted felon has lower standards than a regular person who does not have any trouble in their past. That means, that if I get on this stand and they ask me if I am a convicted felon, I have to say, yes, I am. That is doubt in the jury mind off the top.
      Now, if I don’t say — if I say that I'm not a convicted felon, then they can say, maybe he is telling the truth, now, by his statements. That’s why I do not want this plea.
      Q. You say that Mr. Chauvin never discussed that with you prior to the plea?
      A. No, he didn’t.

        Q. He never told you that that was a possibility?
      A. No, he didn't.

      . Rule 3.170(f) states that "the court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn....” Fla. R.Crim. P. 3.170(f) (2005).


text:
    Byron LOWERY, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D04-5561.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.

      Byron Lowery, pro se, Appellant.
    Rosa H. Carson, General Counsel, and Connie L. Beach, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

The Florida Department of Corrections declined to award 20 days of incentive gain time to appellant Byron Lowery based upon a finding that his work performance had not been satisfactory for the month of February 2003. After exhausting his administrative remedies, Lowery appealed to this court in case number 1D03-3045. The department, as the lower tribunal in that proceeding, certified Lowery as indigent and imposed a lien against his trust account to recover filing fees. This court then transferred the case to the Circuit Court for Leon County where another lien was placed against Lowery’s trust account for circuit court filing fees.

In response to the complaint, the department showed to the circuit court that a review had been conducted and 20 days of incentive gain time had been retroactively awarded to Lowery for the month in question. The circuit court dismissed the case as moot and Lowery timely appeals. Another lien has been placed against Lowery’s inmate trust account for the circuit court’s share of the fees and costs incurred because of the instant appeal.

We affirm as to the circuit court’s disposition on the merits, finding no reversible error. Appellee properly concedes error on Lowery’s challenge to the liens placed on his inmate trust account. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006). We therefore quash the order of the department which found Lowery to be indigent for case number 1D03-3045 and remand with directions that the lien be removed and any funds taken from Lowery’s account on authority of that lien be reimbursed. We also grant relief with regard to the circuit court’s two indigency orders and remand for proceedings in accordance with section 57.081, Florida Statutes, on Lowery’s requests to be certified as indigent in that tribunal. Rutledge v. McDonough, 931 So.2d 171 (Fla. 1st DCA 2006).

AFFIRMED in part and REVERSED in part.

BARFIELD, VAN NORTWICK, and THOMAS, JJ., CONCUR.

      . This court has appellate jurisdiction pursuant to Green v. Moore, 777 So.2d 425 (Fla. 1st DCA 2000).


text:
    W.L. B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0585.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the disposition order in all respects except for the imposition of the $201 domestic violence surcharge imposed pursuant to section 938.08, Florida Statutes (2005). V.K.E. v. State, 934 So.2d 1276 (Fla.2006) (holding that a trial court does not have the authority to impose on juveniles in a juvenile proceeding the mandatory surcharge set forth in section 938.08). We strike the $201 surcharge imposed.

AFFIRMED; surcharge STRICKEN.

BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.


author: CASANUEVA, Judge.

text:
    In the Interest of J.T., a child, Department of Children and Family Services, Appellant, v. Heart of Adoptions, Inc., R.T., and Guardian Ad Litem, Appellees. A.M., Appellant, v. Heart of Adoptions, Inc. R.T., and Guardian Ad Litem, Appellees. R.T., Petitioner, v. Department of Children and Family Services, Guardian Ad Litem, and A.M., Respondents, Heart of Adoptions, Inc., Petitioner, v. Department of Children and Family Services, A.M., R.T., and Guardian Ad Litem, Respondents. R.T., Petitioner, v. Department of Children and Family Services, A.M., and Guardian Ad Litem, Respondents.
    Nos. 06-1523, 2D06-296, 2D06-416, 2D06-1037, 2D06-1220.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.

      Beverly Hunt Diehr, Assistant Regional Legal Counsel, Department of Children & Family Services, Tampa, and Cheryl Fuller, Sarasota, Department of Children & Family Services, for Appellant/Respondent Department of Children & Family Services.
    Jeffrey A. King, Special Appointed Counsel, Tampa, for Appellant/Respondent A.M.
    Jeanne T. Tate and Danelle D. Barks-dale of Jeanne T. Tate P.A., Tampa, for Appellee/Petitioner Heart of Adoptions Inc.
    Debra M. Salisbury of Law Office of Debra M. Salisbury P.A., Sarasota, for Ap-pellee/Petitioner R.T.
    Thomas Wade Young and Andrea R. Hack, Guardian ad Litem Program, Orlando, for Appellee/Respondent Guardian ad Litem Program.
   CASANUEVA, Judge.

The Department of Children and Family Services and A.M., the unmarried biological father of J.T., challenge the circuit court’s decision to “relinquish its jurisdiction” to another division of the circuit court after Heart of Adoptions, Inc., was permitted to intervene in this dependency case. At the time that Heart of Adoptions entered this case, J.T. was almost oneyear old. She had been placed in emergency shelter care at birth because her birth mother, R.T., was homeless and tested positive for drugs. Her biological father’s history, like her birth mother’s, included drug and alcohol abuse, mental illness, and incarceration. By the time J.T. was one month old on January 26, 2005, she had been declared a dependent child and placed in a foster home, where she has lived ever since.

The Department developed case plans with a goal of reunification for the birth mother and the biological father, with an anticipated completion date of December 29, 2005. It is apparent from the appendices submitted by the parties that neither R.T. nor A.M. substantially complied with the case plans. In September 2005, when J.T. was approximately nine months old, R.T. decided to sign surrenders of her parental rights to Heart of Adoptions. Although the birth mother’s counsel notified the Department and the Guardian ad Litem that R.T. had signed surrenders, the attorney apparently did not immediately reveal that the surrenders were in favor of a private adoption agency. That information came to light in early December 2005, when Heart of Adoptions filed its petition to intervene in and to dismiss the dependency action. As an alternative to dismissal, Heart of Adoptions sought relinquishment of the dependency court’s jurisdiction to the family court division of the circuit court.

After a judicial review hearing in the case during the morning of December 14, 2005, the circuit court heard Heart of Adoptions’ petition to intervene that afternoon. At the intervention hearing, the circuit court observed that the biological father had only partially complied with his case plan but also — and even more significantly — that he wanted J.T. to be adopted by the foster parents who had taken care of her almost her entire life. With reluctance, the circuit court granted Heart of Adoptions’ petition to intervene and relinquished jurisdiction to the circuit court’s family division for further proceedings. Rather than immediately transferring custody of the child to Heart of Adoptions, however, the circuit court did not disturb J.T.’s situation; she remained in the foster parents’ care under the Department’s supervision.

Almost immediately, the Department and A.M. appealed the circuit court’s rulings (consolidated case numbers 2D06-297 and 2D06^416). Before the appellees had filed their briefs in this court, the circuit court, in the context of a hearing on the Department’s motion to stay, decided to reverse its earlier decision. Accordingly, on February 16, 2006, the circuit court entered an order retaining jurisdiction in the dependency court for further proceedings in this matter, which the birth mother appealed (case number 2D06-1037, later converted by this court to a petition for certiorari). Then, both the birth mother and Heart of Adoptions filed petitions for writs of certiorari, mandamus and/or prohibition directed to the circuit court’s February 2006 order (consolidated case numbers 2D06-1220 and 2D06-1523). This court directed that all of these related matters be considered by one panel and has now consolidated all of these cases for purposes of this opinion.

For the reasons that follow, we hold that this court lacks jurisdiction to consider the appeals filed by the Department and A.M., and we convert those appeals to petitions for certiorari. We also hold that the December 2005 order does not merit certiora-ri review and deny the petitions. Our denial of the Department’s and A.M.’s petitions renders moot any jurisdictional problem in the circuit court’s reversal of itself in the February 2006 order.. Therefore, we also deny R.T.’s and Heart of Adoptions’ petitions for certiorari and/or mandamus or prohibition. The effect of all these decisions is that the dependency court maintains its jurisdiction over J.T.’s case, at least for the present.

The December 2005 Order

The Department and A.M. confront a critical obstacle in their challenge to the December 2005 order. The impediment derives from the fact that the court’s order is merely a preliminary procedural step on the way to the order that they ultimately want to challenge — a decision that a private adoption is in J.T.’s best interest pursuant to section 63.082(6)(c), Florida Statutes (2006). The Department does not and acknowledges that it cannot challenge the propriety of permitting Heart of Adoptions to intervene in the dependency action pursuant to section 63.082(6)(b), which provides as follows:

Upon execution of the consent of the birth parent, the adoption entity shall be permitted to intervene in the dependency case as a party in interest and shall provide the court having jurisdiction over the minor pursuant to the shelter or dependency petition filed by the department with a copy of the preliminary home study of the prospective adoptive parents and any other evidence of the suitability of the placement.... A preliminary home study must be provided to the court in all cases in which an adoption entity has intervened pursuant to this section.

Heart of Adoptions provided the circuit court with the statutorily required home study. However, the circuit court specifically halted the process before taking the next steps as required by section 63.082(6)(c):

Upon a determination by the court that the prospective adoptive parents are properly qualified to adopt the minor child and that the adoption appears to be in the best interest of the minor child, the court shall immediately order the transfer of custody of the minor child to the prospective adoptive parents, under the supervision of the adoption entity....

Making the best-interest determination under section 63.082(6)(c) would require the circuit court to analyze the factors set out in section (6)(d) as follows:

In determining whether the best interest of the child will be served by transferring the custody of the minor child to the prospective adoptive parent selected by the birth parent, the court shall give consideration to the rights of the birth parent to determine an appropriate placement for the child, the permanency offered, the child’s bonding with any potential adoptive home that the child has been residing in, and the importance of maintaining sibling relationships, if possible.

We have quoted these statutes in detail to demonstrate how little the circuit court’s December 2005 order actually accomplished. Although much was anticipated by the court’s relinquishment of its jurisdiction, nothing happened that this court has any authority to review. This is because the order merely transferred this matter to another division of the circuit court, and such a transfer is a matter wholly under the purview and within the discretion of the chief judge of the circuit court. All judges of a circuit court are authorized to exercise a circuit court’s jurisdiction. See In re: Guardianship of Bentley, 342 So.2d 1045, 1046 (Fla. 4th DCA 1977). But “for efficiency in administration, the Circuit Court is frequently divided into divisions, with each division handling certain types of cases.” Id. at 1046-47. According to newly renumbered Rule of Judicial Administration 2.215(4), “[t]he chief judge shall assign judges to the courts and divisions, and shall determine the length of each assignment.... If a judge is ... unable to perform the duties of the office, the chief judge or the chief judge’s designee may assign a proceeding pending before the judge to any other judge ... of the same court.” In re: Amendments to the Florida Rules of Judicial Administration — Reorganization of the Rules, 939 So.2d 966, 980 (Fla.2006). We note that the Third Amended Administrative Order No. 2005-18.4 of the Twelfth Judicial Circuit established five administrative divisions: civil, criminal, family, juvenile, and probate/guardianship. Nothing prohibits any circuit judge of any division, with the permission of the chief judge, from hearing a case originally assigned to the dependency division.

This court recently discussed the divisional “jurisdiction” of the circuit courts in matters of this type in Adoption Miracles, LLC v. S.C.W. (In the Interest of S.N.W., a child), 912 So.2d 368, 373-74 (Fla. 2d DCA 2005), in which we observed that the dependency court and the adoption court are one court separated into different divisions. As in this case, the child had been placed in the Department’s custody pursuant to shelter and dependency petitions before the birth mother signed her consent to the child’s adoption. Thus, we noted, Adoption Miracles

was required to intervene in the dependency proceeding to pursue the adoption of the child ... [and] the dependency court may address the validity of the consent within the dependency proceeding. This framework permits the pursuit of the adoption while ensuring the continued protection of the child in the event the adoption is not achieved.

Id. Had Adoption Miracles filed its petition for termination of parental rights pursuant to adoption in another division of the same circuit court, the adoption proceedings would be secondary to the dependency proceedings. Id. Thus, no matter in which division an adoption petition is filed, the dependency proceedings will take precedence.

Appellate Court Jurisdiction Over Order Relinquishing Jurisdiction From One Division To Another of the Same Circuit Court

In Adoption Miracles, the circuit court denied the adoption agency’s petition to intervene in the dependency proceedings. Although the adoption agency filed its case as an original proceeding, this court concluded that “the order is a final order as to Adoption Miracles and thus subject to appeal.” Id. at 370.

The situation in this case is different. The circuit court’s order permitting intervention but also relinquishing jurisdiction or transferring the case to another division was not final as to any party. In fact, as we have noted above, intervention by the adoption agency is merely a preliminary step before any circuit court division has jurisdiction to determine whether the birth mother’s consent is valid, whether the potential adoptive parents are qualified, and whether the adoption is in the child’s best interest. Because of its preliminary nature, this court does not have jurisdiction over the transfer order pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A). Nor does this court have jurisdiction pursuant to rule 9.030(b)(1)(B), which authorizes review of “non-final orders of circuit courts as prescribed by rule 9.130.” Rule 9.130(a)(3)(C)(iii) authorizes review of orders determining custody in family law matters, but, as we have observed, this order did not disturb the legal or physical custody of the child.

The only potential appellate jurisdiction for this order derives from rule 9.130(a)(4), which states, “Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.” The circuit court’s order relinquishing jurisdiction was entered following a dependency order, which could be considered final for some purposes. However, a crucial issue in this context is whether the order was entered “on authorized motion,” which we construe as a term of art, much as it is used in the rendition rule, Fla. R.App. P. 9.020(h)(1), which lists specific motions that will suspend rendition until the court files a written order disposing of the motion as to any party against whom relief is sought. All of the authorized motions enumerated in the rendition rule are directed to some aspect of true finality in the original order or judgment; such motions seek rehearing, new trial, alteration or amendment of the judgment, arrest of judgment, correction of a sentence, and the like. In this case, the order on the motion to relinquish jurisdiction to another circuit court division did not alter any final aspect of the dependency order; in fact, the court declined to do anything that would alter the status quo other than to transfer the case to another division. We have searched the juvenile, civil, and family law rules of procedure but have discovered nothing suggesting that this motion would be considered “authorized” for purposes of rule 9.130(a)(4).

In D.K.B. v. Department of Children & Family Services (In the Interest of R.B.), 890 So.2d 1288 (Fla. 2d DCA 2005), this court discussed at some length the ap-pealability of an order entered during a termination of parental rights proceeding. Although this court initially treated the order as an authorized appeal from a non-final order pursuant to rule 9.146, upon further reflection, the court held as follows:

Rule 9.146(a) specifies that appeal of dependency and termination orders shall be as in civil cases except as modified by rule 9.146. Rule 9.146 does not attempt to modify rule 9.130. Rule 9.130 is clearly written to regulate the appeal of nonfinal orders. The civil order on appeal in this case is not included in subsection (3) of rule 9.130. Thus, we conclude that rule 9.146 provides no exception or expansion to the appeals permitted under rule 9.130.

Id. at 1289. Because this court lacked jurisdiction over the nonfinal order in D.K.B., it treated the appeal as a petition for common law certiorari and denied it. We will treat this appeal likewise, with the same result.

Availability of Certiorari Relief

This opinion has already focused on all that the order being reviewed does not do, and we have discussed the discretionary aspects of transferring a case from one circuit court judge to another judge in that circuit. Such matters are beyond the scope of appellate court jurisdiction. In the event that the judge of the division to which the case is transferred does something that might prove contrary to the essential requirements of law, such as terminating the parental rights of either parent and transferring the child to the custody of Heart of Adoptions without following the statutory mandate that the dependency case takes precedence, then this court might accept certiorari. As this order stands, however, we deny the Department’s and A.M.’s petitions for certiorari.

Appeal and Petitions Filed by the Birth Mother and Heart of Adoptions Directed Toward the Court’s February 2006 Order Reversing its December 2005 Order

In February 2006, upon the Department’s motion to stay, the circuit court decided that it had “inherent jurisdiction to set aside anything that [it] believefd] was done in error,” found that its December 2005 order was erroneous, and quashed it. The court’s intent was to resume — or continue — its jurisdiction over the dependency matter. Because the December 2005 order was not appealable, the circuit court never lost jurisdiction to act in the dependency case, except to the extent that the circuit court’s administrative rules would prevent the court from revisiting a case that it had apparently transferred to another division. Rather, the circuit court was appropriately recognizing its continuing authority to protect the dependent child. Circuit courts retain “inherent and continuing jurisdiction to entertain matters pertaining to child custody and to enter any order appropriate to a child’s welfare.” B.Y. v. Dep’t of Children & Families, 887 So.2d 1253, 1256 (Fla.2004).

After the circuit court entered the February 2006 order, the Department filed a notice in this court recognizing that its appeal was moot. Unfortunately for the appellate process, however, the birth mother’s appeal of the February 2006 order caused the Department and A.M. to resist dismissal of their appeals. The thrust of the Department’s and the biological father’s appeals was that the unintended legal effect of the circuit court’s December 2005 order was to deprive A.M. of substantial legal rights without due process of law and to damage the Department’s ability to make meaningful and effective case plans for the reunification of dependent children and their parents. When the birth mother appealed the circuit court order that would have effectively alleviated the Department’s alleged need for appellate review, the effect was to bring the same controversy, issues, and potential collateral legal consequences before this court in a different context. Ironically, the birth mother attempted to dismiss her appeal of the February 2006 order in favor of pursuing certiorari relief, and in June 2006, this court converted case number 2D06-1037 into a petition for cer-tiorari. By that time, however, an appellate quagmire had developed.

In any event, the Circuit Court of the Twelfth Judicial Circuit was not divested of jurisdiction by the pendency of the petitions for certiorari in this court.

Certiorari is an original proceeding in this court. See Fla. R.App. P. 9.030(b)(3). It has no effect on the jurisdiction of the circuit court unless a stay of the proceedings is granted. Although Florida Rule of Appellate Procedure 9.130(f) specifically prohibits the circuit court’s entry of a final judgment during the appeal of a nonfinal order, no similar' rule exists when a nonfinal order is challenged by way of certiorari.

Curry v. State, 880 So.2d 751, 755-56 (Fla. 2d DCA 2004).

The circuit court should not have attempted to transfer the case in the first place until it made the required best-interest determination under section 63.082. Because we hold that the court acted appropriately when it reasserted its jurisdiction by reversing itself, we deny the birth mother’s and Heart of Adoptions’ petitions directed to the February 2006 order.

Concluding Thoughts

Another year has passed from the time that the circuit court entered the December 2005 order challenged by the Department and the unmarried biological father — an order that did nothing to affect any party’s rights. All of these appeals and petitions have thwarted section 39’s stated legislative intent to insure that J.T.’s permanent placement with her biological or adoptive family is achieved within one year of her placement into foster care. § 39.001(l)(h). The Florida Legislature has also decreed that “[i]f a child will not be reunited with a parent, adoption, under chapter 63, is the primary permanency option.” § 39.621(6) (emphasis added). Ultimately, if the adoption does not proceed pursuant to chapter 63, section 39.812(5) specifically provides that the “petition for adoption must be filed in the division of the circuit court which entered the judgment terminating parental rights.” In that instance, neither the birth mother nor the unmarried biological father will have standing concerning the choice of adoptive parents. They are “not entitled to notice of the proceeding and are not entitled to knowledge at any time after the order terminating parental rights of the whereabouts of the child....” Id.

There is no suggestion in this record that the unmarried biological father desires to parent this child; therefore, a focus on his rights contravenes the intent behind the adoption statutes. Even if he were attempting to assert his parental rights, the legislature has specifically described an unmarried biological father’s interest in his child as “an inchoate interest that acquires constitutional protection only when he demonstrates a timely and full commitment to the responsibilities of parenthood, both during pregnancy and after the child’s birth.” § 63.022(l)(e).

Petitions for certiorari in case numbers 2D06-296 and 2D06-416 denied; petition for writ of certiorari in case number 2D06-1037 denied; petitions for writ of prohibition, mandamus, or certiorari in case numbers 2D06-1220 and 2D06-1523 denied.

NORTHCUTT and SALCINES, JJ., Concur.

      . J.T. was placed in her current foster home after a brief initial period in another placement.

      . We recognize that this court's initial treatment of the Department’s and A.M.’s cases as nonfinal appeals, as well as our internal procedure that delayed decision until all of the cases were perfected, contributed to the delay.


text:
    James E. RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0213.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.

      James E. Richardson, pro se, Appellant.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the appellant raises facially sufficient claims of ineffective assistance of counsel and illegal sentence, we reverse.

On January 14, 2005, the appellant pled no contest to child abuse and was sentenced to fifteen months’ imprisonment pursuant to a plea agreement. During the sentencing hearing, counsel argued that the state did not have any objection to running the sentence concurrently with the appellant’s sentence for violating his control-release, but it would be up to the Department of Corrections to determine whether the sentences would be concurrent or consecutive. The trial court agreed with this argument and stated that it could not order the sentences to run concurrently to each other.

The appellant filed a timely rule 3.850 motion, which was summarily denied by the trial court, arguing that counsel was ineffective for failing to object to the trial court’s misstatement of the law and that his sentence was illegal. The law is clear that a trial court may order a sentence to run concurrently or consecutively to a pending control-release violation. Scantling v. State, 711 So.2d 524, 525-26 (Fla.1998). In fact, the trial court must exercise its discretion to order a sentence imposed for an offense committed while on community release concurrent or consecutive to his or her community release sentence and cannot defer the structure of the sentence to the Department of Corrections because the Department lacks such sentencing authority. § 921.16(1), Fla. Stat. (2004); Byrd, v. State, 853 So.2d 1103 (Fla. 4th DCA 2003); McCarthur v. State, 766 So.2d 292 (Fla. 4th DCA 2000)(holding that the trial court must exercise its discretion to sentence the offender to concurrent or consecutive sentences); Art. I, § 18, Fla. Const, (barring an administrative agency from imposing a sentence of imprisonment); Pearson v. Moore, 767 So.2d 1235, 1238-39 (Fla. 1st DCA 2000)(holding that the power to sentence rests entirely with the courts), affirmed, 767 So.2d 1235 (Fla. 1st DCA 2000). Therefore, the appellant has stated a valid reason for his counsel to object.

Additionally, the appellant’s sentence is illegal because the recommended sentence is of such a nature that it imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances, Carter v. State, 786 So.2d 1173, 1181 (Fla.2001)(defining an illegal sentence), as a trial court cannot delegate sentencing authority to an administrative agency. See Art. I, § 18, Fla. Const.; Pearson v. Moore, 767 So.2d at 1238-39. Thus, it appears the appellant is serving an illegal sentence. Cf. Krause v. State, 857 So.2d 343, 343 (Fla. 1st DCA 2003)(remanding a summarily denied rule 3.800(a) motion to the trial court to exercise its discretion to award or deny foreign jail credit which is a discretionary decision). Because the trial court erred by summarily denying the appellant’s motion for the above reason, we reverse and remand for an evidentiary hearing.

REVERSED and REMANDED.

BARFIELD and VAN NORTWICK, JJ., concur, and THOMAS, J., concurs in result only.


author: BROWNING, C.J. BENTON, J.,

text:
    D. Yogi GOSWAMI, Appellant, v. LENNOX INDUSTRIES, INC., Appellee.
    No. 1D05-5166.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.

      Gary S. E dinger and Bruce Brashear, Gainesville, for Appellant.
    David A. Cornell and Elizabeth M. Collins, of Dell Graham, P.A., Gainesville, for Appellee.
   BROWNING, C.J.

Appellant, D. Yogi Goswami, appeals an adverse summary judgment for Appellee alleging there is a genuine issue of material fact that precludes entry of a summary judgment. Because there are conflicting provisions in the Asset Purchase Agreement made by Lennox Industries, Inc. (Lennox), and Universal Air Technology, Inc. (Universal), that might necessitate introduction of parol evidence, we agree and reverse.

Appellant, the inventor of a patented air filtration and purification system (system), transferred ownership of the system and supporting patents to Universal. Appellant’s consideration for his transfer to Universal was less than 50 percent of its outstanding common stock, and, as additional consideration, a covenant that Universal pay to Appellant one percent of the gross revenues (royalty payments) received by Universal from all future sales of the system.

On February 28, 2002, Universal entered into an Asset Purchase Agreement providing for the transfer of the system and supporting patents to Lennox for $1,285,000. After the sale, Appellant demanded that Lennox pay to him the one percent royalties provided by Appellant’s and Universal’s agreement. Lennox refused and this litigation ensued.

Lennox argued below that Appellant was not a third-party beneficiary of the Asset Purchase Agreement and that Len-nox did not assume any liability for Universal’s obligation for royalty payments to Appellant. The trial court agreed and entered summary judgment for Lennox against Appellant. By so doing, the trial court reversibly erred.

Our standard of review is de novo. See Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001). Because the two contracts at issue here were made and performed in New Jersey and Delaware, we apply the laws of those two states. See Stone v. CompuServe Interactive Servs., Inc., 804 So.2d 383 (Fla. 4th DCA 2001).

The law governing entry of a summary judgment is the same in New Jersey as in Florida. That rule is so well-known that it need not be repeated here. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 666 A.2d 146 (1995).

As in Florida, New Jersey law holds that absent an ambiguity, a contract must be enforced as written. See Rahway Hosp. v. Horizon Blue Cross Blue Shield of N.J., 374 N.J.Super. 101, 863 A.2d 1050, 1056 (2005). Also, New Jersey law provides that where there are conflicting provisions in a written agreement that render the parties’ intent uncertain, it is necessary for an evidentiary hearing to be held, and the issue cannot be resolved on summary judgment. See id.

When these principles are applied here, it is clear that an ambiguity exists, or conflicting provisions exist, within the contracts that preclude a summary judgment.

The Asset Purchase Agreement provides:

“Assumed Liabilities ” shall have the meaning assigned to it in Section 2.0b. of this Agreement.
Section 2.04 Liabilities Assumed. On the Closing Date, subject to the terms and conditions herein set forth and as consideration for the Transferred Assets (in addition to the Purchase Price), Seller shall assign to Buyer, and Buyer shall assume from Seller, those liabilities associated with the Business existing prior to the Closing Date set forth on Schedule 2.0b and any liability associated with the Business or use of the Transferred Assets after the Closing Date (the “Assumed Liabilities”). Buyer’s assumption of the Assumed Liabilities shall be evidenced by the instrument of assumption in the form attached hereto as Exhibit A (the “Instrument of Assumption”).
SCHEDULE 2.04
ASSUMED LIABILITIES
1.All liabilities and obligations relating to the items on Schedule 2.02(b).
SCHEDULE 2.02(b) INTANGIBLE ASSETS
1. United States Patent Nos. 5,533,702; 5,993,738 and 5,835,840 (see attachment).
2. United States Trademarks for SUN-AIR, Registration Number 2,472,834; SUN-CENTRAL, Serial Number 75,765,664 and PHOTO-TECH, Registration Number 2,477,-454 (see attachment).
3. The attached foreign patent applications and registrations.

After considering these provisions, it is clear that Lennox assumed all liabilities (schedule 2.04) relating to the patents for the system. Since the only liability “relating” to the patents is Appellant’s royalty payments, an inference can be drawn that Lennox assumed liability for Appellant’s entitlement to the royalty payments. Of course, there are other contractual provisions of the Assets Purchase Agreement that imply a contrary conclusion and upon which the trial court relied in entering the contested summary judgment. However, such conflicts cannot be decided by summary judgment. The trial court was obligated to consider such conflicts, and all competent evidence germane to the parties’ intent before entering summary judgment.

Accordingly, we REVERSE and REMAND for proceedings consistent with this opinion.

ERVIN, III, RICHARD W., Senior Judge, concurs.

BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

I respectfully dissent. I believe the trial court’s ruling in this case is eminently correct, and that requiring Lennox Industries, Inc., with whom Mr. Goswami had no agreement of any kind, to continue to defend this baseless lawsuit is an injustice. The learned trial judge explained:

This case involves a five count amended complaint brought by Plaintiff D. Yogi Goswami against Universal Air Technology, Inc., and Lennox Industries, Inc., Defendants. Plaintiff Gos-wami is the inventor of a process known as a photocatalytic system for indoor air quality to which he holds certain patents. Goswami, Louis Cohen and United Air Technology, Inc., entered into a business start-up agreement whereby Cohen contributed money and Goswami contributed his patented process to the corporation. They each received shares in the corporation in exchange for their contributions. They also each received options to purchase additional shares. As “additional consideration” to Gos-wami for contributing his patented process to the corporation, United Air Technology, Inc., agreed to pay Gos-wami additional compensation equal to one (1%) of the gross revenue received by the corporation for products, processes and application of the technology encompassed by the patents. As set forth in the start-up agreement, the principal purposes of Universal Air Technology, Inc., were to conduct research, form, fashion, construct, distribute and sell the photocatalytic oxidation and disinfectant process or devices covered by the patents. Other than Goswami’s entitlement to one percent (1%) of the revenue received by Universal Air Technology, Inc., for products, processes and application of the technology, and whatever dividends to which he was entitled as a shareholder, there were no other provisions in the start-up agreement specifically applicable to a further sale of the patented processes by United Air Technology to any other entity.
On February 28, 2002, Universal Air Technology entered into an asset purchase agreement with Lennox Industries, Inc., whereby Lennox acquired the patented processes owned by Universal. Through this lawsuit, Plaintiff attempts to hold Lennox responsible for paying a one percent (1%) royalty to Goswami based upon Lennox’s receipt of gross revenue from the patented technology. However, there is no provision in the asset purchase agreement which requires Lennox to pay Goswami such a royalty. Additionally, there is no provision in the start-up agreement between Goswami and Universal Air Technology which requires Universal Air to require such a royalty payment in the event of a sale of the technology to another entity. To the contrary, the only provision in the start-up agreement governing such an event would only require Universal Air Technology to give Goswami one percent (1%) of whatever it received as gross revenue from the sale. In this case, we are not dealing with a successor corporation which has either impliedly or expressly agreed to assume the obligations of it predecessor. To the contrary, Universal Air Technology and Lennox Industries, Inc., are separate corporate entities which merely engaged in a transaction to transfer assets. Plaintiffs entitlement to receive one percent (1%) of whatever United Air Technology, Inc., received and continues to receive for the sale of the subject technology to Lennox Industries is clearly set forth in the parties’ start-up agreement, and it is equally clear that Plaintiff is entitled to nothing from Lennox Industries, Inc. Accordingly, there is no genuine issue of material fact with respect to Defendant Lennox Industries’ alleged obligation or liability to Plaintiff Goswami, and said Lennox Industries, Inc., is entitled to summary judgment. ...

Mr. Goswami’s agreement was with United Air Technology, Inc. (UAT), not Lennox Industries, Inc. (Lennox). The trial court acknowledged that Mr. Goswami is entitled to one per cent of the sale proceeds UAT received from Lennox, but that is UAT’s obligation, not Lennox’s.

As a minority UAT shareholder, moreover, Mr. Goswami benefits from any increase in value in his UAT shares attributable to the sale of the technology. (If UAT’s sale to Lennox did not increase the value of UAT’s shares, Mr. Goswami should look to UAT’s management, not to Lennox.) Mr. Goswami never had any agreement with Lennox, and Lennox has never breached any agreement with anyone. The trial court ruled correctly and should be affirmed.


text:
    Alexander C. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2953.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant; Alexander C. Wilson, pro se, Appellant.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders case, the appellant challenges the sentence imposed after his rule 3.800(a) motion was partially granted and he was resentenced. He alleges that the trial court committed per se reversible error when it failed to conduct a proper Faretta inquiry prior to allowing him to represent himself at the resentencing hearing. The state concedes that remand for resentencing is required.

The appellant was convicted of eight counts of forgery and seven counts of uttering a forged instrument and was sentenced to a total of forty years’ imprisonment. The appellant filed a motion to correct illegal sentence raising a number of claims which the trial court denied in part and granted in part. The trial court found that the appellant’s scoresheet had been improperly calculated and that the appellant was entitled to be resentenced under a corrected scoresheet. The trial court denied the appellant’s remaining claims for relief. After a hearing the appellant was resentenced to consecutive terms of imprisonment totaling forty years.

A resentencing is a de novo proceeding to which “the full panoply of due process considerations attaches.” Gonzalez v. State, 838 So.2d 1242 (Fla. 1st DCA 2003). As such, a defendant is entitled to representation of counsel at this “critical stage” of the proceedings. Id.; Sandoval, 884 So.2d at 215. When a defendant makes clear his desire to represent himself at a critical stage, the trial court is obligated to conduct a Faretta inquiry to determine if a defendant is knowingly and intelligently waiving his right to counsel and is “aware of the dangers and disadvantages of self-representation.” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Fla. R.Crim. P. 3.111(d). Although an adequate Faretta hearing does not require “magic words,” the trial court must ensure that the defendant has a general understanding of his rights and is proceeding with his “eyes wide open.” Potts v. State, 718 So.2d 757, 760 (Fla.1998). In the instant case, the trial court clearly did not conduct an adequate Faretta hearing after the appellant indicated that he wished to represent himself. The failure to conduct a Faretta inquiry is per se reversible error. See State v. Young, 626 So.2d 655, 657 (Fla.1993); Case v. State, 865 So.2d 557 (Fla. 1st DCA 2004); Sandoval v. State, 884 So.2d 214 (Fla. 2d DCA 2004); see also Gonzalez v. State, 838 So.2d 1242 (Fla. 1st DCA 2003) (holding that “the lack of representation [at resentencing] is not a sentencing error, but rather a due process error,” and thus the issue may be raised on appeal even if it was not preserved).

Accordingly, we reverse and remand the appellant’s sentence for a new resentenc-ing hearing. At that time the appellant may waive his right to representation if the trial court conducts an adequate Faret-ta hearing and determines that the waiver is made knowingly and intelligently.

REVERSED and REMANDED for re-sentencing with either appointed counsel or a valid waiver of the right to counsel.

BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (holding that a defendant has a constitutional right to self-representation, however, a trial court must examine the defendant to make sure the waiver of counsel is knowingly and intelligently made before allowing the defendant to proceed without the assistance of counsel).

      .During the resentencing the following exchange took place:
      Court: All right. We’re here for resentenc-ing. Mr. Wilson, do you wish to continue to represent yourself?
      Defendant: Yes, sir.

        Court: Okay. I will hear anything you'd like to say with regard to the sentences to be imposed in those eight counts.


author: KELLY, Judge.

text:
    Marquell L. STEVENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-6156.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.

      John E. Swisher, St. Petersburg (withdrew after briefing); James W. O’Neill, Jr., Gulfport (substituted as counsel of record), for Appellant.
   KELLY, Judge.

In December 2003, Marquell L. Stevens filed a timely, properly sworn motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 alleging five claims of ineffective assistance of counsel. Stevens’ motion recited the facts on which he was relying, and it was accompanied by a memorandum of law. The memorandum of law was not sworn. Relying on Oramas v. State, 615 So.2d 853 (Fla. 2d DCA 1993), the postconviction court concluded that it could not consider the memorandum because it lacked an oath. Stevens’ memorandum, not his motion, contained the legal argument that, among other things, explained how he was prejudiced by his attorney’s alleged ineffectiveness. Because the postconviction court did not consider the memorandum, it concluded that Stevens’ motion was facially insufficient, and it dismissed the motion. We reverse because the postconviction court erred when it refused to consider Stevens’ memorandum of law.

Rule 3.850 requires that motions filed pursuant to that rule be under oath. The purpose of the oath is to prevent false factual allegations by subjecting the mov-ant to prosecution for perjury if the factual allegations in the motion prove to be false. See Scott v. State, 464 So.2d 1171 (Fla.1985). In Oramas, 615 So.2d at 854, we upheld a dismissal for facial insufficiency where the postconviction court refused to consider the movant’s unsworn memorandum. However, in that case, the factual allegations supporting the motion were contained only in the memorandum of law. Accordingly, the posteonviction court could not consider those facts, and it correctly concluded that the motion was facially insufficient. Id. In contrast, Stevens’ properly sworn motion, not his memorandum, contains all the factual allegations he relies on to support his claims. It was not necessary for the memorandum to be under oath because it did not contain any additional factual allegations but rather set forth his legal arguments based on the facts contained in the sworn motion. Because the postconviction court erred when it refused to consider the memorandum, we reverse and remand for further proceedings.

Reversed and remanded.

SALCINES and CANADY, JJ., Concur.

      . Stevens' motion was pending for twenty-three months before the post-conviction court issued its order dismissing the motion as facially insufficient. As a result, the two-year limit for filing a rule 3.850 motion expired while the motion was pending. In such circumstances, dismissal should be without prejudice and the court should provide the mov-ant with an opportunity to file another rule 3.850 motion to correct the deficiencies. Cf. Lewis v. State, 777 So.2d 1083 (Fla. 2d DCA 2001).


author: STRINGER, Judge.

text:
    Kenneth FLYNN, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 2007.
    Brooke V. Elvington of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard E. MacDonald, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

Kenneth Flynn seeks review of his judgment and sentence for aggravated battery with great bodily harm. Flynn argues that the trial court erred in denying his motion for judgment of acquittal and that the trial court committed fundamental error in instructing the jury on self-defense. We conclude without further discussion that the State presented sufficient evidence of the crime. However, we reverse because the jury instruction constituted fundamental error.

Flynn was charged with aggravated battery with great bodily harm with a deadly weapon for allegedly striking the victim in the face with a pool stick during a barroom brawl in Hillsborough County. At the trial, the court gave the standard jury instruction on aggravated battery, which contains the forcible felony exception that this court has since held constitutes fundamental error when there is only one charged forcible felony. See York v. State, 932 So.2d 413, 415-16 (Fla. 2d DCA 2006); Houston v. State, 919 So.2d 489, 490 (Fla. 2d DCA 2005); Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004). The State recognizes this line of cases but argues that there are two reasons that giving the forcible felony exception instruction did not constitute fundamental error in this case.

First, the State argues that giving the forcible felony exception instruction did not constitute fundamental error because self-defense was not the primary defense argued at trial. The State argues that Flynn’s primary defense was that another person inflicted the serious injuries to the victim’s face with a beer mug. In support of its argument on this issue, the State relies on the Third District’s decision in Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006), in which the court concluded that giving the forcible felony exception instruction did not constitute fundamental error. In so doing, the Third District engaged in a lengthy and somewhat novel discussion regarding the application of fundamental error analysis to the forcible felony exception instruction that this court has not expressly adopted.

This is not the first time this argument has been made to this court. See Smith v. State, 933 So.2d 1275 (Fla. 2d DCA 2006). As we did in Smith, we decline to decide whether we agree with the fundamental error analysis employed in Martinez because that case is distinguishable. In Martinez, not only was self-defense not the defendant’s primary defense, the defendant’s primary defense was inconsistent with his defense of self-defense. 933 So.2d at 1167. Furthermore, the evidence presented regarding the victim’s injuries in Martinez was also inconsistent with a theory of self-defense. In this case, Flynn’s primary defense was not inconsistent with self-defense and neither was the evidence regarding the victim’s injuries. Finally, the jury in Martinez had also found that the defendant had a premeditated intent to kill, which completely negated the defense of self-defense. Id. at 1175. Thus, even if this court were to utilize the fundamental error analysis employed in Martinez, we do not believe it would compel affirmance.

Second, the State argues that giving the forcible felony exception instruction did not constitute fundamental error because no reasonable jury would have determined that Flynn acted in self-defense. In support of its argument on this issue, the State relies on Sutton v. State, 929 So.2d 1105 (Fla. 4th DCA), receded from on other grounds, Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006); and Thomas v. State, 918 So.2d 327 (Fla. 1st DCA 2005). In each of these cases, the courts decided that giving the forcible felony exception instruction did not constitute fundamental error because the defendant was not entitled to the instruction on self-defense as a matter of law. In so doing, the courts engaged in a fundamental error analysis that this court has not expressly adopted.

Again, this is not the first time this argument has been made to this court. See Ortiz v. State, 942 So.2d 1013 (Fla. 2d DCA 2006). As we did in Ortiz, we decline to decide whether to agree with the fundamental error analyses employed by the Sutton and Thomas courts. Flynn presented sufficient evidence to support a jury instruction on self-defense in the form of testimony that the victim was the aggressor. Thus, even if this court were to utilize the fundamental error analyses employed in Sutton and Thomas, these cases would not compel affirmance.

Reversed and remanded for a new trial.

DAVIS and WALLACE, JJ., Concur.


text:
    Jack WERESKI, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6686.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2007.

      Jack Wereski, 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.

WEBSTER, POLSTON, and HAWKES, JJ., concur.


text:
    CANDLER HOLDINGS LIMITED I, Appellant, v. WATCH OMEGA HOLDINGS, L.P., Appellee.
    No. 1D05-6132.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2007.

      William J. Haley of Brannon Brown Haley Robinson, Lake City, and Jack W. Shaw, Jr., Orlando, for Appellant.
    Dawn Giebler-Millner of Greenberg Traurig, P.A., Orlando, Elliott H. Scherker and Julissa Rodriguez of Greenberg Trau-rig, P.A., Miami, for Appellee.
   PER CURIAM.

Candler Holdings Limited I (Candler Holdings) appeals a final summary judgment granted to Watch Omega Holdings, L.P. (Watch Omega) on Watch Omega’s claim of adverse possession with respect to a parcel of real property in Leon County which vested title to that property in Watch Omega. We reverse because the record evidence does not meet the requirements of section 95.18, Florida Statutes (2003), governing adverse possession without color of title.

In 1988, Candler Holdings owned the Lafayette Place Shopping Center in Leon County. As part of that development, a retention pond was created for storm water drainage. In connection with a loan to Candler Holdings from General Electric Capital Corporation (GE), Candler Holdings granted GE a mortgage on the shopping center property and several other unrelated parcels. The parcel of land on which the retention pond was located, however, was not included within the legal description of the mortgaged property. When that mortgage was foreclosed, GE assigned its interest to Watch Omega’s predecessor in title, CJU, Ltd. (CJU). In 1998, CJU transferred that interest to Watch Omega. In 2003, when title work was being performed on Watch Omega’s property, the parties first learned that the record title to the parcel of land on which the retention pond is located remained in the name of Candler Holdings. Until that time, the parties were under the mistaken impression that the legal description of the retention pond parcel had been included in the mortgaged property.

Upon learning that it had legal title to the retention pond, Candler Holdings asserted an interest in the property. Watch Omega responded by filing a two-count complaint for adverse possession and reformation of mortgage and deed. The complaint sets forth a legal description for the retention pond parcel. Watch Omega alleges that on its ad valorem tax returns the legal description of the retention pond was included within the legal description of the Lafayette Place Shopping Center. Those returns, however, were neither appended to the complaint nor introduced into evidence below; and are not contained in this record.

In support of its motion for summary judgment, Watch Omega filed the affidavits of representatives of CJU and Watch Omega. Both assert that a review of Leon County’s tax rolls indicate that the retention pond was treated as part of the Lafayette Place Shopping Center. No public records are appended to either affidavit and no public records were introduced into evidence below by Watch Omega. In his affidavit in opposition to the motion for summary judgment, the principal of Candler Holdings, Asa G. Candler, disputes Watch Omega’s contention, stating that the Lafayette Place Shopping Center and the retention pond are two separate parcels for tax purposes. In his earlier deposition, Candler had testified that his son had talked to someone in the Leon County Tax Assessor’s Office and was told that, because the parcel containing the retention pond was so small, no tax bill had been sent regarding that parcel. Candler Holdings did not introduce any public records in support of Candler’s statements.

At the summary judgment hearing, Candler argued that, to obtain relief pursuant to section 95.18, it was Watch Omega’s affirmative duty to prove it had filed “a return of the property by proper legal description to the property appraiser of [Leon County] within one year after entering into possession and ... subsequently paid all taxes ... levied against the property ...” as required by section 95.18(1). Even though the record does not contain evidence of such a return, or the form DR-452, Florida Administrative Code Rule 12D-16.002, mentioned in Manin v. Milander, 452 So.2d 997 (Fla. 3d DCA 1984), the trial court entered final summary judgment in favor of Watch Omega, relying upon Candler’s deposition testimony that he had not paid taxes on the property containing the retention pond and rejecting his affidavit on the grounds that it constituted hearsay.

As stated in Meyer v. Law, 287 So.2d 37, 40-41 (Fla.1973):

In Florida, there are only two ways to acquire land by adverse possession. First, without color of title, the claimant must show seven years of open, continuous, actual possession, hostile to all who would challenge such possession, must both pay all taxes for the seven year period, returning said land for taxes during the first year of occupation, and enclose or cultivate said lands for the seven year period. Second, with color of title, the claimant must show he entered into possession of the premises under a claim based upon a written instrument of conveyance of the premises in question, or deed, or judgment of a competent court, and there has been a continued occupation and possession of the premises ...
Public policy and stability of our society, ..., requires strict compliance with the appropriate statutes by those seeking ownership through adverse possession.

Under either section 95.16 or section 95.18, Florida Statutes (2003) “the possession of the real property by the one asserting the right must be continuous, adverse, and exclusive of any other right.” Mullins v. Colbert, 898 So.2d 1149, 1151 (Fla. 5th DCA 2005). As we explained in Turner v. Wheeler, 498 So.2d 1039, 1042 (Fla. 1st DCA 1986):

Adverse possession is not favored and all doubts are resolved in favor of the owner. It is essential to a finding of adverse possession that the possessor’s use not be permissive. Actual use is presumed permissive and the user has the burden to demonstrate that his use was without permission. Permissive use can become adverse, but only upon clear, positive and distinct notification of the owner by the permissive user that he is claiming the property other than by permission.

(Citations omitted). “Each essential element of an adverse possession claim must be proven by clear and convincing evidence.” Bailey v. Hagler, 575 So.2d 679, 681 (Fla. 1st DCA 1991). (Citations omitted). “The claim cannot be ‘established by loose, uncertain testimony which necessitates resort to mere conjecture.’ ” Grant v. Strickland, 385 So.2d 1123, 1125 (Fla. 1st DCA 1980)(quoting Downing v. Bird, 100 So.2d 57, 64 (Fla.1958)). In addition, “[t]o establish adverse possession without color of title, the claimant must show ... payment of all taxes by proper legal description for the statutory period.” McLemore v. McLemore, 675 So.2d 202, 206 (Fla. 1st DCA 1996).

The requirements of the statute and the case law were not met in this case. As the movant for summary judgment, Watch Omega bore a heavy burden, see Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1095 (Fla. 1st DCA 1999), and was required to prove “a negative ... the nonexistence of a genuine issue of material fact,” Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966), before “it becomes necessary to determine the legal sufficiency of the affidavits or other evidence submitted by the party moved against.” Id. Watch Omega’s reliance solely on the bare affidavits of representatives of it and CJU was clearly insufficient to meet its heavy burden. The affiants’ review of the public records and assertion that the appropriate taxes had been paid on the disputed property, by itself, was insufficient to establish adverse possession here. Zoda v. Hedden, 596 So.2d 1225, 1226 (Fla. 2d DCA 1992)(unau-thenticated documents referred to in the affidavit of appellee’s counsel, Walter E. Smith, which were not attached to his affidavit, constituted incompetent hearsay not sufficient to support summary judgment). “[A] corporate officer’s affidavit which merely states conclusions or opinion [is insufficient] even if it is based on personal knowledge.” Alvarez v. Florida Ins. Guar. Ass’n, 661 So.2d 1230, 1232 n. 2 (Fla. 3d DCA 1995)(citing Nour v. All State Pipe Supply Co., 487 So.2d 1204, 1205 (Fla. 1st DCA 1986)).

REVERSED and REMANDED for further proceedings consistent with this opinion.

BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.

      . Section 95.18, which has remained substantively the same throughout the period of the parties’ transactions, with one very minor technical change, see chapter 95-147, § 523, at 394, Laws of Florida, provides:
      (1) When the occupant or those under whom the occupant claims have been in actual continued occupation of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, the property actually occupied shall be held adversely if the person claiming adverse possession made a return of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality.
      (2) For the purpose of this section, property shall be deemed to be possessed in the following cases only:
      (a) When it has been protected by substantial enclosure.
      (b) When it has been usually cultivated or improved.

      . The count seeking reformation is not before us.

      . We note that the legal description in the complaint is not identical to the legal description contained within the final summary judgment.

      . See Forman v. Ward, 219 So.2d 68, 69 (Fla. 1st DCA 1969)(suggesting that compliance with this requirement of section 95.18 may be achieved by delivering a return based upon a legal description "having reference to a book and page number in the records of the circuit court clerk where a recorded deed may be found.").

      . Section 95.16, Florida Statutes (2003), addressing adverse possession under color of title, has not been invoked in this case.


text:
    Guy SPEARING, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1534.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2007.

      Guy Spearing, pro se, Appellant.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging a scoresheet error. We reject the argument that the error is harmless, and reverse.

On October 6, 1993, Appellant pled guilty to two counts of attempted capital sexual battery, lesser-included offenses of capital sexual battery, and was sentenced pursuant to a scoresheet to seven years’ imprisonment followed by five years’ probation. Appellant was found to have violated his probation on three separate occasions. On the most recent occasion, Appellant was sentenced to 25 years’ imprisonment. Appellant filed the instant motion alleging his sentence is illegal arguing his scoresheet erroneously indicates 314 points for the primary offense instead of 259 points, and the sentence imposed could not be imposed under a properly calculated scoresheet with a one-cell bump. The trial court denied the motion based on the State’s argument that the error is harmless because Appellant violated probation three times, permitting three cell bumps and a sentencing range from 12-27 years’ imprisonment.

If Appellant is correct that he pled to a lesser-included offense, then he was improperly assessed 314 points instead of 259 points because attempted capital sexual battery is a first-degree felony. § 794.02, Fla. Stat. (Supp.1992); § 777.04(4)(c), Fla. Stat. (1991); Fla. R.Crim. P. 3.988(a). Appellant acknowledges the trial court incorporated a one-cell bump at his most recent violation of probation sentencing. This reduction in points, plus the one-cell bump the trial court initially chose to incorporate, decreases Appellant’s sentencing exposure to a range of 7-17 years’ imprisonment, which is less than his current 25-year sentence.

We reject the contention that the calculation error is harmless. Although the trial court was permitted to incorporate a three-cell bump, increasing Appellant’s sentencing range from 12-27 years’ imprisonment, which would have resulted in the 25-year sentence being legal, we will not speculate that the trial court would have chosen to do so had Appellant’s scoresheet been properly calculated. See Jefferson v. State, 830 So.2d 195 (Fla. 4th DCA 2002).

This court has held that “when the deletion of improperly included points in the guidelines score results in a reduction of one or more cells, the sentence should be vacated and the cause remanded for resen-tencing upon a properly calculated score-sheet.” Sellers v. State, 578 So.2d 339, 341 (Fla. 1st DCA 1991), approved, 586 So.2d 340 (Fla.1991).

We reverse the trial court’s denial of Appellant’s motion and remand with instructions to attach portions of the record conclusively demonstrating Appellant is not entitled to be resentenced, or to resen-tence Appellant pursuant to a correctly calculated scoresheet. Upon resentencing, it is within the trial court’s discretion to incorporate a three-cell bump based on the three violations of probation.

REVERSED and REMANDED.

HAWKES and THOMAS, JJ., and ERVIN, III, RICHARD W., Senior Judge, concur.


text:
    Christopher DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1678.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2007.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, 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.

AFFIRMED. See State v. Salzero, 714 So.2d 445 (Fla.1998); State v. Clifton, 905 So.2d 172, 175 (Fla. 5th DCA 2005).

THOMPSON, PALMER and MONACO, JJ., concur.


text:
    Joseph MEDINA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-891.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2007.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Paleveda, 745 So.2d 1026 (Fla. 2d DCA 1999).

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


text:
    Robert E. BANKS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-3342.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    Robert E. Banks, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We reject petitioner’s contention that the circuit court departed from the essential requirements of law when it denied his petition for writ of mandamus. However, as respondent correctly concedes, petitioner’s claim constituted a collateral criminal proceeding, and the imposition of a lien on his inmate trust account to recoup filing fees and costs was therefore unauthorized. See Wagner v. McDonough, 927 So.2d 216 (Fla. 1st DCA 2006). Accordingly, while we deny the petition for writ of certiorari as it pertains to the final order denying mandamus relief, we vacate the order imposing a lien on petitioner’s inmate trust account and direct the circuit court to reimburse any funds withdrawn pursuant to that order.

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


text:
    Herbert L. BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0147.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    Herbert L. Brooks, pro se, Petitioner.
    Bill McCollum, Attorney Genei'al, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(5)(C).

BROWNING, C.J., WOLF, and KAHN, JJ., concur.


text:
    Horace RUCKER, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-5993.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    Horace Rucker, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005).

BROWNING, C.J., WOLF, and KAHN, JJ., concur.


text:
    Anthony BEDGOOD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6490.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    Anthony Bedgood, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

BROWNING, C.J., WOLF, and KAHN, JJ., concur.


text:
    James E. POLITE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0038.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    James E. Polite, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

BROWNING, C.J., WOLF, and KAHN, JJ., concur.


text:
    Gerald COAXUM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0046.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    Gerald. Coaxum, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

BROWNING, C.J., WOLF, and KAHN, JJ., concur.


text:
    Wanda WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3089.
    District Court of Appeal of Florida, First District.
    Jan. 31, 2007.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Wanda Wright was convicted of a violation of section 787.04(4), Florida Statutes, for failing to timely return her children to their father, the custodial parent, following a summer vacation visit outside the state of Florida. The visitation was pursuant to a modified final judgment respecting custody. A final judgment is not “any action or proceeding pending in this state” as required by the statute.

The judgment of conviction and sentence is REVERSED.

BARFIELD, PADOVANO, and POLSTON, JJ., concur.


author: NORTHCUTT, Judge.

text:
    In the Interest of L.C. and L.C., children. L.R., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D06-43.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2007.

      Kimberly Nolan Hopkins, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Patricia Murphy Propheter of Statewide Guardian ad Litem Office, Orlando, for Appellee Guardian ad Litem Program.
   NORTHCUTT, Judge.

L.R. is the mother of two children who were adjudicated dependent both as to her and as to their father, J.C. We reverse.

The petition for dependency alleged that the children were at “substantial risk or imminent threat of harm o[r] abuse or neglect” from L.R. on four bases: violence, § 39.01(30)(i), Fla. Stat. (2005); failure to protect the children, § 39.01(30)®; substance or alcohol abuse, § 39.01(30)(g); and abandonment, § 39.010(1). See § 39.01(14)(f). The circuit court found that the Department of Children and Family Services had failed to prove the alleged abandonment. The court based its dependency adjudication on the three other allegations.

We review a dependency adjudication for abuse of discretion. An adjudication of dependency will be upheld if the court applied the correct law and its factual rulings are supported by competent substantial evidence. See R.F. v. Dep’t of Children & Families (In re M.F.), 770 So.2d 1189, 1192 (Fla.2000).

Section 39.01(14)(f) permits an adjudication of dependency if the court finds the children to be “at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians,” even if no actual abuse is proved. But this prospective abuse must, indeed, be “imminent.” See N.D. v. Dep’t of Children & Family Servs. (In re T.B.), 939 So.2d 1192, 1194 (Fla. 2d DCA 2006). Thus, the issue is whether “future behavior will adversely affect the child and can be clearly and certainly predicted.” F.S.G. v. Dep’t of Children & Family Servs. (In re P.S.), 825 So.2d 530, 531 (Fla. 2d DCA 2002). Put another way, the court must determine whether the prospective abuse is “likely to happen” or “expected.” J.L. v. Dep’t of Children & Family Servs. (In re J.L.), 824 So.2d 1023, 1025 (Fla. 2d DCA 2002). Moreover, courts have required a nexus between the parent’s alleged conduct and the potential for future abuse of the child. See N.D., 939 So.2d at 1194.

VIOLENCE

Domestic violence may constitute either harm to a child’s health or welfare as defined in section 39.01(30), or abuse of a child as defined in section 39.01(2). Harm can occur when a person “[e]ngages in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child.” § 39.01(30)(i). However, domestic violence may constitute “harm” only if it occurs in the child’s presence. M.B. v. Dep’t of Children & Family Servs. (In re K.B.), 937 So.2d 709, 710 (Fla. 2d DCA 2006); S.B. v. Dep’t of Children & Family Servs. (In re E.B.), 834 So.2d 415, 416 (Fla. 2d DCA 2003). Some evidence must show that the child has seen the violence or was aware of it. A.R. v. Dep’t of Children & Family Servs. (In re J.A.H.), 876 So.2d 647, 649 (Fla. 2d DCA 2004); D.D. v. Dep’t of Children & Families, 773 So.2d 615, 617-18 (Fla. 5th DCA 2000). For domestic violence to constitute “abuse,” the child must witness the violence and the violence must result in some physical, mental, or sexual injury to the child. M.B., 937 So.2d at 711; W.T. v. Dep’t of Children & Families, 787 So.2d 184, 185 (Fla. 5th DCA 2001).

In this case, the circuit court’s dependency order found that “the mother and the father engaged in domestic violence in the presence of the children.” See § 39.01(14)(f). In its oral ruling, the court found that the domestic violence placed the children at risk of abuse and neglect. We have detailed the evidence presented on this point in the father’s appeal, J.C. v. Dep’t of Children & Family Servs. (In re L.C.), 947 So.2d 1246 (Fla. 2d DCA 2007), and will not reiterate it at length here. Suffice it to say, the Department relied on documents in which L.R. and J.C. had previously accused each other of sundry violent acts. But these documents, save one, all addressed incidents that occurred before 2000, when the oldest of the parties’ children was born. DCF also questioned L.R. about a shooting incident in 1997. As we held in J.C., these incidents, remote in time and not involving the children, were not sufficiently predictive to support an adjudication of dependency based on prospective abuse. See N.D., 939 So.2d at 1194; F.S.G, 825 So.2d at 531; J.L., 824 So.2d at 1025.

The one document that pertained to violence after the children’s births was the father’s written petition for a domestic violence injunction against L.R., filed in February 2004. His form petition alleged that L.R. struck him, threw a bottle at him, tossed hot coffee on him while he was driving, and pulled his hair. He checked a box on the form that indicated the incidents took place in the presence of the children. At trial, however, J.C. asserted that he had checked that box inadvertently, and that the incidents had not occurred in the children’s presence. The circuit court specifically found that his explanation was not credible.

Even so, this document was not sufficient to support the circuit court’s finding that the parties had engaged in violence in the children’s presence. Obviously, the document was hearsay. § 90.801(1), Fla. Stat. (2005). Section 90.801(2)(a) provides an exception to the hearsay rule if the declarant testifies at trial, is subject to cross-examination concerning the statement, and “the statement is inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition .... ” (Emphasis supplied.) J.C. did testify, and he disavowed his prior written assertion that L.R.’s violence had taken place in the children’s presence. Thus, his written statement in support of the request for a domestic violence injunction against L.R. was a prior inconsistent statement. But the statement was not made in the manner described in section 90.801(2), i.e., under oath in a trial or other proceeding. Therefore, it did not meet the requirements of the section 90.801(2)(a) hearsay exception and was not admissible as substantive evidence. It was merely a prior inconsistent statement, admissible only to impeach the declarant. See Smith v. State, 880 So.2d 730, 741 (Fla. 2d DCA 2004) (stating that a witness’s prior inconsistent statement to a police officer cannot be used as substantive evidence).

Consequently, J.C.’s prior inconsistent statement in his written request for an injunction against L.R. was not substantive evidence that L.R. committed violent acts in the children’s presence. This document was DCF’s only evidence on this point. The parents both denied that L.R. had ever acted violently in front of the children. Without any competent evidence of such acts, there was insufficient evidence to predict that L.R.’s behavior put the children at risk of abuse or neglect as required for an adjudication of dependency under section 39.01(14)(f). See N.D., 939 So.2d at 1194; F.S.G., 825 So.2d at 531; J.L., Sr., 824 So.2d at 1025.

FAILURE TO PROTECT

The petition for dependency alleged that L.R. failed to protect the children “from inflicted physical, mental, or sexual injury” because she frequently allowed them to be alone with their father, J.C., when she knew of his violent tendencies. See § 39.01(30)(j). The circuit court adjudicated the children dependent on this ground based on the same violent acts addressed in our previous discussion of the domestic violence evidence, and in our opinion in J.C. The court also pointed to L.R.’s assertion that she would have no reservations about leaving the children with their father in the future.

We first note that the petition did not allege that L.R.’s children had been injured, either mentally, physically or sexually. Generally, in these cases, it is alleged that the parent failed to protect the child from harm that actually occurred. See, e.g., G.R. v. Dep’t of Children & Family Servs. (In re C.R.), 937 So.2d 1257 (Fla. 2d DCA 2006) (concerning father who used excessive punishment and mother who failed to protect child from the father’s acts); A.B. v. Dep’t of Children & Family Servs., 901 So.2d 324 (Fla. 3d DCA 2005) (affirming a dependency where mother failed to protect her daughter from sexual abuse when the daughter had told her mother about the abuse).

But dependency can be based on evidence that a parent will place a child at substantial risk of imminent abuse by failing to protect the child from an abuser even when the child has not been previously abused. This scenario usually arises when a person has abused one of several children and the parent failed to protect the abused child. DCF must prove that the nonabused child is at risk from the abuser and that the parent will also fail to protect that child. See G.R, 937 So.2d at 1262-63; C.M. v. Dep’t of Children & Family Servs. (In re C.M.), 844 So.2d 765, 766 (Fla. 2d DCA 2003).

But section 39.01(14)(f) requires a nexus between the parent’s behavior and the prospective abuse. See N.D., 939 So.2d at 1194; F.S.G., 825 So.2d at 531; J.L., 824 So.2d at 1025. In failure-to-protect cases, two nexuses must be proved: first, that the abuser’s acts demonstrate that he or she will continue the abuse; and second, that the parent’s behavior shows that he or she will continue failing to protect the child. Regarding the first nexus, as explained in our opinion in J.C., the evidence in this case was insufficient to prove that J.C.’s past behavior demonstrated that he would abuse the children in the future. Thus, DCF failed to prove a threat of prospective abuse from which the children needed protection. Concerning the second nexus, DCF presented no evidence that L.R. had failed to protect the children in the past. Indeed, it offered no proof that the children had been harmed or abused at all. Consequently, there was no competent evidence to support a finding that L.R. would fail to protect them in the future.

SUBSTANCE ABUSE

The circuit court found that “the mother’s chronic and severe use of illegal drugs has demonstrably affected the children.” See § 39.01(30)(g). In arriving at this finding, the court again relied on J.C.’s written request for a domestic violence injunction, in which he alleged that L.R. took one of the children with her on an eight-hour drug binge. At trial, J.C. disavowed the allegation. He testified that L.R. had left with one of their children for about eight hours, but that when she returned she was not under the influence of drugs or alcohol. L.R. denied that she had purchased or used drugs during this outing. She recounted that she and the child had gone to a park and then visited a friend. As we stated in our discussion of the domestic violence issue, J.C.’s prior inconsistent statements were not substantive evidence. See Smith, 880 So.2d at 741; Department of Health and Rehabilitative Services v. M.B., 701 So.2d 1155, 1157, 1160. They did not provide competent evidence that L.R.’s drug use demonstrably affected the children, as required in section 39.01(3)(g). See P.C. v. Dep’t. of Children & Family Servs., 898 So.2d 195, 198 (Fla. 2d DCA 2005); J.S. v. Dep’t of Children & Family Servs. (In re C.S.), 892 So.2d 1155, 1157-58 (Fla. 2d DCA 2005).

At trial, L.R. did admit that she had used drugs in the past and had been committed under the Baker Act and the Marchman Act as a result. But she and J.C. both denied that she had used drugs in the presence of the children. She testified that she had tried to stop using drugs and had voluntarily attended drug abuse rehabilitation programs, but she admitted that she had suffered a relapse several years before the trial. Still, DCF presented no evidence, other than J.C.’s 2004 request for a domestic violence injunction, to substantiate the section 39.01(30)(g) requirement that L.R.’s drug use “demonstrably affected” the children. As such, there was no competent evidence to prove that the children were at substantial risk of imminent abuse or neglect because of L.R.’s drug problem. See § 39.01(14)(f), N.D., 939 So.2d at 1194; F.S.G., 825 So.2d at 531; J.L., 824 So.2d at 1025, see also P.C., 898 So.2d at 198; J.S., 892 So.2d at 1157-58.

CONCLUSION

For all the reasons stated, we reverse the adjudication of dependency as to L.R. We note that the record contains allegations against her that arose after DCF filed the dependency petition at issue in this case and that were not addressed at the trial below. Our decision today is grounded solely on the evidence presented at that trial.

Reversed.

CASANUEVA and SALCINES, JJ., Concur.

      . Our opinion in J.C. v. Dep't of Children & Family Servs. (In re L.C.), No. 2D06-219, 947 So.2d 1246, 2007 WL 258145 (Fla. 2d DCA January 31, 2007), is being issued simultaneously with this opinion.

      . The second amended petition for dependency-